CONDUIT MASTER
3/26/96
EXHIBIT 10(IV)
MORTGAGE LOAN PURCHASE AGREEMENT
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PURCHASER: XXXXX XXXXXX REAL ESTATE SECURITIES INC.
ADDRESS: 0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: Xxxxxx Xxxxxxxxx
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SELLER: United Financial Mortgage Corp.
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ADDRESS: 000 Xxxxxxxxxx Xxxxx, Xxxxx 000
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Xxx Xxxxx, XX 00000
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Attn: Xxxxxx Xxxxxxxx, President
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DATE OF AGREEMENT: __________________________________________
TABLE OF CONTENTS
Page
Section 1. Definitions................................................... 1
Section 2. Procedures for Purchases of Mortgage Loans.................... 6
Section 3. Sale of Mortgage Loan to Takeout Investor..................... 7
Section 4. Servicing of the Mortgage Loans............................... 9
Section 5. Trade Assignments............................................. 10
Section 6. Transfers of Mortgage Loans by Purchaser...................... 10
Section 7. Record Title to Mortgage Loans; Intent of Parties, Security
Interest...................................................... 11
Section 8. Representations and Warranties................................ 11
Section 9. Covenants of Seller........................................... 17
Section 10. Term.......................................................... 20
Section 11. Exclusive Benefit of Parties; Assignment...................... 20
Section 12. Amendments; Waivers; Cumulative Rights........................ 20
Section 13. Execution in Counterparts..................................... 20
Section 14. Effect of Invalidity of Provisions............................ 20
Section 15. Governing Law................................................. 20
Section 16. Notices....................................................... 20
Section 17. Entire Agreement.............................................. 21
Section 18. Costs of Enforcement.......................................... 21
Section 19. Consent to Service............................................ 21
Section 20. Construction.................................................. 21
Exhibit A Loan Purchase Detail
Exhibit B-1 Warehouse Lender's Release
Exhibit B-2 Warehouse Lender's Wire Instructions
Exhibit C-1 Seller's Release
Exhibit C-2 Seller's Wire Instructions
Exhibit D Purchaser's Wire Instructions to Seller
Exhibit E UCC-1 Financing Statement
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement ("Agreement"), dated as of the
date set forth on the cover page hereof, between XXXXX XXXXXX REAL ESTATE
SECURITIES, INC. ("Purchaser") and the Seller whose name is set forth on the
cover page hereof ("Seller").
PRELIMINARY STATEMENT
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Seller may, in its sole discretion, offer to sell to Purchaser from
time to time Mortgage Loans, and Purchaser, in its sole discretion, may agree to
purchase such Mortgage Loans from Seller in accordance with the terms and
conditions set forth in this Agreement. Seller, subject to the terms hereof,
will cause each Mortgage Loan to be purchased by Takeout Investor. During the
period from the purchase of a Mortgage Loan to the sale of the Mortgage Loan to
Takeout Investor, Purchaser expects to rely entirely upon Seller to service each
such Mortgage Loan.
The parties hereto hereby agree as follows:
Section 1. Definitions.
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Capitalized terms used but not defined herein shall have the meanings
set forth in the Custodial Agreement. As used in this Agreement, the following
terms shall have the following meanings:
"Act of Insolvency": With respect to Seller, (a) the commencement
by Seller as debtor of any case or proceeding under any bankruptcy,
insolvency, reorganization, liquidation, dissolution or similar law,
or Seller's seeking the appointment of a receiver, trustee, custodian
or similar official for Seller or any substantial part of its
property, or (b) the commencement of any such case or proceeding
against Seller, or another's seeking such appointment, or the filing
against Seller of an application for a protective decree which (1) is
consented to or not timely contested by Seller, (2) results in the
entry of an order for relief, such an appointment, the issuance of
such a protective decree or the entry of an order having a similar
effect, or (3) is not dismissed within sixty (60) days, (c) the making
by Seller of a general assignment for the benefit of creditors, or (d)
the admission in writing by Seller that Seller is unable to pay its
debts as they become due or the nonpayment generally by Seller of its
debts as they become due.
"Applicable Guide": The Takeout Investor's eligibility
requirements for Mortgage Loans, as applicable, and as each may be
amended or supplemented from time to time.
"Applicable Purchase Agreement": The applicable agreement,
providing for the purchase by Takeout Investor of Mortgage Loans from
Seller as such agreement may be amended from time to time.
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"Assignee": The Chase Manhattan Bank, National Association, as
agent for certain beneficiaries pursuant to certain Repurchase
Transaction Tri-Party Custody Agreements.
"Business Day": Any day other than (a) a Saturday, Sunday or
other day on which banks located in the City of New York, New York are
authorized or obligated by law or executive order to be closed, or (b)
any day on which Xxxxx Xxxxxx Real Estate Securities Inc. is closed
for business, provided that notice thereof shall have been given not
less than seven calendar days prior to such day.
"Collateral": The Mortgage Loans (including all servicing rights
related thereto), any Custodial Accounts, the Takeout Commitments and
the proceeds of any and all of the foregoing.
"Commitment Date": The date set forth in a Takeout Commitment as
the commitment date.
"Commitment Expiration Date": With respect to any Mortgage Loan,
the date occurring 30 calendar days after the Purchase Date.
"Commitment Requirements": The requirements issued by Takeout
Investor in the Applicable Guide regarding the issuance of Takeout
Commitments, as amended from time to time by Takeout Investor.
"Conduit": As defined in the Custodial Agreement.
"Conduit Submission Package": As defined in the Custodial
Agreement.
"Credit File": All papers and records of whatever kind or
description, whether developed or originated by Seller or others,
required to document or service the Mortgage Loan; provided, however,
that such Mortgage Loan papers, documents and records shall not
include any Mortgage Loan papers, documents or records which are
contained in the Conduit Submission Package.
"Custodial Account": A separate custodial account, established
and maintained by Seller under the conditions set forth in Section
4(b), for the deposit by Seller of all collections in respect of a
Mortgage Loan that are payable to Purchaser as the owner of the
Mortgage Loan.
"Custodial Agreement": The Mortgage Loan Custodial Agreement,
dated as of the date set forth on the cover sheet thereof, among
Seller, Purchaser and Custodian, as amended from time to time.
"Custodial Fee": With respect to each Mortgage Loan, the amount
set forth on the related Funding Confirmation as the "Custodial Fee."
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"Custodian": The Chase Manhattan Bank, National Association, and
its permitted successors.
"Defective Mortgage Loan": A Mortgage Loan that is not in
compliance with the Applicable Guide and this Agreement.
"Discount": With respect to each Mortgage Loan, the amount set
forth on such related Funding Confirmation as the Discount.
"Document File": The Credit File and the Conduit Submission
Package.
"Due Date": The day of the month on which the Monthly Payment is
due on a Mortgage Loan.
"FDIC": The Federal Deposit Insurance Corporation or any
successor thereto.
"Funding Confirmation": With respect to all Mortgage Loans
purchased by Purchaser from Seller via a single wire funds transaction
on a particular Business Day, the trade confirmation from Purchaser to
Seller confirming the terms of Purchaser's purchase of such Mortgage
Loans.
"Incremental Pass-Through Rate": The amount by which the
Pass-Through Rate is increased upon the occurrence of (i) an
Commitment Expiration Date or (ii) any event giving Purchaser the
right to elect a remedy pursuant to Section 3, which amount shall be
set forth in a Funding Confirmation as the "Incremental Pass-Through
Rate".
"Loan Purchase Detail": A loan purchase detail, transmitted via
facsimile in the form of Exhibit A, or transmitted electronically in
an appropriate data layout provided by Purchaser, prepared by Seller,
containing certain information regarding the characteristics of all
Mortgage Loans being offered for sale by Seller on a particular
Business Day.
"Losses": Any and all losses, claims, damages, liabilities or
expenses (including reasonable attorneys' fees) incurred by any person
specified; provided, however, that "Losses" shall not include any
losses, claims, damages, liabilities or expenses which would have been
avoided had such person taken reasonable actions to mitigate such
losses, claims, damages, liabilities or expenses.
"Monthly Payment": The scheduled monthly payment of principal and
interest on a Mortgage Loan.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on an estate in fee simple in real property
securing a Mortgage Note.
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"Mortgage Loan": A mortgage loan which is subject to this
Agreement, and which satisfies the Commitment Requirements as the same
may be modified from time to time.
"Mortgage Note": The note or other evidence of the indebtedness
of a Mortgagor secured by a Mortgage.
"Mortgaged Property": The property subject to the lien of the
Mortgage securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"NCUA": The National Credit Union Administration, or any
successor thereto.
"OTS": The Office of Thrift Supervision, or any successor
thereto.
"Parent Company": A corporation or other entity owning at least
50% of the outstanding shares of voting stock of Seller.
"Pass-Through Rate": With respect to each Mortgage Loan, the rate
at which interest is passed through to Purchaser which initially shall
be the rate of interest specified on a Funding Confirmation as the
Pass-Through Rate.
"Performance Fee": With respect to each Mortgage Loan, an amount
equal to the Discount less the Custodial Fee, plus the Yield
Compensation Adjustment plus or minus any other adjustments permitted
hereunder, which amount shall be payable to Seller by Purchaser as
compensation to Seller for its services hereunder.
"Purchase Advice": An approved purchase list delivered to
Purchaser by the Takeout Investor via electronic or facsimile
transmission, confirming the amount of Takeout Proceeds allocable to
each Mortgage Loan purchased by Takeout Investor.
"Purchase Date": With respect to any Mortgage Loan, the date of
payment thereof by Purchaser to Seller of the Purchase Price.
"Purchase Price": With respect to each Mortgage Loan, an amount
equal to the Trade Principal less an amount equal to the product of
the Trade Principal and the Discount. Accrued interest shall be
allocated in accordance with Section 2(c).
"Purchaser": Xxxxx Xxxxxx Real Estate Securities Inc. and its
successors.
"Purchaser's Wire Instructions to Seller": The wire instructions,
set forth in a notice delivered by Purchaser to Seller containing the
information set forth in
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Exhibit D, to be used for the payment of all amounts due and payable
to Purchaser hereunder.
"RTC": The Resolution Trust Corporation or any successor thereto.
"Seller": The Seller whose name is set forth on the cover page
hereof, and its permitted successors hereunder.
