Exhibit 10.3
================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
Buyer
and
AMERICAN HOME MORTGAGE CORP.
Seller
and
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
Seller
and
AMERICAN HOME MORTGAGE SERVICING, INC.
Seller
and
AMERICAN HOME MORTGAGE INVESTMENT CORP.
Seller
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Custodian
------------------------------------
CUSTODIAL AGREEMENT
As of September 13, 2006
================================================================================
TABLE OF CONTENTS
Page
Section 1. Definitions......................................................1
Section 2. Deposit of Purchased Assets; Effecting a Transaction.............7
Section 3. Certification of Documentation; Delivery of Documents............8
Section 4. Obligations of Custodian........................................10
Section 5. Takeout Provisions; Funding by Takeout Investor.................11
Section 6. Future Defects..................................................12
Section 7. Release for Payment.............................................12
Section 8. Transfer of Purchased Assets Upon Termination of a
Transaction, Event of Default or Swap for Agency
Securities.....................................................12
Section 9. Fees of Custodian...............................................12
Section 10. Removal of Custodian With Respect to Some or All of the
Purchased Assets...............................................13
Section 11. Examination and Copies of Asset Files...........................13
Section 12. Insurance of Custodian..........................................13
Section 13. No Adverse Interest of Custodian................................14
Section 14. Termination by Custodian........................................14
Section 15. Limitation on Liability.........................................14
Section 16. Indemnification of Custodian....................................16
Section 17. Indemnification of Buyer and Seller.............................16
Section 18. Obligations of the Custodian Regarding Genuineness of
Documents......................................................17
Section 19. Periodic Statements.............................................17
Section 20. Shipment of Documents...........................................17
Section 21. Authorized Representatives......................................17
Section 22. Obligations of Custodian With Respect to the Trust
Receipts.......................................................18
Section 23. Representations and Warranties..................................19
Section 24. Governing Law...................................................19
Section 25. Notices.........................................................19
Section 26. Successors and Assigns..........................................20
Section 27. Reproduction of Documents.......................................20
Section 28. Entire Agreement................................................20
Section 29. Counterparts....................................................20
Section 30. Submission to Jurisdiction......................................21
Section 31. WAIVER OF JURY TRIAL............................................21
Section 32. Confidentiality.................................................21
-i-
EXHIBITS
EXHIBIT A-1 RESERVED...............................................Ex. A-1-1
EXHIBIT A-2 RESERVED...............................................Ex. A-2-1
EXHIBIT B-1 CASH WINDOW SUBMISSION PACKAGE.........................Ex. B-1-1
EXHIBIT B-2 RESERVED...............................................Ex. B-2-1
EXHIBIT B-3 NON-AGENCY SUBMISSION PACKAGE..........................Ex. B-3-1
EXHIBIT C FORM OF DELIVERY INSTRUCTIONS..........................Ex. C-1
EXHIBIT D-1 FANNIE MAE MASTER BAILEE LETTER........................Ex. D-1-1
EXHIBIT D-2 NON-AGENCY MASTER BAILEE LETTER........................Ex. D-2-1
EXHIBIT D-3 ATTORNEY BAILEE LETTER.................................Ex. D-3-1
EXHIBIT D-4 FORECLOSURE ATTORNEY BAILEE LETTER.....................Ex. D-4-1
EXHIBIT D-5 NOTICE OF BAILMENT.....................................Ex. D-5-1
EXHIBIT E LIMITED POWER OF ATTORNEY..............................Ex. E-1
EXHIBIT F-1 ASSET FILE.............................................Ex. F-1
EXHIBIT F-2 ASSET SCHEDULE.........................................Ex. F-2
EXHIBIT F-3 AUDITED FIELDS SCHEDULE................................Ex. F-3
EXHIBIT G FORM OF REQUEST FOR RELEASE OF DOCUMENTS
AND RECEIPT............................................Ex. G-1
EXHIBIT H-1 TAKEOUT ASSIGNMENT.....................................Ex. H-1-1
EXHIBIT H-2 TAKEOUT ASSIGNMENT (Blanket)...........................Ex. H-2-1
EXHIBIT I FORM OF TRUST RECEIPT..................................Ex. I-1
EXHIBIT J-1 WAREHOUSE LENDER'S RELEASE.............................Ex. J-1-1
EXHIBIT J-2 WAREHOUSE LENDER'S WIRE INSTRUCTIONS...................Ex. J-2-1
EXHIBIT K FORM OF NOTICE TO CUSTODIAN............................Ex. K-1
EXHIBIT L FORM OF LOST NOTE AFFIDAVIT............................Ex. L-1
EXHIBIT M AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN............Ex. M-1
EXHIBIT N AUTHORIZED REPRESENTATIVES OF THE SELLER...............Ex. N-1
EXHIBIT O AUTHORIZED REPRESENTATIVES OF THE BUYER................Ex. O-1
EXHIBIT P FORM OF WAREHOUSE LENDER PAYOFF LETTER.................Ex. P-1
EXHIBIT Q FORM OF BAILEE VIOLATION LETTER........................Ex. Q-1
EXHIBIT R TAKEOUT INVESTORS......................................Ex. R-1
SCHEDULE 1 REO SUBSIDIARIES.......................................SCH-1
-ii-
THIS AGREEMENT, dated as of September 13, 2006, by and among CREDIT
SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer"), having an address at 11
Madison Avenue, New York, New York 10010, AMERICAN HOME MORTGAGE CORP. (a
"Seller"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. (a "Seller"), AMERICAN HOME
MORTGAGE SERVICING, INC. (a "Seller"), and AMERICAN HOME MORTGAGE INVESTMENT
CORP. (a "Seller" and collectively, the "Sellers"), each having an address at
538 Broadhollow Road, Melville, New York 11747, and DEUTSCHE BANK NATIONAL TRUST
COMPANY (the "Custodian"), having an address at 1761 East St. Andrew Place,
Santa Ana, California 92705.
W I T N E S S E T H:
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 Eligible Assets, with a simultaneous agreement by the
Sellers to repurchase such Purchased Assets as provided in that certain Master
Repurchase Agreement dated as of September 13, 2006, between the Sellers,
American Home Mortgage Holdings, Inc. (the "Guarantor") and the Buyer (the
"Master Repurchase Agreement") and a Confirmation between the Sellers and the
Buyer (the "Confirmation"; as to each Transaction, the related Confirmation and
the Master Repurchase Agreement are referred to collectively as, the "Repurchase
Agreement");
WHEREAS, the Custodian is authorized to act as Custodian pursuant to
this Agreement, and has agreed to act as custodian/bailee for hire for Buyer and
each Seller in order to effect each Transaction on its behalf, all as more
particularly set forth herein;
WHEREAS, each Seller shall from time to time deliver Purchased
Assets to the Custodian that are subject to a Transaction; and
WHEREAS, each Seller has agreed to deliver or cause to be delivered
to the Custodian certain documents with respect to the Purchased Assets 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.
"Agency": Freddie Mac, Fannie Mae or GNMA, as applicable.
"Agency Security": A mortgage-backed security issued by one of the
Agencies.
"Agreement": This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
"Anticipated Settlement Date": The anticipated date for sale of
Purchased Mortgage Loans to a Takeout Investor.
