EXHIBIT 10.5.2
================================================================================
CUSTODIAL AGREEMENT
Among
GOLDMAN SACHS MORTGAGE COMPANY
as Buyer
and
AMERICAN HOME MORTGAGE ACCEPTANCE, INC. and
AMERICAN HOME MORTGAGE CORP.,
as Sellers
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Custodian
Dated as of August 31, 2005
================================================================================
TABLE OF CONTENTS
Page
Section 1. Definitions......................................................1
Section 2. Deposit of Mortgage Loans; Effecting a Transaction...............4
Section 3. Mortgage Loan Schedule or Exception Report.......................5
Section 4. Obligations of the Custodian.....................................6
Section 5. Additional Purchased Mortgage Loans..............................6
Section 6. Future Defects...................................................7
Section 7. Release for Servicing............................................7
Section 8. Limitation on Release............................................7
Section 9. Release for Payment..............................................8
Section 10. Joint and Several Obligations....................................8
Section 11. Covenants of the Seller..........................................8
Section 12. Repurchase Date..................................................8
Section 13. Transfer of Purchased Mortgage Loans Upon Termination of a
Transaction......................................................9
Section 14. Shipment of Documents............................................9
Section 15. Examination and Copies of Mortgage Files.........................9
Section 16. Insurance of the Custodian.......................................9
Section 17. Periodic Statements.............................................10
Section 18. Fees and Expenses of the Custodian..............................10
Section 19. Custodian Representations.......................................10
Section 20. No Adverse Interest of the Custodian............................11
Section 21. Concerning the Custodian........................................11
Section 22. Indemnification.................................................12
Section 23. Merger or Consolidation of Custodian............................12
Section 24. Removal of the Custodian With Respect to Some or All of the
Purchased Mortgage Loans........................................13
Section 25. Obligations of the Custodian With Respect to the Trust
Receipt.........................................................13
Section 26. Termination by the Custodian....................................14
Section 27. Successors and Assigns..........................................14
Section 28. Authorized Representatives......................................15
Section 29. Notices.........................................................15
Section 30. Reproduction of Documents.......................................16
Section 31. Amendments; Entire Agreement....................................16
Section 32. Entire Agreement; Severability..................................16
Section 33. Governing Law; Counterparts.....................................16
-i-
TABLE OF CONTENTS
(continued)
Page
Section 34. Submission to Jurisdiction......................................17
-ii-
EXHIBITS
EXHIBIT 1 Mortgage File
EXHIBIT 2 Form of Trust Receipt
EXHIBIT 3 Form of Request for Release of Documents and Receipt
EXHIBIT 4 Authorized Representatives of the Custodian
EXHIBIT 5 Authorized Representatives of the Seller
EXHIBIT 6 Authorized Representatives of the Buyer
EXHIBIT 7 Form of Mortgage Loan Schedule
EXHIBIT 8 Form of Repurchase Release
EXHIBIT 9 Form of Lost Note Affidavit
EXHIBIT 10 INTENTIONALLY OMITTED
EXHIBIT 11 Form of Notice to Custodian
-iii-
THIS CUSTODIAL AGREEMENT, dated as of August 31, 2005 (this "Agreement")
is made among Goldman Sachs Mortgage Company, a New York Limited Partnership
(the "Buyer"), American Home Mortgage Acceptance, Inc., a Maryland corporation,
American Home Mortgage Corp., a New York corporation (each a "Seller", and
together the "Sellers") and Deutsche Bank National Trust Company, as Custodian
(the "Custodian").
WITNESSETH:
WHEREAS, the Buyer and the Sellers may, from time to time, enter into
transactions (each, a "Transaction") in which the Buyer shall purchase from the
Sellers certain Mortgage Loans, with a simultaneous agreement by the Sellers to
repurchase such Purchased Mortgage Loans as provided in that certain Master
Repurchase Agreement dated as of August 31, 2005 between the Sellers and the
Buyer (the "Repurchase Agreement"); and
WHEREAS, the Buyer has requested the Custodian to act as custodian on
behalf of the Registered Holder (as defined below) for purposes of holding the
Purchased Mortgage Loans purchased by Buyer from the Sellers pursuant to the
Repurchase Agreement; and
WHEREAS, the Custodian is a national banking association, is otherwise
authorized to act as the Custodian pursuant to this Agreement, and has agreed to
act as custodian/bailee for hire for the Registered Holders of the Purchased
Mortgage Loans, all as more particularly set forth herein; and
WHEREAS, the Sellers shall from time to time deliver Purchased Mortgage
Loans to the Custodian that are subject to a Transaction, and has agreed to
deliver or cause to be delivered to the Custodian certain documents with respect
to the Purchased Mortgage Loans subject to each Transaction in accordance with
the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Repurchase Agreement.
"Additional Purchased Mortgage Loans" shall have the meaning set forth in
Section 5 hereof.
"Agreement" shall mean this Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
"Assignment of Mortgage" shall mean an individual 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 set forth in Section 28
hereof.
"Business Day" shall mean any day excluding (i) Saturday, Sunday or (ii)
any day on which banks located in the States of New York or California are
authorized or permitted to close for business or (iii) any day on which the New
York Stock Exchange is closed.
"Buyer" shall mean Goldman Sachs Mortgage Company or its successor in
interest or assigns.
"Custodial Delivery Failure" shall have the meaning set forth in Section
22(b) hereof.
"Custodian" shall mean Deutsche Bank National Trust Company, or any
successor in interest or assigns, or any successor to the Custodian under this
Agreement as herein provided.
"Electronic Agent" shall mean MERSCORP, Inc., or its successor in interest
or assigns.
"Event of Default" shall mean any event of default under the Repurchase
Agreement or any confirmation thereunder.
"Indemnitee" shall have the meaning set forth in Section 22(a) hereof.
"Last Endorsee" shall have the meaning set forth in Section 3 hereof.
"MERS" shall mean Mortgage Electronic Registration Systems, Inc., a
Delaware corporation.
"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.
"MERS Report" shall mean the schedule listing MERS Designated Mortgage
Loans and other information prepared by Electronic Agent pursuant to the
Electronic Tracking Agreement.
"MERS(R) System" shall mean the Electronic Agent's mortgage electronic
registry system, as more particularly described in the MERS Procedures Manual."
"Mortgage" shall mean the mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first or second lien on the Mortgaged
Property described therein.
"Mortgage File" shall have the meaning set forth in Exhibit 1 attached
hereto.
"Mortgage Loan" shall mean performing first or second lien,
one-to-four-family residential mortgage loan evidenced by a Mortgage Note and
secured by a Mortgage, including, without limitation: (i) a promissory note, any
reformation thereof and related deed of trust (or mortgage) and security
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 Sellers to return premiums or
payments with respect thereto; and (iii) all right, title and interest of the
Sellers in the property covered by such deed of trust (or mortgage).
