Exhibit 10.4
EXECUTION COPY
--------------
================================================================================
SECOND AMENDED AND RESTATED CUSTODIAL AND DISBURSEMENT
AGREEMENT
Among
CDC MORTGAGE CAPITAL INC., as Buyer,
AMERICAN HOME MORTGAGE CORP.,
AMERICAN HOME MORTGAGE INVESTMENT CORP.,
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
AMERICAN HOME MORTGAGE HOLDINGS, INC., and
COLUMBIA NATIONAL, INCORPORATED, collectively as Seller,
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Custodian,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Disbursement Agent
Dated as of June 1, 2004
================================================================================
TABLE OF CONTENTS
Page
Section 1. Definitions......................................................2
Section 2. Delivery of Mortgage File.......................................10
Section 3. Asset Schedule and Exception Report; Trust Receipt..............13
Section 4. Obligations of Custodian........................................19
Section 5. Release of Mortgage Files.......................................19
Section 6. Fees and Expenses of Custodian..................................22
Section 7. Removal or Resignation of Custodian and Disbursement Agent......23
Section 8. Examination of Files, Books and Records.........................24
Section 9. Insurance.......................................................24
Section 10. Representations and Warranties..................................24
Section 11. Disbursement Agent Duties.......................................25
Section 12. No Adverse Interest.............................................34
Section 13. Indemnification.................................................35
Section 14. Reliance of Custodian...........................................36
Section 15. Term of Agreement...............................................37
Section 16. Notices.........................................................37
Section 17. Governing Law...................................................38
Section 18. Authorized Representatives......................................38
Section 19. Amendment.......................................................38
Section 20. Cumulative Rights...............................................38
Section 21. Assignment; Binding upon Successors.............................38
Section 22. Entire Agreement; Severability..................................39
Section 23. Execution in Counterparts.......................................39
Section 24. Tax Reports.....................................................39
Section 25. Assignment by Buyer.............................................39
Section 26. Submission to Jurisdiction; Waivers.............................39
Section 27. Confidentiality.................................................40
Section 28. Obligations Joint and Several...................................41
-i-
Annex 1 Seller Asset Schedule Delivery Information
Annex 2 Trust Receipt
Annex 3 Custodial Identification Certificate
Annex 4 Review Procedures
Annex 5-A Request For Release And Receipt
Annex 5-B Form of Request For Release of Documents And Receipt
Annex 5-C Request For Release
Annex 6 Authorized Representatives of Buyer
Annex 7 Authorized Representatives of Seller
Annex 8 Authorized Representatives of Custodian
Annex 9 Authorized Representatives of Disbursement Agent
Annex 10 Form of Escrow Instruction Letter
Annex 11 Exception Codes
Annex 12 Transmittal & Bailment Letter
Annex 13 Transmittal & Bailment Letter
Annex 14 Fannie Mae Master Bailee Letter
Annex 15-A Fannie Mae Document List
Annex 15-B Freddie Mac Document List
Annex 16 Form of Lost Note Affidavit/Assignment of Mortgage
Annex 17 Form of Settlement Report
Annex 18-A Form of Seller's Release
Annex 18-B Form of Warehouse Lender's Release
Annex 19 Form of Payment Date Report
Annex 20 Form of Electronic Tracking Agreement
Annex 21 Form of Agreement and Release
-ii-
SECOND AMENDED AND RESTATED CUSTODIAL AND DISBURSEMENT AGREEMENT
("Agreement") dated as of June 1, 2004 made by and among:
(i) AMERICAN HOME MORTGAGE CORP., a New York corporation ("AHMC"),
AMERICAN HOME MORTGAGE INVESTMENT CORP., a Maryland corporation
("AHMIC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC., a Maryland
corporation ("AHMA"), AMERICAN HOME MORTGAGE HOLDINGS, Inc., a
Delaware corporation ("AHMH"), COLUMBIA NATIONAL, INCORPORATED, a
Maryland corporation ("CNI" and, collectively with AHMC, AHMIC, AHMA
and AHMH and their respective successors in interest, the "Seller"
and each a "Seller Entity");
(ii) DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian for Buyer
pursuant to this Agreement (in such capacity, including its
successors in interest and any successor Custodian as permitted
hereunder, "Custodian");
(iii) DEUTSCHE BANK NATIONAL TRUST COMPANY, as disbursement agent for
Buyer pursuant to this Agreement (in such capacity, including its
successors in interest and any successor Disbursement Agent as
permitted hereunder, "Disbursement Agent"); and
(iv) CDC MORTGAGE CAPITAL INC., a New York corporation (including its
successors in interest, "Buyer").
RECITALS
Seller and Buyer are parties to the Second Amended and Restated
Master Repurchase Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Repurchase Agreement"), pursuant to which Seller and Buyer have agreed, subject
to the terms and conditions of the Repurchase Agreement, to enter into
transactions (each, a "Transaction") in which Buyer has agreed to consider the
purchase from time to time from Seller of certain Mortgage Loans with a
simultaneous agreement by Seller to repurchase such Mortgage Loans.
AHMC and Buyer previously entered into a Custodial and Disbursement
Agreement, dated as of April 17, 2002, as amended by the Amended and Restated
Custodial and Disbursement Agreement, dated as of May 14, 2003 (the "Original
Agreement") and the Seller and Buyer now desire to amend and restate the
Original Agreement to include all of the Seller Entities as parties.
It is a condition precedent to the effectiveness of the Repurchase
Agreement that the parties hereto execute and deliver this Agreement to provide
for the appointment of Custodian as custodian and Disbursement Agent as
disbursement agent hereunder. Accordingly, the parties hereto agree as follows:
Section 1. Definitions.
Unless otherwise defined herein, capitalized terms used herein and
defined in the Repurchase Agreement shall have the respective meanings given
them in the Repurchase Agreement, and the following terms shall have the
following meanings:
"Additional Seller Funded Amount" for any Check Presentation Date
shall be an amount equal to the difference between the Total Required Funds and
sum of (a) the aggregate Buyer Funded Amount on such Check Presentation Date
plus (b) the Seller Funded Wire Amount for such Check Presentation Date.
"Affiliate" shall mean with respect to any Person, any "affiliate"
of such Person as such term is defined in the Bankruptcy Code.
"Agency" shall mean Freddie Mac or Fannie Mae, as applicable.
"Agreement and Release" shall mean a letter in form and substance
acceptable to Buyer in its sole discretion, substantially in the form of Annex
21, from a Warehouse Lender to Buyer, (i) unconditionally releasing all of
Warehouse Lender's right, title and interest in certain Mortgage Loans
identified therein upon receipt of payment by the Warehouse Lender, and (ii)
acknowledging that Warehouse Lender shall remove its name from the Interim
Funder field on the MERS(R) System within one Business Day of the related
Purchase Date.
"AHMA" shall mean American Home Mortgage Acceptance, Inc., a
Maryland corporation and its successors in interest.
"AHMC" shall mean American Home Mortgage Corp., a New York
Corporation and its successors in interest.
"AHMH" shall mean American Home Mortgage Holdings, Inc., a Delaware
corporation and its successors in interest.
"AHMIC" shall mean American Home Mortgage Investment Corp., a
Maryland corporation and its successors in interest.
"Applicable Agency Documents": The documents listed on Annex 15-A or
Annex 15-B, as applicable.
"Applicable Guide" shall mean with respect to Fannie Mae or Freddie
Mac, the applicable guide published by either Fannie Mae or Freddie Mac setting
forth the requirements each Mortgage Loan needs to satisfy in order to be
eligible for purchase by Fannie Mae or Freddie Mac, as such guide may be amended
or supplemented from time to time or any other set of criteria established by
Fannie Mae or Freddie Mac that a Mortgage Loan must satisfy in order to be
eligible for purchase by Fannie Mae or Freddie Mac.
"Asset Schedule and Exception Report" shall mean a list of Eligible
Assets delivered by Custodian to Buyer on each Business Day, reflecting the
Mortgage Loans held by Custodian for the benefit of Buyer (other than Mortgage
Loans with Fatal Exceptions), which
-2-
includes the exception codes set forth on Annex 11 hereto indicating any
Exceptions with respect to each Eligible Asset listed thereon. Each Asset
Schedule and Exception Report shall set forth (a) the Mortgage Loans being sold
to Buyer on any applicable Purchase Date as well as the Mortgage Loans
previously sold to Buyer and held by Custodian hereunder, and (b) all Exceptions
with respect thereto, with any updates thereto from the time last delivered.
"Assignment of Mortgage" shall mean 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 transfer of the Mortgage to the party indicated therein.
"Authorized Representative" shall have the meaning specified in
Section 18.
"Bailee Letter": A Fannie Mae Bailee Letter or a Freddie Mac Bailee
Letter, as applicable.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of
1978, as amended from time to time.
"Business Day" shall mean any day other than (i) a Saturday or
Sunday or (ii) a day on which banking institutions in the state of New York or
any of Custodian, Disbursement Agent, Seller or Buyer is authorized or obligated
by law or executive order to be closed.
"Buyer" shall have the meaning specified in the preamble to this
Agreement.
"Buyer Funded Amount" shall mean with respect to each Check Funded
Loan, an amount equal to the Purchase Price for such Mortgage Loan; provided
there are no Fatal Exceptions and shall mean zero with respect to each such
Mortgage Loan for which there is a Fatal Exception.
"Check Disbursement Account" shall have the meaning specified in the
Check Disbursement Agreement.
"Check Disbursement Agreement" shall mean the Letter Agreement,
dated as of the date hereof, among each Seller Entity, Buyer, Disbursement
Agent, Deutsche Bank Trust Company Delaware and Check Disbursement Bank, as may
be amended from time to time.
"Check Disbursement Bank" shall mean Deutsche Bank Trust Company
Americas, and its successors in interest.
"Check Funded Loan" shall mean a Wet-Ink Mortgage Loan which
Sellerintends to fund at origination by means of delivering a check written on
the Check Disbursement Account maintained by Seller at Deutsche Bank Trust
Company Americas, which check is not a certified check.
"Check Funding Schedule" shall mean a schedule delivered by Seller
to Buyer, Disbursement Agent and Check Disbursement Bank with respect to Check
Funded Loans which sets forth the following information with respect to each
check used to fund origination of such
-3-
Check Funded Loan: (i) the Loan ID; (ii) the outstanding principal balance of
such Check Funded Loan; (iii) the check number; (iv) the check payee; (v) the
check amount; and (vi) the issue date of such check.
"Check Funding Exception" shall mean any of the following:
Exception Description
--------- -----------
Above Max Dollar A single check is for an amount
in excess of $500,000
Canceled Item Check has previously been
cancelled
Duplicate Paid Duplicate check already funded
Paid Disagrees with Issue Dollar amount on check is
different then identified in
Check Funding Schedule
Paid Without Issue Check not identified on a Check
Funding Schedule
Stale Date Check was issued more than 30
days prior to presentment
Stop Suspects Any check with the same dollar
amount as a cancelled check
"Check Presentation Date" shall mean the Business Day a check is
presented for payment against the Check Disbursement Account.
"Check Reconciliation Date" shall have the meaning specified in the
Check Disbursement Agreement.
"Check Presentment Report" shall have the meaning specified in the
Check Disbursement Agreement.
"Closed End Loan" shall mean a Mortgage Loan which is not a HELOC.
"Confirmation" shall have the meaning specified in the Repurchase
Agreement.
"Co-op" shall mean a private, cooperative housing corporation,
having only one class of stock outstanding, which owns or leases land and all or
part of a building or buildings, including apartments, spaces used for
commercial purposes and common areas therein and whose board of directors
authorizes the sale of stock and the issuance of a Co-op Lease.
"Co-op Lease" shall mean with respect to a Co-op Loan, the lease
with respect to a dwelling unit occupied by the Mortgagor and relating to the
stock allocated to the related dwelling unit.
"Co-op Loan" shall mean an Eligible Asset that is a Conforming
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in a
Co-op and a collateral assignment of the related Co-op Lease.
-4-
"Co-op Security Agreement" shall mean the agreement creating a
security interest in the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan and
the related Co-op Lease.
"Credit Limit" shall mean, with respect to each HELOC, the maximum
amount permitted under the terms of the related Credit Line Agreement.
"Credit Line Agreement" shall mean, with respect to each HELOC, the
related home equity line of credit agreement, account agreement and promissory
note (if any) executed by the related mortgagor and any amendment or
modification thereof.
"Custodial Delivery Failure" shall have the meaning specified in
Section 13(b).
"Custodial Identification Certificate" shall mean the certificate
executed by Seller in connection with the delivery of one or more Mortgage Files
to be held by Custodian pursuant to this Agreement, a form of which is attached
as Annex 3 hereto.