"Applicable Agency Documents": The documents listed on Exhibit A-1
or Exhibit A-2, as applicable.
"Applicable Requirements": With respect to each Takeout Investor the
applicable requirements which must be satisfied in order for a Purchased
Mortgage Loan to be eligible for purchase by such Takeout Investor pursuant to a
Takeout Commitment.
"Asset File": The items pertaining to a particular Eligible Asset or
Purchased Asset, as applicable, which are referred to in Exhibit F-1, plus, with
respect to any Committed Mortgage Loan, any additional items set forth in the
related Submission Package and, if applicable, Applicable Agency Documents and
all such other documents as the related Agency may require from time to time for
the issuance of the related Agency Securities.
"Asset Schedule": An electronic schedule of Eligible Assets setting
forth the information described in Exhibit F-2 attached hereto which reflects
the Eligible Assets delivered by each Seller to the Custodian under this
Agreement.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, reflecting the transfer of
the Mortgage to the party indicated therein.
"Authorized Representative": Shall have the meaning set forth in
Section 21 hereof.
"Bailee Letter": A Fannie Mae Bailee Letter, a Freddie Mac Bailee
Letter or a Non-Agency Bailee Letter, as applicable.
"Bailee Violation Letter" A letter in the form of Exhibit Q hereto.
"Business Day": Any day other than (i) a Saturday or Sunday or (ii)
a day on which the New York Stock Exchange, the Federal Reserve Bank of New York
or the Custodian is authorized or obligated by law or executive order to be
closed.
"Buyer": Credit Suisse First Boston Mortgage Capital LLC, or its
successor in interest or assigns.
"Buyer Deed": A duly executed deed or similar instrument in favor of
the Buyer, on an REO Property, which Buyer Deed shall (a) name the Buyer or its
designee as the assignee or beneficiary thereof; and (b) be in recordable form
in accordance with applicable state law.
"Cash Window Submission Package": The documents listed on Exhibit
B-1, which shall be delivered by a Seller to Custodian in connection with each
Cash Window Transaction.
-2-
"Cash Window Transaction": A transaction initiated by a Seller's
delivery of a Request for Certification which identifies Fannie Mae or Freddie
Mac as the Takeout Investor.
"Committed Mortgage Loan": Any Purchased Mortgage Loan which is the
subject of a Takeout Commitment with an Agency Takeout Investor.
"Custodial Asset Schedule": An electronic schedule list of Purchased
Assets delivered by the Custodian to the Buyer, reflecting the Purchased Assets
held by the Custodian for the benefit of the Buyer, setting forth the
information described in Exhibit F-2. Each Custodial Asset Schedule shall set
forth the Eligible Asset being purchased by the Buyer on any applicable Purchase
Date as well as the Purchased Assets previously purchased by the Buyer and held
by the Custodian hereunder.
"Custodian": Deutsche Bank National Trust Company or any successor
in interest or assigns, or any successor to the Custodian under this Agreement
as herein provided.
"Delivered Asset": Each Eligible Asset delivered by each Seller
potentially for purchase by Buyer pursuant to the terms of the Master Repurchase
Agreement, prior to the time of its purchase.
"Delivery Instructions": With respect to a Purchased Mortgage Loan,
instructions prepared by a Seller, in the form of Exhibit C, indicating the
address for the delivery by Custodian of the related Submission Package or Asset
Files.
"Document Delivery Date": With respect to an Eligible Asset, the
date on which the related Asset File must be delivered to the Custodian. Such
date shall be, with respect to Wet-Ink Mortgage Loans, the Wet-Ink Delivery
Date, and with respect to all other Eligible Assets, (i) with respect to any
purchase of 250 or fewer Eligible Assets on a single Purchase Date, on or prior
to 11:00 p.m. (New York City time) one Business Day prior to the Purchase Date,
and (ii) with respect to any purchase of 251 or more Eligible Assets on a single
Purchase Date, by 11:30 p.m. (New York City time) on the Business Day prior to
the Purchase Date.
"Eligible Asset": A Mortgage Loan or REO Property owned by the REO
Subsidiary that is eligible for sale to the Buyer pursuant to the terms of the
Repurchase Agreement.
"Event of Default": Any event of default under the Repurchase
Agreement or any Confirmation thereunder.
"Fannie Mae": Fannie Mae and any successor thereto.
"Fannie Mae Bailee Letter": The master bailee letter, in the form of
Exhibit D-1, for use by Custodian in connection with the delivery to Fannie Mae
of a Cash Window Submission Package excluding (i) the Assignment of Mortgage, in
blank, (ii) the Warehouse Lender's Release, if applicable, (iii) all
modification agreements relating to a Mortgage, (iv) the Delivery Instructions,
and (v) a copy of the Takeout Commitment.
"Freddie Mac": Freddie Mac and any successor thereto.
-3-
"Freddie Mac Bailee Letter": The master bailee letter for use by
Custodian in connection with the delivery to Freddie Mac of a Submission Package
excluding (i) the Assignment of Mortgage, in blank, (ii) the Warehouse Lender's
Release, if applicable, (iii) all modification agreements relating to a
Mortgage, (iv) the Delivery Instructions, and (v) a copy of the Takeout
Commitment.
"GNMA": The Government National Mortgage Association and any
successor thereto.
"GNMA Transaction": A transaction initiated by Buyer's delivery of a
Request for Certification which identifies GNMA as the Takeout Investor.
"Limited Power of Attorney": A limited power of attorney, in the
form of Exhibit E, executed by each Seller and delivered to Custodian,
authorizing Custodian to prepare Mortgage Note endorsements in the form
indicated thereon.
"MERS Mortgage Loan": Any Purchased Mortgage Loan registered with
MERS on the MERS System.
"MERS System": The system of recording transfers of mortgages
electronically maintained by MERS.
"MIN": The mortgage identification number for any MERS Mortgage
Loan.
"MOM Loan": Any Purchased Mortgage Loan as to which MERS is acting
as mortgagee, solely as nominee for the originator of such Purchased Mortgage
Loan and its successors and assigns.
"Mortgage": The mortgage, deed of trust or other instrument securing
a Mortgage Note.
"Mortgage Loan": Any residential real estate secured loan,
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 applicable Seller to return premiums or payments with
respect thereto; and (iii) all right, title and interest of the applicable
Seller in the property covered by such deed of trust (or mortgage).
"Mortgage Note": The original executed promissory note or other
evidence of the indebtedness of a mortgagor/borrower with respect to a Purchased
Mortgage Loan.
"Mortgaged Property": The real property (including all improvements,
buildings, fixtures, building equipment and personal property thereon and all
additions, alterations and replacements made at any time with respect to the
foregoing) and all other collateral securing repayment of the debt evidenced by
a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
-4-
"Non-Agency Bailee Letter": The master bailee letter, in the form of
Exhibit D-2, for use by Custodian in connection with the transfer of Mortgage,
Loans to a Takeout Investor which is not an Agency.
"Non-Agency Submission Package": The documents listed on Exhibit
B-3, which shall be delivered by a Seller to Custodian in connection with each
Non-Agency Transaction.
"Non-Agency Transaction": Any transaction initiated by a Seller's
delivery of a Request for Certification for Eligible Assets which are not
Committed Mortgage Loans.