"Mortgage Loan Schedule" shall mean a schedule in written and computer
readable formats of Purchased Mortgage Loans, containing the information set
forth in Exhibit 7 hereto and otherwise acceptable to the Buyer.
"Mortgage Loan Schedule and Exception Report" shall mean a list of
Purchased Mortgage Loans delivered by the Custodian to the Buyer, reflecting the
Mortgage Loans held by the Custodian for the
-2-
benefit of the Buyer, which includes codes indicating any exceptions with
respect to each Mortgage Loan listed thereon. Each Mortgage Loan Schedule and
Exception Report shall set forth (a) the Mortgage Loans being purchased by the
Buyer on any applicable Purchase Date as well as the Mortgage Loans previously
purchased by the Buyer and held by the Custodian hereunder, and (b) all
exceptions with respect thereto, with any updates thereto from time to time last
delivered.
"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.
"Mortgagor" shall mean the obligor or obligors on a Mortgage Note,
including any Person who has assumed or guaranteed the obligations of the
obligor thereunder.
"Notice of Default" shall mean written notice delivered by the Buyer to
the Custodian and each Seller stating that an Event of Default has occurred.
"Notice to the Custodian" shall have the meaning set forth in Section
25(b) hereof.
"Opinion of Counsel" shall mean a written opinion letter of counsel in
form and substance reasonably acceptable to the party receiving such opinion
letter.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
"PMI Policy" shall mean a policy of primary mortgage guaranty insurance
issued by a Qualified Insurer, as required by the Repurchase Agreement with
respect to certain Mortgage Loans.
"Purchase Date" shall mean with respect to each Purchased Mortgage Loan,
the date on which such Purchased Mortgage Loan is purchased by the Buyer
pursuant to the Repurchase Agreement.
"Purchased Mortgage Loan" shall mean each Mortgage Loan, and/or any other
evidence of ownership of a Mortgage Loan mutually agreed upon by the Buyer and
the Sellers and identified to the Custodian transferred or caused to be
transferred by the Sellers to the Buyer or its designee (including the
Custodian) in a Transaction under the Repurchase Agreement and any Additional
Purchased Mortgage Loans delivered pursuant to this Agreement.
"Qualified Insurer" shall mean a mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Fannie Mae or Freddie Mac.
"Registered Holder" shall have the meaning set forth in Section 25 hereof.
"Repurchase Agreement" shall have the meaning set forth in the first
paragraph of the recitals hereto.
"Repurchase Date" shall mean, with respect to each Purchased Mortgage
Loan, the date on which such Purchased Mortgage Loan is to be repurchased by the
Sellers pursuant to the Repurchase Agreement.
-3-
"Repurchase Release" shall have the meaning set forth in Section 12
hereof.
"Responsible Officer" shall mean, with respect to the Custodian, any
Person having substantial responsibility for the obligations of Custodian under
this Agreement and any officer within the Corporate Trust Office (or any
successor group of the Custodian), including any managing director, director,
vice president, assistant vice president, secretary, assistant secretary,
assistant treasurer, associate, vice president or any other officer of the
Custodian customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Request for Release" shall have the meaning set forth in Section 7
hereof.
"Seller" or "Sellers" shall have the meaning assigned to it in the
recitals hereto.
"Transaction" shall have the meaning set forth in the first paragraph of
the recitals hereto.
"Transferee" shall have the meaning set forth in Section 25(b) hereof.
"Trust Receipt" shall mean a trust receipt issued by the Custodian
evidencing the Purchased Mortgage Loans it holds, in the form attached hereto as
Exhibit 2 and delivered to the Buyer by the Custodian in accordance with Section
2 hereof.
"Written Instructions" shall mean written communications received by the
Custodian from an Authorized Representative of the Buyer or the Sellers,
including communications received by facsimile, or other telecommunications
device capable of transmitting or creating a written record.
Section 2. Deposit of Mortgage Loans; Effecting a Transaction
(a) With respect to each Purchased Mortgage Loan, no later than 12:00 p.m.
(New York time) 2 (two) Business Days prior to each Purchase Date (such date of
delivery, the "Delivery Date"), the Sellers shall deliver or cause to be
delivered to the Custodian (i) the Mortgage Files with respect to the related
Purchased Mortgage Loans and (ii) the related Mortgage Loan Schedule for up to,
with respect to initial delivery of Mortgage Loans pursuant to this Agreement,
five hundred (500) Mortgage Loans, and, thereafter, for up to two hundred fifty
(250) Mortgage Loans (with an additional Business Day prior to the Delivery Date
for each additional set of two hundred fifty (250) Mortgage Loans).
The Custodian shall deliver to the Buyer via electronic mail, no later
than 3:00 p.m. (New York time) on the Business Day prior to the Purchase Date, a
Mortgage Loan Schedule and Exception Report of all Mortgage Loans then held or
to be held by the Custodian for the Buyer's benefit (including Mortgage Loans to
be purchased on such Purchase Date) in an electronic format acceptable to the
Buyer, which schedule shall include all information included in the Mortgage
Loan Schedule and Exception Report pursuant to Section 3 and such additional
information as the Buyer and the Custodian may agree. No later than 3:00 p.m.
(New York time) on the Purchase Date, the Custodian shall issue and deliver (via
electronic transmission with the original to follow) to the Buyer a copy of such
Mortgage Loan Schedule and Exception Report relating to the Purchased Mortgage
Loans.
(b) On each Purchase Date, upon receipt of the Mortgage Loan Schedule and
Exception Report from the Custodian, in form and substance acceptable to the
Buyer, the Buyer shall transfer to the Sellers immediately available funds in an
amount equal to the related Purchase Price.
-4-
(c) On and after the Purchase Date for any Mortgage Loan, until the
related Repurchase Date or until the Custodian shall receive a Notice of
Default, the Custodian shall hold the Purchased Mortgage Loans related to such
Transaction as the custodian [and bailee for hire] for the exclusive benefit of
the Registered Holder of the related Trust Receipt and shall not act upon
instructions of any Seller to deliver the Purchased Mortgage Loans other than as
expressly provided in this Agreement.
(d) Custodian shall deliver to Buyer, no later than 3:00 p.m. (New York
City time) on the related Purchase Date, electronically followed by overnight
courier a Mortgage Loan Schedule and Exception Report having appended thereto a
schedule of all Mortgage Loans with respect to which Custodian has completed the
procedures set forth in Section 3 hereof and certify that it is holding each
related Mortgage File for the benefit of Buyer in accordance with the terms
hereof (provided that the Custodian has timely received the items pursuant to
Section 2(a) herein).