"Custodian" shall have the meaning specified in the preamble to this
Agreement.
"DDA Account" shall have the meaning specified in the Check
Disbursement Agreement.
"Disbursement Account" shall have the meaning specified in Section
11(a)(i).
"Disbursement Agent" shall have the meaning specified in the
preamble to this Agreement.
"Edit Check" shall mean a review conducted by the Disbursement Agent
in accordance with the Edit Check Procedures.
"Edit Check Agreement" shall mean the separate letter agreement, if
any, between Disbursement Agent and Buyer setting forth the Edit Check
Procedures, as may be amended from time to time.
"Edit Check Procedures" shall mean, if an Edit Check Agreement has
been entered into, those certain edit check procedures set forth in the Edit
Check Agreement, and if no Edit Check Agreement has been entered into, none.
"Electronic Agent" shall mean MERSCORP, INC, and its successors in
interest.
"Electronic Tracking Agreement" shall mean The Electronic Tracking
Agreement, in a form substantially similar to the form set forth as Annex 19
hereto with such changes as may be reasonably agreed to by the parties thereto,
among Buyer, Seller, Electronic Agent and MERS, as the same shall be amended,
supplemented or otherwise modified from time to time; provided that if no
Mortgage Loans are or will be MERS Designated Mortgage Loans, all references
herein to the Electronic Tracking Agreement shall be disregarded.
-5-
"Electronic Transmission" shall mean 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).
"Escrow Instruction Letter" shall mean the Escrow Instruction Letter
from Seller to the Settlement Agent, in the form of Annex 10 hereto as the same
may be modified, supplemented and in effect from to time.
"Exception" shall mean, with respect to any Mortgage Loan, any
variances from the delivery requirements of Section 2 hereof that are not Fatal
Exceptions with respect to the Mortgage Files (giving effect to Seller's right
to deliver certified copies in lieu of original documents in certain
circumstances) and indicating such exceptions using the codes set forth on Annex
11 hereto.
"Fannie Mae" shall mean the Federal National Mortgage Association,
and its successors in interest.
"Fannie Mae Bailee Letter": The master bailee letter, in the form of
Annex 14, for use by Custodian in connection with the delivery to Fannie Mae of
a Mortgage File excluding (i) the Assignment of Mortgage, in blank, (ii) the
Warehouse Lender's Release, if applicable and (iii) all modification agreements
relating to a Mortgage.
"Fatal Document Exception" shall mean, with respect to any Mortgage
Loan, (i) any variance from the requirements of Section 2(a)(i)(A), (B), (D),
(F) or (J) or Section 2(a)(ii)(A), (B), (C), (D), (E), (F), (H) or (I) (hereof
with respect to the Mortgage Files (giving effect to Seller's right to deliver
certified copies in lieu of original documents in certain circumstances); (ii)
that the documents in the Mortgage Files referred to in the preceding clause (i)
have been reviewed by Custodian in accordance with the Review Procedures (other
than the Review Procedures set forth in 8, 9 and 10 thereof) and do not appear
on their face to be regular or to relate to such Mortgage Loan, (iii) any
exception indicated as a Fatal Exception on Annex 11 hereto, (iv) any exception
with respect to the delivery requirements specified in Section 5(c)(iii) hereof
with respect to a Mortgage Loan to be sold to an Agency, or (v) any Mortgage
Loan with respect to which Custodian receives written notice or has actual
knowledge of a lien subject or security interest in favor of a Person other than
Buyer with respect to such Mortgage Loan.
"Fatal Document Exception Report" shall mean a report delivered by
Custodian to Seller and Buyer setting forth all Mortgage Loans with Fatal
Document Exceptions.
"Fatal Exception" shall mean a Fatal Document Exception or a Fatal
Information Exception.
"Fatal Exception Report" shall mean a report delivered by
Disbursement Agent to Seller and Buyer setting forth all Mortgage Loans with
Fatal Exceptions.
"Fatal Information Exception" shall mean, with respect to any
Mortgage Loan, (i) that any of the information required pursuant to all fields
set forth on Annex 1 hereto is not set
-6-
forth with respect to such Mortgage Loan in the related Seller Asset Schedule
delivered to Disbursement Agent with the Transaction Request, (ii) a Mortgage
Loan that fails the Edit Check Procedure or (iii) the related Transaction
Request sets forth a Purchase Price, Pricing Rate or Asset Value that is not
identical to the Purchase Price, Pricing Rate or Asset Value calculated by
Disbursement Agent.
"Freddie Mac" shall mean the Federal Home Loan Mortgage Corporation,
and its successors in interest.
"Freddie Mac Bailee Letter": The master bailee letter for use by
Custodian in connection with the delivery to Freddie Mac of a Mortgage File
excluding (i) the Assignment of Mortgage, in blank, (ii) the Warehouse Lender's
Release, if applicable, and (iii) all modification agreements relating to a
Mortgage.
"Governmental Authority" shall mean, with respect to any Person, any
nation or government, any state or other political subdivision thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any court or arbitrator having
jurisdiction over such Person, any of its subsidiaries or any of their
properties.
"HELOC" shall mean a home equity revolving line of credit secured by
a mortgage, deed of trust or other instrument creating a second lien on the
related Mortgaged Property, which lien secures the related Credit Line
Agreement.
"Interim Funder" shall mean with respect to each MERS Designated
Mortgage Loan, the Person named on the MERS System as the interim funder
pursuant to the MERS Procedures Manual.
"MERS" shall mean Mortgage Electronic Registration Systems, Inc.,
and its successors in interest.
"MERS Designated Mortgage Loan" shall have the meaning assigned to
such term in Section 3 of the Electronic Tracking Agreement.
"MERS Identification Number" shall mean the eighteen digit number
permanently assigned to each MERS Designated Mortgage Loan.
"MERS Procedures Manual" shall mean the MERS Procedures Manual
attached as Exhibit B to the Electronic Tracking Agreement, as it may be
amended, supplemented or modified from time to time.
"MERS Report" shall mean the schedule listing MERS Designated
Mortgage Loans and other information prepared by an electronic agent pursuant to
the Electronic Tracking Agreement.
"MERS(R) System" shall mean an electronic agent's mortgage
electronic registry system, as more particularly described in the MERS
Procedures Manual.
-7-
"Mortgage" shall mean the mortgage, deed of trust or other
instrument securing a Mortgage Note or Credit Line Agreement, which creates a
first or second lien on the Mortgaged Property described therein.
"Mortgage File" shall mean, as to each Mortgage Loan, those
documents listed in Sections 2 that are delivered to Custodian or which at any
time come into the possession of Custodian.
"Mortgage Loan" shall mean any residential real estate secured loan
or HELOC, including, without limitation: (i) a promissory note, any reformation
thereof and related deed of trust (or mortgage), security agreement, home equity
line of credit agreement and account agreement; (ii) all guaranties and
insurance policies, including, without limitation, all mortgage and title
insurance policies and all fire and extended coverage insurance policies and
rights of the Seller to return premiums or payments with respect thereto; and
(iii) all right, title and interest of the Seller in the property covered by
such deed of trust (or mortgage) or home equity line of credit agreement, as
applicable.
"Mortgage Loan Documents" shall mean, with respect to a Mortgage
Loan, the documents comprising the Mortgage File for such Mortgage Loan.
"Mortgage Note" shall mean the note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage, as the same may be reformed
or amended from time to time.
"Mortgaged Property" shall mean the real property securing repayment
of the debt evidenced by a Mortgage Note or Credit Line Agreement.
"Mortgagor" shall mean the obligor or obligors on a Mortgage Note or
Credit Line Agreement, including any Person who has assumed or guaranteed the
obligations of the obligor thereunder.
"Official Check Account" shall have the meaning specified in the
Check Disbursement Agreement.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated association or government (or any agency, instrumentality or
political subdivision thereof).
"Release Limit" shall have the meaning specified in Section 5(a).
"Repurchase Agreement" shall have the meaning specified in the
Recitals.
"Request for Release" shall mean a request of Seller in the form of
Annex 5-A, 5-B, or 5-C, hereto.
"Required Delivery Item" shall have the meaning specified in Section
3(a).
"Required Delivery Time" shall have the meaning specified in Section
3(a).
-8-
"Required Party" shall have the meaning specified in Section 3(a).
"Review Procedures" shall have the meaning specified in Section
3(c).
"Seller" shall mean, collectively, AHMC, AHMIC, AHMA, AHMH and CNI,
and their respective successors in interest.
"Seller Asset Schedule" shall mean a list of Eligible Assets
delivered by Seller to Buyer pursuant to Section 3(c) of the Repurchase
Agreement, and provided in electronic format, setting forth, as to each Eligible
Asset, the applicable information specified on Annex 1 to this Agreement.
"Seller Funded Wire Amount" shall have the meaning specified in
Section 11(a)(ii).
"Seller's Release" shall mean a letter, in the form of Annex 18-A,
delivered by Seller when no Warehouse Lender has an interest in a Mortgage Loan,
unconditionally releasing all of Seller's right, title and interest in such
Mortgage Loan upon receipt of the Purchase Price by Seller.
"Seller's Wire Instructions" shall mean the wire instructions, set
forth in a letter in the form of Exhibit A to Seller's Release, to be used for
the payment of funds to Seller when no Warehouse Lender has an interest in the
Mortgage Loans to which such payment relates.
"Settlement Account" shall have the meaning specified in the Check
Disbursement Agreement.
"Settlement Report" shall have the meaning specified in Section
11(f).
"Transaction Account" shall mean any of the Disbursement Account,
the Settlement Account or the Wire-out Account.
"Total Required Funds" shall have the meaning specified in Section
11(c)(i)(G).
"Trust Receipt" shall mean a trust receipt in the form annexed
hereto as Annex 2 delivered to Buyer by Custodian covering all of the Mortgage
Loans subject to this Agreement from time to time, as reflected on the Asset
Schedule and Exception Report attached thereto in accordance with Section 3(e).
"Warehouse Lender" shall mean any lender providing financing to
Seller for the purpose of warehousing, originating or purchasing Mortgage Loans,
which lender has a security interest in such Mortgage Loans to be purchased by
Buyer.
"Warehouse Lender's Release" shall mean a letter, in the form of
Annex 18-B, from a Warehouse Lender to Buyer, unconditionally releasing all of
Warehouse Lender's right, title and interest in certain Mortgage Loans
identified therein upon receipt of payment by the Warehouse Lender.
-9-
"Warehouse Lender's Wire Instructions" shall mean the wire
instructions, set forth in a letter in the form of Exhibit A to the Warehouse
Lender's Release, from a Warehouse Lender to Buyer, setting forth wire
instructions for all amounts due and payable to such Warehouse Lender.
"Wire Amount" shall mean the amount to be wired to the Warehouse
Lender or Seller in accordance with the Warehouse Lender's Release or Seller's
Release, as applicable, for any Mortgage Loan which is not a Wet-Ink Mortgage
Loan and shall mean the amount to be wired to (i) the Settlement Agent pursuant
to the Escrow Instruction Letter in the case of a Wet-Ink Mortgage Loan which is
not a Check Funded Loan or (ii) the DDA Account in the case of a Check Funded
Loan.
"Wire-out Account" shall have the meaning specified in Section
11(a)(ii).
Section 2. Delivery of Mortgage File.