"Notice of Bailment": A notice, in the form of Schedule 1 to Exhibit
D-1 or Schedule 1 to Exhibit D-2, as applicable, delivered by Custodian to
Takeout Investor in connection with each delivery to Takeout Investor of the
applicable portion of each Submission Package.
"Notice of Default": Written notice delivered by Buyer to Custodian
and each Seller, of an "Event of Default" under the Repurchase Agreement.
"Payee Number": The code used by Fannie Mae to indicate the wire
transfer instructions that will be used by Fannie Mae to purchase a Mortgage
Loan.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
"Purchase Date": With respect to each Purchased Asset, the date on
which such Purchased Asset is purchased by the Buyer pursuant to the Repurchase
Agreement.
"Purchased Asset": (a) A Purchased Mortgage Loan or (b) REO Property
owned by the REO Subsidiary.
"Purchased Mortgage Loan": A Mortgage Loan sold by each Seller to
Buyer in a Transaction.
"Release Payment": The amount necessary to effectuate a release
under a Warehouse Lender's Release.
"REO Property": The real property assets (a) purchased by the REO
Subsidiary from a lender who obtained title to such real property assets as a
result of a foreclosure or deed in lieu of foreclosure of a mortgage or deed of
trust; or (b) acquired by the REO Subsidiary as a result of foreclosure or deed
in lieu of foreclosure of a mortgage or deed of trust.
"REO Subsidiary": The wholly owned Subsidiary of the Sellers that is
a Special Purpose Entity formed for the sole purpose of holding REO Property set
forth on Schedule 3 of the Repurchase Agreement.
-5-
"Request for Certification": A Transaction Request (as defined under
the Repurchase Agreement) and the Asset Schedule supplied by each Seller to
Buyer, and transmitted by Buyer or Sellers to Custodian electronically in an
appropriate data layout, regarding all Eligible Assets being offered for sale by
each Seller to Buyer on the Purchase Date.
"Request for Release of Documents and Receipt": A written request
for the release of documents and receipt in the form of Exhibit G hereto.
"Responsible Officer": With respect to the Custodian, any director,
associate, vice president, assistant vice president, trust officer or any other
officer of the Custodian customarily performing functions similar to those
performed by any of the above designated officers, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Seller": American Home Mortgage Corp., American Home Mortgage
Acceptance, Inc., American Home Mortgage Servicing, Inc., and American Home
Mortgage Investment Corp., or their respective successors in interest or
assigns.
"Submission Package": With respect to each Purchased Mortgage Loan,
a Cash Window Submission Package or a Non-Agency Submission Package, as
applicable.
"Takeout Assignment": The assignment by a Seller to Buyer of a
Seller's rights under a specific Takeout Commitment, in the form of Exhibit H-1,
or of a Seller's rights under all Takeout Commitments, in the form of Exhibit
H-2.
"Takeout Commitment": A commitment of each Seller to either (a) sell
one or more Purchased Mortgage Loans to a Takeout Investor or (b) (i) swap one
or more Purchased Mortgage Loans with a Takeout Investor that is an Agency for
an Agency Security, and (ii) sell the related Agency Security to a Takeout
Investor, and in each case, the corresponding Takeout Investor's commitment back
to the Sellers to effectuate any of the foregoing, as applicable.
"Takeout Investor": Shall mean (i) an Agency, (ii) DLJ Mortgage
Capital, Inc. or (iii) other institution which has made a Takeout Commitment and
is listed on Exhibit R, as such exhibit may be updated from time to time by
notice from the Buyer to the Custodian in writing.
"Trust Receipt": A trust receipt issued by the Custodian evidencing
the Purchased Assets it holds, in the form attached hereto as Exhibit I, and
delivered to the Buyer by the Custodian in accordance with Section 3 hereof.
"Warehouse Lender": Any lender providing financing to a Seller for
the purpose of originating Mortgage Loans, which lender prior to the Purchase
Date has a security interest in such Mortgage Loans as collateral for the
obligations of such Seller to such lender.
"Warehouse Lender's Release": A letter, in the form of Exhibit J-1,
from a Warehouse Lender to Buyer, conditionally releasing all of Warehouse
Lender's right, title and interest in certain Mortgage Loans identified therein
upon payment to Warehouse Lender.
-6-
"Warehouse Lender's Wire Instructions": The wire instructions, set
forth in a letter in the form of Exhibit J-2, from a Warehouse Lender to Buyer,
setting forth wire instructions for all amounts due and payable to such
Warehouse Lender.
"Wet-Ink Delivery Date": With respect to each Wet-Ink Mortgage Loan,
the date which is seven Business Days after the related Purchase Date.
"Wet Ink Mortgage Loan": A Mortgage Loan which a Seller is selling
to Buyer simultaneously with the origination thereof.
"Written Instructions": Written communications received by a
Responsible Officer of the Custodian from an Authorized Representative of the
Buyer or the Sellers, including communications received in electronic format.
Section 2. Deposit of Purchased Assets; Effecting a Transaction.
(a) RESERVED.
(b) (i) With respect to any purchase of 250 or fewer Eligible Assets
on a single Purchase Date, on or prior to 11:00 a.m. (New York City time) one
(1) Business Day prior to the Purchase Date, and (ii) with respect to any
purchase of 251 or more Eligible Assets on a single Purchase Date, by 11:30 a.m.
(New York City time) two (2) Business Days prior to the Purchase Date or (iii)
by 11:30 a.m. (Eastern time) on the Purchase Date with respect to Wet Ink
Mortgage Loans, each Seller shall deposit with Custodian (a) a Request for
Certification (copy to Buyer), and (b) the Asset File, except with respect to
each Wet-Ink Mortgage Loan. The documentation for no more than two hundred fifty
(250) Delivered Assets will be reviewed by the Custodian on any Business Day.
(c) On or prior to 12 p.m. (Eastern time) on a Wet-Ink Delivery
Date, each Seller shall deliver or cause to be delivered, the Mortgage Loan File
for each related Wet-Ink Mortgage Loan.
(d) From and including the Purchase Date and until notified in
writing on the Repurchase Date or as extended by written notice signed by Buyer
and each Seller and delivered to an authorized officer of the Custodian, or
until a Responsible Officer of the Custodian shall actually receive a Notice of
Default, Custodian shall hold the Purchased Assets in trust for the exclusive
benefit of Buyer and shall not act upon Written Instructions of Buyer or each
Seller to deliver the Purchased Assets other than as expressly provided in this
Agreement. Prior to the related Purchase Date, Custodian shall hold the
Delivered Assets in trust for the exclusive benefit of each Seller.
(e) All loan documents delivered to the Custodian shall have been
placed by each Seller or its representative in an appropriate file folder,
properly secured, and clearly marked with the name of the Mortgagor and the loan
number (the "Loan Number").
-7-
Section 3. Certification of Documentation; Delivery of Documents.