"Seller's Release": A letter in the form of Exhibit C-1,
delivered by Seller when no Warehouse has an interest in a Mortgage
Loan, conditionally releasing all of Seller's interest in a Mortgage
Loan upon receipt of payment by Seller.
"Seller's Wire Instructions": The wire instructions, set forth in
a letter in the form of Exhibit C-2, to be used for the payment of
funds to Seller when no Warehouse Lender has an interest in the
Mortgage Loans to which such payment relates.
"Settlement Date": With respect to any Mortgage Loan, the date
the allocable Pass-Through Rate shall cease to accrue upon payment by
Takeout Investor to Purchaser of the Takeout Proceeds as confirmed by
Purchaser's receipt from Seller of the related Settlement Information
in accordance with Section 3(a).
"Settlement Information": The Purchase Advice or group of
Purchase Advices which shall identify each Mortgage Loan by the
Mortgagor's name, and of which the aggregate disbursement amount
equals the precise dollar amount of Takeout Proceeds to be received by
Purchaser from Agreement.
"Successor Servicer": An entity designated by Purchaser, in
conformity with Section 16, to replace Seller as servicer for
Purchaser.
"Takeout Commitment": Commitment of Seller to sell one or more
Mortgage Loans to Takeout Investor and of Takeout Investor to purchase
one or more Mortgage Loans from Seller.
"Takeout Investor": The applicable Conduit.
"Takeout Proceeds": The amount of funds Takeout Investor pays to
Purchaser on a particular Business Day as identified by the related
Settlement Information.
"Third Party Underwriter": Any third party, including but not
limited to a mortgage loan pool insurer, who underwrites the Mortgage
Loan(s) prior to the purchase by Purchaser.
"Third Party Underwriter's Certificate": A certificate issued by
a Third Party Underwriter with respect to a Mortgage Loan, certifying
that such Mortgage Loan complies with its underwriting requirements.
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"Trade Price": The trade price set forth on a Takeout Commitment.
"Trade Principal": With respect to any Mortgage Loan, the
outstanding principal balance of the Mortgage Loan multiplied by a
percentage equal to the Trade Price.
"Warehouse Lender": Any lender, including, without limitation,
Purchaser, providing financing to the Seller in any fractional amount
for the purpose of originating or purchasing Mortgage Loans which
lender has a security interest in such Mortgage Loans as collateral
for the obligations of Seller to such lender.
"Warehouse Lender's Release": A letter in the form of Exhibit B-
1, from a Warehouse Lender to Purchaser, conditionally releasing all
of Warehouse Lender's right, title and interest in certain Mortgage
Loans identified therein upon receipt of payment by Warehouse Lender.
"Warehouse Lender's Wire Instructions": The wire instructions,
set forth in a letter in the form of Exhibit B-2, from a Warehouse
Lender to Purchaser, setting forth wire instructions for all amounts
due and payable to such Warehouse Lender hereunder.
"Yield Compensation Adjustment": Subject to any further
adjustment provided in this Agreement, an amount (which may be a
negative number) equal to:
A(BC-DE)
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360
where (i) A equals the number of days in the period beginning on the
Purchase Date to but not including the Settlement Date, (ii) B equals
the principal amount of the Mortgage Loan, (iii) C equals the interest
rate (expressed as a decimal) on the Mortgage Loan, (iv) D equals the
Purchase Price and (v) E equals the Pass-Through Rate (expressed as a
decimal).
Section 2. Procedures for Purchases of Mortgage Loans.
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(a)(1) Purchaser may, in its sole discretion, from time to time,
purchase one or more Mortgage Loans from Seller. Seller shall be deemed to make
for the benefit of Purchaser, as of the applicable dates specified in Section 8,
the representations and warranties set forth in Section 8 in respect of each
such Mortgage Loan.
(a)(2) Prior to Purchaser's election to purchase any Mortgage Loan,
Purchaser shall have received from Seller a Loan Purchase Detail, either
electronically or via a facsimile transmission, and Custodian shall have
received all applicable documents required by Section 2 of the Custodian
Agreement. The terms and conditions of such purchase shall be forth in this
Agreement and in each Funding Confirmation.
(b)(1) If Purchaser elects to purchase any Mortgage Loan, Purchaser
shall pay the amount of the Purchase Price for such Mortgage Loan by wire
transfer of immediately available funds (i) if a Warehouse Lender's Release has
been included in the related Conduit Submission
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Package, in accordance with the Warehouse Lender's Wire Instructions or (ii) if
there is no Warehouse Lender's Release included in the related Conduit
Submission Package, in accordance with the Seller's Wire Instructions. If
Purchaser is the Warehouse Lender with respect to a Mortgage Loan, the amount
transferred shall be reduced to account for amounts previously advanced by
Purchaser with respect to such Mortgage Loan. With respect to each Mortgage Loan
which Purchaser has elected to purchase, Custodian shall deliver to Takeout
Investor the applicable portion of the Conduit Submission Package, in the manner
and at the time set forth in the Custodian Agreement. Seller shall thereafter
promptly deliver to Takeout Investor any and all additional documents requested
by Takeout Investor to enable Takeout Investor to make payment to Purchaser of
the Takeout Proceeds.
(b)(2) Simultaneously with the payment by Purchaser of the Purchase Price
of a Mortgage Loan, in accordance with the Warehouse Lender's Wire Instructions
or the Seller's Wire Instructions, as applicable, with respect to a Mortgage
Loan, Seller hereby conveys to Purchaser all of Seller's right, title and
interest in and to such Mortgage Loan, free and clear of any lien, claim or
encumbrance.
(c) With respect to each Mortgage Loan that Purchaser elects to purchase
hereunder, Purchaser shall owe to Seller a Performance Fee. The Yield
Compensation Adjustment component of the Performance Fee shall include an
accrued interest calculation. Purchaser's accrued interest calculation shall be
identical to that of Takeout Investor, therefore the amount of accrued interest
included in a settlement calculation will represent accrued interest paid to
Purchaser and paid by Purchaser.
(d) Notwithstanding the satisfaction by Seller of the conditions
specified in Section 2(a), Purchaser is not obligated to purchase any Mortgage
Loan offered to it hereunder. In the event that Purchaser rejects a Mortgage
Loan for purchase for any reason and/or does not transmit the Purchase Price,
any Conduit Submission Package delivered to Custodian in anticipation of such
purchase shall be returned by Custodian in accordance with the terms of the
bailee letter under which it was received.
Section 3. Sale of Mortgage Loans to Takeout Investor.
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(a)(1) Upon the sale to Takeout Investor of a Mortgage Loan previously
purchased by Purchaser hereunder, Seller shall cause Takeout Proceeds relating
to such Mortgage Loan to be paid to Purchaser in accordance with Purchaser's
Wire Instructions to Seller.
(a)(2) All Takeout Proceeds received by Purchaser from Takeout Investor
after 3:00 P.M. New York City time on a Business Day (or at any time on a day
which is not a Business Day) shall be deemed, with regard to determining the
Settlement Date, received by Purchaser on the next succeeding Business Day.
(b)(1) If any Mortgage Loan is rejected by Takeout Investor because it is a
Defective Mortgage Loan, Seller shall promptly notify Purchaser. If any Mortgage
Loan is a Defective Mortgage Loan on the Purchase Date and in Purchaser's sole
judgement the defects in such Mortgage Loan will not be cured (or in fact are
not cured) by Seller prior to the Commitment Expiration Date, the Pass-Though
Rate applicable to such Defective Mortgage Loan shall, on such Commitment
Expiration Date, increase by the Incremental Pass-Through Rate and
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Purchaser, at its election, may require that Seller, upon receipt of notice from
Purchaser, immediately repurchase Purchaser's ownership interest in such
Defective Mortgage Loan by remitting to Purchaser (in immediately available
funds in accordance with Purchaser's instructions) the amount paid by Purchaser
for such Defective Mortgage Loan plus interest at the Pass-Through Rate on the
principal amount thereof from the Purchase Date of such Mortgage Loan to the
date of such repurchase. If at any time prior to the repurchase of a Defective
Mortgage Loan by Seller or the purchase of a Mortgage Loan by Takeout Investor,
Seller receives the Mortgage Note or any other portion of the Conduit Submission
Package, Seller shall promptly forward such Mortgage Note and/or other portion
of the Conduit Submission Package to Purchaser.
(b)(2) If Seller fails to comply with its obligations in the manner
described in Section 3(b)(1), upon receipt by Seller of notice from Purchaser,
Seller's rights and obligations to service Mortgage Loans, as provided in this
Agreement, shall terminate. If an Act of Insolvency occurs at any time, Seller's
rights and obligations to service the Mortgage Loans, as provided in this
Agreement, shall terminate immediately, without any notice or action by
Purchaser. Upon any such termination, Purchaser is hereby authorized and
empowered as the exclusive agent for Seller to sell and transfer such rights to
service the Mortgage Loans for such price and on such terms and conditions as
Purchaser shall reasonably determine, and Seller shall not otherwise attempt to
sell or transfer such rights to service without the prior consent of Purchaser.
Seller shall perform all acts and take all action so that all files and
documents relating to the Mortgage Loans held by Seller, together with all
escrow amounts relating to such Mortgage Loans, are delivered to Successor
Servicer. To the extent that the approval of a third Party Underwriter or any
other person is required for any such sale or transfer, Seller shall fully
cooperate with Purchaser to obtain such approval. Upon exercise by Purchaser of
its remedies under this Section 3(b)(2). Seller hereby authorizes Purchaser to
receive all amounts paid by any purchaser of such rights to service the Mortgage
Loans and to remit such amounts to Seller subject to Purchaser's rights of set-
off under this Agreement. Upon exercise by Purchaser of its remedies under this
Section 3(b)(2), Purchaser's obligation to pay and Seller's right to receive any
portion of the Performance Fee relating to such Mortgage Loans shall
automatically be canceled and become null and void, provided that such
cancellation shall in no way relieve Seller or otherwise affect the obligation
of Seller to indemnify and hold Purchaser harmless as specified in Section 3(c).
(b)(3) Each Mortgage Loan required to be delivered to Successor Servicer by
Section 3(b)(2) shall be delivered free of any servicing rights in favor of
Seller and free of any title, interest, lien, encumbrance or claim of any kind
of Seller. Seller shall deliver or cause to be delivered all files and documents
relating to each Mortgage Loan held by Seller to Successor Servicer. Seller
shall promptly take such actions and furnish to Purchaser such documents that
Purchaser deems necessary or appropriate to enable Purchaser to cure any defect
in each such Mortgage Loan or to enforce such Mortgage Loans, as appropriate.