Seller shall release to Custodian the following original documents
pertaining to each Eligible Asset in accordance with the required delivery times
set forth in Section 3(a), each of which Mortgage Loans shall be identified in
the related Seller Asset Schedule:
(a) With respect to each Eligible Asset:
(i) (other than a Wet-Ink Mortgage Loan or a Co-op Loan):
(A) The original Mortgage Note or Credit Line Agreement, as
applicable, bearing all intervening endorsements, endorsed "Pay to
the order of _________ without recourse" and signed in the name of
the last endorsee (the "Last Endorsee") by an authorized Person (in
the event that the Eligible Asset was acquired by the Last Endorsee
in a merger, the signature must be in the following form: "[Last
Endorsee], successor by merger to [name of predecessor]"; in the
event that the Eligible Asset was acquired or originated by the Last
Endorsee while doing business under another name, the signature must
be in the following form: "[Last Endorsee], formerly known as
[previous name]");
(B) The original Mortgage with evidence of recording thereon,
or a copy thereof certified by Seller, the title company, the
Settlement Agent or the closing attorney to be a true and correct
copy of the original that has been duly delivered to the appropriate
recording office and, with respect to MERS Designated Mortgage
Loans, the Mortgage names MERS as the "mortgagee" or "beneficiary"
thereof (or MERS is reflected as the current mortgagee pursuant to
an assignment of mortgage with evidence of recording thereon and
reflecting a complete chain of title from the named originator in
the Mortgage), with a conformed recorded copy to follow as soon as
the same is received by Seller;
(C) The originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of
recording thereon, or a copy thereof certified by Seller, the title
company, the Settlement Agent or the closing
-10-
attorney to be a true and correct copy of the original that has been
duly delivered to the appropriate recording office;
(D) The original Assignment of Mortgage in blank for each
Eligible Asset, in form and substance acceptable for recording and
signed in the name of the Last Endorsee (in the event that the
Eligible Asset was acquired by the Last Endorsee in a merger, the
signature must be in the following form: "[Last Endorsee], successor
by merger to [name of predecessor]"; in the event that the Eligible
Asset was acquired or originated while doing business under another
name, the signature must be in the following form: "[Last Endorsee],
formerly known as [previous name]"), except in the case of such
Eligible Asset that has been originated in the name of or assigned
to MERS and registered under the MERS(R)System;
(E) The originals of all intervening assignments of mortgage,
if any, with evidence of recording thereon, showing an unbroken
chain of title from the originator thereof to the Last Endorsee (or,
in the case of a MERS Designated Mortgage Loan, MERS) or a copy
thereof certified by Seller, the title company, the Settlement Agent
or the closing attorney to be a true and correct copy of the
original that has been duly delivered to the appropriate recording
office;
(F) The original attorney's opinion of title and abstract of
title or the original mortgagee title insurance policy, or if the
original mortgagee title insurance policy has not been issued, the
irrevocable commitment to issue the same;
(G) The original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Eligible
Asset;
(H) If any of the above documents has been executed by a
person holding a power of attorney, an original or photocopy of such
power certified by Seller to be a true and correct copy of the
original;
(I) Either a Seller's Release or a Warehouse Lender's Release;
(J) In the case of a MERS Designated Mortgage Loan where any
Person is named in the Interim Funder field on the MERS(R) System,
an Agreement and Release; and
(K) an original release letter for each Eligible Asset which
has been the subject of a prior interest of which an Authorized
Representative of Custodian has actual knowledge;
provided, however, that as to the documents listed in clauses (B), (C) and (E)
above which have been delivered or are being delivered to recording offices for
recording and have not been returned to Seller in time to permit their delivery
hereunder at the time of such transfer, and in lieu of delivering such original
documents or conformed copies where permitted, Seller has delivered to Custodian
a true copy thereof, Seller shall deliver such original documents, together
-11-
with any related policy of title insurance not previously delivered, on behalf
of Seller to Custodian promptly after they are received.
(ii) With respect to each Co-op Loan:
(A) The original Mortgage Note or Credit Line Agreement, as
applicable, bearing all intervening endorsements, endorsed "Pay to
the order of _________ without recourse" and signed in the name of
the last endorsee (the "Last Endorsee") by an authorized Person (in
the event that the Eligible Asset was acquired by the Last Endorsee
in a merger, the signature must be in the following form: "[Last
Endorsee], successor by merger to [name of predecessor]"; in the
event that the Eligible Asset was acquired or originated by the Last
Endorsee while doing business under another name, the signature must
be in the following form: "[Last Endorsee], formerly known as
[previous name]");
(B) The original Co-op Security Agreement entered into by the
Mortgagor with respect to such Co-op Loan;
(C) UCC-3 assignment in blank (or equivalent instrument),
sufficient under the laws of the jurisdiction where the related
underlying Mortgaged Property is located to reflect of record the
sale and assignment of the Mortgage Loan to the Buyer;
(D) Original assignments of Co-op Security Agreement in blank
showing a complete chain of assignment from the originator of the
related Co-op Loan to the Seller;
(E) Original Form UCC-1 and any continuation statements with
evidence of filing thereon with respect to such Co-op Loan;
(F) Stock certificate representing the stock allocated to the
related dwelling unit in the related residential cooperative housing
corporation and pledged by the related Mortgagor to the originator
of such Co-op Loan with a stock power in blank attached;
(G) Original proprietary lease.
(H) Original assignment of proprietary lease, in blank, and
all intervening assignments thereof;
(I) Original recognition agreement of the interests of the
mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by
the related Mortgagor to the originator of such Co-op Loan; and
(J) Originals of any assumption, consolidation or modification
agreements relating to any of the items specified in (A) through (F)
above with respect to such Co-op Loan.
-12-
(b) Seller shall release to Custodian the following original
documents pertaining to each Eligible Asset that is a Wet-Ink Mortgage Loan in
accordance with the required delivery times set forth in Section 3(a) and set
forth below, each of which Mortgage Loans shall be identified in the related
Seller Asset Schedule:
(i) Seller shall cause the Settlement Agent to send Custodian a
facsimile of each Escrow Instruction Letter with respect to all Wet-Ink
Mortgage Loans to be purchased on each Purchase Date. Custodian shall not
be responsible for reviewing such Escrow Instruction Letter, except to the
extent requested by Buyer, to verify wire instructions.
(ii) No later than ten (10) Business Days following the applicable
Purchase Date, Seller shall deliver to Custodian the documents listed in
Section 2(a).
(c) With respect to all Mortgage Files:
(A) From time to time, Seller shall forward to Custodian
additional original documents or additional documents evidencing any
assumption, modification, consolidation or extension of a Mortgage
Loan approved by Seller, in accordance with the terms of the
Repurchase Agreement, and upon receipt of any such other documents,
Custodian shall hold such other documents as Buyer shall request
from time to time.
(B) With respect to any documents which have been delivered or
are being delivered to recording offices for recording and have not
been returned to Seller in time to permit their delivery hereunder
at the time required, in lieu of delivering such original documents,
Seller shall deliver to Custodian a copy thereof certified by
Seller, the title company, the Settlement Agent or the closing
attorney to be a true and correct copy of the original that has been
duly delivered to the appropriate recording office, with a conformed
recorded copy to follow as soon as the same is received by Seller.
Section 3. Asset Schedule and Exception Report; Trust Receipt.
(a) With respect to each category of Eligible Asset, Seller shall
provide to the indicated required parties (each, a "Required Party") the
required delivery items (each, a "Required Delivery Item") set forth in the
table below by the corresponding required delivery time (the "Required Delivery
Time"):
-13-
Eligible Asset Required Delivery Time Required Delivery Items Required Party
-------------- ---------------------- ----------------------- --------------
Mortgage Loans (other than 6:00 p.m. New York time, one A preliminary Transaction Buyer
Wet-Ink Mortgage Loans) on (1) Business Day prior to the Request for the Mortgage Loans
initial Purchase Date Purchase Date requested to be purchased on
the next Business Day
(delivered by Electronic
Transmission)
10:00 a.m. New York time, on The final Transaction Request Custodian, Disbursement Agent
the Purchase Date for the Mortgage Loans, and Buyer
together with a Seller Asset
Schedule containing the
information set forth in Annex
1 hereto (delivered by
Electronic Transmission)
8:00 p.m. New York time, one All documents required to be Custodian
(1) Business Day prior to the delivered pursuant to Section
Purchase Date 2(a), together with a
Custodial Identification
Certificate
For delivery of each
additional 250 Mortgage Files,
one additional Business Day
prior to the Purchase Date
Wet-Ink Mortgage Loans (other 8:00 a.m. New York time on the A preliminary Transaction Buyer
than Check Funded Loans) Purchase Date Request for the Wet-Ink Loans
requested to be purchased on
such Business Day
1:00 p.m. New York time on the A final Transaction Request Custodian, Disbursement Agent
Purchase Date; provided that for the Mortgage Loans, and Buyer
Seller may deliver up to three together with a Seller Asset
(3) final transaction requests Schedule containing the
on each Business Day information set forth in Annex
1 hereto (delivered by
Electronic Transmission)
All documents required to be Custodian
delivered pursuant to Section
2(b)(i)
Check Funded Loans 4:00 p.m. New York time on the a Check Funding Schedule Disbursement Agent and Buyer
origination date of such Check
Funded Loan
Check Funded Loans 4:00 p.m. New York time on the A final Transaction Request Disbursement Agent and Buyer
origination date of such Check for the Check Funded Loans
Funded Loan requested to be purchased,
attaching a Seller Asset
Schedule
-14-
If Custodian has received each applicable Required Delivery Item by
the Required Delivery Time set forth above, then Custodian will deliver to Buyer
and Disbursement Agent, by Electronic Transmission, no later than 3:00 p.m. New
York time (or with respect to each such Wet-Ink Mortgage Loan, no later than 2
hours after receipt of a final Transaction Request but in no event later than
5:00 p.m. New York time) on the Purchase Date, an Asset Schedule and Exception
Report for each Mortgage Loan (other than Mortgage Loans with a Fatal Document
Exception) sold hereunder on such date, with Exceptions identified by Custodian
as current as of the date and time of delivery of such Asset Schedule and
Exception Report.
Upon receipt of a Transaction Request and the related Seller Asset
Schedule from Seller, Disbursement Agent shall confirm via Electronic
Transmission, the receipt of such request with Seller and Buyer. Upon discovery
by Custodian of a Fatal Document Exception, Custodian shall immediately send to
Seller, Disbursement Agent and Buyer, by Electronic Transmission, a Fatal
Document Exception Report listing such Fatal Document Exceptions together with
an Asset Schedule with respect to each Mortgage Loan that has any Fatal Document
Exception. Custodian's Electronic Transmission to each of Seller, Disbursement
Agent and Buyer of a Fatal Document Exception, shall be sent "confirm receipt"
or by some other means such that Custodian has a reasonable belief that such
notice has been received by the addressee. In the event Custodian has not
received all documents required to be delivered pursuant to Section 2(b)(ii)
with respect to a Wet-Ink Mortgage Loan on or before the tenth (10th) Business
Day after the related Purchase Date, Custodian shall immediately notify Buyer,
Seller and Disbursement Agent by Electronic Transmission of such failure.
(b) Custodian shall deliver to Buyer, no later than 5:00 p.m. New
York time a Trust Receipt in respect of all Mortgage Loans (including Wet-Ink
Mortgage Loans) sold to Buyer on such Purchase Date and any prior Purchase Date
and held hereunder, and shall deliver to each of Buyer and Disbursement Agent an
Asset Schedule and Exception Report for Mortgage Loans which are not Wet-Ink
Mortgage Loans and a detailed listing of all Wet-Ink Mortgage Loans. Each Asset
Schedule and Exception Report and detailed listing of Wet-Ink Mortgage Loans
delivered by Custodian to Buyer and Disbursement Agent shall supersede and
cancel the Asset Schedule and Exception Report and detailed listing of Wet-Ink
Mortgage Loans previously delivered by Custodian to Buyer and Disbursement Agent
hereunder, and shall replace the then existing Asset Schedule and Exception
Report and detailed listing of Wet-Ink Mortgage Loans to be attached to the
Trust Receipt. Custodian shall incorporate into each Asset Schedule and
Exception Report delivered to Buyer and Disbursement Agent pursuant to this
Section 3(b) all updated information with respect to the outstanding principal
balance and interest paid on each Mortgage Loan delivered to Custodian by either
Disbursement Agent or Buyer. Custodian shall also deliver to Seller, Buyer and
Disbursement Agent no later than 5:00 p.m. New York time on each Business Day,
by Electronic Transmission, a daily aging report setting forth such information
as may be reasonably required by Buyer (the "Daily Aged Report"). Custodian
shall monitor each Mortgage Loan on a daily basis in order that all information
set forth on the Daily Aged Report is accurate as of the time such Daily Aged
Report is delivered. Disbursement Agent shall provide to Custodian all
information in its possession that Custodian requires in order to complete and
deliver each Daily Aged Report. In no event shall Custodian list any Mortgage
Loan on an Asset Schedule and Exception Report if Custodian has not yet reviewed
the related Mortgage File.
-15-
(c) Each Asset Schedule and Exception Report shall list all
Exceptions using such exception codes as are set forth on Annex 11 hereto, as
may be amended from time to time. In no event shall Custodian list any Mortgage
Loan on the Asset Schedule and Exception Report if such Mortgage Loan is
required to be listed on the Fatal Document Exception Report and related Asset
Schedule; provided that, if a Wet-Ink Mortgage Loan has been previously listed
on the Asset Schedule and Exception Report, it shall remain on the Asset
Schedule and Exception Report and the Custodian shall indicate any Fatal
Document Exception. The delivery of each Asset Schedule and Exception Report to
Buyer and Disbursement Agent shall be Custodian's representation that, other
than the Exceptions listed as part of the Exception Report: (i) all documents
required to be delivered in respect of each Mortgage Loan pursuant to Section 2
of this have been delivered and are in the possession of Custodian as part of
the Mortgage File for such Mortgage Loan, (ii) Custodian is holding each
Mortgage Loan identified on the Asset Schedule and Exception Report (except with
respect to MERS Designated Mortgage Loans), pursuant to this Agreement, as the
bailee of and custodian for Buyer and/or its designees, (iii) all such documents
have been reviewed by Custodian and appear on their face to be regular and to
relate to such Mortgage Loan and satisfy the requirements set forth in Section 2
of this Agreement and the review procedures attached hereto as Annex 4 (the
"Review Procedures"), (iv) the interest rate on the Mortgage Note or Credit Line
Agreement, as applicable, is the same as the amount specified in the related
Mortgage File and (v) with respect to Closed End Loans, the original principal
amount of the Mortgage Note, and with respect to HELOCs, the Credit Limit, as
applicable, are each accurately reflected in the documents in the Mortgage File,
and based upon a review of the Mortgage Note and Credit Line Agreement, as
applicable, items 6, 8 through 12, 14, 21, 22, 118 and 119 of Annex 1 as set
forth in the Seller Asset Schedule delivered by Seller to Custodian are correct.