(a) Upon receipt by Custodian of the Request for Certification
pursuant to Section 2(b) hereof, Custodian shall ascertain whether it is in
possession of the Asset File for each Delivered Asset identified on the Request
for Certification and shall no later than 3 p.m. Eastern time (i) on the related
Purchase Date for Eligible Assets (other than Wet-Ink Mortgage Loans), and (ii)
with respect to Wet-Ink Mortgage Loans delivered by 6 p.m. New York City time on
the Wet-Ink Delivery Date, no later than 3 p.m. New York City time on the
Business Day following the Wet-Ink Delivery Date provide to Buyer and each
Seller a written listing of exceptions via electronic mail, if any, relating to
each Delivered Asset based on Custodian's review of the related Asset File
pursuant to this Section 3 (provided, that the Custodian has timely received the
items required in Section 2(b) herein). Except for any Delivered Asset which has
been notified to Buyer by Custodian as containing an exception (and Buyer has
not provided written notice of its intent to purchase by 2 p.m. Eastern time on
the related Purchase Date, and except for any other Delivered Asset that Buyer
has provided written notice of its intent to not purchase by 2 p.m. Eastern Time
on the related Purchase Date), Custodian shall, issue to Buyer by 3 p.m. Eastern
time on the related Purchase Date (provided, that the Custodian has timely
received the items required in Section 2(b) herein) a Custodial Asset Schedule
electronically or by fax and identifying all Delivered Assets and treat such
Delivered Assets as Purchased Assets pursuant to this Agreement. A physical
Custodial Asset Schedule shall be sent via electronic transmission as agreed
between Buyer and Custodian. Custodian hereby acknowledges that each time it
issues a Custodial Asset Schedule, it is making an express representation and
warranty to Buyer that it has reviewed the items contained in the Asset File
listed on the Request for Certification as specified in Sections 3(a) and (b)
with respect to the related Eligible Asset (other than a Wet-Ink Mortgage Loan).
In the event the Buyer does not wire the Purchase Price to each Seller on the
related Purchase Date, the Buyer shall return the Custodial Asset Schedule to
Custodian.
(b) With respect to each Request for Certification, prior to the
delivery of the Custodial Asset Schedule by Custodian and upon receipt of the
Asset File for each Delivered Asset:
(i) Custodian shall review the documents in each Asset File to
verify whether all are complete and appear regular on their face, whether
each such document purporting to be an original appears on its face to be
so, and whether each copy appears on its face to be a complete copy of its
original. Custodian shall confirm that, with respect to each Delivered
Asset:
(A) each document required by this Agreement to be in the
Asset File is in Custodian's possession, including, without
limitation, the original Mortgage and Mortgage Note (except that in
the case of a Mortgage, the original of which has been delivered for
recordation, a certified copy of the original Mortgage shall be in
the Custodian's possession);
(B) the Mortgage Note is endorsed "Pay to the order
of___________ without recourse" and signed in the name of the last
endorsee by an officer, with
-8-
all intervening endorsements showing a complete chain of title from the
originator to the last endorsee;
(C) each signature on the Mortgage Note is original and does
not materially differ from the name typed below the signature line
it appears on;
(D) the information on Exhibit F-3 (except for items 3, 4, 9,
11, 12 and 14) which is contained on the Mortgage Note conforms to
the related Asset Schedule;
(E) all signatures on the Mortgage properly relate to the
Mortgage Note, examine the Mortgage for the completions of any
notarization and verify that any rider or addendum properly relates
to the Mortgage and that the signatures on any rider or addendum
match the signatures on the Mortgage;
(F) the Mortgagor name on the Assignment of Mortgage (if any)
agrees with the related Asset Schedule;
(G) the original or certified copies of the recorded
intervening assignments of the Mortgage, if applicable, notice of
transfer or equivalent instrument (each, an "Intervening
Assignment"), show a complete chain of assignment from the
originator and verify that the Mortgagor name is on the assignment
agrees with the related Asset Schedule;
(H) Reserved;
(I) Reserved;
(J) With respect to each REO Property, the original or a copy
of the deed, or a trustee's, sherriff's or referee's deed bears
evidence of recording thereon, evidencing ownership of the REO
Property, and includes copies of any certificate of foreclosure or
other document customary in the jurisdiction in which the REO
Property is located to evidence ownership thereof.
(ii) If Custodian determines that the documents in the Asset File
for a Delivered Asset conform in all respects with Section 3(b)(i), and
unless otherwise notified by Buyer in accordance with Section 3(b)(i),
Custodian shall include such Eligible Asset in the Custodial Asset
Schedule issued to Buyer. If the documents required in any Asset File do
not conform in all respects with Section 3(b)(i) or are missing and/or do
not conform (except as otherwise notified in Section 3(b)(i)), Custodian
shall not include such Eligible Asset in any Custodial Asset Schedule.
Custodian shall notify each Seller and Buyer of any documents that are
missing, incomplete on their face or patently inconsistent and of any
Eligible Assets that do not satisfy the criteria listed above. Each Seller
shall promptly deposit such missing documents with Custodian or complete
or correct the documents as required by Section 3(b) or remove the related
Asset File from the Request for Certification. On or prior to the Purchase
Date and as a condition to purchase, except with respect to a Wet-Ink
Mortgage Loan, Custodian shall deliver to the Buyer an electronic
Custodial Asset
-9-
Schedule to the effect that the Custodian has received the Asset File for
each Purchased Asset on the Asset Schedule and as to each Asset File,
specifying any document delivered and any original document that has not
been received, and verifying the items listed in this Section 3(b).
(c) As required by Section 3(a), Custodian shall deliver to Buyer,
no later than 3:00 p.m. Eastern Time on the related Purchase Date (provided,
that the Custodian has timely received the items required in Section 2(b)
herein), electronically or via facsimile, followed, if requested in writing by
Buyer, by overnight courier, a Custodial Asset Schedule having appended thereto
a schedule of all Eligible Assets with respect to which Custodian has completed
the procedures set forth in Sections 3(a) and 3(b)(i) hereof and certify that it
is holding each related Asset File for the benefit of Buyer in accordance with
the terms hereof.
(d) In addition to the foregoing, on the initial Purchase Date, the
Custodian shall deliver to the Buyer via facsimile or e-mail, no later than 3:00
p.m., New York City time, a Trust Receipt with a Custodial Asset Schedule
attached thereto. Each Custodial Asset Schedule delivered by the Custodian to
the Buyer shall supersede and cancel the Custodial Asset Schedule previously
delivered by the Custodian to the Buyer hereunder, and shall replace the then
existing Custodial Asset Schedule to be attached to the Trust Receipt.
Notwithstanding anything to the contrary set forth herein, in the event that the
Custodial Asset Schedule attached to the Trust Receipt is different from the
most recently delivered Custodial Asset Schedule, then the most recently
delivered Custodial Asset Schedule shall control and be binding upon the parties
hereto.
(e) Each Seller shall promptly forward to Custodian original
documents evidencing an assumption, modification, consolidation or extension of
any Purchased Asset that has not been purchased or a certified true copy of any
such document submitted for recordation, and shall provide the original of any
document submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty days of its submission for recordation. The Custodian
shall review, record on its system and file all such documents promptly upon
receipt. If the related Purchased Mortgage Loan has been sold to a Takeout
Investor, Custodian shall forward at Sellers' expense any such documents in its
possession promptly to the related Takeout Investor.
Section 4. Obligations of Custodian. (a) On and after the Purchase
Date, with respect to the Asset Files, and other documents delivered to
Custodian or which come into the possession of Custodian, Custodian is the
custodian for Buyer, exclusively. The Custodian shall hold all documents
received by it for the exclusive use and benefit of Buyer, and shall make
disposition thereof only in accordance with this Agreement and the Written
Instructions furnished by Buyer. The Custodian shall segregate and maintain
continuous custody of the Asset Files and the Submission Packages in secure and
fire resistant facilities in accordance with customary industry standards for
custody of similar documents.