(c) Seller agrees to indemnify and hold Purchaser and its assignees
harmless from and against all Losses resulting from or relating to any breach or
failure to perform by Seller of any representation, warranty, covenant, term or
condition made or to be performed by Seller under this Agreement.
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(d) No exercise by Purchaser of its rights under this Section 3 shall
relieve Seller of responsibility or liability for any breach of this Agreement.
(e) Seller hereby grants Purchaser a right of set-off against the
payment of any amounts that may be due and payable to Purchaser from Seller,
such right to be upon any and all monies or other property of Seller held or
received by Purchaser, or due and owing from Purchaser to Seller.
Section 4. Servicing of the Mortgage Loans.
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(a) Seller shall service and administer each Mortgage Loan on behalf
of Purchaser in accordance with prudent mortgage loan servicing standards and
procedures generally accepted in the mortgage banking industry and in accordance
with the requirements of Takeout Investor as though Takeout Investor's
requirement were set forth in independent contract between Seller and
Purchaser, provided that Seller shall at all times comply with applicable law,
and the requirements of any applicable insurer or guarantor so that the
insurance in respect of any Mortgage Loan is not voided or reduced. Seller shall
at all times maintain accurate and complete records of its servicing of each
Mortgage Loan, and Purchaser may, at any time during Seller's business hours on
reasonable notice, examine and make copies of such records. In addition, if a
Mortgage Loan is not purchased by Takeout Investor on or before the Commitment
Expiration Date, Seller shall at Purchaser's request deliver to Purchaser
monthly reports regarding the status of such Mortgage Loan, which reports shall
include, but shall not be limited to, a description of each Mortgage Loan in
default for more than thirty days, and such other circumstances with respect to
any Mortgage Loan (whether or not such Mortgage Loan is included in the
foregoing list) that could materially adversely affect any such Mortgage Loan,
Purchaser's ownership of any such Mortgage Loan or the collateral securing any
such Mortgage Loan. Seller shall deliver such a report to Purchaser every thirty
days until (i) the purchase by Takeout Investor of such Mortgage Loan pursuant
to the related Takeout Commitment or (ii) the exercise by Purchaser of any
remedial election pursuant to Section 3.
(b) Within five Business Days of notice from Purchaser or, with
respect to any Mortgage Loan, on the Commitment Expiration Date, Seller shall
establish and maintain a Custodial Account entitled "[NAME OF SELLER], in trust
for Xxxxx Xxxxxx Real Estate Securities Inc. and its assignees under the
Mortgage Loan Purchase Agreement dated [the date of this Agreement]" and shall
promptly deposit into such Custodial Account, in the form received with any
necessary endorsements, all collections received in respect of each Mortgage
Loan that are payable to Purchaser as the owner of each such Mortgage Loan.
(c) Amounts deposited in the Custodial Account with respect to any
Mortgage Loan shall be held in trust for Purchaser as the owner of such
Mortgage Loan and shall be released only as follows:
(1) Except as otherwise provided in this Section 4(c), following
receipt by Purchaser or its designee of the Takeout Proceeds for such
Mortgage Loan from Takeout Investor or Seller amounts deposited in the
Custodial Account shall be paid
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extent that, the amounts due and payable to Purchaser hereunder have
been set off against the Purchase Price for the Mortgage Loan or the
Performance Fee relating to the Mortgage Loan. The amounts paid to
Seller (if any) pursuant to this Section4(c)(1) shall constitute
Seller's sole compensation for servicing the Mortgage Loans as
provided in this Section 4.
(2) If Successor Servicer is appointed by Purchaser (either
under the circumstances set forth in Section 3 or otherwise), all
amounts deposited in the Custodial Account shall be paid to Purchaser
promptly upon such delivery.
(3) If a Mortgage Loan is not purchased by Takeout Investor on
or before the Commitment Expiration Date, during the period thereafter
that Seller remains as servicer, all amounts deposited in the
Custodial Account shall be released only in accordance with a
Purchaser's written instructions.
Section 5. Trade Assignments. Seller hereby assigns to Purchaser,
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free of any security interest, lien, claim or encumbrance of any kind, Seller's
rights, under each Takeout Commitment to the full extend permitted by Takeout
Investor, to deliver the Mortgage Loan(s) specified therein to Takeout Investor
and to receive the Takeout Proceeds therefor from Takeout Investor. Purchaser
shall not be deemed to have accepted such rights of Seller which relate to a
particular Mortgage Loan unless and until it purchases the Mortgage Loan, and
nothing set forth herein shall be deemed to impair Purchaser's right to reject
any Mortgage Loan for any reason, in its sole discretion.
Section 6. Transfers of Mortgage Loans by Purchaser. Purchaser may,
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in its sole discretion, assign all of its right, title and interest in or grant
a security interest in any Mortgage Loan sold by Seller hereunder and all rights
of Purchaser under this Agreement and the Custodial Agreement, in respect of
such Mortgage Loan to Assignee, subject only to an obligation on the part of
Assignee to deliver each such Mortgage Loan to Takeout Investor pursuant to
Section 5 or to Purchaser to permit Purchaser or its designee to make delivery
thereof to Takeout Investor pursuant to Section 5. It is anticipated that such
assignment to Assignee will be made by Purchaser, and Seller hereby irrevocably
consents to such assignment. No notice of such assignment shall be given by
Purchaser to Seller or Takeout Investor. Assignment by Purchaser of the Mortgage
Loans as provided in this Section 6 shall not release Purchaser from its
obligations otherwise under this Agreement.
Without limitation of the foregoing, an assignment of a Mortgage Loan
to Assignee, as described in this Section 6, shall be effective upon delivery to
Assignee of a Conduit Submission Package.
Section 7. Record Title to Mortgage Loans; Intent of Parties;
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Security Interest.
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(a) From and after the delivery of the related Conduit Submission
Package, and subject to the remedies of Purchaser in Section 3, Seller shall
remain the last named payee or endorse of each Mortgage Note and the mortgagee
or assignee of record of each Mortgage in trust for the benefit of Purchaser,
for the sole purpose of facilitating the servicing of such Mortgage Loan.
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(b) Seller shall maintain a complete set of books and records for
each Mortgage Loan which shall be clearly marked to reflect the ownership
interest in each Mortgage Loan of Purchaser.
(c) Purchaser and Seller confirm that the transactions contemplated
herein are intended to be sales of the Mortgage Loans by Seller to Purchaser
rather than borrowings secured by the Mortgage Loans. In the event, for any
reason, any transaction is construed by any court or regulatory authority as a
borrowing rather than as a sale, the Seller and Purchaser intend that Purchaser
or Assignee, as the case may be, shall have a perfected first priority security
interest in the Collateral, free and clear of adverse claims. In such case,
Seller shall be deemed to have hereby granted to Purchaser or Assignee, as the
case may be, a first priority security interest in and lien upon the collateral,
free and clear of adverse claims. In such event, this Agreement shall constitute
a security agreement, the Custodian shall be deemed to be an independent
custodian for purposes of perfection of the security interest granted to
Purchaser or Assignee, as the case may be, and Purchaser or Assignee, as the
case may be, shall have all of the rights of a secured party under applicable
law. Seller shall, not later than the date of the first purchase of a Mortgage
Loan by Purchaser under this Agreement, deliver to Purchaser a UCC-1 Financing
Statement, executed by Seller, containing a description of collateral in the
form attached hereto in Exhibit E.
Section 8. Representations and Warranties.
------------------------------
(a) Seller hereby represents and warrants to Purchaser as of the date
hereof and as of the date of each delivery of a Conduit Submission Package that:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the state of its organization or of the
United States of America and has all licenses necessary to carry on
its business as now being conducted and is licensed, qualified and in
good standing in the state where the Mortgaged Property is located if
the laws of such state require licensing or qualification in order to
conduct business of the type conducted by Seller. Seller has all
requisite power and authority (including, if applicable, corporate
power) to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by Seller and the consummation of the
transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and
enforceable obligation of Seller; and all requisite action (including,
if applicable, corporate action) has been taken by Seller to make this
Agreement valid and binding upon Seller in accordance with its terms;
(ii) No approval of the transactions contemplated by this
Agreement from the OTS, the NCUA, the FDIC or any similar federal or
state regulatory authority having jurisdiction over Seller is
required, or if required, such approval has been obtained. There are
no actions or proceedings pending or affecting Seller which would
adversely affect its ability to perform hereunder. The transfers,
assignments and conveyances provided for herein are not subject to the
bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
-12-
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of Seller and will not
result in the breach of any term or provision of the charter or by-laws of
Seller or result in the breach of any term or provision of, or conflict
with or constitute a default under or result in the acceleration of any
obligation under, any agreement, indenture or loan or credit agreement or
other instrument to which Seller or its property is subject, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which Seller or its property is subject;
(iv) This Agreement, the Custodial Agreement and every document to be
executed by Seller pursuant to this Agreement is and will be valid, binding
and subsisting obligations of Seller, enforceable in accordance with their
respective terms. No consents or approvals are required to be obtained by
Seller or its Parent Company for the execution, delivery and performance of
this Agreement or the Custodial Agreement by Seller;
(v) Purchaser will be the sole owner of the related Mortgage Loan,
free and clear of any lien, claim or encumbrance; and
(vi) All information relating to Seller that Seller has delivered or
caused to be delivered to Purchaser, including, but not limited to, all
documents related this Agreement, the Custodial Agreement or Seller's
financial statements, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made
therein or herein in light of the circumstances under which they were made,
not misleading; and
(vii) There is no action, suit, proceeding, inquiry or investigation,
at law or in equity, or before, or by any court, public board or body
pending or, to Seller's knowledge, threatened against or affecting Seller
(or, to Seller's knowledge, any basis therefor) wherein an unfavorable
decision, ruling or finding would adversely affect the validity of
enforceability of this Agreement, the Custodial Agreement or any agreement
or instrument to which Seller is a party and which is used or contemplated
for use in the consummation of the transactions contemplated hereby, would
adversely affect the proceedings of Seller in connection herewith or would
or could materially and adversely affect Seller's ability to carry out its
obligations hereunder.