(d) In connection with an Asset Schedule and Exception Report
delivered hereunder by Custodian, Custodian shall make no representations as to
and shall not be responsible to verify (A) the validity, legality,
enforceability, due authorization, recordability, sufficiency, or genuineness of
any of the documents contained in each Mortgage File or (B) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan. Subject to
the following sentence, Seller and Buyer hereby give Custodian notice that from
and after the Purchase Date, Buyer shall own each Mortgage Loan identified on an
Asset Schedule and Exception Report until such time that Custodian receives
notice from Buyer or Disbursement Agent that Buyer no longer owns such Mortgage
Loan. In the event that Buyer does not purchase the Eligible Assets proposed to
be purchased from Seller prior to 5:00 p.m. New York time on such Purchase Date,
upon written notice thereof from Seller, acknowledged by Buyer, or notice from
Disbursement Agent thereof, Custodian shall hold or release to Seller, pursuant
to Seller's written instructions, the Mortgage Loans in respect of the Asset
Schedule and Exception Report delivered by Custodian on such Purchase Date.
(e) Notwithstanding anything to the contrary set forth herein, in
the event that the Asset Schedule and Exception Report or detailed listing of
Wet-Ink Mortgage Loans attached to the Trust Receipt is different from the most
recently delivered Asset Schedule and Exception Report or detailed listing of
Wet-Ink Mortgage Loans, then the most recently delivered Asset Schedule and
Exception Report or detailed listing of Wet-Ink Mortgage Loans shall control and
be binding upon the parties hereto.
-16-
Section 4. Obligations of Custodian.
(a) Custodian shall maintain continuous custody of all items
constituting the Mortgage Files in secure facilities in accordance with
customary standards for such custody and shall reflect in its records the
interest of Buyer therein. Each Mortgage Note and Credit Line Agreement, as
applicable (and Assignment of Mortgage), shall be maintained in fire resistant
facilities.
(b) With respect to the documents constituting each Mortgage File,
Custodian shall (i) act exclusively as the bailee of, and custodian for, Buyer,
(ii) hold all documents constituting such Mortgage File received by it for the
exclusive use and benefit of Buyer, and (iii) make disposition thereof only in
accordance with the terms of this Agreement or with written instructions
furnished by Buyer; provided, however, that in the event of a conflict between
the terms of this Agreement and the written instructions of Buyer, Buyer's
written instructions shall control.
(c) In the event that (i) Buyer, any Seller Entity or Custodian
shall be served by a third party with any type of levy, attachment, writ or
court order with respect to any Mortgage File or any document included within a
Mortgage File or (ii) a third party shall institute any court proceeding by
which any Mortgage File or a document included within a Mortgage File shall be
required to be delivered otherwise than in accordance with the provisions of
this Agreement, the party receiving such service shall promptly deliver or cause
to be delivered to the other parties to this Agreement copies of all court
papers, orders, documents and other materials concerning such proceedings.
Custodian shall, to the extent permitted by law, continue to hold and maintain
all the Mortgage Files that are the subject of such proceedings pending a final,
nonappealable order of a court of competent jurisdiction permitting or directing
disposition thereof. Upon final determination of such court, Custodian shall
dispose of such Mortgage File or any document included within such Mortgage File
as directed by Buyer which shall give a direction consistent with such
determination. Expenses of Custodian incurred as a result of such proceedings
shall be borne by Seller.
Section 5. Release of Mortgage Files.
(a) From time to time until Custodian is otherwise notified by Buyer
in writing (unless such notice is given by the Disbursement Agent in accordance
with Section 11), which notice shall be given by Buyer (or Disbursement Agent in
accordance with Section 11) only following the occurrence of a Default or an
Event of Default, Custodian shall, upon receipt of written request of Seller,
release documentation relating to Mortgage Loans in the possession of Custodian
to Seller or its designee, for the purpose of correcting documentary
deficiencies relating thereto against a Request for Release and Receipt
delivered via Electronic Transmission by Seller in the form of Annex 5-A hereto.
The preceding sentence respecting release to Seller, or its designee, of
Custodian's Mortgage Files shall be operative only to the extent that at any
time Custodian shall not have released to Seller or its designee pursuant to
clause (a) or (b) of this Section 5, Mortgage Files pertaining to Mortgage Loans
at the time being held by Custodian on behalf of Buyer with an aggregate
outstanding principal balance greater than $500,000 (the "Release Limit"). In
the event Seller or its designee requests the release of a Mortgage File to
Seller or its designee with respect to a Mortgage Loan, which release would
result in Custodian
-17-
having released Mortgage Files pertaining to Mortgage Loans at the time being
held by Custodian on behalf of Buyer with an aggregate outstanding principal
balance greater than the Release Limit, Custodian shall notify Buyer and obtain
written consent of Buyer prior to such requested release. Custodian shall
promptly notify Buyer in its Daily Report that it has released any Mortgage File
to Seller or its designee. Seller or its designee shall hold each Mortgage File
delivered to it pursuant to this Section 5(a) as bailee for Buyer. Seller or its
designee shall return to Custodian each document previously released from
Custodian's Mortgage File within ten (10) Business Days of receipt thereof.
Seller hereby further covenants to Buyer and Custodian that any such request by
Seller for release of Mortgage Loan Documents pursuant to this Section 5(a)
shall be solely for the purposes of correcting clerical or other non-substantial
documentation problems in preparation for returning such Mortgage Loan Documents
to Custodian for ultimate sale or exchange and that Seller has requested such
release in compliance with all terms and conditions of such release set forth
herein and in the Repurchase Agreement. Notwithstanding anything to the contrary
contained in the foregoing, Mortgage Notes and Credit Line Agreements, as
applicable, shall be released only for the purpose of (i) ultimate sale or
exchange or (ii) presentation, collection, renewal or registration of transfer.
(b) From time to time until Custodian is otherwise notified by Buyer
in writing (unless such notice is given by the Disbursement Agent in accordance
with Section 11), which notice shall be given by Buyer (or Disbursement Agent in
accordance with Section 11) only following the occurrence of a Default or an
Event of Default, and as appropriate for the servicing of any of the Mortgage
Loans, Custodian shall, upon receipt from Seller or its designee of a written
Request for Release of Documents and Receipt delivered via Electronic
Transmission in the form of Annex 5-B hereto, release to Seller or its designee
the Mortgage File or the documents set forth in such request relating to
Mortgage Loans in the possession of Custodian. The preceding sentence respecting
release to Seller, or its designee, of Custodian's Mortgage Files shall be
operative only to the extent that at any time Custodian shall not have released
to Seller or its designee pursuant to clause (a) or (b) of this Section 5,
Mortgage Files pertaining to Mortgage Loans at the time being held by Custodian
on behalf of Buyer with an aggregate outstanding principal balance greater than
the Release Limit. In the event Seller or its designee requests the release of a
Mortgage File to Seller or its designee with respect to a Mortgage Loan, which
release would result in Custodian having released Mortgage Files pertaining to
Mortgage Loans at the time being held by Custodian on behalf of Buyer with an
aggregate outstanding principal balance greater than the Release Limit,
Custodian shall notify Buyer in its Daily Report and obtain written consent of
Buyer prior to such requested release. Custodian shall promptly notify Buyer
that it has released any Mortgage File to Seller or its designee. Seller or its
designee shall hold each Mortgage File delivered to it pursuant to this Section
5(b) as bailee for Buyer. Seller or its designee shall return to Custodian each
document previously released from Custodian's Mortgage File within ten (10)
Business Days of receipt thereof. Seller hereby further covenants to Buyer and
Custodian that any such request by Seller or its designee for release of
Mortgage Loan Documents pursuant to this Section 5(b) shall be solely for the
purposes of servicing of any of the Mortgage Loans and that Seller has requested
such release in compliance with all terms and conditions of such release set
forth herein and in the Repurchase Agreement. Notwithstanding anything to the
contrary contained in the foregoing, Mortgage Notes and Credit Line Agreements,
as applicable, shall be released only for the purpose of (i) ultimate sale or
exchange or (ii) presentation, collection, renewal or registration of transfer.
-18-
(c) (i) From time to time Custodian is hereby authorized, upon
receipt of a Request for Release in the form of Annex 5-C hereto delivered
by Seller via Electronic Transmission and receipt of Buyers written
consent to such release to release Mortgage Files in the possession of
Custodian to a third party purchaser for the purpose of resale thereof.
Buyer shall have no obligation to consent to any such Request for Release
after the occurrence of a Default or an Event of Default. On such Request
for Release, Seller shall indicate the Mortgage Loans to be sold, the
purchase price for such Mortgage Loan anticipated to be received, the name
and address of the third party purchaser, the preferred method of
delivery, and the date of desired delivery.
(ii) Any transmittal of documentation for Mortgage Loans in the
possession of Custodian in connection with the sale thereof to a
third-party purchaser other than an Agency will be under cover of a
transmittal letter substantially in the form attached as Annex 12 hereto,
duly completed by Custodian and executed by Custodian. Any transmittal of
documentation for Mortgage Loans in the possession of Custodian in
connection with the shipment to a custodian or trustee other than an
Agency in connection with the formation of a mortgage pool supporting a
mortgage-backed security (an "MBS") will be under cover of a transmittal
letter substantially in the form attached as Annex 13 hereto. Promptly
upon (x) the remittance by such third-party purchaser of the full purchase
price of the Mortgage Loan or (y) the issuance of such MBS, Buyer shall
notify Custodian in writing thereof.
(iii) Any transmittal of documentation for Mortgage Loans in the
possession of Custodian in connection with the sale thereof to an Agency
will be under cover of Bailee Letter, duly completed by Custodian and
executed by Custodian. Promptly upon the remittance by such Agency or the
Seller of the full purchase price of the Mortgage Loan. With respect to
any transmittal of documentation for Mortgage Loans in the possession of
Custodian in connection with the shipment to an Agency, the Custodian
shall verify (A) that the related Mortgage File contains the Applicable
Agency Documents, (B) (1) with respect to the wire transfer instructions
as set forth in Freddie Mac Form 987 (Wire Transfer Authorization for a
Cash Warehouse Delivery) such wire transfer instructions are identical to
Buyer's wire instructions to Seller or (2) the Payee Number set forth on
Fannie Mae Form 1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity
Mortgage Loan Schedule) or Fannie Mae Form 1069 (Adjustable-Rate Mortgage
Loan Schedule), as applicable, is identical to the Payee Number that has
been identified by Buyer in writing as Buyer's Payee Number and (C) the
Applicable Agency Documents list Buyer as sole subscriber. Seller
covenants that it will advise Buyer of any necessary amendments to such
exhibits to reflect all current requirements of the applicable Agency.
Custodian shall immediately notify Buyer and Seller via Electronic
Transmission (which shall be sent "confirm receipt" or by some other means
such that Custodian has a reasonable belief that such notice has been
received by the addressee) of any exception with respect to any exceptions
to the requirements of the preceding sentence and such exception shall be
a Fatal Document Exception with respect to such Mortgage Loan.
(d) So long as no Default or Event of Default has occurred and is
continuing, Custodian and Buyer shall take such steps as they may reasonably be
directed from time to time by Seller in writing, which Seller deems necessary
and appropriate, to transfer promptly and
-19-
deliver to Seller any Mortgage File in the possession of Custodian relating to
any Mortgage Loan which was previously a Purchased Asset but which Seller, with
the written consent of Buyer, has notified Custodian has ceased to be an
Eligible Asset or the release of which would not cause Seller to violate Section
4 of the Repurchase Agreement. In furtherance of the foregoing, upon receipt of
written request from Seller in the form of Annex 5-A hereto delivered via
Electronic Transmission, which must be consented to by Buyer, Custodian shall
release to Seller the requested Mortgage Files.