(b) The Custodian shall promptly notify Buyer if (i) 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 any accounts
maintained by each Seller with Custodian or on the Asset File or the Submission
Package; or (ii) the representation, warranty
-10-
and covenant contained in Section 23(d) below were to become untrue or incorrect
at any time during the term of this Agreement.
Section 5. Takeout Provisions; Funding by Takeout Investor.
(a) With respect to each Purchased Mortgage Loan scheduled for sale
to a Takeout Investor, the applicable Seller shall provide to Buyer, with
a copy to the Custodian, a completed Request for Release of Documents and
Receipt with respect to the related Purchased Mortgage Loans. The Asset
Files relating to the Purchased Mortgage Loans included in a Request for
Release of Documents and Receipt shall be sent for delivery by Custodian
to the applicable Takeout Investor specified by the applicable Seller to
Buyer in writing on the same day as the completed Request for Release of
Documents and Receipt is received by Custodian (in the event that such
request is received by 11 a.m. (Eastern time)); provided, that the
Custodian shall not be required to deliver more than 100 Asset Files on
any Business Day, but in any event no later than two Business Days prior
to the Anticipated Settlement Date as notified to the Custodian; provided,
however, that Custodian has received the confirmation described below. In
the event that the Request for Release of Documents and Receipt is not
received prior to 11 a.m. Eastern time, Custodian shall use reasonable
efforts to effect same day shipment of the related Asset Files, but in any
event shall send such Asset Files on the following Business Day. Such
Asset Files shall be sent via overnight courier in accordance with the
Delivery Instructions and under cover of a fully completed Notice of
Bailment prepared by Custodian in accordance with the terms of the
applicable Bailee Letter. Custodian shall not deliver any Asset File to
any potential Takeout Investor unless such Takeout Investor is listed on
Exhibit R hereto, as updated from time to time by written notice from the
Buyer to the Custodian, or as otherwise approved by the Buyer in writing.
The location to which the Asset Files shall be delivered will be specified
on the related Request for Release of Documents and Receipt.
(b) At any time following the delivery of a Request for Release of
Documents and Receipt, in the event a Responsible Officer of the Custodian
knows that any document is missing or is not in compliance with Section
3(b)(i) with respect to a related Asset File or the related forms,
including the return of documents to Custodian from a Takeout Investor due
to a defect in such documents, the Custodian shall give prompt telephone
notice of such defect to Buyer, followed by a written specification
thereof to Buyer within one Business Day. In addition, Custodian shall
provide a Bailee Violation Letter to Buyer and the Takeout Investor in the
event that Buyer notifies Custodian in writing that any documents remain
in the possession of a Takeout Investor for forty-five days and the
related Purchased Mortgage Loans have not been purchased by Takeout
Investor prior to such date.
(c) On the Anticipated Settlement Date, unless Custodian receives on
or prior to such Anticipated Settlement Date a Notice of Default or
Written Instructions from Buyer and the applicable Seller that the
Anticipated Settlement Date has been extended, Buyer irrevocably instructs
Custodian to release to the Takeout Investor the Purchased Mortgage Loans
with respect to such Transaction with a fully completed Notice of
Bailment. Notwithstanding anything to the contrary herein, in the event
the Purchased
-11-
Mortgage Loans are repurchased prior to the related Anticipated Settlement
Date pursuant to the Repurchase Agreement, Buyer irrevocably instructs
Custodian, upon receipt of written notice thereof from Buyer, to release
to the applicable Seller such Purchased Mortgage Loans as more
particularly described in Section 8.
(d) In the event that a Takeout Investor rejects a Purchased
Mortgage Loan for purchase pursuant to a Takeout Commitment for any reason
whatsoever, Custodian shall promptly notify Buyer and the applicable
Seller upon receipt of the returned Asset File or notification from the
Takeout Investor, and a Seller shall deliver to Buyer, not later than two
Business Days after such rejection, a new Takeout Commitment covering such
Purchased Mortgage Loan.
Section 6. Future Defects. During the term of this Agreement, if
Custodian discovers (without duty of inquiry, other than as expressly required
by Section 3 of this Agreement) any document that is missing or is not in
compliance with Section 3(b)(i) with respect to the Asset Files, Custodian shall
give written specification of such defect to each Seller and Buyer.
Section 7. Release for Payment. Upon the payment in full of any
Purchased Asset, and upon receipt by Custodian of a Request for Release of
Documents and Receipt and written acknowledgement from Buyer that the
appropriate proceeds have been received, Custodian shall promptly release the
Asset File to a Seller or its designee. The Custodian shall amend the Asset
Schedule to reflect the release of the applicable Purchased Asset, and shall
deliver to Buyer such amended Asset Schedule.
Section 8. Transfer of Purchased Assets Upon Termination of a
Transaction, Event of Default or Swap for Agency Securities. If Custodian is
furnished with written notice from Buyer that a Transaction with respect to the
Repurchase Agreement has been terminated, that an Event of Default under the
Repurchase Agreement has occurred as to any or all of the Purchased Assets or
that the Purchased Mortgage Loans identified have been swapped for Agency
Securities, upon written notice of the Buyer in the form of Exhibit K, the
Custodian shall release to such Persons as designated in such notice, the Asset
Files relating to the Purchased Assets that are no longer subject to the
Transaction, and shall deliver to the Buyer an amended Custodial Asset Schedule
attached thereto, listing all of the Purchased Assets still subject to a
Transaction. Promptly upon receipt of written notice from Buyer of the
occurrence of an Event of Default pursuant to the Master Repurchase Agreement
and written direction from Buyer to endorse the Mortgage Note and Assignment of
Mortgage, respectively, of a Purchased Asset, Custodian shall endorse the
related Mortgage Note as directed in writing by Buyer and, at the expense of the
Buyer. In addition, each Seller hereby grants Custodian and any officer or agent
thereof an irrevocable power of attorney, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Sellers, coupled with an interest, for the purpose of exercising
its obligations pursuant to this Section 8.
Section 9. Fees of Custodian. Custodian shall charge such fees for its
services under this Agreement as are set forth in a separate letter agreement
between Custodian and each Seller, the payment of which fees, together with
Custodian's expenses in connection herewith,
-12-
shall be solely the obligation of each Seller. Each Seller shall also reimburse
the Custodian on demand for any out-of-pocket expenses, including any reasonable
fees and expenses of counsel.
Section 10. Removal of Custodian With Respect to Some or All of the
Purchased Assets. Buyer may, from time to time, remove and discharge Custodian
from the performance of its duties under this Agreement with respect to any or
all of the Purchased Assets by providing sixty (60) days' written notice from
Buyer to Custodian, with a copy to each Seller; provided, that upon an event of
default hereunder, no notice shall be required. Having given notice of such
removal, Buyer promptly shall, by written instrument (one original counterpart
of which instrument shall be delivered to each Seller and an original to any
successor Custodian).