(e) In addition to the foregoing, on the initial Purchase Date, the
Custodian shall deliver to the Buyer, no later than 3:00 p.m. (New York City
time), a Trust Receipt with a Mortgage Loan Schedule and Exception Report
attached thereto (provided that the Custodian has timely received the items
pursuant to Section 2(a) herein). The Buyer shall be the initial Registered
Holder of the Trust Receipt. Each Mortgage Loan Schedule and Exception Report
delivered by the Custodian to the Buyer shall supersede and cancel the Mortgage
Loan Schedule and Exception Report previously delivered by the Custodian to the
Buyer hereunder, and shall replace the then existing Mortgage Loan Schedule and
Exception Report to be attached to the Trust Receipt. Notwithstanding anything
to the contrary set forth herein, in the event that the Mortgage Loan Schedule
and Exception Report attached to the Trust Receipt is different from the most
recently delivered Mortgage Loan Schedule and Exception Report, then the most
recently delivered Mortgage Loan Schedule and Exception Report shall control and
be binding upon the parties thereto.
(f) The Registered Holder of any Trust Receipt may, at any time, request
that the Custodian subdivide such Trust Receipt and issue additional Trust
Receipts reflecting such subdivided pools of Mortgage Loans. Upon receipt of
such request and delivery of the Trust Receipt to be subdivided, the Custodian
shall cancel such Trust Receipt and deliver to the Registered Holder the
requested subdivided Trust Receipts registered in the name of the Registered
Holder in accordance with Section 25.
Section 3. Mortgage Loan Schedule or Exception Report
No later than 3:00 p.m.(New York City time) on the Purchase Date (provided
the Custodian has timely received the items required pursuant to Section 2(a)
herein), the Custodian shall issue and deliver to the Buyer via facsimile a
Mortgage Loan Schedule and Exception Report relating to the Purchased Mortgage
Loans to the effect that with respect to each such Purchased Mortgage Loan,
except as noted in any attached exception report (i) that for each Purchased
Mortgage Loan which is not a MERS Designated Mortgage Loan, all of the documents
in paragraphs (a), (c), (e), (f) and, to the extent provided, (b), (d), and (h)
of Section I of Exhibit 1 attached hereto are in its possession, and that for
each Purchased Loan which is a MERS Designated Mortgage Loan, all of the
documents in paragraphs (a), (c) and (e) (unless such Mortgage Loan was
originated through MERS), and, to the extent provided, (b), (d) and (g) of
Section II of Exhibit 1 attached hereto are in its possession (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
respecting such Mortgage Loan accurately reflects the information contained in
the documents in the Mortgage File as to (A) the name of the mortgagor, (B) the
address of the Mortgaged Property, (C) the interest rate on the Mortgage Note,
(D) the original principal amount of the Mortgage Note, and (E) the maturity
date of the Mortgage Note; (iv) the Mortgage Note and the Mortgage, each bears
an original signature or signatures purporting to be the signature or signatures
of the person or persons named as the maker and
-5-
mortgagor or grantor; or, in the case of certified copies of the Mortgage, if
any, such copies bear a reproduction of such signature or signatures; (v) all
signatures on the Mortgage properly relate to the Mortgage Note, as applicable,
and the Custodian has verified that any rider or addendum properly relates to
the Mortgage and that the signatures on any rider or addendum are not materially
different from the signatures on the Mortgage; (vi) the original principal
amount of the indebtedness secured by the Mortgage is identical to the original
principal amount of the Mortgage Note; (vii) if the Mortgage Note does not name
either Seller as the holder or payee, the Mortgage Note bears original
endorsements that complete the chain of ownership from the original holder or
payee to the last endorsee (the "Last Endorsee"); (viii) with respect to
Purchased Mortgage Loans which are not MERS Designated Mortgage Loans, if the
Mortgage does not name either Seller as the mortgagee or beneficiary, the
original of the Assignment of Mortgage from the named mortgagee or beneficiary
bears the original signature purporting to be the signature of the named
mortgagee or beneficiary (and any other necessary party including subsequent
assignors) or in the case of copies certified by a Seller, such copies bear a
reproduction of such signature or signatures and that the Assignment of Mortgage
and any intervening assignments of mortgage complete the chain of title from the
originator to the Last Endorsee; (ix) with respect to Purchased Mortgage Loans
which are not MERS Designated Mortgage Loans, the Mortgagor name on the
Assignment of Mortgage agrees with the related Mortgage Loan Schedule; (x) each
Mortgage Note in its possession has been endorsed as provided in Exhibit 1
hereto; and (xi) with respect to Purchased Mortgage Loans which are not MERS
Designated Mortgage Loans, each Assignment of Mortgage has been executed as
provided in Exhibit 1 hereto.
With respect to any modifications or revisions occurring after the
Purchase Date, not later than the Business Day following each Purchase Date, the
Custodian shall deliver to the Mortgage Loan Schedule and Exception Report a
revised Mortgage Loan Schedule and Exception Report relating to the Purchased
Mortgage Loans.
The Sellers shall be solely responsible for providing each and every
document required for each Mortgage File to the Custodian in a timely manner and
for completing or correcting any missing, incomplete or inconsistent documents,
and the Custodian shall not be responsible or liable for taking any such action,
causing the Sellers or any other person or entity to do so or notifying any
Person (other than the Registered Holder to the extent specifically required in
this Agreement) that any such action has or has not been taken. The Custodian
makes no representations as to and shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization,
recordability, genuineness, perfection or priority of any document in any
Mortgage File or any of the Purchased Mortgage Loans identified on the Mortgage
Loan Schedule and Exception Report or (ii) the collectability, insurability,
effectiveness or suitability of any such Purchased Mortgage Loan. The Custodian
shall not be required to review the content (except as necessary to certify its
presence or absence) of any document described in the preceding paragraph except
as expressly required herein in order to deliver the Mortgage Loan Schedule and
Exception Report.
Each Registered Holder may request the Custodian to provide such
Registered Holder with a copy of the current Mortgage Loan Schedule and
Exception Report.
Section 4. Obligations of the Custodian
(a) With respect to the Mortgage Files delivered to the Custodian or which
come into the possession of the Custodian, following the related transfer
pursuant to Section 2(b) above until the interests of the Buyer have been
released pursuant to this Agreement, the Custodian is the custodian for the
Registered Holder of the related Trust Receipt, exclusively. The Custodian
shall, following the related transfer pursuant to Section 2(b) above until the
interests of the Registered Holder have been released pursuant to this
Agreement, hold all documents received by it for the exclusive use and benefit
of
-6-
the Registered Holder and shall make disposition thereof only in accordance with
this Agreement and the Written Instructions furnished by the Registered Holder.