(e) Following written notification by Buyer (or Disbursement Agent
in accordance with Section 11) (which may be by facsimile) to Custodian that a
Default or an Event of Default has occurred and is continuing, Custodian shall
not release, or incur any liability to any Seller Entity or any other Person for
refusing to release, any item relating to a Purchased Asset to any Seller Entity
or any other Person without the express prior written consent and at the
direction of Buyer.
(f) Custodian shall at all times monitor any release of Purchased
Assets under this Section 5, and shall track the period of time which has
elapsed for any such release of Purchased Assets and shall report such
information to Buyer daily and in the same manner as Custodian provides an Asset
Schedule and Exception Report.
(g) Prior to any shipment of Mortgage Files hereunder, Seller shall
deliver to Custodian written instructions as to the method of shipment and
shippers Custodian is to utilize in connection with the transmission of Mortgage
Files or other loan documents in the performance of Custodian's duties
hereunder. Seller shall arrange for the provision of such services at its sole
cost and expense (or, at Custodian's option, reimburse Custodian for all costs
and expenses incurred by Custodian consistent with the instructions) and will
maintain such insurance against loss or damage to Mortgage Files or other loan
documents as Buyer deems appropriate. Without limiting the generality of the
provisions of Section 13(a), it is expressly agreed that in no event shall
Custodian have any liability for any losses or damages to any Seller Entity
arising out of actions of Custodian consistent with the instructions of Seller
except to the extent such losses or damages arise due to the Custodian's gross
negligence or willful misconduct. In the event Custodian does not receive such
written instructions, Custodian shall be authorized to utilize any nationally
recognized courier service.
Section 6. Fees and Expenses of Custodian.
Custodian shall charge such fees for its services under this
Agreement as are set forth in a separate agreement between Custodian and AHMC,
the payment of which fees, together with Custodian's expenses in connection
herewith, shall be solely the obligation of Seller. The failure of Seller to pay
any such fees shall not excuse the performance by Custodian of any of its
obligations hereunder. The obligations of Seller o pay Custodian such fees and
reimburse Custodian for such expenses in connection with services provided by
Custodian prior to the termination of this Agreement and the earlier of the
resignation or removal of Custodian shall survive such termination, resignation
or removal.
-20-
Section 7. Removal or Resignation of Custodian and Disbursement
Agent.
(a) Custodian or Disbursement Agent may at any time resign and
terminate their obligations under this Agreement upon at least (180) days' prior
written notice to Seller and Buyer. Promptly after receipt of notice of
Custodian's or Disbursement Agent's resignation, as applicable, Buyer shall
appoint, by written instrument, a successor custodian or a successor
disbursement agent, as applicable, subject to written approval by Seller (which
approval shall not be unreasonably withheld). One original counterpart of such
instrument of appointment shall be delivered to each of Seller, Custodian and
the successor custodian. In the event that no successor custodian or
disbursement agent shall have been appointed within such 180 day notice period,
Custodian or Disbursement Agent, as applicable, may petition any court of
competent jurisdiction to appoint a successor custodian or disbursement agent,
as the case may be.
(b) Buyer, with the consent of Seller (which consent shall not be
unreasonably withheld), upon at least (30) days' prior written notice to
Custodian, Disbursement Agent and Seller, may remove and discharge Custodian (or
any successor custodian thereafter appointed) from the performance of its
obligations under this Agreement. Buyer, without the consent of Seller, upon at
least (30) days' prior written notice to Custodian, Disbursement Agent and
Seller, may remove and discharge Disbursement Agent (or any successor
disbursement agent thereafter appointed) from the performance of its obligations
under this Agreement. Promptly after the giving of notice of removal of
Custodian and Disbursement Agent, Buyer shall appoint, by written instrument, a
successor custodian, with the consent of Seller (which consent shall not be
unreasonably withheld), and a disbursement agent, which appointment shall
require no other approval. One original counterpart of such instrument of
appointment shall be delivered to each of Buyer, Seller, Custodian, Disbursement
Agent and the successor custodian and disbursement agent.
(c) In the event of any such resignation or removal, Custodian shall
promptly transfer to the successor custodian, as directed in writing, all the
Mortgage Files being administered under this Agreement and, if the endorsements
on the Mortgage Notes or Credit Line Agreements, as applicable, and the
Assignments of Mortgage have been completed in the name of Custodian, assign the
Mortgages and endorse without recourse the Mortgage Notes Credit Line
Agreements, as applicable, to the successor Custodian or as otherwise directed
by Buyer. The cost of the shipment of Mortgage Files arising out of the
resignation of Custodian shall be at the expense of Custodian; provided,
however, that if the sole reason for Custodian's resignation is due to the
non-payment of the fees and expenses due to it hereunder by Seller, then the
shipment cost of such shipment of Mortgage Files shall not be an expense of
Custodian, but shall be at the expense of Seller. Any cost of shipment arising
out of the removal of Custodian shall be at the expense of Seller. Seller shall
be responsible for the fees and expenses of the successor custodian and the fees
and expenses for endorsing the Mortgage Notes and Credit Line Agreements, as
applicable, and assigning the Mortgages to the successor custodian if required
pursuant to this paragraph.
Section 8. Examination of Files, Books and Records.
Upon twenty-four (24) hours' prior written notice to Seller and
Custodian and at Seller's expense, Buyer, Seller and each of their respective
agents, accountants, attorneys and
-21-
auditors will be permitted during normal business hours to examine, inspect, and
make copies of, the Mortgage Files and any and all documents, records and other
instruments or information in the possession of or under the control of
Custodian relating to any or all of the Mortgage Loans.
Section 9. Insurance.
(a) At its own expense, Custodian shall maintain at all times during
the existence of this Agreement and keep in full force and effect a fidelity
bond and document hazard insurance. All such insurance shall be in amounts, with
standard coverage and subject to standard deductibles, all as is customary for
insurance typically maintained by institutions which act as custodian. The
minimum coverage under any such bond and insurance policies shall be at least
equal to the corresponding amounts required by Fannie Mae or Freddie Mac in the
Applicable Guide. A certificate of an Authorized Representative of Custodian
shall be furnished to Seller and Buyer, upon written request, stating that such
insurance is in full force and effect.
(b) At its own expense, Disbursement Agent shall maintain at all
times during the existence of this Agreement and keep in full force and effect a
fidelity bond. All such insurance shall be in amounts, with standard coverage
and subject to standard deductibles, all as is customary for insurance typically
maintained by institutions which act as Disbursement Agents with duties similar
to those of Disbursement Agent herein. The minimum coverage under any such bond
and insurance policies shall be at least equal to the corresponding amounts
required by Fannie Mae or Freddie Mac in the Applicable Guide. A certificate of
an Authorized Representative of Disbursement Agent shall be furnished to Seller
and Buyer, upon written request, stating that such insurance is in full force
and effect.
Section 10. Representations and Warranties.
(a) Custodian represents and warrants to Buyer that:
(i) Custodian has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under, this
Agreement, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement;
(ii) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or
creditor of Custodian) is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement;
(iii) this Agreement has been duly executed and delivered on behalf
of Custodian and constitutes a legal, valid and binding obligation of
Custodian enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether enforcement is
sought in a proceeding in equity or at law); and
(iv) Custodian is not an Affiliate of any Seller Entity.
-22-
(b) Disbursement Agent represents and warrants to Buyer that:
(i) Disbursement Agent has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations under,
this Agreement, and has taken all necessary corporate action to authorize
its execution, delivery and performance of this Agreement;
(ii) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or
creditor of Disbursement Agent) is required in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement;
(iii) this Agreement has been duly executed and delivered on behalf
of Disbursement Agent and constitutes a legal, valid and binding
obligation of Disbursement Agent enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought in a proceeding in equity or at law); and
(iv) Disbursement Agent is not an Affiliate of any Seller Entity.
(c) Each of the Seller Entities, jointly and severally, hereby makes
to Custodian the same representations and warranties that each such Seller
Entity makes to Buyer under Section 10 of the Repurchase Agreement.
Section 11. Disbursement Agent Duties.
(a) Establishment of Disbursement Account, Wire-out Account and
Settlement Account.
(i) Disbursement Agent shall establish and maintain a disbursement
account (the "Disbursement Account") for and on behalf of Buyer entitled
"Disbursement Account, Deutsche Bank National Trust Company, as
Disbursement Agent for CDC Mortgage Capital Inc., Reference Number 33863."
The Disbursement Account shall be owned by and under the exclusive
dominion and control of Buyer. None of Disbursement Agent, any Seller
Entity or any other Person claiming on behalf of or through Seller or
Disbursement Agent shall have any right or authority, whether express or
implied, to close or make use of, or, except as expressly provided herein,
withdraw any funds from, the Disbursement Account. Unless Disbursement
Agent shall receive notice in writing from Buyer to the contrary by 10:00
a.m. New York time on any applicable Business Day, Disbursement Agent is
hereby authorized by Buyer to disburse funds deposited in the Disbursement
Account on such Business Day in accordance with this Agreement. Funds
retained in the Disbursement Account shall remain uninvested. Disbursement
Agent shall reconcile the Disbursement Account on a daily basis. Unless
otherwise instructed by Buyer in writing, before the close of business on
each Business Day, Disbursement Agent shall withdraw all collected amounts
as of 5:00 p.m. New York time then standing to the credit of the
Disbursement Account and deposit such amounts
-23-
into the following account maintained by Buyer: Bank of New York, for the
A/C of CDC Mortgage Capital Inc., ABA#021000018, Account #GLA 111569 SER,
Attn: Eric Seyffer, or, if such funds cannot be deposited into the
foregoing account at the end of such Business Day, on the next Business
Day.
(ii) In connection with the funding of any Wet-Ink Mortgage Loans or
the purchase of any other Mortgage Loan by Seller simultaneously with the
purchase of such Mortgage Loan by Buyer, Disbursement Agent shall
establish and maintain a Wire-out Account (the "Wire-out Account") for and
on behalf of Seller entitled "Wire-out Account, Deutsche Bank National
Trust Company, as Disbursement Agent for American Home Mortgage Corp.,
Reference Number 33867." With respect to any Wet-Ink Mortgage Loan to be
funded or any other Mortgage Loan to be purchased on any Business Day
(other than a Check-Funded Loan), Seller shall deposit into the Wire-out
Account no later than 11:00 a.m. New York time on such Business Day an
amount (the "Seller Funded Wire Amount") equal to the difference between
the Wire Amount and the amount to be funded by Buyer from the Disbursement
Account in accordance with Section 11(d). Seller hereby requests that
Disbursement Agent, and Disbursement Agent shall, disburse the Seller
Funded Wire Amount at the same time, and in the same manner, as
Disbursement Agent disburses funds from the Disbursement Account with
respect to such Mortgage Loan in accordance with Section 11(d)(i). With
respect to each Check Funded Loan, prior to 12:00 p.m. New York time on
the related Check Presentation Date, Seller shall wire to the Wire-Out
Account the Seller Funded Amount and the Additional Seller Funded Amount
for such Check Presentation Date. Seller hereby requests that Disbursement
Agent, and Disbursement Agent shall, disburse the Seller Funded Amount and
the Additional Seller Funded Amount at the same time, and in the same
manner, as Disbursement Agent disburses the Buyer Funded Amount from the
Disbursement Account with respect to such Mortgage Loan in accordance with
Section 11(d)(ii). The Wire-out Account shall be owned by and under the
exclusive dominion and control of Seller. None of Disbursement Agent,
Buyer nor any other Person claiming on behalf of or through Buyer or
Disbursement Agent shall have any right or authority, whether express or
implied, to close or make use of, or, except as expressly provided herein,
withdraw any funds from, the Wire-out Account. Funds retained in the
Wire-out Account shall remain uninvested. Disbursement Agent shall
reconcile the Wire-out Account on a daily basis. Upon written request of
Buyer, Disbursement Agent shall verify the information contained on each
wire instruction to the extent of confirming that the wire instructions on
the Asset Schedule delivered by Seller are identical to the wire
instructions set forth in the related Escrow Instruction Letter, Seller's
Release or Warehouse Lender's Release.
(iii) Check Disbursement Bank shall establish and maintain the
Settlement Account in accordance with the Check Disbursement Agreement.