(i) appoint a successor Custodian to act on behalf of Buyer to
replace Custodian under this Agreement, provided that, if no Event of
Default shall have occurred, each Seller shall approve such successor
Custodian, which approval shall not be unreasonably withheld, and that any
appointment of a successor Custodian which is an affiliate of each Seller
shall be null and void;
(ii) designate a document custodian to receive the Asset Files with
respect to the Purchased Assets removed from this Agreement, or
(iii) take delivery of the Asset Files with respect to the Purchased
Assets removed from this Agreement. In the event of any such removal,
Custodian shall promptly transfer to the successor Custodian, as directed,
all affected Asset Files. In the event of any appointment of a successor
Custodian under this Agreement, each Seller shall be responsible for the
fees of the successor Custodian hereunder. Notwithstanding the foregoing,
this Agreement shall remain in full force and effect with respect to any
Purchased Assets for which this Agreement is not terminated hereunder.
Section 11. Examination and Copies of Asset Files. (a) Upon
reasonable prior notice (which shall be at least 48 hours) to Custodian, the
Sellers, Buyer and their agents, accountants, attorneys, auditors and
prospective purchasers will be permitted during normal business hours to examine
the Asset Files and any other documents, records and papers in the possession of
or under the control of Custodian relating to any or all of the Purchased Assets
or the Delivered Assets.
(b) Upon the request of the Sellers or Buyer and at the cost and
expense of Buyer, as the case may be, Custodian shall provide the Sellers or
Buyer, as the case may be, with copies of the Mortgage Notes, Mortgages,
Assignment of Mortgages and other documents relating to one or more of the
Purchased Assets.
Section 12. Insurance of Custodian. At its own expense, Custodian
shall maintain at all times during the existence of this Agreement and keep in
full force and effect fidelity insurance, theft of documents insurance, forgery
insurance and errors and omissions insurance. All such insurance shall be in
amounts, with standard coverage and subject to lowest available deductibles, all
as is customary for insurance typically maintained by banks which act as
Custodian and with insurance companies reasonably acceptable to Sellers. The
minimum coverage under any such bond and insurance policies shall be at least
equal to the corresponding
-13-
amounts required by Fannie Mae in the Fannie Mae Mortgaged-Backed Securities
Selling Guide and the Fannie Mae Servicing Guide or by Freddie Mac in the
Freddie Mac Seller's & Servicer's Guide. A certificate of Custodian shall be
furnished to Sellers, upon request, evidencing that such insurance is in full
force and effect.
Section 13. No Adverse Interest of Custodian. By execution of this
Agreement, 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 Delivered Asset or Purchased Asset, and hereby
waives and releases any such interest which it may have in any Delivered Asset
or Purchased Asset as of the date hereof. The Delivered Assets and the Purchased
Assets shall not be subject to any security interest, lien or right of set-off
by Custodian or any third party claiming through Custodian, and Custodian shall
not pledge, encumber, hypothecate, transfer, dispose of, or otherwise grant any
third party interest in, the Purchased Assets.
Section 14. Termination by Custodian. Unless required to terminate
earlier by applicable law or regulation, after the expiration of the 180-day
period commencing on the initial Purchase Date, Custodian may terminate its
obligations under this Agreement upon at least 60 days' notice to Buyer and
Sellers. The Custodian shall pay all costs associated with the transfer of the
Asset Files, unless such termination is due to the nonpayment of custodial fees,
in which case such costs shall be borne by the Buyer.
Section 15. Limitation on Liability. (a) Neither Custodian nor any
of its directors, officers, agents or employees, shall be liable for any action
taken or omitted to be taken by it or them hereunder or in connection herewith
in good faith and believed by it or them to be within the purview of this
Agreement, except for its or their own negligence, lack of good faith or willful
misconduct. In no event shall the Custodian or any of its directors, officers,
agents, or employees have any responsibility to inquire, ascertain or to take
action except as expressly provided herein.
(b) The Custodian shall have responsibility only for the Asset Files
and any other documents which have been actually delivered to it and which have
not been released to the Sellers, Buyer, Takeout Investor, any Agency or
assignee or their respective agent or designee in accordance with this
Agreement. The standard of care to be exercised by Custodian in the custody of
the Asset Files under this Agreement shall be to exercise the same degree of
care as Custodian exercises when it holds mortgage loan documents as security
for its own loans or warehouse loans. Custodian is an agent, bailee and
custodian only and is not intended to be, nor shall it be construed to be
(except only as agent, bailee and custodian), a representative, trustee or
fiduciary of, or for, each Seller, any Agency, Buyer, Takeout Investor or
assignee. Custodian shall not be bound in any way by any agreement or contract
other than this Agreement, including, without limitation, the Repurchase
Agreement, and the exhibits and schedules hereto and any other agreement to
which it is a party. Custodian shall not be required to ascertain or inquire as
to the performance or observance of any of the conditions or agreements to be
performed or observed by any other party, except as specifically provided in
this Agreement and the exhibits and schedules hereto. Custodian disclaims any
responsibility for the validity or accuracy of the recitals to this Agreement
and any representations and warranties
-14-
contained herein, unless specifically identified as recitals, representations or
warranties of Custodian.
(i) Custodian shall have no responsibility for ascertaining the
value, collectability, insurability, enforceability, effectiveness,
recordability, or suitability of any Eligible Asset, the title of any
party therein, the validity, adequacy, perfection or priority of the
security afforded thereby, or the validity of this Agreement (except as to
Custodian's authority to enter into this Agreement and to perform its
obligations hereunder).
(ii) Custodian shall not be under any duty to examine or pass upon
the genuineness, validity or legal sufficiency of any of the documents
constituting part of any Asset File, and shall be entitled to assume that
all documents constituting part of such files are genuine and valid and
that they are what they purport to be, and that any endorsements or
assignments thereof are genuine and valid.
(iii) No provision of this Agreement shall require Custodian to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any
of its rights and powers, if, in its sole judgment, it shall believe that
repayment of such funds or indemnity satisfactory to it against such risk
or liability is not assured to it.
(iv) Custodian is not responsible for preparing or filing any
reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for Custodian's compensation or for
reimbursement of expenses.
(v) The Custodian shall not be responsible for the monitoring of, or
the validity and perfection of the Buyer's security interest in the
Mortgages and the Eligible Assets hereunder, other then the obligation to
take possession of the Asset File for each Eligible Asset.
(vi) The Custodian shall have no duties or responsibilities except
those that are specifically set forth herein, shall not be liable except
for the performance of such duties and obligations and no implied
covenants or obligations shall be read into this Agreement against the
Custodian.
(vii) The Custodian shall be under no obligation to make any
investigation into the facts or matters stated in any Written
Instructions, direction, resolution, certificate, statement,
acknowledgment, consent order, notice, request, document in the Asset
File, or any other document received from the Buyer or the Sellers.
(viii) In the absence of bad faith on the part of the Custodian, the
Custodian shall not be liable with respect to any action taken or omitted
to be taken in accordance with Written Instructions, direction,
acknowledgement, consent or any other communication from the Buyer.
(ix) In the absence of bad faith on the part of the Custodian, the
Custodian may conclusively rely, as to the truth of the statements and the
correctness of any request,
-15-
instructions, certificates or other documents furnished to the Custodian,
reasonably believed by the Custodian to be genuine and to have been signed
or presented by the proper party or parties; but in the case of any
document contained in an Asset File or other request, instruction,
document or certificate which by any provision hereof is specifically
required to be furnished to the Custodian, the Custodian shall be under a
duty to examine the same to determine whether or not it conforms in form
to the requirements of this Agreement.