The Custodian shall segregate and maintain continuous custody of the Mortgage
Files in secure and fire-resistant facilities in accordance with customary
standards for such custody.
(b) The Custodian shall promptly notify the Buyer and any other Registered
Holder if (i) any Seller fails to pay any amount due to the Custodian under this
Agreement or (ii) a Responsible Officer of the Custodian has actual knowledge
that any Mortgage, pledge, lien, security interest or other charge or
encumbrance has been placed on the Mortgage Files.
Section 5. Additional Purchased Mortgage Loans
(a) Each Seller may, from time to time, deliver to the Custodian one or
more additional Mortgage Loans (each an "Additional Purchased Mortgage Loans")
as an addition to the Purchased Mortgage Loans already held by the Custodian
with respect to a Transaction. In such event, the Sellers shall deliver to the
Custodian the Mortgage File for each Additional Purchased Mortgage Loans
together with a Mortgage Loan Schedule, with a copy to the Buyer, stating that
the Additional Purchased Mortgage Loan is being delivered with respect to an
identified Transaction. It is expressly understood and agreed that the Custodian
shall have no duty to perform any valuation of collateral and shall have no
responsibility to ascertain the adequacy of any Additional Purchased Mortgage
Loans other than undertaking a review of the related Mortgage File in accordance
with Section 3 hereof.
(b) The Custodian shall deliver to the Buyer no later than one Business
Day after receipt of such Additional Purchased Mortgage Loan from the Sellers, a
Mortgage Loan Schedule and Exception Report that reflects the delivery of each
Additional Purchased Mortgage Loan; provided that in the event that the
Custodian does not receive the items required to be delivered pursuant to
Section 5(a) above by no later than 3:00 p.m. (New York City time) on the
Business Day prior to the date of delivery, then the Custodian shall deliver
such Mortgage Loan Schedule and Exception Report within one Business Day after
the date of delivery. In issuing such Mortgage Loan Schedule and Exception
Report, the Custodian shall employ the same procedures as set forth in Section 3
in reviewing the Mortgage Files.
Section 6. Future Defects
During the term of this Agreement, if the Custodian discovers any defect
with respect to any Mortgage File, the Custodian shall give prompt written
specification of such defect to the Sellers and the Registered Holder. For
purposes of this Section, "defect" shall mean a failure of a document to conform
to the Custodian's review as required by Section 3 of this Agreement or the
absence of a Mortgage File or any part thereof or any other document required to
be reviewed pursuant to this Agreement. The Sellers shall be solely responsible
for completing or correcting any missing, incomplete or inconsistent documents,
and the Custodian shall not be responsible or liable for taking any such action,
causing the Sellers or any other person or entity to do so or notifying any
Person that any such action has or has not been taken.
Section 7. Release for Servicing
From time to time and as appropriate for the foreclosure or servicing of
any of the Purchased Mortgage Loans, the Custodian shall, upon receipt of a
Request for Release of Documents and Receipt in the form of Exhibit 3 attached
hereto ("Request for Release"), release or cause to be released to the Sellers
or the Sellers' Authorized Representative the related Mortgage File or the
documents of the related Mortgage File set forth in such Request for Release.
The Sellers shall send a copy of any such Request for Release to the Registered
Holder. Any document released to the Sellers or the Sellers'
-7-
Authorized Representative pursuant to a Request for Release shall be returned to
the Custodian no later than 10 days from the date on such Request for Release,
and the Custodian shall notify the Registered Holder of any failure by the
Sellers to so return any such document.
All Mortgage Files or documents from Mortgage Files released by the
Custodian to the Sellers or, upon the Sellers' Written Instructions, the
Sellers' Authorized Representative, pursuant to this Section 7, shall be held by
the Sellers or the Sellers' Authorized Representative, as applicable, in trust
for the benefit of the Registered Holder. The Sellers or the Sellers' Authorized
Representative, as applicable, shall return to the Custodian the Mortgage File
or other such documents from Mortgage Files when the need therefor in connection
with such foreclosure or servicing no longer exists (but in any event no later
than 10 days from the date on such Request for Release), unless the Mortgage
Loan shall be liquidated, in which case, the Sellers or, if the Mortgage File or
documents were released to the Sellers' Authorized Representative, the Sellers'
Authorized Representative shall deliver to the Custodian an additional Request
for Release that has been acknowledged and agreed to by the Registered Holder
certifying such liquidation. Upon receipt of the related Mortgage File or other
such documents from the Sellers, the Custodian shall return the related Request
for Release to the Sellers, with a copy to the Registered Holder, acknowledging
receipt (upon request) of such Mortgage File or other such documents.
Section 8. Limitation on Release
The foregoing Section 7 shall be operative only to the extent that at any
time the Custodian shall not have released to the Sellers or the Sellers'
Authorized Representative in total active Mortgage Files or documents (including
those requested) pertaining to ten Mortgage Loans at the time being held by the
Custodian under this Agreement. If ten Mortgage Loans or more have been, and
remain released to the Sellers at the time of request, the Mortgage Note and/or
Assignment of Mortgage or any additional Mortgage Files or documents requested
to be released by the Sellers or the Sellers' Authorized Representative may be
released only upon the written acknowledgment of the Request for Release by the
Registered Holder. The limitations of this paragraph shall not apply to the
release of Mortgage Files to the Sellers or, upon the Sellers' Written
Instructions, the Sellers' Authorized Representative, pursuant to Section 9
below.
Section 9. Release for Payment
Upon the payment in full, liquidation or repurchase of any Mortgage Loan,
and upon receipt by the Custodian of a Request for Release certifying that all
proceeds related to such payment in full, liquidation, or repurchase have been
received (provided that the Sellers shall have delivered a copy of such Request
for Release to the related Registered Holder and the related Registered Holder
shall not have objected to such release), the Custodian shall promptly release
the related Mortgage File to the Sellers or, upon Sellers' Written Instructions,
the Sellers' Authorized Representative. After such release the Custodian shall
amend the applicable Mortgage Loan Schedule and Exception Report to reflect the
release of the applicable Mortgage Loan and shall deliver to the related
Registered Holder such amended Mortgage Loan Schedule and Exception Report.
Section 10. Joint and Several Obligations
The obligations and liabilities of the Sellers shall be joint and several.