All proceeds from the repurchase of a Mortgage Loan subject to this
Agreement by Seller or a sale of a Mortgage Loan subject to this Agreement
to a third party investor shall be sent directly to the Settlement
Account. All related fees and expenses for the Settlement Account shall be
borne by Seller. The Settlement Account shall be owned by and under the
exclusive dominion and control of Buyer. None of Disbursement Agent, any
Seller Entity or any other Person claiming on behalf of or through Seller
or Disbursement Agent shall have
-24-
any right or authority, whether express or implied, to close or make use
of, or, except as expressly provided herein, withdraw any funds from, the
Settlement Account. Notwithstanding anything herein to the contrary,
Disbursement Agent shall be entitled to net any amounts due and owing
under this Agreement to it or Custodian from Seller from amounts that,
after application of amounts in the Settlement Account due and owing to
Buyer, would otherwise be disbursed to Seller pursuant to this Section
11(a)(iii). Unless Disbursement Agent shall receive notice in writing from
Buyer to the contrary by 5:00 p.m. New York time on any applicable
Business Day, Disbursement Agent is hereby authorized by Buyer to disburse
funds deposited in the Settlement Account on such Business Day in
accordance with Section 11(f). Funds retained in the Settlement Account
shall remain uninvested. Disbursement Agent shall reconcile the Settlement
Account on a daily basis. Unless otherwise instructed by Buyer in writing,
before the close of business on each Business Day, Disbursement Agent
shall withdraw all collected amounts as of 5:00 p.m. New York time then
standing to the credit of the Settlement Account and deposit such amounts
into the following account maintained by Buyer: Bank of New York, for the
A/C of CDC Mortgage Capital Inc., ABA#021000018, Account #GLA 111569 SER,
Attn: Eric Seyffer, or, if such funds cannot be deposited into the
foregoing account at the end of such Business Day, on the next Business
Day.
(b) Customer Profiles. On or prior to the first Purchase Date, Buyer
shall provide to Disbursement Agent an initial customer profile in a form and
substance as determined by Buyer and as is reasonably acceptable to Disbursement
Agent (the "Customer Profile"), which will include each Class to be purchased
under the Repurchase Agreement (i.e., Conforming Mortgage Loan, Jumbo Mortgage
Loan, Alt-A First Mortgage Loan, Alt-A Second Mortgage Loan, Sub-Prime First
Mortgage Loan, Sub-Prime Second Mortgage Loan, Wet-Ink Mortgage Loan or
Repurchased Mortgage Loan) together with the related Market Values, Purchase
Percentages, Sub-Limits, Pricing Spread and other relevant information, together
with the calculations required to be performed in order to determine the Asset
Value, Purchase Price, Pricing Differential and Pricing Spread for each such
Class. The Customer Profile shall, at any time and from time to time, be in a
form and substance as determined by the Buyer and as is reasonably acceptable to
the Disbursement Agent. Each Customer Profile delivered by Buyer shall supersede
the previous Customer Profile and Disbursement Agent shall utilize the most
recently delivered Customer Profile on each day with respect to all transactions
hereunder. Promptly upon receipt of a Customer Profile, Disbursement Agent shall
verbally confirm with Buyer all changes to each field since the most recently
delivered Customer Profile.
(c) Disbursement Agent Calculations and Verifications.
(i) Initial Purchase of an Eligible Asset. With respect to each
Eligible Asset, Disbursement Agent shall perform the procedures set forth
below, in such order, with respect to each Eligible Asset in the order
that the related Transaction Requests are received:
(A) On each date on which Disbursement Agent receives a
Transaction Request from Seller, together with the related Seller
Asset Schedule, Disbursement Agent shall verbally confirm the
receipt of such Transaction Request with Buyer. With respect to each
Transaction Request, Disbursement
-25-
Agent shall perform an Edit Check with respect to each Eligible
Asset that Seller has requested Buyer purchase. If any Mortgage Loan
fails the Edit Check Procedures, Disbursement Agent shall notify
each of Seller and Buyer via Electronic Transmission (which shall be
sent "confirm receipt" or by some other means such that Disbursement
Agent has a reasonable belief that such notice has been received by
the addressee) of such Fatal Information Exception, and such
Transaction Request shall be deemed to be null and void.
(B) Upon a determination that each Eligible Asset that Seller
has requested Buyer purchase does not fail the Edit Check,
Disbursement Agent shall compare the information set forth in the
related Seller Asset Schedule with the applicable information
required pursuant to Annex 1 hereof with respect to the particular
Class and shall notify each of Seller and Buyer via Electronic
Transmission (which shall be sent "confirm receipt" or by some other
means such that Disbursement Agent has a reasonable belief that such
notice has been received by the addressee) of any Fatal Information
Exception, and such Transaction Request shall be deemed to be null
and void.
(C) Upon a determination that there is no Fatal Information
Exception as set forth in clause (i) of the definition thereof,
Disbursement Agent shall calculate the Purchase Price and Pricing
Rate for each Eligible Asset to be purchased by Buyer pursuant to
the Transaction Request using the information set forth in the
Customer Profile. If the values calculated by Disbursement Agent do
not match the values set forth in the related Transaction Request by
Seller, Disbursement Agent shall notify each of Seller and Buyer via
Electronic Transmission (which shall be sent "confirm receipt" or by
some other means such that Disbursement Agent has a reasonable
belief that such notice has been received by the addressee) of such
Fatal Information Exception, and such Transaction Request shall be
deemed to be null and void.
(D) Upon Disbursement Agent's determination that the
Transaction Request sets forth the correct calculations of the
related Purchase Price and Pricing Rate with respect to the
Transaction, Disbursement Agent shall verify that, (i) after taking
into account all purchase requests on the related Transaction
Request, together with all other outstanding Transactions, that the
aggregate Purchase Prices for each Class is equal to or less than
the related Sub-Limits set forth in the Customer Profile and (ii)
after giving effect to the requested Transaction that there would
not be a Margin Deficit. If after giving effect to the purchases
contemplated in the Transaction Request, the aggregate Purchase
Prices of all such Transactions is greater than the Sub-Limits or
the Margin Base, Disbursement Agent shall notify each of Seller and
Buyer via Electronic Transmission (which shall be sent "confirm
receipt" or by some other means such that Disbursement Agent has a
reasonable belief that such notice has been received by the
addressee) of such Fatal Information Exception, and such Transaction
Request shall be deemed to be null and void.
-26-
(E) At the request of Buyer, Disbursement Agent shall verify
the Wire Instructions set forth in the Seller Asset Schedule only to
the extent of confirming that the Wire Instructions on the Asset
Schedule delivered by Seller are to the DDA Account or are identical
to the Wire Instructions set forth in the related Escrow Instruction
Letter, Seller's Release or Warehouse Lender's Release, as
applicable. Disbursement Agent shall be under no obligation to
verify such wire instructions unless requested by Buyer.
(F) With respect to each Mortgage Loan other than a Check
Funded Loan, upon a determination that giving effect to a
Transaction Request would not cause a violation of any Sub-Limit or
cause a Margin Deficit and receipt of an Asset Schedule and
Exception Report from Custodian in accordance with Section 3 and
receipt of the Fatal Document Exception Report, if any, from
Custodian in accordance with Section 3, Disbursement Agent shall
disburse funds in accordance with Section 11(d)(i). The disbursing
of funds by Disbursement Agent shall constitute Disbursement Agent's
certification that no Fatal Exception exists with respect to any
Eligible Asset (or, with respect to a Wet-Ink Mortgage Loan, no
Fatal Information Exception exists) funded pursuant to this Section
11(c)(i)(F).
(G) With respect to each Check Funded Loan, upon (i) a
determination that giving effect to a Transaction Request would not
cause a violation of any Sub-Limit or cause a Margin Deficit, (ii)
receipt of an Asset Schedule and Exception Report from Custodian in
accordance with Section 3, (iii) receipt of the Fatal Document
Exception Report, if any, from Custodian in accordance with Section
3, and (iv) receipt from Seller of a Check Funding Schedule,
Disbursement Agent shall on each Check Presentation Date (1) verify
that checks in excess of the original principal balance with respect
to any Check Funded Loan were not presented for payment and (2)
determine the related Buyer Funded Amount. On the Check Presentation
Date, in accordance with the Check Disbursement Agreement, on or
prior to 12:00 noon, New York time, the Check Disbursement Bank
shall deliver electronically to Disbursement Agent, Buyer and Seller
the Check Presentment Report. Upon receipt of each Check Presentment
Report, with respect to all checks listed on such Check Funding
Schedule, Seller shall determine (i) the aggregate difference
("Seller Funded Amount") between the Purchase Price for the related
Check Funded Loans and the amounts necessary to clear all such
checks and (ii) the difference between the aggregate Buyer Funded
Amount for such Check Funded Loan and the aggregate amount needed to
fund all checks on such Check Presentation Date (the "Total Required
Funds"). Upon receipt of the Seller Funded Amount and the Additional
Seller Funded Amount, the Disbursement Agent shall disburse funds in
accordance with Section 11(d)(ii). The disbursing of funds by
Disbursement Agent shall constitute Disbursement Agent's
certification that no Fatal Information Exception exists with
respect to any Check Funded Loan funded pursuant to this Section
11(c)(i)(G). No later than 11:00 a.m. New York time on the Check
Reconciliation Date, pursuant to the Check Disbursement Agreement,
Check Disbursement Bank shall make available to Disbursement Agent
any Check
-27-
Funding Exceptions with respect to a check or a Check Funded Loan.
Disbursement Agent shall review all Check Funding Exceptions
received as of 11:00 a.m. New York time and notify Buyer via
Electronic Transmission of any Check Funding Exceptions prior to
1:00 p.m. New York time. Unless Buyer shall have notified
Disbursement Agent in writing on or prior to 2:00 p.m. New York time
that Disbursement Agent shall not issue a "no pay" instruction on
any related check, Disbursement Agent shall issue a "no pay"
instruction on any check with a Check Funding Exception except in
the case of "Stop Suspect" Check Funding Exceptions, which
Disbursement Agent shall not stop payment on unless notified by
Seller or Buyer. At the request of Buyer, Disbursement Agent shall
view the image of a check and verify that the payee set forth on the
Check Funding Schedule matches the payee on such imaged check.
Disbursement Agent shall track each check funded on respect of a
Check Funded Loan and notify Buyer, pursuant to the Daily Report,
when each check with respect to a Check Funded Mortgage Loan has
been paid.
(ii) Conversion of a Wet-Ink Mortgage Loan. On the date that
Custodian receives a Seller Asset Schedule containing the information set
forth on Annex 1 and all the documents set forth in Section 2(b) with
respect to each Wet-Ink Mortgage Loan, pursuant to Section 3(a), Custodian
shall deliver an Asset Schedule and Exception Report to each of Buyer and
Disbursement Agent in accordance with Section 3(a). Upon Disbursement
Agent's receipt of such Asset Schedule and Exception Report, Disbursement
Agent shall perform the procedures set forth in Section 11(c)(i)(A)-(E) as
if such conversion were a purchase of an Eligible Asset and if there are
no Fatal Exceptions with respect to such Wet-Ink Mortgage Loan, the
related Mortgage Loan shall no longer be a Wet-Ink Mortgage Loan.
(iii) Request for Additional Transactions for Excess Margin. Upon
Disbursement Agent's receipt of any Request for Additional Transactions
for Excess Margin, Disbursement Agent shall perform the procedures set
forth in Section 11(c)(i)(C) and (D) as if such request were a Transaction
Request. Pursuant to Section 11(b) herein, Disbursement Agent shall
utilize the most recently delivered Customer Profile in connection with
such Request for Additional Transactions for Excess Margin. If, after
performing such procedures, Disbursement Agent determines that giving
effect to any such Request for Additional Transactions for Excess Margin
would not cause a violation of any Sub-Limits or cause a Margin Deficit,
Disbursement Agent shall fund any amounts required pursuant to Section
11(d)(iv). The disbursing of funds by Disbursement Agent shall constitute
Disbursement Agent's certification that no Fatal Exception exists with
respect to any Eligible Asset (or, with respect to a Wet-Ink Mortgage
Loan, no Fatal Information Exception exists).
(d) Disbursements. If at any time Disbursement Agent is unable to
calculate the Purchase Prices in respect of disbursements to be made pursuant to
this Section 11(d) as a result of technical difficulties or otherwise, upon
written notice from Disbursement Agent to Buyer and Seller, Disbursement Agent
may request such information from Buyer. Additionally, if at any time Buyer
disputes Disbursement Agent's or Seller's calculation of the Purchase Prices in
respect of disbursements to be made pursuant to this Section 11(d), upon written
notice from
-28-
Buyer to Disbursement Agent and Seller, Disbursement Agent shall not disburse
funds as provided in this Section 11(d) until such dispute is resolved.