(x) If the Custodian requests Written Instructions from the Buyer
with respect to any action or omission in connection with this Agreement,
the Custodian shall be entitled (without incurring any liability therefore
to the Buyer or any other Person) 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 such request.
(xi) Reserved.
(xii) In order to comply with laws, rules and regulations applicable
to banking institutions, including those relating to the funding of
terrorist activities and money laundering, the Custodian is required to
obtain, verify and record certain information relating to individuals and
entities which maintain a business relationship with the Custodian.
Accordingly, each of the parties agrees to provide to the Custodian upon
its request from time to time such party's complete name, address, tax
identification number and such other identifying information together with
copies of such party's constituting documentation, securities disclosure
documentation and such other identifying documentation as may be available
for such party.
Section 16. Indemnification of Custodian. The Sellers and Buyer
agree, on a joint and several basis, to fully indemnify, defend and hold
Custodian and its directors, officers, agents and employees 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, 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,
judgments, suits, costs, expenses or disbursements were imposed on, incurred by
or asserted against Custodian by reason of or as a result of negligence, lack of
good faith or willful misconduct on the part of the Custodian or any of its
directors, officers, agents or employees. The foregoing indemnification shall
survive any termination of this Agreement or the earlier resignation or removal
of the Custodian.
Section 17. Indemnification of Buyer and Seller. In the event that
Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other
document related to a Purchased Asset that was in its possession pursuant to
this Agreement within two (2) Business Days after required or requested by Buyer
(a "Custodial Delivery Failure"), and provided, that (i) Custodian previously
delivered to Buyer a Asset Schedule with respect to such document; (ii) such
document is not outstanding pursuant to a Request for Release of Documents and
Receipt in the form annexed hereto as Exhibit G; and (iii) such document was
assigned or sold to
-16-
Buyer, then Custodian shall (a) with respect to any missing Mortgage Note,
promptly deliver to such Buyer upon request, a Lost Note Affidavit in the form
of Exhibit L annexed hereto and (b) with respect to any missing document related
to such Purchased Asset including but not limited to, a missing Mortgage Note,
indemnify Buyer in accordance with the succeeding paragraph of this Section 17.
Custodian agrees to indemnify and hold the Buyer and the Sellers and their
respective designees 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 such Custodial Delivery Failure or the
Custodian's negligence, willful misconduct, or lack of good faith. The foregoing
indemnification shall survive any termination or assignment of the Custodial
Agreement.
Section 18. Obligations of the Custodian Regarding Genuineness of
Documents In the absence of bad faith on the part of Custodian, Custodian may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any request, instructions, certificate, opinion
or other document furnished to Custodian, reasonably believed by Custodian to be
genuine and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Agreement, but in the case of any loan
document or other request, instruction, document or certificate which by any
provision hereof is specifically required to be furnished to Custodian,
Custodian shall be under a duty to examine the same to determine whether or not
it conforms to the requirements of this Agreement, provided that,
notwithstanding the foregoing, the Custodian is not required to determine if any
document is in recordable form.
Section 19. Periodic Statements. Custodian shall periodically
provide to Buyer or Sellers, as the case may be, those reports, including a list
of all the Purchased Assets for which the Custodian holds an Asset File pursuant
to this Agreement, as Buyer and Custodian mutually agree. Sellers shall be
entitled to copies of such reports upon reasonable request.
Section 20. 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 Asset Files in the performance of the
Custodian's duties hereunder shall be delivered by each Seller to Custodian
prior to any shipment of any Asset Files hereunder. Buyer will arrange for the
provision of such services at its sole cost and expense (or, at Custodian's
option, Buyer will reimburse Custodian for all costs and expenses incurred by
Custodian consistent with such instructions) and will maintain such insurance
against loss or damage to the Asset Files as each Seller deems appropriate.
Without limiting the generality of the provisions of Section 17 above, 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 Sellers or the Buyer, 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. If the Custodian does not receive timely Written Instructions as to
the method of shipment and shipper(s) of the related Asset Files, the Custodian
shall be fully protected in using a nationally recognized courier.
Section 21. Authorized Representatives. Each individual designated
as an authorized representative of the Sellers and the Buyer (each, an
"Authorized Representative") or
-17-
a Responsible Officer of the Custodian, 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 and the
Buyer, respectively, and the specimen signature for each such Authorized
Representative or Responsible Officer, as applicable, of the Custodian, the
Sellers and the Buyer initially authorized hereunder is set forth on Exhibits M,
N and O, respectively. From time to time, Custodian, each Seller and Buyer may,
by delivering to the others 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.
Section 22. Obligations of Custodian With Respect to the Trust
Receipts. (a) Upon the request of the Buyer, the Custodian shall issue
additional Trust Receipts subdividing the initial Trust Receipt.
(b) With respect to any subdivision of the initial Trust Receipt
into additional Trust Receipts, the Custodian shall keep a register of such
Trust Receipts issued acceptable to the Buyer in its sole discretion, including
the Purchased Assets to which the Trust Receipts related, acceptable to Buyer in
its sole discretion. 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 Custodian on behalf of Buyer, or its transferee as set
forth below, of the Trust Receipt of the Asset Files and Buyer or its
Transferee's right to possess those Asset Files, 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 I to this
Agreement and executed by manual signature of an authorized officer 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 where affixed, authorized to sign on
behalf of Custodian shall bind Custodian, notwithstanding that such individuals
have ceased to be so authorized prior to the delivery of those Trust Receipts.
Each physical Trust Receipt shall have attached thereto a Custodial Asset
Schedule with respect to the applicable Purchased Assets. Any of the Sellers or
other transferee or assignee of the Trust Receipt shall succeed to all the
rights of the transferring Buyer under this Agreement with respect to such Trust
Receipt and the related Purchased Assets upon notice to Custodian and delivery
to Custodian of the appropriate evidence of such transfer and assignment. Each
Trust Receipt subsequently delivered by the Custodian to the Buyer shall
supersede and cancel the Trust Receipt previously delivered by the Custodian to
the Buyer hereunder.
(c) Buyer may transfer its interest in the Asset 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 K hereto (the "Notice to the Custodian"). Within three (3) Business Days
of receipt of the Notice to the Custodian and the Trust Receipt from the
Transferee, 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; provided
that the Custodian shall not be required to issue a Trust Receipt to such
Assignee until the date which is one (1) Business Day following the date that
the Custodian has received all information necessary to allow the Custodian to
complete its internal "Know Your Customer" procedures with respect to
-18-
such Assignee.. Upon receipt of the Notice to Custodian from the Buyer,
Custodian shall change its records to reflect that such Transferee is the person
to whom such Trust Receipt is issued for the Purchased Assets.
(d) In the event that (i) any mutilated Trust Receipt is surrendered
to Custodian, or Custodian receives evidence to its satisfaction of the
destruction, loss or theft of any Trust Receipt and (ii) there is delivered to
Custodian such security or indemnity as may be required by it to save it
harmless, then, in the absence of actual notice to Custodian that such Trust
Receipt has been acquired by a bona fide purchaser, Custodian shall execute and
deliver a new Trust Receipt to such purchaser in exchange for or in lieu of any
such mutilated, lost or stolen Trust Receipt.