-8-
Section 11. Covenants of the Seller
Each Seller covenants to the related Registered Holder as of the date that
any Mortgage File documents are released to the Sellers or the Sellers'
subservicer pursuant to a Request for Release that:
(a) if the Request for Release has been submitted for the release of a
Purchased Mortgage Loan that has been paid in full, all amounts received in
connection with the payment in full of the Purchased Mortgage Loan have been
credited to such Registered Holder as provided in the Repurchase Agreement;
(b) if item No. 1 has been checked on the Request for Release, the
Repurchase Price for the applicable Purchased Mortgage Loan has been credited to
such Registered Holder as provided in the Repurchase Agreement; and
(c) if item No. 2 has been checked on the Request for Release, all
proceeds of foreclosure, insurance, condemnation or other liquidation have been
finally received and credited to the Registered Holder pursuant to the
Repurchase Agreement.
Section 12. Repurchase Date
The Sellers shall provide the Buyer and the Custodian with Written
Instructions at least one Business Day(s) prior to each Repurchase Date on which
the Sellers intend to remove Purchased Mortgage Loans from the repurchase
facility governed by the Repurchase Agreement, which Written Instructions shall
include a schedule of Purchased Mortgage Loans to be removed on such date
(unless all Purchased Mortgage Loans are to be removed, in which case the
Written Instructions shall indicate this fact). The Buyer shall send a
Repurchase Release in the form of Exhibit 8 hereto (a "Repurchase Release") to
the Sellers and the Custodian by 3:00 p.m. (New York time) on the Business Day
prior to each Repurchase Date listing the Purchased Mortgage Loans to be
released on such Repurchase Date. On the Repurchase Date for each Transaction
the Buyer hereby irrevocably instructs the Custodian to release to the Sellers
or their designee the Purchased Mortgage Loans designated in such Repurchase
Release upon receipt of notification by the Custodian from the Buyer that it has
received the Repurchase Price. The Buyer shall notify the Custodian immediately
upon confirmation that the Sellers have transmitted the Repurchase Price.
Section 13. Transfer of Purchased Mortgage Loans Upon Termination of a
Transaction
If the Custodian is furnished with Written Instructions in the form of
Exhibit 8 attached hereto (i) from the Buyer and the Sellers that a Transaction
with respect to the Repurchase Agreement has been terminated, or (ii) from the
Buyer that an Event of Default under the Repurchase Agreement has occurred as to
any or all of the Purchased Mortgage Loans, the Custodian shall release to such
Persons as are designated in such Written Instructions the Mortgage Files
relating to the Purchased Mortgage Loans that are no longer subject to the
Transaction, and shall deliver to the Buyer an updated Mortgage Loan Schedule
and Exception Report listing all of the Purchased Mortgage Loans still subject
to a Transaction.
Section 14. Shipment of Documents
Written Instructions as to the method of shipment and shipper(s) that
Custodian is directed to utilize in connection with transmission of Mortgage
Files in the performance of the Custodian's duties hereunder shall be delivered
by the Sellers, the Buyer or any other Registered Holder to Custodian prior to
any shipment of any Mortgage Files hereunder. The requesting party will arrange
for the provision of such services at its sole cost and expense (or, at such
party's option, reimburse Custodian for all costs and
-9-
expenses incurred by Custodian consistent with such Written Instructions) and
will maintain such insurance against loss or damage to the Mortgage Files as the
requesting party deems appropriate. Without limiting the generality of the
provisions of Section 21 below, it is expressly agreed that in no event shall
Custodian have any liability for any losses or damages to any person, arising
out of actions of Custodian in accordance with instructions of the requesting
party, unless such performance constitutes negligence, lack of good faith or
willful misconduct on the part of the Custodian or any of its directors,
officers, agents or employees. In the absence of Written Instructions from the
Sellers or the Buyer, the Custodian shall not ship the related Mortgage Files.
Section 15. Examination and Copies of Mortgage Files
Upon the written request of the Buyer or any other Registered Holder,
Buyer, such Registered Holder and their respective agents, accountants,
attorneys, auditors and prospective purchasers will be permitted, upon one
Business Day's prior notice, during normal business hours to examine the
Mortgage Files and any other documents, records and papers in the possession of
or under the control of the Custodian relating to any or all of the Purchased
Mortgage Loans. The Sellers shall be responsible for any reasonable expenses in
connection with such examinations.
Upon the written request of the Sellers or the Buyer, the Custodian shall
provide such party, at such party's expense, with copies of the Mortgage Notes,
Mortgages, Assignment of Mortgages and other documents relating to one or more
of the Mortgage Loans.
Section 16. Insurance of the Custodian
At its own expense, the Custodian shall maintain at all times during the
existence of this Agreement and keep in full force and effect a fidelity bond,
errors and omissions insurance 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 coverage under any such bond and insurance policies shall be
in an amount as is customary for insurance typically maintained by institutions
which act as custodian. A certificate of an Authorized Representative of the
Custodian shall be furnished to the Sellers, the Buyer, and any other Registered
Holder, upon request, stating that such insurance is in full force and effect.
Section 17. Periodic Statements
Upon the reasonable Written Instructions of the Buyer, any other
Registered Holder or the Sellers at any time, the Custodian shall provide to the
such party, as the case may be, a list of all the Purchased Mortgage Loans for
which the Custodian holds a Mortgage File.
Section 18. Fees and Expenses of the Custodian
The Custodian shall charge such fees for its services under this Agreement
as are set forth in a separate agreement between the Custodian and the Sellers,
the payment of which fees, together with the Custodian's expenses (including
reasonable legal fees and expenses) in connection herewith, shall be solely the
obligation of the Sellers. The foregoing obligation to pay the Custodian its
fees and to reimburse the Custodian for its expenses in connection with services
provided by the Custodian hereunder shall survive any resignation or removal of
the Custodian (for all reasonable fees and expenses incurred prior to such
resignation or removal) or the termination or assignment of this Agreement.
-10-
Section 19. Custodian Representations
The Custodian (and any successor Custodian subject to this Agreement as of
the date of appointment of such custodian) hereby represents and warrants as of
the date hereof and as of each date it delivers a Mortgage Loan Schedule and
Exception Report that:
(a) The Custodian is (i) a national banking association duly authorized,
validly existing and in good standing under the laws of the United States and
(ii) duly qualified and in good standing and in possession of all requisite
authority, power, licenses, permits and franchises in order to execute, deliver
and comply with its obligations under the terms of this Agreement;
(b) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action and the execution and delivery
of this Agreement by the Custodian in the manner contemplated herein and the
performance of and compliance with the terms hereof by it will not (i) violate,
contravene or create a default under any applicable laws, licenses or permits,
or (ii) violate, contravene or create a default under any charter document or
bylaw of the Custodian;
(c) The execution and delivery of this Agreement by the Custodian and the
performance of and compliance with its obligations and covenants hereunder do
not require the consent or approval of any governmental authority or, if such
consent is required, it has been obtained;
(d) This Agreement, and the original Trust Receipt issued hereunder (when
executed and delivered by the Custodian) will constitute valid, legal and
binding obligations of the Custodian, enforceable against the Custodian in
accordance with their respective terms, except as the enforcement thereof may be
limited by applicable bankruptcy or other debtor relief laws and that certain
equitable remedies may not be available regardless of whether enforcement is
sought in equity or at law;
(e) There is no litigation pending to the Custodian's knowledge (without
inquiry) which, if determined adversely to Custodian, would adversely affect the
execution, delivery or enforceability of this Agreement, or any of the duties or
obligations of Custodian hereunder;
(f) The Custodian shall follow the Written Instructions of the Buyer or
the related Registered Holder to protect or maintain any interest in real
property securing the Mortgage Loan subject to this Agreement and any insurance
applicable thereto; and
(g) The Custodian is not controlled by, under common control with or
otherwise affiliated with or related to either Seller, and the Custodian
covenants and agrees with Buyer that prior to any such affiliation in the
future, it shall notify Buyer.