(b) Seller hereby represents, warrants and covenants to Purchaser with
respect to each Mortgage Loan as of the related Purchase Date that;
(i) The Mortgage ????
this Agreement, the Commitment Requirements and all other requirements of
Takeout Investor;
(ii) Seller is the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, claims, defenses, offsets, pledges,
encumbrances, charges or security interests of any nature and has full
right and authority, subject to no
-13-
interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to this Agreement;
(iii) No servicing agreement has been entered into with respect to
the Mortgage Loan, or any such servicing agreement has been terminated and
there are no restrictions, contractual or governmental, which would impair
the ability of Purchaser or Purchaser's designees from servicing the
Mortgage Loan;
(iv) The Mortgage is a valid and subsisting first lien on the
property therein described and the Mortgaged Property is free and clear of
all encumbrances and liens having priority over the first lien of the
Mortgage except for liens for real estate taxes and special assessments not
yet due and payable. Any pledge account, security agreement, chattel
mortgage or equivalent document related to, and delivered to Purchaser with
the Mortgage, establishes in Seller a valid and subsisting first lien on
the property described therein, and Seller has full right to sell and
assign the same to Purchaser;
(v) Neither Seller nor any prior holder of the Mortgage has
modified the Mortgage in any material respect; satisfied, canceled or
subordinated the Mortgage in whole or in part; released the Mortgaged
Property in whole or in part from the lien of the Mortgage; or executed any
instrument of release, cancellation, modification or satisfaction unless
such release, cancellation, modification or satisfaction does not adversely
affect the value of the Mortgage Loan and is contained in the related
Document File;
(vi) The Mortgage Loan is not in default, and all Monthly
Payments due prior to the Purchase Date and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents have been paid. Seller has not advanced
funds, or induced or solicited any advance of funds by a party other than
the Mortgagor directly or indirectly, for the payment of any amount
required by the Mortgage Loan. The collection practices used by each entity
which has serviced the Mortgage Loan have been in all respects legal,
proper, prudent, and customary in the mortgage servicing business. With
respect to escrow deposits and payments in those instances where such were
required, there exist no deficiences in connection therewith for which
customary arrangements for repayment thereof have not been made and no
escrow deposits or payments or other charges or payments have been
capitalized under any Mortgage or the related Mortgage Note;
(vii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and
no event which, with the passage of time or with notice and the expiration
of any grace of cure period, would constitute a default, breach, violation
or event of acceleration; and Seller has not waived any default, breach,
violation or event of acceleration;
(viii) The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the operation of any of the terms of the Mortgage Note or the Mortgage, or
the exercise of any right
-14-
thereunder, render either the Mortgage Note or the Mortgage unenforceable,
in whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense, including the defense of usury, and no such right
of rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(ix) The Mortgage Note and the related Mortgage are genuine and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms. All parties to the Mortgage Note
and the Mortgage had legal capacity to execute the Mortgage Note and the
Mortgage and each Mortgage Note and Mortgage have been duly and property
executed by the Mortgagor. No Mortgagor is a partnership, trust or
corporation;
(x) The Mortgage Loan meets, or is exempt from, applicable state
or federal laws, regulations and other requirements pertaining to usury,
and the Mortgage Loan is not usurious;
(xi) Any and all requirements of any federal, state or local law
including, without limitation, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or
disclosure laws applicable to the Mortgage Loan have been complied with,
and Seller shall deliver to Purchaser upon demand, evidence of compliance
with all such requirements;
(xii) Either:(i) Seller and every other holder of the Mortgage, if
any, were authorized to transact and do business in the jurisdiction in
which the Mortgaged Property is located at all times when such party held
the Mortgage; or (ii) the loan of mortgage funds, the acquisition of the
Mortgage (if Seller was not the original lender), the holding of the
Mortgage and the transfer of the Mortgage did not constitute the
transaction of business or the doing of business in such jurisdiction;
(xiii) The proceeds of the Mortgage Loan have fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds, therefore, have been complied
with. All costs, fees and expenses incurred in making, or closing or
recording the Mortgage Loans were paid;
(xiv) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of the security, including, (i) in the case of a Mortgage designated as a
deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
(xv) The Mortgage Loan was originated free of any "original issue
discount" with respect to which the owner of the Mortgage Loan could be
deemed to have income pursuant to Sections 1271 et seq. of the Internal
-- ---
Revenue Code;
-15-
(xvi) Each Mortgage Loan was originated by an institution that is
eligible to issue Mortgage Loans under the Applicable Guide;
(xvii) At origination, the Mortgaged Property was free and clear of
all mechanics' and materialmen's liens or liens in the nature thereof which
are or could be prior to the Mortgage lien, and no rights are outstanding
that under law could give rise to any such lien;
(xviii) All of the improvements which are included for the purpose
of determining the appraised value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of such property, and
no improvements on adjoining properties encroach upon the Mortgaged
Property;
(xix) At origination, no improvement located on or being part of
the Mortgaged Property was in violation of any applicable zoning law or
regulation and all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged
Property, and with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy and fire underwriting
certificates, had been made or obtained from the appropriate authorities
and the Mortgaged Property was lawfully occupied under applicable law. No
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation and all inspections,
licenses and certificates required to be made or issued with respect to
Property, and with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate authorities
and the Mortgaged Property is lawfully occupied under applicable law;
(xx) There is no proceeding pending for the total or partial
condemnation of the Mortgaged Property and said property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or
other casualty;
(xxi) All buildings upon the Mortgaged Property are insured
against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area where the Mortgaged Property is located,
pursuant to fire and hazard insurance policies with extended coverage or
other insurance required by the Applicable Purchase Agreement, in an amount
at least equal to the greater of (i) the outstanding principal balance of
the Mortgage Loan or (ii) the maximum insurable value (replacement cost
without deduction for depreciation) of the improvements constituting the
Mortgaged Property. If applicable laws limit the amount of such insurance
to the replacement cost of the improvements constituting the Mortgaged
Property or to some other amount, then such insurance is in an amount equal
to the maximum allowed by such laws. Such insurance amount is sufficient to
prevent the Mortgagor or the loss payee under the policy from becoming a
co-insurer. The insurer issuing such insurance is acceptable pursuant to
the Applicable Purchase Agreement. All individual insurance policies
contain a standard mortgagee clause naming Seller, its successors and
assigns, as mortgagee and all premiums thereon have been paid. Each
Mortgage obligates the Mortgagor thereunder to maintain all
-16-
such insurance at Mortgagor's cost and expense, and upon the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor. Any flood insurance required by
applicable law has been obtained;
(xxii) The related Mortgage Note is payable on the Due Date of each
month in self-amortizing monthly installments of principal and interest,
with interest payable in arrears, providing for full amortization by
maturity, over an original term of not more than thirty years;
(xxiii) At the time that the related Mortgage Loan was made the
Mortgagor represented that the Mortgagor would occupy such Mortgaged
Property as Mortgagor's primary residence;
(xxiv) The Mortgaged Property consists of a single parcel of real
property;
(xxv) There are no circumstances or conditions with respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that can be reasonably expected to cause Takeout Investor or
private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent or
adversely affect the value or marketability of the Mortgage Loan;
(xxvi) The Document File contains or shall contain prior to the
Commitment Expiration Date each of the documents and instruments specified
to be included therein duly executed and in due and proper form and each
such document or instrument is in form acceptable to Takeout Investor. Each
Mortgage Note and Mortgage are on forms approved by Takeout Investor; and
(xxvii) Each Mortgage Loan is covered by a mortgage title insurance
policy acceptable to Takeout Investor, issued by, and the valid and binding
obligation of, a title insurer acceptable to Takeout Investor, and
qualified to do business in the jurisdiction where the property subject to
the Mortgage is located, insuring Seller, its successors and assigns, as to
the first priority lien of the Mortgage in the original principal amount of
the Mortgage Loan. Seller is the named insured and the sale insured of such
mortgage title insurance policy, the assignment to Purchaser of Seller's
interest in such mortgage title insurance policy does not require the
consent of or notification to the insurer, such mortgage title insurance
policy is in full force and effect and will be in full force and effect and
inure to the benefit of Purchaser upon the consummation of the transactions
contemplated by this Agreement and no claims have been made under such
mortgage title insurance policy and no prior holder of the related
Mortgage, including Seller, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(xxviii) The loan-to-value ratio of each Mortgage Loan does not
exceed the maximum loan-to-value ratio permitted by the Applicable Guide.
All provisions of each related primary mortgage insurance policy have been
and are being complied with, and such policy is written with a private
mortgage insurance company
-17-
acceptable to the Takeout Investor, is the binding obligation of such
insurer, is in full force and effect, and all premiums due thereunder have
been paid. Seller has not engaged in any act or omission, and Seller has no
knowledge of any act or omission by or on behalf of the related Mortgagor
or any other person, which act or omission would impair the coverage or
validity of any such primary mortgage insurance policy, the benefit of the
endorsement provided for in the Applicable Guide, or the validity or
binding effect of either. Any Mortgage Loan subject to a primary mortgage
insurance policy obligates the Mortgagor thereunder to maintain such
primary mortgage insurance policy and to pay all premiums and charges in
connection therewith. The interest rate for the Mortgage Loan is net of any
such insurance premiums.
The representations and warranties of Seller in this Section 8 are
unaffected by and supersede any provision in any endorsement of any Mortgage
Loan or in any assignment with respect to such Mortgage Loan to the effect that
such endorsement or assignment is without recourse or without representation or
warranty. With respect to each Mortgage Loan purchased by Purchaser hereunder,
to the extent that any representation or warranty made by Seller is either not
required by Takeout Investor or is waived by Takeout Investor, Purchaser hereby
agrees to waive such representation or warranty if such Mortgage Loan is
purchased by Takeout Investor from Purchaser, in accordance with the terms of
the related Takeout Commitment.