(e) Simultaneously with the relinquishment of the Trust Receipt to
Custodian by the purchaser thereof and the delivery by Custodian of the related
Asset Files to such purchaser or a designee of such purchaser, the Trust Receipt
shall be canceled and the Asset Files will no longer be subject to this
Agreement
Section 23. Representations and Warranties. Custodian represents and
warrants to Buyer and Sellers that:
(a) 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;
(b) 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;
(c) 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
(d) it is not controlled by, under common control with or otherwise
affiliated with or related to any Seller.
Section 24. Governing Law. 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.
Section 25. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or, if by
other means, including other telecommunication or electronic device capable of
transmitting or creating a written record directly to the office of the
-19-
recipient, when received by the recipient party at the address shown on the
first page hereof, or at such other addresses as may hereafter be furnished to
the other parties by like notice.
Notices provided to Buyer shall be directed as follows: Credit
Suisse First Boston Mortgage Capital LLC, 302 Carnegie Center, 2nd Floor,
Princeton, N.J. 08540.
Notices provided to Custodian shall be directed as follows: Deutsche
Bank National Trust Company, 1761 East St. Andrew Place, Santa Ana, California
92705 Attn: Mortgage Custody - AH067C (facsimile: 714-247-6082).
Notices provided to any of the Sellers shall be addressed to such
Seller and directed as follows: 538 Broadhollow Road, Melville, New York 11747
Attn: Craig Pino (facsimile: 516-495-5411), with a copy to Alan B. Horn, General
Counsel, at the above address.
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 (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt, or in the case of or other telecommunication
or electronic device, the date noted on the confirmation of such transmission).
Section 26. Successors and Assigns. This Agreement shall inure to
the benefit of the successors and assigns of the parties hereto. This Agreement
shall not be assigned by any Seller nor Buyer without the prior written consent
of the other, provided, however, that Buyer may assign this Agreement to any
affiliate of Buyer without the prior written consent of any other party hereto.
Section 27. 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 28. Entire Agreement. This Agreement, together with the
Exhibits, Annexes and other writings referred to herein or delivered pursuant
hereto, constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
Section 29. Counterparts. 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.
-20-
Section 30. 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 30.
Section 31. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 32. Confidentiality.Section 33. (a) At the Buyer's direction and
in the Buyer's sole discretion at any time, the Custodian shall immediately
return to the Buyer any or all Confidential Information. Upon termination or
expiration of this Agreement, the Custodian shall immediately return to the
Buyer any and all Confidential Information which it has received under this
Agreement and shall destroy all records of such Confidential Information.
For purposes of this Agreement, "Confidential Information" shall
mean all confidential or proprietary information regarding the Buyer and/or any
information with respect to any Mortgagor and/or any Delivered Asset or the
related Asset File as required to be kept confidential in accordance with
applicable law and any information with respect to another party obtained
pursuant to this Agreement, and any other information contained in the Asset
Schedule. The term "Confidential Information" does not include information
(unless otherwise required by law applicable to the Custodian) which (i) becomes
publicly known through a means other than as a result of a disclosure by
Custodian or its directors, officers, employees, agents, attorneys, accountants
or affiliates (individually, a "Representative" and collectively,
"Representatives") in violation of this Agreement, (ii) is already in
Custodian's or its applicable Representative's possession as of the date hereof,
provided that, to a Responsible Officer of the Custodian's actual knowledge,
after customary and reasonable due inquiry, such information is not subject to
another confidentiality agreement with or similar obligation, (iii) becomes
available to Custodian on a non-confidential basis or otherwise becomes publicly
known from a source other than Buyer or its Representatives, provided that, to
Custodian's actual knowledge, without inquiry, such source is not bound by a
confidentiality agreement with or similar obligation, or (iv) Custodian develops
independently without reference to any Confidential Information.
(b) Notwithstanding anything herein to the contrary, the foregoing
shall not be construed to prohibit (i) disclosure of any and all information (A)
if required to do so by any applicable law, rule or regulation, (B) to any
government agency or regulatory body having or claiming authority to regulate or
oversee any respects of Custodian's business or that of its affiliates, (C)
pursuant to any subpoena, civil investigative demand or similar demand or
request
-21-
of any court, regulatory authority, arbitrator or arbitration to which Custodian
or any affiliate or an officer, director, employer or shareholder thereof is a
party or (D) to any affiliate, independent or internal auditor, agent, employee
or attorney of Custodian having a need to know the same, provided that Custodian
advises such recipient of the confidential nature of the information being
disclosed, or (ii) any other disclosure authorized by this Agreement or in
writing by the Buyer.
In the event that Custodian or any of its Representatives are
requested or legally compelled (by deposition, interrogatory, request for
documents, subpoena, civil investigative demand or similar process) to make any
disclosure which is prohibited or otherwise constrained by this agreement,
Custodian or its Representatives, as the case may be, shall give Buyer prompt
written notice of such request, and the terms and circumstances surrounding such
request so that Buyer may seek an appropriate protective order or other
appropriate remedy and/or waive compliance with the provisions of this
agreement, as Buyer determines to be appropriate, in its sole discretion.
Custodian and its Representatives, to the extent legally practicable, shall take
such actions as Buyer may reasonably request in a timely fashion to cooperate
with Buyer to obtain such protective order or other remedy. If Buyer does not
obtain a protective order or other remedy or waives compliance with the
provisions of this Agreement or takes no action in a timely fashion, Custodian
or its Representatives, as the case may be, may disclose only that portion of
the Confidential Information or other information which it is required to
disclose by law or by court order, provided that Custodian or its
Representatives, as the case may be, shall (i) give Buyer written notice of the
Confidential Information or other information to be disclosed as soon as
practicable, (ii) exercise reasonable efforts to obtain assurance that
confidential treatment will be accorded such Confidential Information or other
information, (iii) otherwise continue to treat such Confidential Information as
such. Custodian or its Representatives, as the case may be, shall not be liable
hereunder for disclosures made in compliance with the foregoing.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-22-
IN WITNESS WHEREOF, Buyer, Seller and Custodian have caused their names to
be duly signed hereto by their respective officers thereunto duly authorized,
all as of the date first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC,
as Buyer
By: /s/ A. Adam Loskove
-------------------------------------
Name: A. Adam Loskove
--------------------------------
Title: Vice President
-------------------------------
AMERICAN HOME MORTGAGE CORP.
as Seller
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
--------------------------------
Title: Executive Vice President,
General Counsel & Secretary
-------------------------------
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
as Seller
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
--------------------------------
Title: Executive Vice President,
General Counsel & Secretary
-------------------------------
AMERICAN HOME MORTGAGE SERVICING, INC.
as Seller
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
--------------------------------
Title: Executive Vice President,
General Counsel & Secretary
-------------------------------
AMERICAN HOME MORTGAGE INVESTMENT CORP.
as Seller
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
--------------------------------
Title: Executive Vice President,
General Counsel & Secretary
-------------------------------
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Norma L. Catone
-------------------------------------
Name: Norma L. Catone
--------------------------------
Title: Vice President
-------------------------------
By: /s/ Angel Sanchez
-------------------------------------
Name: Angel Sanchez
--------------------------------
Title: Authorized Signer
-------------------------------
-2-