Section 20. No Adverse Interest of the Custodian
By execution of this Agreement, the Custodian represents and warrants that
it currently holds, and during the existence of this Agreement shall hold, no
adverse interest, by way of security or otherwise, in any Purchased Mortgage
Loan, and hereby waives and releases any such interest which it may have in any
Purchased Mortgage Loan as of the date hereof. The Purchased Mortgage Loans
shall not be subject to any security interest, lien or right of set-off by the
Custodian or any third party claiming through the Custodian, and the Custodian
shall not pledge, encumber, hypothecate, transfer, dispose of, or otherwise
grant any third party interest in, the Purchased Mortgage Loans.
-11-
Section 21. Concerning the Custodian
(a) The Custodian shall have no duties or responsibilities except those
specifically set forth herein. The Custodian shall have no responsibility nor
duty with respect to any Mortgage Files while not in its possession. If the
Custodian requests instructions from the Buyer with respect to any act, action
or failure to act in connection with this Agreement, the Custodian shall be
entitled to refrain from taking such action and continue to refrain from acting
unless and until the Custodian shall have received Written Instructions from the
Buyer with respect to a Mortgage File without incurring any liability therefore
to the Buyer, the Sellers or any other Person.
(b) Without limiting the generality of the foregoing, the Custodian may
rely upon and shall be fully protected in acting in good faith upon any Written
Instructions, certificate, resolution, statement, instrument, opinion, report,
request, consent, order, approval, notice or other communication from the Buyer,
any Registered Holder or the Sellers received by it and which it reasonably
believes to be genuine and duly authorized with respect to all matters
pertaining to this Agreement and its duties hereunder.
(c) Neither the Custodian, nor its officers, directors, employees or
agents shall be liable to the Sellers, the Buyer, or any other Person with
respect to any action taken or not taken by it in good faith in the performance
of its obligations hereunder or in connection herewith. The obligations of the
Custodian shall be determined solely by the express provisions of this
Agreement. No representation, warranty, covenant, agreement, obligation or duty
of the Custodian shall be implied with respect to this Agreement or the
Custodian's services hereunder. In no event shall the Custodian have any
responsibility to ascertain or take action except as expressly provided herein.
(d) Unless expressly provided herein, the Custodian shall be under no duty
or obligation to inspect, review or examine the Mortgage Files to determine that
the contents thereof are genuine, enforceable or appropriate for the represented
purpose or that they have been actually recorded, are in the proper form for
recordation or, unless expressly provided herein, that they are not other than
what they purport to be on their face.
(e) No provision of this Agreement shall require the 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 terms of this
Agreement) in the performance of its duties under this Agreement if it shall
have a good faith belief that repayment of such funds or indemnity reasonably
satisfactory to it is not reasonably assured to it.
(f) The Custodian shall use the same degree of care and skill as is
reasonably expected of financial institutions acting as custodian of mortgage
loans which are held to a standard of care of ordinary negligence, and this
Section 21 shall not be interpreted to impose upon the Custodian a higher
standard of care than that set forth in this sentence.
(g) In order to comply with its duties under the U.S.A. Patriot Act, the
Custodian shall obtain and verify certain information and documentation from the
other parties hereto, including, but not limited to, such party's name, address,
and other identifying information.
Section 22. Indemnification
(a) Each Seller agrees to reimburse, indemnify and hold harmless the
Custodian and its directors, officers, employees, or agents (each, an
"Indemnitee") from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suit, reasonable costs, expenses, or
disbursements of any kind or nature whatsoever including reasonable fees and
expenses of counsel, court
-12-
costs and costs of appeal that may be imposed on, incurred by, or asserted
against it or them in any way in connection with or related to Custodian's
execution and performance of this Agreement and any transactions contemplated
hereby, including but not limited to the claims of any third parties, including
Buyer, except in the case of loss, liability or expense resulting from a
Custodial Delivery Failure (as defined below), the Custodian's breach of this
Agreement or the negligence, lack of good faith or willful misconduct on the
part of Custodian. Such indemnification shall survive the termination of this
Agreement and the resignation or removal of the Custodian hereunder.
(b) In the event that the Custodian fails to produce a Mortgage Note,
Assignment of Mortgage or any other document related to a Purchased Mortgage
Loan that was in its possession within two (2) Business Days after required or
requested by a Seller, Buyer, or any other Registered Holder or otherwise
determines that a document that it had previously certified as in its
possession, is no longer in its possession, and that (i) such document is not
outstanding pursuant to a Request for Release and Receipt in the form annexed
hereto as Exhibit 3; and (ii) such document was held by the Custodian, as
evidenced by a previously delivered Mortgage Loan Schedule and Exception Report,
on behalf of the Sellers, Buyer, or the Registered Holder as applicable, (a
"Custodial Delivery Failure") then the Custodian shall (a) with respect to any
missing Mortgage Note, promptly deliver to Buyer, the Sellers or the Registered
Holder upon request, a Lost Note Affidavit in the form of Exhibit 9 hereto and
(b) with respect to any missing document related to such Mortgage Loan,
including but not limited to a missing Mortgage Note, indemnify the Sellers, the
Buyer and any other Registered Holder in accordance with the succeeding
paragraph of this Section.
(c) The Custodian agrees to indemnify and hold the Buyer, any other
Registered Holder and each Seller, and their respective trustees, shareholders,
officers, designees, successors and assigns 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 attorneys' fees, court costs and costs of appeal that may be imposed
on, incurred by, or asserted against it or them in any way relating to or
arising from the claims of any third party in connection with or related to a
Custodial Delivery Failure or the Custodian's breach of this Agreement, or the
negligence, lack of good faith or willful misconduct on the part of the
Custodian. The foregoing indemnification shall survive the termination of this
Agreement and the resignation or removal of the Custodian hereunder.