Section 9. Covenants of Seller. Seller hereby covenants and agrees
-------------------
with Purchaser as follows:
(a) Seller shall deliver to Purchaser:
(i) Within one hundred twenty (120) days after the end of each
fiscal year of Seller, consolidated balance sheets of Seller and its
consolidated subsidiaries and the related consolidated statements of income
showing the financial condition of Seller and its consolidated subsidiaries
as of the close of such fiscal year and the results of operations during
such year, and a consolidated statement of cash flows, as of the close of
such fiscal year, setting forth, in each case, in comparative form the
corresponding figures for the preceding year, all the foregoing
consolidated financial statements to be reported on by, and to carry the
report (acceptable in form and content to Purchaser) of an independent
public accountant of national standing acceptable to Purchaser;
(ii) Within sixty (60) days after the end of each of the first
three fiscal quarters of each fiscal year of Seller, unaudited consolidated
balance sheets and consolidated statements of income, all to be in a form
acceptable to Purchaser, showing the financial condition and results of
operations of Seller and its consolidated subsidiaries on a consolidated
basis as of the end of each such quarter and for the then elapsed portion
of the fiscal year, setting forth, in each case, in comparative form the
corresponding figures for the corresponding periods of the preceding fiscal
year, certified by a financial officer of Seller (acceptable to Purchaser)
as presenting fairly the financial position and results of operations of
Seller and its consolidated subsidiaries and as having been prepared in
accordance
-18-
with generally accepted accounting principles consistently applied, in each
case, subject to normal year-end audit adjustments;
(iii) Promptly upon receipt thereof, a copy of each other report
submitted to Seller by its independent public accountants in connection
with any annual, interim or special audit of Seller;
(iv) Promptly upon becoming aware thereof, notice of (1) the
commencement of, or any determination in, any legal, judicial or regulatory
proceedings, (2) any dispute between Seller or its Parent Company and any
governmental or regulatory body, (3) any event or condition, which, in any
case of (1) or (2) if adversely determined, would have a material adverse
effect on (A) the validity or enforceability of this Agreement, (B) the
financial condition or business operations of Seller, or (C) the ability of
Seller to fulfill its obligations under this Agreement or (4) any material
adverse change in the business, operations, prospects or financial
condition of Seller, including, without limitation, the insolvency of
Seller or its Parent Company;
(v) Promptly upon becoming available, copies of all financial
statements, reports, notices and proxy statements sent by its Parent
Company, Seller or any of Seller's consolidated subsidiaries in a general
mailing to their respective stockholders and of all reports and other
material (including copies of all registration statements under the
Securities Act of 1933, as amended) filed by any of them with any
securities exchange or with the Securities and Exchange Commission or any
governmental authority succeeding to any or all of the functions of said
Commission;
(vi) Promptly upon becoming available, copies of any press
releases issued by its Parent Company or Seller and copies of any annual
and quarterly financial reports and any reports on Form H-(b)12 which its
Parent Company or Seller may be required to file with the OTS or the RTC or
comparable reports which a Parent Company or Seller may be required to file
with the FDIC or any other federal banking agency containing such financial
statements and other information concerning such Parent Company's or
Seller's business and affairs as is required to be included in such reports
in accordance with the rules and regulations of the OTS, the RTC, the FDIC
or such other banking agency, as may be promulgated from time to time;
(vii) Such supplements to the aforementioned documents and such other
information regarding the operations, business, affairs and financial
condition of its Parent Company, Seller or any of Seller's consolidated
subsidiaries as Purchaser may request; and
(viii) A copy of (1) the articles of incorporation of Seller and
any amendments thereto, certified by the Secretary of State of Seller's
state of incorporation, (2) a copy of Seller's by-laws, together with any
amendments thereto, (3) a copy of the resolutions adopted by Seller's Board
of Directors authorizing Seller to enter into this Agreement and the
Custodial Agreement and authorizing one or more of Seller's officers to
execute the documents related to this Agreement and
-19-
Custodial Agreement, and (4) a certificate of incumbency and signature
of each officer of Seller executing any document in connection with
this Agreement.
(b) The consideration received by the Seller upon the sale of each
Mortgage Loan will constitute reasonably equivalent value and fair consideration
for the ownership interest in the Mortgage Loan.
(c) Neither the Seller nor any affiliate thereof will acquire at any
time any Mortgage Loan or any other economic interest in or obligation with
respect to any Mortgage Loan.
(d) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report each sale of a Mortgage Loan
to the Purchaser as a sale of the ownership interest in the Mortgage Loan. The
Seller has been advised by or has confirmed with its independent public
accountants that the foregoing transactions will be so classified under GAAP.
(e) The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, any sale of a Mortgage Loan to the Purchaser.
(f) The Seller will not sell any Mortgage Loan to the Purchaser with
any intent to hinder, delay or defraud any of the Seller's creditors.
(g) Seller shall comply, in all material respects, with all laws,
rules and regulations to which it is or may become subject.
(h) Seller shall, upon request of Purchaser, promptly execute and
deliver to Purchaser all such other and further documents and instruments of
transfer, conveyance and assignment, and shall take such other action as
Purchaser may require more effectively to transfer, convey, assign to and vest
in Purchaser and to put Purchaser in possession of the property to be
transferred, conveyed, assigned and delivered hereunder and otherwise to carry
out more effectively the intent of the provisions under this Agreement.
(i) Seller shall ensure that all Takeout Proceeds paid by Takeout
Investor resulting from Takeout Commitments that relate to Mortgage Loans
purchased by Purchaser pursuant to the terms of this Agreement are paid to
Purchaser by Takeout Investor in accordance with Purchaser's Wire Instructions
to Seller.
(j) The consideration received by Seller upon sale of each Mortgage
Loan will constitute reasonably equivalent value and fair consideration for the
Mortgage Loan.
Section 10. Term. This Agreement shall continue in effect until
----
terminated as to future transactions by written instruction signed by either
Seller or Purchaser and delivered to the other, provided that no termination
will affect the obligations hereunder as to any of the Mortgage Loans with
respect to which Conduit Submission Packages have been delivered to Custodian
pursuant to the terms of this Agreement or the Custodial Agreement.
Section 11. Exclusive Benefit of Parties; Assignment. This
----------------------------------------
Agreement is for the exclusive benefit of the parties hereto and their
respective successors and assigns and shall not
-20-
be deemed to give any legal or equitable right to any other person, including
the Custodian. Except as provided in Section 6, no rights or obligations
created by this Agreement may be assigned by any party hereto without the prior
written consent of the other parties.
Section 12. Amendments: Waivers: Cumulative Rights. This Agreement
--------------------------------------
may be amended from time to time only by written agreement of Seller and
Purchaser. Any forbearance, failure or delay by either party in exercising any
right, power or remedy hereunder shall not be deemed to be a waiver thereof; and
any single or partial exercise by Purchaser of any right, power or remedy
hereunder shall not preclude the further exercise thereof. Every right, power
and remedy of Purchaser shall continue in full force and effect until
specifically waived by Purchaser in writing. No right, power or remedy shall be
exclusive, and each such right, power of remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred hereby or
hereafter available at law or in equity or by statute or otherwise.
Section 13. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
Section 14. Effect of Invalidity of Provisions. In case any one or
----------------------------------
more of the provisions contained in this Agreement should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 15. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York, without regard
to conflict of laws rules.
Section 16. Notices. Any notices, consents, elections, directions
-------
and other communications given under this Agreement shall be in writing and
shall be deemed to have been duly given when telecopied or delivered by
overnight courier to, personally delivered to, or on the third day following the
placing thereof in the mail, first class postage prepaid to, the respective
addresses set forth on the cover page hereof for Seller and Purchaser, or to
such other address as either party shall give notice to the other party pursuant
to this Section 16. Notices to Assignee shall be given to such address as
Assignee shall provide to Seller in writing.
Section 17. Entire Agreement. This Agreement, the Funding
----------------
Confirmations and the Custodial Agreement contain the entire agreement between
the parties hereto with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements between them, oral or written, of any
nature whatsoever with respect to the subject matter hereof.
Section 18. Costs of Enforcement. In addition to any other
--------------------
indemnity specified in this Agreement, in the event of a breach by Seller of
this Agreement, the Custodial Agreement or a Takeout Commitment, Seller agrees
to pay the reasonable attorneys' fees and expenses of Purchaser and, when
applicable, Assignee incurred as a consequence of such breach.
Section 19. Consent to Service. Each party irrevocably consents to
------------------
the service of process by registered or certified mail, postage prepaid, to it
at its address given in or pursuant to Section 16.
-21-
Section 20. Construction. The headings in this Agreement are for
------------
convenience only and are not intended to influence its construction. References
to Sections, Exhibits and Annexes in this Agreement are to the Sections of and
Exhibits to this Agreement. The Exhibits are part of this Agreement, and are
incorporated herein by reference. The singular includes the plural, the plural
the singular, and the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require.
-22-
IN WITNESS WHEREOF, Purchaser and Seller have duly executed this
Agreement as of the date and year set forth on the cover page hereof.
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By /s/ Xxxxxx X. Mangiarocina
-------------------------------------
Name: Xxxxxx X. Mangiarocina
Title: ??? FVP
???????
---------------------------------------
(Seller's Name)
By ??????
------------------------------------
Name: ??????
Title: ??????
Address (if different from cover page):
EXHIBIT A
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
CONDUCT LOAN PURCHASE DETAIL
CLIENT:____________
EXPECTED DELIVERY DATE
OF MORTGAGE FILE IS:____________, 199_
FACE # OF MONTH TO TAKEOUT
LOAN# LAST NAME AMOUNT MATURITY NOTE RATE INVESTOR SALE PRICE
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COMMIT. EXP. DELIVERY WAREHOUSE
COMMIT. # DATE DATE LENDER
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EXHIBIT B-1
[WAREHOUSE LENDER'S RELEASE]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We hereby release all right, interest or claim of any kind, including any
security interest or lien, with respect to the mortgage loan(s) referenced
below, such release to be effective automatically without any further action by
any party, upon receipt, in one or more installments, from Xxxxx Xxxxxx Real
Estate Securities Inc., in accordance with the wire instructions which we
delivered to you in a letter dated _________, 199_, in immediately available
funds, of an aggregate amount equal to the product of A multiplied by B (such
product being rounded to the nearest $0.01) multiplied by X.*
Xxxxxx
Xxxx # Xxxxxxxxx Xxxxxxx Xxxx Xxxxx Zip
---------- ------------ ------------ --------- -------- ----------
Very truly yours,
[WAREHOUSE LENDER]
BY:_____________________________
Name:___________________________
Title:__________________________
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related funding confirmation
EXHIBIT B-2
[WAREHOUSE LENDER'S WIRE INSTRUCTIONS]
Xxxxx Xxxxxx Real Estate Securities, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Xxxxxx Real Estate Securities, Inc. Whole Loan Purchase:
Conduit Funding Program with [Seller]
------------------------------------------------------------------
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions applicable
to the above-referenced Whole Loan Purchase: Program.