(i) Disbursement in Respect of Purchases of Eligible Assets. On each
proposed Purchase Date, Disbursement Agent will disburse funds in the
Disbursement Account in accordance with the Wire Instructions in the
Seller Asset Schedule within 2 hours of a final Transaction Request but in
no event later than 5:15 p.m. New York time, provided that (A)
Disbursement Agent shall have performed the procedures set forth in
Section 11(c) and all conditions to disbursement set forth therein shall
have been satisfied; (B) sufficient funds exist in the Disbursement
Account (taking into account amounts required to be transferred from the
related Wire-out Account pursuant to Section 11 (a)(ii)); (C) such
instructions do not include any Seller Entity or any Affiliate of a Seller
Entity as payee, unless otherwise authorized by Buyer in writing to
Disbursement Agent; and (D) if a conflict exists between the instructions
of Buyer and the instructions of Seller, Disbursement Agent shall follow
Buyer's instructions. In the event that the funds maintained in the
related Wire-out Account are not sufficient to permit the funding of the
full Wire Amount for any Eligible Asset, no funds shall be disbursed from
the Disbursement Account to fund or acquire such Eligible Asset. For each
disbursement pursuant to this Section 11(d)(i), Disbursement Agent shall
promptly notify Seller by Electronic Transmission of the related federal
wire reference number when it becomes available.
(ii) Disbursements in Respect of Check Funded Loans. On each Check
Presentation Date, Disbursement Agent will disburse funds in the
Disbursement Account to the DDA Account by 5:15 p.m. New York time,
provided that (A) Disbursement Agent shall have performed the procedures
set forth in Section 11(c) and all conditions to disbursement set forth
therein shall have been satisfied; and (B) sufficient funds exist in the
Disbursement Account (taking into account amounts required to be
transferred from the related Wire-out Account pursuant to Section 11
(a)(ii)). In the event that the funds maintained in the related Wire-out
Account are not equal to the Total Required Funds for such Check
Presentation Date, Disbursement Agent should disburse funds in accordance
herewith and notify each of the Buyer and Seller of such shortfall via
Electronic Transmission (which shall be sent "confirm receipt" or by some
other means such that Disbursement Agent has a reasonable belief that such
notice has been received by the addressee).
(iii) [Reserved]
(iv) Disbursements in Respect of Requests for Additional
Transactions for Excess Margin. On the Business Day that Disbursement
Agent determines that the provisions of Section 11(c)(iii) have been
satisfied with respect to any Request for Additional Transactions for
Excess Margin, Disbursement Agent shall withdraw from the Disbursement
Account and credit to the Wire-out Account an amount equal to the
requested amount of the Excess Margin.
(e) [Reserved]
-29-
(f) Settlement. On the Business Day prior to the date on which
Seller intends to or is required to repurchase an Eligible Asset ("Intended
Repurchase Date") pursuant to the terms of the Repurchase Agreement (or a third
party purchases such Eligible Asset), Seller shall provide Disbursement Agent
and Buyer with written notice of all funds anticipated to be received by
Disbursement Agent from Seller (or such third party) for the credit of the
Settlement Account, together with a settlement report containing all information
set forth on Annex 17 hereto (the "Settlement Report") by 4:00 p.m. New York
time. Upon Disbursement Agent's verification that (x) all information required
pursuant to Annex 17 hereto is set forth in the Settlement Report, and (y) Buyer
has confirmed the accuracy of such Settlement Report in writing, which
confirmation may be delivered via Electronic Transmission, Disbursement Agent
shall immediately disburse such funds in the Settlement Account as directed in
the Settlement Report, provided (i) sufficient funds exist in the Settlement
Account, (ii) after giving effect to such repurchase, a Margin Deficit would not
exist and there would be no violation of any Sub-Limits and (iii) Buyer has not
disputed such disbursement prior to such disbursement. Disbursement Agent's
verification and Buyer's confirmation or disputation referenced in the preceding
sentence shall be completed, and written notice of any disputation shall be
given to Seller by Electronic Transmission, no later than 11:00 a.m. New York
time on the Intended Repurchase Date. If all amounts required to be disbursed to
Buyer pursuant to the Settlement Report are not deposited in the Settlement
Account by 4:00 p.m. New York time on the date indicated as the "Settlement
Date" in the Settlement Report, Disbursement Agent shall notify each of
Custodian, Seller and Buyer and it shall be deemed to constitute an Event of
Default under the Repurchase Agreement and satisfy all notice requirements of
Buyer with respect to an Event of Default and Custodian and Seller shall treat
such notice as a notice of an Event of Default from Buyer. Notwithstanding the
foregoing sentence, if sufficient funds are not deposited in the Settlement
Account in accordance with the preceding sentence on any "Settlement Date" and
there are funds on deposit in the Wire-out Account, Seller hereby agrees that,
and Disbursement Agent shall, transfer from the Wire-out Account to the
Settlement Account no later than 5:30 p.m. New York time on such date an amount
equal to the lesser of (x) all amounts on deposit in the Wire-out Account and
(y) such shortfall. If such transferred funds are sufficient to pay all amounts
required to be paid to Buyer pursuant to the Settlement Report, no Event of
Default shall be deemed to have occurred. Notwithstanding the foregoing, if a
conflict exists between the instructions of Buyer and the Settlement Report,
Disbursement Agent shall follow Buyer's instructions.
(g) Reports; Monitoring.
(i) On each Business Day, Disbursement Agent shall provide to Buyer
a reconciliation report with respect to all cash activity in each
Transaction Account. Additionally, upon request Disbursement Agent shall
provide to Seller a reconciliation report with respect to all cash
activity on the Wire-out Account and the Settlement Account.
(ii) No later than 5:00 p.m. New York time on each Business Day,
Disbursement Agent shall provide to Buyer a daily report setting forth
such information as may reasonably be required by Buyer (a "Daily
Report").
-30-
(iii) Upon request of Buyer, Disbursement Agent shall provide to
Seller a Daily Report reflecting the information set forth thereon as of
the time of the transmission of such report.
(iv) Disbursement Agent shall provide to Buyer any reports with
respect to any aspect of the transactions contemplated by this Agreement,
to the extent the requested information is, or should be, in the
possession of Disbursement Agent, as Buyer may request.
(v) Disbursement Agent shall track and monitor all information
required to be provided to any party hereunder pursuant to any report
required to be delivered hereunder, including but not limited to, (A) all
amounts funded in respect of any Mortgage Loan, including, without
limitation, the Purchase Price, (B) the date such funds were disbursed,
(C) all amounts due to Buyer in respect of the Periodic Advance Repurchase
Payment, (D) the amount of any distribution in connection with any Request
for Additional Transactions for Excess Margin, (E) all Purchased Assets
and the aggregate outstanding Repurchase Prices in respect thereof and (F)
the amount of any Margin Deficit or Excess Margin.
(vi) Disbursement Agent shall provide all information in its
possession to Custodian, to the extent Custodian requests, in order to
permit Custodian to comply with its requirements under this Agreement,
including, but not limited to, the preparation and delivery of each
updated Asset Schedule, Exception Report and Fatal Exception Report.
(h) Income Payment Dates. Notwithstanding that Buyer and Seller
intend that the Transactions under the Repurchase Agreement and hereunder to be
sales to Buyer of the Purchased Assets, Seller shall deposit into the Settlement
Account the Periodic Advance Repurchase Payment on each Payment Date. On each
Payment Date, Buyer shall forward to Disbursement Agent a payment date report in
the form set forth on Annex 19 hereto (a "Payment Date Report"). Disbursement
Agent shall verify that all amounts required to be paid to Buyer pursuant to the
Payment Date Report are deposited into the Settlement Account on each Payment
Date. If such amounts are not deposited into the Settlement Account on or prior
to 5:00 p.m. New York time on such Payment Date, Disbursement Agent shall notify
each of Custodian, Seller and Buyer and it shall be deemed to constitute an
Event of Default under the Repurchase Agreement and satisfy all notice
requirements of Buyer with respect to an Event of Default and Custodian and
Seller shall treat such notice as a notice of an Event of Default from Buyer.
(i) Set-off. Custodian and Disbursement Agent agree that they shall
not exercise any right of set-off, banker's lien or any similar right in
connection with funds on deposit in any Transaction Account.
(j) Fees and Expenses of Disbursement Agent.
(i) Disbursement Agent shall charge such fees for its services under
this Agreement as are set forth in a separate agreement between
Disbursement Agent and AHMC, the payment of which fees, together with
Disbursement Agent's expenses in connection herewith, shall be solely the
obligation of Seller. The failure of Seller to pay
-31-
any such fees shall not excuse the performance by Disbursement Agent of
any of its obligations hereunder. The obligations of the Seller to pay
Disbursement Agent such fees and reimburse Disbursement Agent for such
expenses in connection with services provided by Disbursement Agent prior
to the termination of this Agreement and the earlier of the resignation or
removal of Disbursement Agent shall survive such termination, resignation
or removal.
(ii) Seller shall be responsible for the standard fees and charges
of Disbursement Agent applicable to each Transaction Account. To the
extent that Seller has not paid such fees within a reasonable amount of
time from Seller's receipt of notice of such fees and charges,
Disbursement Agent shall provide written notice to Buyer of Seller's
failure to pay such fees and Buyer shall have the option, in its sole
discretion, to cure such failure.
(k) In performing its obligations under this Section 11, except as
specifically provided in this Agreement, Disbursement Agent will not follow
instructions from any party other than Buyer.
Section 12. No Adverse Interest.
By execution of this Agreement, each of Disbursement Agent and
Custodian represent and warrant that it currently holds, and during the
existence of this Agreement shall hold, no adverse interest, by way of security
or otherwise, in any Mortgage Loan, and hereby waives and releases any such
interest which it may have in any Mortgage Loan as of the date hereof. The
Mortgage Loans shall not be subject to any security interest, lien or right to
set-off by Custodian, Disbursement Agent or any third party claiming through
Custodian or Disbursement Agent, and neither Custodian nor Disbursement Agent
shall pledge, encumber, hypothecate, transfer, dispose of, or otherwise grant
any third party interest in, the Mortgage Loans.
Section 13. Indemnification.
(a) Each Seller Entity, jointly and severally, agrees to indemnify
and hold Custodian, Disbursement Agent and their affiliates, directors,
officers, agents and employees harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, of
any kind or nature whatsoever, including reasonable attorney's fees, that may be
imposed on, incurred by, or asserted against it or them in any way relating to
or arising out of this Agreement or any action taken or not taken by it or them
hereunder unless such liabilities, obligations, losses, damages, penalties,
actions, judgements, suits, cost, expenses or disbursements were imposed on,
incurred by or asserted against Custodian or Disbursement Agent because of the
breach by Custodian or Disbursement Agent, as applicable, of its obligations
hereunder, which breach was caused by negligence, lack of good faith or willful
misconduct on the part of Custodian or Disbursement Agent, as applicable or any
of its respective directors, officers, agents or employees. Each of Disbursement
Agent and Custodian agree that it will promptly notify Seller of any such claim,
action or suit asserted or commenced against it and that Seller may assume the
defense thereof with counsel reasonably satisfactory to Disbursement Agent or
Custodian, as applicable, at Seller's sole expense, that Custodian or
-32-
Disbursement Agent, as applicable, will cooperate with Seller on such defense,
and that Custodian or Disbursement Agent, as applicable, will not settle any
such claim, action or suit without the consent of Seller. The foregoing
indemnification shall survive any resignation or removal of Custodian or
Disbursement Agent, as applicable, or the termination or assignment of this
Agreement.
(b) In the event that Custodian fails to produce a Mortgage Note, a
Credit Line Agreement, an Assignment of Mortgage or any other document related
to a Mortgage Loan that was in its possession pursuant to Section 2 within two
(2) Business Days after required or requested by Seller or Buyer, and provided
that (i) Custodian previously delivered to Buyer an Asset Schedule and Exception
Report which did not list such document as an Exception on the related Purchase
Date; (ii) such document is not outstanding pursuant to a Request for Release
and Receipt in the form annexed hereto as either Annex 5-A or Annex 5-B; and
(iii) such document was held by Custodian on behalf of Seller or Buyer, as
applicable (a "Custodial Delivery Failure"), then Custodian shall (a) with
respect to any missing Mortgage Note or Credit Line Agreement, as applicable,
promptly deliver to Buyer or Seller upon request, a Lost Note Affidavit in the
form of Annex 16 hereto and (b) with respect to any missing document related to
such Mortgage Loan, including but not limited to a missing Mortgage Note or
Credit Line Agreement, as applicable, (1) indemnify Seller and Buyer, as
applicable, in accordance with Section 13(c) below and (2) at Buyer's option, at
any time the long term obligations of Custodian are rated below the second
highest rating category of Moody's Investors Service, Inc. or Standard and
Poor's Ratings Group, a division of McGraw-Hill, Inc., obtain and maintain, at
Custodian's expense, an insurance bond in the name of Buyer, and its successors
in interest and assigns, insuring against any losses associated with the loss of
such document, in an amount equal to the then outstanding principal balance of
the related Mortgage Loan or such lesser amount requested by Buyer in Buyer's
sole discretion.