Section 23. Merger or Consolidation of Custodian
Any Person into which the Custodian may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Custodian shall be a party, or any
Person succeeding to the business of the Custodian, shall be the successor of
the Custodian hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 24. Removal of the Custodian With Respect to Some or All of the
Purchased Mortgage Loans
Upon an Event of Default under the Repurchase Agreement the Buyer may (i)
require, at the Sellers' expense, the Custodian to complete the endorsements on
the Mortgage Notes in the name of the Buyer and to complete the Assignments of
Mortgage in the name of the Buyer and/or (ii) remove and discharge the Custodian
from the performance of its duties under this Agreement with respect to some or
all of the Mortgage Loans by 30 days' written notice from the Buyer to the
Custodian with a copy to the Sellers. In the event that the Buyer removes the
Custodian from the performance of its duties under this Agreement with respect
to all of the Mortgage Loans, the Buyer may, in its sole discretion, after
notice to the Sellers, either appoint a successor Custodian to act on behalf of
the Buyer by written instrument, or
-13-
terminate this Agreement. In the event of any such new appointment, the
Custodian shall promptly transfer to the successor Custodian or the Buyer, as
directed by the Buyer, the applicable Mortgage Loan documents being administered
under this Agreement. In the event of any such appointment, the Buyer shall be
responsible for the fees of the successor Custodian unless otherwise agreed by
the Sellers and the Buyer.
In the event of termination of this Agreement pursuant to this Section 24,
the Custodian shall follow the reasonable Written Instructions of Buyer with
respect to the disposition of the respective Mortgage Loan documents.
Concurrently with the transfer and release of all of the Mortgage Files by the
Custodian, the Buyer shall submit the related Trust Receipts to the Custodian
for cancellation. Notwithstanding the foregoing, in the event that the Buyer
terminates this Agreement with respect to some, but not all, of the Mortgage
Loans, this Agreement shall remain in full force and effect with respect to any
Purchased Mortgage Loans for which this Agreement is not terminated hereunder.
In addition, the Buyer and the Custodian may, at the sole option of the Buyer,
enter into a separate custodial agreement which shall be mutually acceptable to
the parties with respect to any or all or the Mortgage Loans with respect to
which this Agreement is terminated.
Section 25. Obligations of the Custodian With Respect to the Trust Receipt
(a) The Custodian shall keep a register in which the Custodian shall
provide for the registration of transfers of Trust Receipts as provided herein
and in which it shall record the name and address of the Person to whom such
Trust Receipt is issued (the "Registered Holder"). The Buyer shall be the
initial Registered Holder for all Purchased Loans. Each Trust Receipt, upon
initial issuance or reissuance, shall be dated the date of such issuance or
reissuance and shall evidence the receipt and possession by the Custodian on
behalf of the Registered Holder of the Trust Receipt of the Mortgage Files and
the Registered Holder's right to possess those Mortgage Files. The Custodian
shall treat the person or entity in whose name the Trust Receipt is registered
as the person or entity entitled to possession of the Mortgage Files evidenced
by such Trust Receipt for all purposes whatsoever, subject to the terms of this
Agreement, and the Custodian shall not be affected by notice of any facts to the
contrary. No Trust Receipt shall be valid for any purpose unless substantially
in the form set forth in Exhibit 2 to this Agreement and executed by manual
signature of an Authorized Representative of the Custodian. Such signature upon
any Trust Receipt shall be conclusive evidence, and the only evidence, that such
Trust Receipt has been duly delivered under this Agreement. Trust Receipts
bearing the manual signatures of individuals who were, at the time when such
signatures were affixed, Authorized Representatives of the Custodian shall bind
the Custodian, notwithstanding that such individuals have ceased to be so
authorized prior to the delivery of those Trust Receipts. Each Trust Receipt
shall have attached thereto a Mortgage Loan Schedule with an exception report
with respect to the applicable Purchased Loans. Any transferee or assignee of
the Trust Receipt shall succeed to all the rights of the transferring Registered
Holder under this Agreement with respect to such Trust Receipt and the related
Purchased Loans upon notice to the Custodian and delivery to the Custodian of
the appropriate evidence of such transfer and assignment.
(b) The Registered Holder may transfer its interest in the Mortgage Files
covered by any Trust Receipt by delivering to the transferee (the "Transferee")
such Trust Receipt, together with an appropriate notice to the Custodian in the
form of Exhibit 11 hereto (the "Notice to the Custodian"). Within five Business
Days of receipt of the Notice to the Custodian and receipt by the Custodian of
the Trust Receipt from the Transferee, the Custodian shall deliver, in
accordance with the written instructions of the Transferee, a Trust Receipt
issued in the name of the Transferee and to the place indicated in any such
written direction from the Transferee. Upon receipt of the Notice to the
Custodian from the Registered Holder, the Custodian shall change its records to
reflect that such Transferee is the Registered Holder of the Mortgage Files.
-14-
(c) In the event that (i) any mutilated Trust Receipt is surrendered to
the Custodian, or the Custodian receives evidence to its satisfaction of the
destruction, loss or theft of any Trust Receipt and (ii) there is delivered to
the Custodian such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Custodian that such Trust
Receipt has been acquired by a bona fide purchaser, the Custodian shall execute
and deliver a new Trust Receipt to such Registered Holder in exchange for or in
lieu of any such mutilated, lost or stolen Trust Receipt.
(d) Simultaneously with the relinquishment of a Trust Receipt to the
Custodian by the Registered Holder thereof and the delivery by the Custodian of
the related Mortgage Files to the Sellers or its designee or to such Registered
Holder or a designee of the Registered Holder, the Trust Receipt shall be
canceled and the related Mortgage Files will no longer be subject to this
Agreement.
Section 26. Termination by the Custodian
The Custodian may terminate its obligations hereunder upon 30 days' prior
written notice to the Buyer, any other Registered Holder and the Sellers. Such
resignation shall take effect upon (i) the appointment of a successor Custodian
acceptable to the Buyer within such 30 day period; and (ii) delivery of all
Mortgage Files to the successor Custodian or, if no successor Custodian has been
appointed, to Buyer.
Upon such termination and appointment of a successor Custodian and
surrender of all outstanding Trust Receipts, the Custodian shall (i) promptly
transfer to the successor Custodian, as directed in writing by the Buyer or
other applicable Registered Holder, all Mortgage Files being administered under
this Agreement, and (ii) if the endorsements on the Mortgage Notes and the
Assignments of Mortgage have been completed in the name of the Custodian, assign
the Mortgages and endorse without recourse the Mortgage Notes to the successor
Custodian or as otherwise directed in writing by the Buyer or applicable
Registered Holder. Not withstanding the foregoing, it is understood and agreed
that it is not intended that the Custodian have any ownership interest in such
Mortgage Loans.