Wire Instructions:
-----------------
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below.
This letter supersedes and replaces any prior notice specifying the name of
[Warehouse Lender] and setting forth wire instructions and shall remain in
effect until superseded and replaced by a letter, in the form of this letter,
executed by each of us and acknowledged by you.
Very truly yours,
[SELLER]
By:_____________________________
Name:___________________________
Title:__________________________
[WAREHOUSE LENDER(S)]*
By:_____________________________
Name:___________________________
Title:__________________________
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By: _________________________
Name:
Title:
______________________
* The authorized officer of each warehouse lender executing this letter
must be the same authorized officer as signs the Warehouse Lender's
Release. Not applicable if there is no warehouse lender.
EXHIBIT C-1
[SELLER'S RELEASE]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we hereby
certify to you that the mortgage loan(s) is not subject to a lien of any
warehouse lender and (b) we hereby release all right, interest or claim of any
kind with respect to such mortgage loan, such release to be effective
automatically without any further action by any party upon payment from
Purchaser to Seller of an aggregate amount equal to the product of A multiplied
by B (such product being rounded to the newest $0.01) multiplied by C* in
accordance with our wire instructions in effect on the date of such payment.
Street
Loan # Mortgagor Address City State Zip
--------- ------------- ------------ ---------- -------- ---------
Very truly yours,
[SELLER]
By:_____________________________
Name:___________________________
Title:__________________________
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related funding
confirmation
EXHIBIT C-2
[SELLER'S WIRE INSTRUCTIONS]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Whole Loan Purchase: Conduit Funding Program with [Seller]
----------------------------------------------------------
Ladies and Gentlemen:
Set forth below are the [Seller's] wire instructions applicable to the
above-referenced Conforming Whole Loan Purchase: Program with [Seller].
Wire Instructions:
-----------------
Bank Name:
City, State
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below.
This letter supersedes and replaces any prior notice specifying our wire
instructions and shall remain in effect until superseded and replaced by a
letter, in the form of this letter, executed by us and acknowledged by you.
Very truly yours,
[SELLER]*
By:_________________________
Name:_______________________
Title:______________________
Receipt acknowledged by:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By: ______________________________
Name:
Title:
_____________________
* The authorized officer of executing this letter must be the same
authorized officer as signs the Seller's Release. Applicable only if
there is no Warehouse Lender.
EXHIBIT D
[PURCHASER'S WIRE INSTRUCTIONS TO SELLER]
Wire Instructions:
-----------------
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Ref: [Name of Seller]
EXHIBIT E
UCC-1 FINANCING STATEMENT
Debtor: [Seller]
Secured Party: Xxxxx Xxxxxx Real Estate Securities Inc.
Item :
------
All right (including the power to convey title thereof), title and
interest of Debtor in and to the property listed below:
All participation certificates evidencing an interest in mortgage
loans, and all mortgage loans, mortgage notes, mortgages or deeds of
trust, assignments thereof and any and all documents and instruments
related thereto, which are subject to the interest of Secured Party or
any assignee under or pursuant to the Mortgage Loan Participation
Agreements and Mortgage Loan Purchase Agreements between Secured Party
and the Debtor.
DRY/CW/CONDUIT PROGRAMS
3/26/96
MORTGAGE LOAN CUSTODIAL AGREEMENT
---------------------------------
PURCHASER: XXXXX XXXXXX REAL ESTATE SECURITIES INC.
ADDRESS: 0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: Xxxxxx Xxxxxxxxx
--------------------------------
CUSTODIAN: THE CHASE MANHATTAN BANK, N.A.
ADDRESS: MORTGAGE BANKING DIVISION
2 CHASE MANHATTAN PLAZA (20th FLOOR)
NEW YORK, NEW YORK 10081
ATTENTION: XXXXX XXXX
SELLER: United Financial Mortgage Corporation
-------------------------------------------
ADDRESS: 000 Xxxxxxxxxx Xxxxx, Xxxxx 000
-------------------------------------------
Xxx Xxxxx, XX 00000
-------------------------------------------
Attn: Xxxxxx Khoshobe, President
-------------------------------------------
DATE: ___________________________________________
TABLE OF CONTENTS
-----------------
Page
Section 1. Definitions.............................................................................................. 1
Section 2. Delivery of Documents by Seller.......................................................................... 9
Section 3. Custodian as Custodian for, and Bailee of, Purchaser, Assignee and Warehouse Lender...................... 9
Section 4. Certification by Custodian; Delivery of Documents........................................................ 11
Section 5. Funding by the Takeout Investor.......................................................................... 13
Section 6. Default.................................................................................................. 14
Section 7. Access to Documents...................................................................................... 14
Section 8. Custodian's Fees and Expenses; Successor Custodian; Standard of Care..................................... 14
Section 9. Assignment by Purchaser.................................................................................. 16
Section 10. Insurance................................................................................................ 16
Section 11. Representations, Warranties and Covenants................................................................ 16
Section 12. No Adverse Interests..................................................................................... 17
Section 13. Amendments............................................................................................... 17
Section 14. Execution in Counterparts................................................................................ 18
Section 15. Agreement for Exclusive Benefit of Parties; Assignment................................................... 18
Section 16. Effect of Invalidity of Provisions....................................................................... 18
Section 17. Governing Law............................................................................................ 18
Section 18. Consent to Service....................................................................................... 18
Section 19. Notices.................................................................................................. 18
Section 20. Certification............................................................................................ 00
-x-
Xxxxxxx 00. Construction ............................................................................................ 18
Exhibit A Dry Submission Package
Exhibit B-1 Cash Window Submission Package
Exhibit B-2 FHLMC Document List
Exhibit B-3 FNMA Document List
Exhibit B-4 FNMA Bailee Letter
Exhibit C-1 Conduit Submission Package
Exhibit C-2 Conduit Bailee Letter
Exhibit D Conversion Submission Packages
Exhibit E Request for Certification
Exhibit F Document Codes
Exhibit G-1 Warehouse Lender's Release
Exhibit G-2 Warehouse Lender's Wire Instructions
Exhibit H-1 Seller's Release
Exhibit H-2 Seller's Wire Instructions
Exhibit I-1 Purchaser's Wire Instructions to Seller
Exhibit I-2 Purchaser's Wire Instructions to Custodian
Exhibit I-3 Purchaser's Delivery Instructions to Custodian
Exhibit J Notice by Assignee to Custodian of Purchaser's Default
Exhibit K Limited Power of Attorney
Exhibit L Unidentified Mortgage Loans List
Exhibit M Unidentified/Suspension Mortgage Loan Directive
Exhibit N Form of Delivery Instructions
Exhibit O Purchaser's Instructions to Custodian to Destroy Specified Files
Exhibit P List of Primary Mortgage Insurers
Schedule A List of Conduits
-ii-
MORTGAGE LOAN CUSTODIAL AGREEMENT
THIS Mortgage Loan Custodial Agreement ("Agreement"), dated as of the
date set forth on the cover page hereof, among XXXXX XXXXXX REAL ESTATE
SECURITIES INC. ("Purchaser"), THE CHASE MANHATTAN BANK, N.A. ("Custodian") and
the SELLER whose name is set forth on the cover page hereof ("Seller").
PRELIMINARY STATEMENT
Purchaser has agreed to purchase, from time to time, as its sole
election from Seller, certain residential first mortgage loans pursuant to the
terms and conditions of one or more Purchase Agreements between Purchaser and
Seller relating to Dry Transactions, Cash Window Transactions or Conduit
Transactions. Seller is obligated to service the Mortgage Loans pursuant to the
terms and conditions of the Purchase Agreements. Purchaser desires to have
Custodian take possession of the Mortgage Notes evidencing the Mortgage Loans,
along with certain other documents specified herein, as the custodian for and
bailee of Purchaser or Assignee in accordance with the terms and conditions
hereof.
The parties hereto agree as follows:
Section 1. Definitions.
-----------
As used in this Agreement, the following terms shall have the
following meanings:
"Agency": FHLMC or FNMA, as applicable.
"Applicable Agency Documents": The documents listed on Exhibit
B-2 or Exhibit B-3, as applicable.
"Applicable Guide": With respect to each Takeout Investor the
applicable guide published by such Takeout Investor setting forth the
requirements each Mortgage Loan needs to satisfy in order to be
eligible for purchase by such Takeout Investor, as such guide may be
amended or supplemented from time to time.
"Assignee": The Chase Manhattan Bank, National Association, as
agent for certain beneficiaries pursuant to certain Repurchase
Transaction Tri-Party Custody Agreements.
"Assignment of Mortgage": An assignment of the Mortgage, notice
of transfer or equivalent instrument sufficient under the laws of the
jurisdiction wherein the related, Mortgaged Property is located to
reflect of record the sale of a Mortgage Loan.
"Bailee Letter": A FNMA Bailee Letter or a Conduit Bailee Letter,
as applicable.
-2-
"Business Day": Any day other than (a) a Saturday, Sunday or other day
on which banks located in The City of New York, New York are authorized or
obligated by law or executive order to be closed, or (b) any day on which
Xxxxx Xxxxxx Real Estate Securities Inc. is closed for business, provided
that notice thereof shall have been given not less than seven calendar days
prior to such day.
"Cash Window Submission Package": The documents listed on Exhibit B-1,
which shall be delivered by Seller to Custodian in connection with each
Cash Window Transaction.
"Cash Window Transaction": A transaction initiated by Purchaser's
delivery of a Request for Certification which identifies FNMA or FHLMC as
the Takeout Investor but does not include a Conversion Code.
"Certification": With respect to a Mortgage Loan, the full performance
by Custodian of the procedures set forth in Sections 4(a) and 4(b).
"Certification Code": A Mortgage Loan Absentee Code, a Mortgage Loan
Approval Code or a Mortgage Loan Suspension Code.
"Certification Report": A Request for Certification to which Custodian
has added its Certification Codes and, when a Certification Code indicates
suspension, applicable Exception Codes, and which is transmitted by
Custodian to Purchaser in an appropriate data layout provided by Purchaser.