(c) Custodian agrees to indemnify and hold Buyer and each Seller
Entity, and each of their respective present or former affiliates, directors,
officers, employees, agents and representatives harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of a Custodial Delivery
Failure or Custodian's breach of this Agreement, negligence, lack of good faith
or willful misconduct. The foregoing indemnification shall survive the
resignation or removal of Custodian and any termination or assignment of this
Agreement.
(d) Disbursement Agent agrees to indemnify and hold Buyer and each
Seller Entity, and each of their respective present or former affiliates,
directors, officers, employees, agents and representatives harmless against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable attorney's fees, that may be imposed on,
incurred by, or asserted against it or them in any way relating to or arising
out of Disbursement Agent's breach of this Agreement, negligence, lack of good
faith or willful misconduct. The foregoing indemnification shall survive the
resignation or removal of Disbursement Agent or any termination or assignment of
this Agreement.
-33-
Section 14. Reliance of Custodian.
(a) In the absence of bad faith on the part of Custodian or
Disbursement Agent, Custodian and Disbursement Agent may each conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any request, instruction, certificate, opinion or other document
furnished to Custodian or Disbursement Agent (including such items received via
Electronic Transmission), reasonably believed by Custodian or Disbursement Agent
, as applicable, to be genuine and to have been signed or presented by the
proper party or parties and conforming to the requirements of this Agreement;
provided, however, that in the case of any Mortgage Loan Document or other
request, instruction, document or certificate which by any provision hereof is
specifically required to be furnished to Custodian or Disbursement Agent,
Custodian or Disbursement Agent , as applicable, shall be under a duty to
examine the same in accordance with the requirements of this Agreement.
(b) Custodian shall have no duties or responsibilities except those
that are specifically set forth in this Agreement. Custodian shall have no
responsibility nor duty with respect to any Mortgage File while not in its
possession. If Custodian requests instructions from Buyer with respect to any
act, action or failure to act in connection with this Agreement, Custodian shall
be entitled to refrain from taking such action and continue to refrain from
acting unless and until Custodian shall have received written instructions from
Buyer with respect to a Mortgage File without incurring any liability therefor
to Buyer or any other Person.
(c) Other than as provided herein, neither Custodian nor any of its
directors, officers, agents or employees shall be liable for any action or
omission to act hereunder except for its or their own negligence or lack of good
faith or willful misconduct. In no event shall Custodian or any of its
directors, officers, agents or employees have any responsibility to ascertain or
take action except as expressly provided herein.
(d) Neither Custodian nor any of its directors, officers, agents or
employees shall be liable to the Purchaser or any other Person with respect to
any action taken or not taken by it in good faith in the performance of its
obligations under this Agreement. The obligations of Custodian or any of its
directors, officers, agents or employees shall be determined solely by the
express provisions of this Agreement.
(e) Custodian may consult with counsel selected by Custodian with
regard to legal questions arising out of or in connection with this Agreement,
and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action reasonably taken, omitted
or suffered by Custodian in good faith and in accordance therewith; provided
such action shall be in compliance with all the terms expressly provided herein.
(f) No provision of this Agreement shall require Custodian to expend
or risk its own funds or otherwise incur financial liability (other than
expenses or liabilities otherwise required to be incurred by the express terms
of this Agreement) in the performance of its duties under this Agreement if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity is not reasonably assured to it.
-34-
(g) Any corporation into which Custodian may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which Custodian shall be a party, or any
corporation succeeding to the business of Custodian shall be the successor of
Custodian hereunder without the execution or filing of any paper with any party
hereto or any further act on the part of any of the parties hereto except where
an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
Section 15. Term of Agreement.
Promptly after written notice from Buyer of the termination of the
Repurchase Agreement and payment in full of all amounts owing to Buyer
thereunder, Custodian shall deliver all documents remaining in the Mortgage
Files to Seller, and, except as otherwise set forth herein, this Agreement shall
thereupon terminate.
Section 16. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
recipient party at the address shown on its signature page hereto, or at such
other addresses as may hereafter be furnished to each of the other parties by
like notice. Any such demand, notice or communication hereunder shall be deemed
to have been received on the date delivered to or received at the premises of
the addressee. Each party hereto hereby represents and warrants that its office
is located at the respective address set forth on its signature page hereto, and
each such party shall notify each other party hereto if such address should
change.
Section 17. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 18. Authorized Representatives.
Each individual designated as an authorized representative of Buyer
or its successors or assigns, any Seller Entity, Disbursement Agent and
Custodian, respectively (an "Authorized Representative"), is authorized to give
and receive notices, requests and instructions and to deliver certificates and
documents in connection with this Agreement on behalf of Buyer, Seller,
Disbursement Agent and Custodian, as the case may be, and the specimen signature
for each such Authorized Representative, initially authorized hereunder, is set
forth on Annexes 6, 7, 8 and 9 hereof, respectively. From time to time, Buyer,
each Seller Entity, Disbursement Agent and Custodian or their respective
successors or permitted assigns may, by delivering to the others a revised
annex, change the information previously given pursuant to this Section 18, but
each of the parties hereto shall be entitled to rely conclusively on the then
current annex until receipt of a superseding annex.
-35-
Section 19. Amendment.
This Agreement may be amended from time to time by written agreement
signed by each Seller Entity, Buyer, Custodian and Disbursement Agent.
Section 20. Cumulative Rights.
The rights, powers and remedies of Custodian, Disbursement Agent and
Buyer under this Agreement shall be in addition to all rights, powers and
remedies given to Custodian, Disbursement Agent and Buyer by virtue of any
statute or rule of law, the Repurchase Agreement or any other agreement, all of
which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing Buyer's interest in the Purchased
Assets.
Section 21. Assignment; Binding upon Successors.
This Agreement may not be assigned in whole or in part by Seller,
Custodian or Disbursement Agent without the prior written consent of Buyer. This
Agreement may be assigned by Buyer in whole or in part without the prior written
consent of any other party hereto. Buyer shall provide Custodian with notice of
such assignment together with written acknowledgment that the assignee is
assuming all of the obligations of Buyer under this Agreement to the extent
applicable. All rights of Custodian, Disbursement Agent and Buyer under this
Agreement shall inure to the benefit of Custodian, Disbursement Agent and Buyer
and their successors and permitted assigns, and all obligations of Seller and
each Seller Entity shall bind its respective successors and assigns.
Section 22. Entire Agreement; Severability.
This Agreement, the Edit Check Agreement and the Repurchase
Agreement contain the entire agreement with respect to the rights and
obligations of Custodian and Disbursement Agent relating to the Purchased Assets
among Custodian, Disbursement Agent, Buyer and Seller. If any of the provisions
of this Agreement shall be held invalid or unenforceable, this Agreement shall
be construed as if not containing such provisions, and the rights and
obligations of the parties hereto shall be construed and enforced accordingly.
Section 23. Execution in Counterparts.
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement.
Section 24. Tax Reports.
Custodian shall not be responsible for the preparation or filing of
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than in respect of Custodian's compensation or
for reimbursement of expenses.
-36-
Section 25. Assignment by Buyer.
Buyer hereby notifies Custodian that Buyer may assign, as of the
applicable Purchase Date, all of its right, title and interest in and to some or
all of the Purchased Assets to a third party assignee (an "Assignee"), subject
only to an obligation on the part of the Assignee to release its interest in
each such Purchased Asset to Buyer to permit Custodian, Buyer or its designee to
make delivery thereof in accordance with the terms of this Agreement. Seller
hereby irrevocably consents to any such assignment. Subject to any limitations
in any agreement between the Assignee and Buyer, the Assignee may, upon notice
of Buyer's default, directly enforce and exercise such rights under this
Agreement that have been assigned or pledged to it and, until otherwise notified
by the Assignee, Buyer shall no longer have any of such rights. Custodian shall
assume that any assignment from Buyer to the Assignee is subject to no
limitations that are not expressly set forth in this Agreement.
Section 26. Submission to Jurisdiction; Waivers.
EACH OF BUYER, EACH SELLER ENTITY, CUSTODIAN AND DISBURSEMENT AGENT
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER REPURCHASE DOCUMENTS, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH EACH OTHER
PARTY HERETO SHALL HAVE BEEN NOTIFIED;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION; AND
-37-
(e) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER REPURCHASE DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 27. Confidentiality.
Each of Custodian and Disbursement Agent hereby acknowledges and
agrees that (i) all written or computer-readable information provided by Buyer
or Seller regarding Buyer or Seller and (ii) the terms of this Agreement and the
Repurchase Agreement (the "Confidential Information"), shall be kept
confidential and shall not be divulged to any Person other than the parties
hereto without Buyer's and Seller's prior written consent except to the extent
that (i) Custodian or Disbursement Agent reasonably deems necessary to do so in
working with legal counsel, auditors, taxing authorities or other governmental
agencies or regulatory bodies or in order to comply with any applicable federal
or state laws, (ii) any portion of the Confidential Information is in the public
domain other than due to a breach of this covenant by the Custodian or the
Disbursement Agent, as the case may be, or by the disclosing party or (iii) to
the extent that Custodian or Disbursement Agent, as applicable, is required to
disclose Confidential Information pursuant to the requirements of any legal
proceeding, Custodian or Disbursement Agent, as applicable, shall notify Buyer
and Seller within one Business Day of its knowledge of such legally required
disclosure so that Buyer or Seller may seek an appropriate protective order
and/or waive Custodian's or Disbursement Agent's compliance, as applicable, with
this Agreement. Notice shall be both by telephone and in writing. In the absence
of a protective order or waiver, Custodian or Disbursement Agent, as applicable,
may disclose the relevant Confidential Information if, in the written opinion of
its counsel, failure to disclose such Confidential Information would subject
Custodian or Disbursement Agent, as applicable, to liability for contempt,
censure or other legal penalty or liability.
Section 28. Obligations Joint and Several.
Each of the Seller Entities hereby acknowledges and agrees that it
shall be jointly and severally liable to Buyer, Custodian and Disbursement
Agent, as applicable, for all representations, warranties, covenants,
obligations and indemnities of Seller hereunder.
[SIGNATURE PAGE FOLLOWS]
-38-
IN WITNESS WHEREOF, this Agreement was duly executed by the parties
hereto as of the day and year first above written.
AMERICAN HOME MORTGAGE CORP.
By: /s/ Alan Horn
---------------------------------------
Name: Alan Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ Alan Horn
---------------------------------------
Name: Alan Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: /s/ Alan Horn
---------------------------------------
Name: Alan Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
By: /s/ Alan Horn
---------------------------------------
Name: Alan Horn
Title: Executive Vice President
COLUMBIA NATIONAL, INCORPORATED
By: /s/ Alan Horn
---------------------------------------
Name: Alan Horn
Title: Executive Vice President
Address for Notices:
c/o American Home Mortgage Corp:
520 Broadhollow Road,
Melville, New York 11747
Attention: Alan B. Horn, Esq;,
Executive Vice President
and General Counsel
Telecopier No.: (800) 209-7276
Telephone No.: (516) 396-7703
Email: alan.horn@americanhm.com
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian
By: /s/ Aimee Kemmeter
--------------------------------------
Name: Aimee Kemmeter
Title: Assistant Vice President
By: /s/ Andrew Hays
--------------------------------------
Name: Andrew Hays
Title: Associate
Address for Notices:
1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Mortgage Custody-AH020C
Telecopier No.: (714) 247-6285
Telephone No.: (714) 247-6000
CDC MORTGAGE CAPITAL INC.
By: /s/ Kathy Lynch
--------------------------------------
Name: Kathy Lynch
Title: Director
By: /s/ Anthony Malanga
--------------------------------------
Name: Anthony Malanga
Title: Managing Director
Address for Notices:
9 West 57th Street
New York, NY 10019
Attn: Ray Sullivan
Telecopier No.: (212) 891-3347
Telephone No.: (212) 891-5815
Email: r.sullivan@cdcixis-cmna.com
With a copy to:
9 West 57th Street
New York, NY 10019
Attn: Al Zakes, Esq.,
General Counsel
Telecopier No.: (212) 891-1922
Telephone No.: (212) 891-6137
Email: albert.zakes@cdcixis-cmna.com
and with a copy to:
9 West 57th Street
New York, NY 10019
Attn: Michael Friedman
Telecopier No.: (212) 891-6143
Telephone No.: (212) 891-6261
Email: m.friedman@cdcixis-cmna.com
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Disbursement Agent
By: /s/ Aimee Kemmeter
---------------------------------------
Name: Aimee Kemmeter
Title: Assistant Vice President
By: /s/ Andrew Hays
---------------------------------------
Name: Andrew Hays
Title: Associate
Address for Notices:
1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Mortgage Custody- AH020C
Telecopier No.: (714) 247-6058
Telephone No.: (714) 247-6000