Section 27. Successors and Assigns
This Agreement shall inure to the benefit of the successors and assigns of
the parties hereto. Neither Seller nor Custodian shall assign their respective
rights or obligations hereunder or any interest therein without the prior
written consent of Buyer. Buyer may from time to time assign all or a portion of
its rights and obligations under this Agreement; provided that any such
assignment shall be subject to the satisfactory completion of the Custodian's
"Know Your Customer" procedures then in effect for all new customers.
Section 28. Authorized Representatives
Each individual designated as an authorized representative of the
Custodian, each Seller and the Buyer (each, 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 the
Custodian, the Sellers or the Buyer, respectively, (in each case subject to
their designated limit of authority, if any) and the specimen signature for each
such Authorized Representative of the Custodian, each Seller and the Buyer
initially authorized hereunder is set forth on Exhibits 4, 5 and 6,
respectively. From time to time, the Custodian, each Seller and the Buyer may,
by delivering to the other parties a revised exhibit, change the information
previously given pursuant to this Section, but each of the parties hereto shall
be entitled to rely conclusively on the then current exhibit until receipt of a
superseding exhibit. The Sellers shall deliver or cause to be delivered to the
Custodian an Authorized Representatives exhibit for each subservicer designated
by the Sellers in connection with this Agreement; provided that
-15-
the Custodian shall not recognize any request from the Sellers' subservicer
unless and until the Sellers have given the Custodian written notice identifying
such subservicer and such Authorized Representatives exhibit is received by the
Custodian. The Custodian shall be entitled to rely conclusively upon (i) written
notice from the Sellers identifying a subservicer authorized to give
instructions (including Written Instructions) under this Agreement until receipt
of written notice from the Sellers revoking such authority and (ii) the most
recent Authorized Representatives exhibit delivered to it by a subservicer of
the Sellers until receipt of a superseding exhibit. If the Custodian shall at
any time receive conflicting instructions from the Sellers and a subservicer of
the Sellers, the Custodian shall be entitled to rely on the instructions of the
Sellers.
Section 29. Notices
Except as otherwise expressly permitted by this Agreement, all notices,
requests and other communications provided for herein (including without
limitation any modifications of, or waivers, requests or consents under, this
Agreement) shall be given or made in writing (including without limitation by
telecopy) delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof or thereof); or, as to
any party, at such other address as shall be designated by such party in a
written notice to each other party. Except as otherwise provided in this
Agreement and except for notices given under Section 3 (which shall be effective
only on receipt), all such communications shall be deemed to have been duly
given when transmitted by telecopy or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as aforesaid.
Section 30. Reproduction of Documents
This Agreement and all documents relating thereto, including, without
limitation, (i) consents, waivers and modifications which may hereafter be
executed, and (ii) certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 31. Amendments; Entire Agreement
No amendment or waiver of any provision of this Agreement nor consent to
any departure herefrom shall in any event be effective unless the same shall be
in writing and signed by all the parties hereto, and then such amendment, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. The Custodian shall not be required to execute any
amendment which adversely affects its rights, duties, indemnities or immunities
hereunder.
Section 32. Entire Agreement; Severability
This Agreement, together with the exhibits, annexes and other writings
referred to herein or delivered pursuant hereto, constitute the entire agreement
and understanding of the parties with respect to the matters and transactions
contemplated by this Agreement and supersede any prior agreement and
understandings with respect to those matters and transactions. Each provision
and agreement herein shall be treated as separate and independent from any other
provision or agreement herein and shall be enforceable notwithstanding the
unenforceability of any such other provision or agreement.
-16-
Section 33. Governing Law; Counterparts
This Agreement shall be governed by the internal laws of the State of New
York, without giving effect to the conflict of laws principles thereof. For the
purpose of facilitating the execution of this Agreement as herein provided and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute and be one and the same instrument.
Section 34. Submission to Jurisdiction
With respect to any claim arising out of this Agreement each party (a)
irrevocably submits to the nonexclusive jurisdiction of the courts of the State
of New York and the United States District Court located in the Borough of
Manhattan in New York City, and (b) irrevocably waives (i) any objection which
it may have at any time to the laying of venue of any suit, action or proceeding
arising out of or relating hereto brought in any such court, (ii) any claim that
any such suit, action or proceeding brought in any such court has been brought
in any inconvenient forum and (iii) the right to object, with respect to such
claim, suit, action or proceeding brought in any such court, that such court
does not have jurisdiction over such party. Nothing herein will be deemed to
preclude any party hereto from bringing an action or proceeding in respect of
this Agreement in any jurisdiction other than as set forth in this Section 34.
[SIGNATURE PAGES FOLLOW]
-17-
IN WITNESS WHEREOF, Buyer, Sellers and Custodian have duly executed this
Agreement as of the date first above written.
SELLERS: Address for Notices to Sellers:
AMERICAN HOME MORTGAGE ACCEPTANCE, INC., American Home Mortgage
a Maryland corporation Acceptance, Inc.
American Home Mortgage Corp.
538 Broadhollow Road
Melville, New York 11747
Attention: Alan B. Horn
Telecopier No.: 800-209-7276
By: /s/ Stephen A. Hozie Telephone No.: 516-396-7703
----------------------
Name: Stephen A. Hozie
Title: Executive Vice President and Chief
Financial Officer
AMERICAN HOME MORTGAGE CORP.,
a New York corporation
By: /s/ Stephen A. Hozie
--------------------
Name: Stephen A. Hozie
Title: Executive Vice President and Chief
Financial Officer
BUYER: Address for Notices to Buyer:
GOLDMAN SACHS MORTGAGE COMPANY, Goldman Sachs Mortgage Company
a New York limited partnership 85 Broad Street
New York, New York 10004
By: Goldman Sachs Real Estate Funding Attention: Anthony Preisano
Corp., a New York corporation, as Telecopier No.: 212-428-9097
general partner Telephone No.: 212-855-0393
By: /s/ Howard Altarescu With a copy to:
---------------------
Name: Howard Altarescu Clifford Chance US LLP
Title: Authorized Signatory 31 West 52nd Street
New York, New York 10019
Attention: Frederick B. Utley, III,
Esq.
Telecopier No.: 212-878-8375
Telephone No.: 212-878-8356
CUSTODIAN: Address for Notices to Custodian:
DEUTSCHE BANK NATIONAL TRUST COMPANY Deutsche Bank National Trust Company
1761 East St. Andrew Place
By: /s/ Norma L. Catone Santa Ana, CA 92705
-------------------- Attention: Mortgage Custody - AH056C
Name: Norma L. Catone Telecopier No.: 714-247-6082
Title: Vice President Telephone No.: 714-247-6000