"Commitment": A commitment executed by Takeout Investor and Seller
evidencing Takeout Investor's agreement to purchase one or more Mortgage
Loans from Seller and Seller's agreement to sell one or more Mortgage Loans
to an investor in a forward trade by the applicable Commitment Expiration
Date.
"Commitment Expiration Date": With respect to any Commitment, the
expiration date thereof.
"Conduit": Any of the Entities listed on Schedule A, as amended or
supplemented from time to time.
"Conduit Bailee Letter": The master bailee letter, in the form of
Exhibit C-2, for use by Custodian in connection with the delivery of a
Conduit Submission Package, provided, however, for the purposes of
delivering the related Conduit Submission Package, excluding (i) a copy of
the Commitment, (ii) the Warehouse Lender's Release or Seller's Release, as
applicable, and (iii) the original Assignment of Mortgage, in blank, to a
Conduit.
"Conduit Submission Package": The documents listed on Exhibit C-1,
which shall be delivered by Seller to Custodian in connection with each
Conduit Transaction.
-3-
"Conduit Transaction": A transaction initiated by Purchaser's delivery
of a Request for Certification which identifies a Conduit as the Takeout
Investor but does not include a Conversion Code.
"Confirmation": A confirmation confirming a trade between Seller and
Takeout Investor.
"Conversion Code": With respect to a Mortgage Loan, the conversion
code set forth in Part II of Exhibit F, entered by Purchaser, along with
the Program Code, in the "PROG CODE" column of the related Request for
Certification indicating that (i) such Mortgage Loan was previously
acquired by Purchaser in a Dry Transaction and (ii) a Conversion Submission
Package shall be received by Custodian on the applicable Delivery Date.
"Conversion Submission Package": One of the sets of documents listed
on Exhibit D, which shall be delivered by Seller to Custodian in connection
with each Conversion Transaction.
"Conversion Transaction": With respect to a Mortgage Loan, a
transaction initiated by Purchaser's delivery to Custodian of a Request for
Certification containing a Conversion Code. A Conversion Transaction shall
always be preceded by a Dry Transaction.
"Custodian": The Chase Manhattan Bank, National Association, and its
permitted successors hereunder.
"Delivery Date": With respect to a Mortgage Loan, the date set forth
on the related Request for Certification in the "DELIVERY DATE" column,
which shall be the Business Day on which Seller desires the applicable
portion of the related Submission Package be sent by Custodian to the
----
Takeover Investor, i.e., one Business Day prior to the Business Day on
which Seller desires the applicable portion of the Submission Package to be
received by the Takeout Investor.
--------
"Delivery Directive": With respect to each Mortgage Loan either
appearing on an Unidentified Mortgage Loan List or marked by Custodian with
a Suspension Code on a Certification Report, the delivery directive, set
forth in Part IV of Exhibit F, used by Purchaser in a notice in the form of
Exhibit M, to direct Custodian to deliver the related Submission Package in
accordance with the Delivery Instructions.
"Delivery Instructions": With respect to a Mortgage Loan, instructions
prepared by Seller, in the form of Exhibit N indicating the address for the
delivery by Custodian of the applicable portion of the related Submission
Package.
-4-
"Dry Submission Package": The documents listed on Exhibit A, which
shall be delivered by Seller to Custodian in connection with each Dry
Transaction.
"Dry Transaction": A transaction initiated by Purchaser's delivery to
Custodian of a Request for Certification, which does not identify a Takeout
Investor, and which does not include a Conversion Code.
"Entity": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Exception Code": Each of the exception codes set forth in Part V of
Exhibit F, placed by Custodian on a Certification Report indicating missing
documents, incomplete documents and deficiencies in documents reviewed by
Custodian.
"Expected Delivery Date": The date identified on a Request for
Certification as the "Expected Delivery Date of Mortgage File", which shall
be the date on which Seller has informed Purchaser that a Submission
Package will be received by Custodian from Seller.
"FHLMC": The Federal Home Loan Mortgage Corporation and any successor
thereto.
"FHLMC Commitment": A commitment executed by FHLMC and Seller
evidencing FHLMC's agreement to purchase one or more Mortgage Loans from
Seller and Seller's agreement to sell one or more Mortgage Loans to FHLMC
by the applicable Commitment Expiration Date under the Applicable Guide.
"FNMA" The Federal National Mortgage Association and any successor
thereto.
"FNMA Bailee Letter": The master bailee letter, in the form of Exhibit
B-4, for use by Custodian in connection with the delivery to FNMA of the
Cash Window Submission Package, excluding (i) the original Assignment of
Mortgage, in blank, (ii) the Warehouse Lender's Release or Seller's
Release, as applicable, (iii) all modification agreements relating to a
Mortgage, (iv) the Delivery Instructions and (v) copy of the Commitment.
"FNMA Commitment": A commitment executed by FNMA and Seller,
evidencing FNMA's agreement to purchase one or more Mortgage Loans from
Seller and Seller's agreement to sell one or more Mortgage Loans to FNMA by
the applicable Commitment Expiration Date under the Applicable Guide.
-5-
"Hold Directive": With respect to a Mortgage Loan either appearing on an
Unidentified Mortgage Loan List or marked by Custodian with a Suspension Code on
a Certification Report, the hold directive, set forth in Part IV of Exhibit F,
used by Purchaser in a notice in the form of Exhibit M to direct Custodian to
continue to hold the related Submission Package.
"HUD": United States Department of Housing and Urban Development and any
successor thereto.
"Limited Power of Attorney": A limited power of attorney, in the form of
Exhibit K, executed by Seller and delivered to Custodian, authorizing Custodian
to prepare Mortgage Note endorsements in the form indicated thereon.
"Loan Identification Data": The applicable information regarding a Mortgage
Loan, set forth on a Request for Certification, which shall include Purchaser's
reference number, the name of Purchaser's applicable program, the Mortgage Loan
number, the last name of the Mortgagor, the face amount of the Mortgage Note,
the number of months to maturity of the Mortgage Loan, and the interest rate
borne by the Mortgage Note and, solely with respect to Cash Window Transactions,
Conduit Transactions and Conversion Transactions, the name of the Takeout
Investor, the sale price of the Mortgage Loan to the Takeout Investor, the
commitment number, the Commitment Expiration Date, the Delivery Date, the
Release Payment, and the name of the Warehouse Lender.
"Losses": Any and all losses, claims, damages, liabilities or expenses
(including reasonable attorney's fees) incurred by any person specified;
provided however that "Losses" shall not include losses, claims, damages,
liabilities or expenses which would have been avoided had such person taken
reasonable actions to mitigate such losses, claims, damages, liabilities or
expenses.
"Mortgage": A mortgage, deed of trust or other security instrument creating
a first lien on an estate in fee simple in real property securing a Mortgage
Note.
"Mortgage Loan": A one-to-four family residential mortgage loan that is
subject to this Agreement.
"Mortgage Loan Absentee Code": The mortgage loan absentee code, set forth
in Part III of Exhibit F, placed by Custodian on a Certification Report to
notify Purchaser that a Submission Package related to a Mortgage Loan listed on
a Request for Certification is not in Custodian's possession.
"Mortgage Loan Approval Code": The mortgage loan approval code, set forth
in Part III of Exhibit F, placed by Custodian on a Certification Report to
notify Purchaser that Custodian's review of the applicable items in a Submission
-6-
Package is complete and that such items satisfy all the applicable requirements
set forth in Section 4(a) and Section 4(b).
"Mortgage Loan Suspension Code": The mortgage loan suspension code, set
forth in Part III of Exhibit F, placed by Custodian on a Certification Report to
notify Purchaser that Custodian's review of the Submission Package has
determined that one or more of the documents in the Submission Package are
missing, incomplete or incorrect and/or do not satisfy one or more of the
requirements set forth in Section 4(a) or Section 4(b).
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgaged Property": The property subject to the lien of the Mortgage
securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"Notice of Bailment": A notice, in the form of Schedule A to Exhibit B-4 or
C-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.
"Payee Number": The code used by FNMA to indicate the wire transfer
instructions that will be used by FNMA to purchase a Mortgage Loan.
"Primary Mortgage Insurer": Any one of the Entities set forth on Exhibit P,
as such Exhibit may be amended or supplemented from time to time.
"Program Code": Each of the codes, set forth in Part I of Exhibit F, placed
by the Purchaser in the "PROG CODE" column of a Request for Certification
indicating that the Mortgage Loan is being offered by Seller to Purchaser in a
Dry Transaction, Cash Window Transaction or a Conduit Transaction, as
applicable.
"Purchase Agreement": Each Mortgage Loan Purchase Agreement, dated as of
the date set forth on the cover page thereof, between Seller and Purchaser, as
each is amended from time to time providing the terms of Dry Transactions, Cash
Window Transactions, Conduit Transactions or Conversion Transactions.
"Purchase Date": With respect to a Mortgage Loan, the date on which
Purchaser purchases such Mortgage Loan from Seller.
"Purchaser": Xxxxx Xxxxxx Real Estate Securities Inc. and its successors.
-7-
"Purchaser's Wire Instructions to Seller": The wire
instructions, set forth on Exhibit I-1, specifying the account which
shall be used for the payment of all amounts due and payable by Seller
to Purchaser hereunder.
"Purchaser's Payment": The amount set forth on the Request for
Certification in the "RELEASE PAYMENT" column.
"Purchaser's Wire Instructions to Custodian": Wire Instructions
delivered by Purchaser to Custodian, in the form of Exhibit 1-2,
executed by Purchaser, receipt of which has been acknowledged by
Custodian specifying the wire address where all funds received in
accordance with Purchaser's Wire Instructions to Seller shall be
transferred by Custodian.
"Release Payment": The funds referred to in a Warehouse Lender's
Release or Seller's Release, as applicable.
"Request for Certification": A report detailing Loan
Identification Data supplied by Seller to Purchaser, transmitted by
Purchaser to Custodian either via facsimile in the form of Exhibit E
or transmitted electronically in an appropriate data layout, regarding
all Mortgage Loans being offered for sale by Seller to Purchaser on
the Submission Package Delivery Date.
"Return Directive": With respect to each Mortgage Loan either
appearing on an Unidentified Mortgage Loan List or marked by Custodian
with a Suspension Code on a Certification Report, the return
directive, set forth in Part IV of Exhibit F, used by Purchaser in a
notice in the form of Exhibit M, to direct Custodian to deliver (i)
the related Submission Package in accordance with the terms of the
applicable bailee letter pursuant to which such Submission Package was
delivered to Custodian or (ii) the related Submission Package to the
Entity who sent such Submission Package to Custodian if no bailee
letter was included in the Submission Package, as applicable.
"Seller": The Seller whose name is set forth on the cover page
hereof, and its permitted successors hereunder.
"Seller's Release": A letter, in the form of Exhibit H-1,
delivered by Seller when no Warehouse Lender has an interest in a
Mortgage Loan, conditionally releasing all of Seller's right, title
and interest in such Mortgage Loan upon receipt of payment by Seller.
"Seller's Wire Instructions": The wire instructions, set forth in
a letter in the form of Exhibit H-2, to be used for the payment of
funds to Seller when no Warehouse Lender has an interest in the
Mortgage Loans to which such payment relates.
-8-
"Submission Package": With respect to each Mortgage Loan, a Dry
Submission Package, a Cash Window Submission Package, a Conduit
Submission Package or a Conversion Submission Package, as applicable.
"Successor Servicer": An entity designated by Purchaser, in
conformity with the Purchase Agreement, to replace Seller as servicer
for Purchaser, and, with respect to Cash Window Transactions, as
seller/servicer of the Mortgage Loans for the Agency.
"Takeout Investor": An Agency or a Conduit, as applicable.
"Underwriter": Any party, including but not limited to a mortgage
loan pool insurer, who underwrites a Mortgage Loan prior to its
purchase by Purchaser.
"Underwriter's Form": A FNMA/FHLMC Form 1008/1077, HUD 92900WS,
HUD92900.4, VA Form 26-6393, VA Form 26-1866, a mortgage loan pool
insurance certificate, or an underwriting approval form from a Primary
Mortgage Insurer, as applicable, completed by an Underwriter with
respect to a Mortgage Loan, indicating that such Mortgage Loan
complies with its underwriting requirements.
"Unidentified/Suspension Mortgage Loan Directive": A Delivery
Directive, a Hold Directive or a Return Directive, as applicable.
"Unidentified Mortgage Loans List": A list of Mortgage Loans for
which Custodians has received the related Submission Packages from
Seller but which have not been identified by Purchaser in a Request
for Certification. Such list shall include, with respect to each
Mortgage Loan, the information set forth in Exhibit L.
"Warehouse Lender": Any lender providing financing to Seller in
any fractional amount for the purpose of originating or purchasing
Mortgage Loans, which lender has a security interest in such Mortgage
Loans as collateral for the obligations of Seller to such lender. In
all Dry Transactions and Conversion Transactions, Purchaser shall be
the Warehouse Lender.
"Warehouse Lender's Release": A letter, in the form of Exhibit
G-1, from a Warehouse Lender to Purchaser, conditionally releasing all
of Warehouse Lender's right, title and interest in certain Mortgage
Loans identified therein upon receipt of payment by Warehouse Lender.
"Warehouse Lender's Wire Instructions": The wire instructions,
set forth in a letter in the form of Exhibit G-2, from a Warehouse
Lender to Purchaser, setting forth wire instructions for all amounts
due and payable to such Warehouse Lender.
-9-
Section 2. Delivery of Documents by Seller.
-------------------------------
(a) Seller may, before the first purchase by Purchaser under a
Purchase Agreement of a Mortgage Loan, deliver to Custodian a Limited Power of
Attorney, provided, however, Custodian shall have no responsibility or
obligation to act under such Limited Power of Attorney.
(b) If Seller desires to engage in Cash Window Transactions:
(1) relating to a FHLMC Commitment, Seller shall deliver to
Purchaser a copy of (i) FHLMC Form 1035 (Custodial Agreement), if
applicable, duly executed by the related custodian and FHLMC, and (ii)
FHLMC Form 3 (Summary Agreement) or such other equivalent agreement as is
acceptable to Purchaser, duly executed by Seller and FHLMC; or
(2) relating to a FNMA Commitment, Seller shall deliver to
Purchaser a copy of (i) Xxxxxx Mae Form 2003 (Custodial Agreement) if
applicable, duly executed by the related custodian and FNMA. (ii) Xxxxxx
Xxx Mortgage Selling and Servicing Contract, and Xxxxxx Mae Form 482
(Designation of Payee- Wire Transfer Information).
(c) With respect to each Mortgage Loan being offered by Seller for
sale to Purchaser pursuant to (i) a Dry Transaction, (ii) a Cash Window
Transaction, (iii) a Conduit Transaction or (iv) a Conversion Transaction,
Seller shall deliver to Custodian a Submission Package on the Expected Delivery
Date. In no event shall Seller deliver a Submission Package to Custodian later
than 12:00 Noon New York City time on the related Delivery Date.
Section 3. Custodian as Custodian for, and Bailee of, Purchaser,
----------------------------------------------------
Assignee and Warehouse Lender. (a) With respect to each Mortgage Note, each
-----------------------------
Assignment of Mortgage and all other documents constituting each Submission
Package that are delivered to Custodian or that at any time come into
Custodian's possession. Custodian, subject to the provisions of paragraphs (b)
and (c) of this Section 3, shall act solely in the capacity of custodian for,
and bailee of, Purchaser, Custodian shall, subject to the provisions of
paragraphs (b) and (c) of this Section 3 and except as otherwise required by
Section 4, hold all documents constituting a Submission Package received by it
for the exclusive use and benefit of Purchaser, and shall make disposition
thereof only in accordance with this Agreement. Custodian shall segregate and
maintain continuous custody of all documents constituting a Submission Package
received by it in secure and fireproof facilities in accordance with customary
standards for such custody and shall xxxx its books and records to indicate that
the Submission Package is being held for Purchaser.
(b) Purchaser hereby notifies Custodian that each Mortgage Loan
purchased by Purchaser from Seller shall be promptly assigned by Purchaser to
Assignee, as of the date of Purchase, as described in Section 9. Upon notice, in
the form of Exhibit J, by Assignee to Custodian of Purchaser's default, Assignee
may (i) require Custodian to act with respect to the related Submission Packages
solely in the capacity of custodian for, and bailee of, Assignee, but
-10-
nevertheless subject to and in accordance with the terms of this Agreement,
(ii) require Custodian to hold such Submission Packages for the exclusive use
and benefit of Assignee and (iii) assume the rights of Purchaser under this
Agreement to furnish instructions to Custodian as to the disposition of such
Submission Packages and such rights shall be exercisable solely by Assignee.
Custodian shall give Assignee written acknowledgment to the effect set forth in
(i), (ii) and (iii), by executing such notice and returning a copy thereof to
Assignee. In the event that, prior to receipt of such notice from Assignee,
Custodian delivered any Submission Package to Purchaser, Takeout Investor or
Purchaser's designee. Custodian shall so notify Assignee, and Custodian shall
not be deemed to hold such Submission Package for Assignee unless and until such
Submission Package is redelivered to Custodian. The failure of Custodian to give
the written acknowledgement referred to above shall not affect the validity of
such assignment, pledge or grant of a security interest. The effects of
Assignee's notice to Custodian set forth above shall continue until Custodian is
otherwise notified in writing by Assignee. The terms of this Agreement shall not
apply to any Submission Package physically delivered by Custodian to Assignee.
(c) Seller and Purchaser acknowledge that Warehouse Lender, if any,
identified from time to time in each Warehouse Lender's Release to be received
by Custodian pursuant to Section 2(c), is a warehouse lender for the Seller.
Seller and Purchaser acknowledge that, in accordance with the terms of each
Warehouse Lender's Release to be received by the Custodian pursuant to Section
2(c), pursuant to which each such Warehouse Lender conditionally releases its
security interest in the Mortgage Loan referred to in the related Warehouse
Lender's Release, such release shall not be effective until the Release
Payment is received in accordance with the Warehouse Lender's Wire Instructions.
Until receipt of a Release Payment, the interest of the related Warehouse Lender
in a Mortgage Loan shall continue and remain in full force and effect.
(d) If any additional documents relating to the Submission Package
come into the Custodian's posession, the provisions of paragraphs (a), (b) and
(c) of this Section 3 shall apply to such additional documents in the same
manner as such provisions apply to related Submission Package.
(e) Purchaser shall notify Custodian on each Business Day, of all
Mortgage Loans purchased by Purchaser on such Business Day which relate to this
Agreement.
Section 4 Certificate by Custodian: Delivery of Documents.
-----------------------------------------------
(a) With respect to each Mortgage Loan that Purchaser desires to
purchase, Purchaser shall deliver to Custodian a Request for Certification. Upon
receipt by Custodian of a Request for Certification, Custodian shall perform the
following procedures with respect to each Mortgage Loan listed on such Request
for Certification:
(i) Custodian shall ascertain whether it is in possession of a
Submission Package for each Mortgage Loan identified on a Request for
Certification. If Custodian is not in possession of a Submission Package
relating to a Mortgage Loan identified on a Request for Certification,
Custodian shall annotate its Certification Report in the
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appropriate space provided with a Mortgage Loan Absentee Code. If Custodian
is in possession of Submission Packages delivered by Seller which do not
relate to any of the Mortgage Loans listed on a Request for Certification,
Custodian shall generate an Unidentified Mortgage Loans List and shall
deliver such List promptly to Purchaser, Purchaser shall deliver a copy of
such Unidentified Mortgage Loans List to Seller. No action shall be taken
by Custodian, other than in accordance with Unidentified/Suspension
Mortgage Loan Directive or a notice in the form of Exhibit I-3, with
respect to Mortgage Loans appearing on an Unidentified Mortgage Loans List
until any such Mortgage Loans are included in a Request for Certification.
On each Business Day during which a Mortgage Loan shall appear on an
Unidentified Mortgage Loans List, Purchaser shall send to Custodian an
Unidentified/Suspension Mortgage Loan Directive or a notice in the form of
Exhibit I-3, with respect to the related Submission Package.
(ii) With respect to each Request for Certification Custodian shall:
(A) verify the Loan Identification Data appearing in (1) the
"LAST NAME" column by comparing such Loan Identification Data to the
information in the Mortgage Note and Assignment of Mortgage and (2)
the "FACE AMOUNT","# OF MONTHS TO MATURITY" and "NOTE RATE" columns
by comparing such Loan Identification Data to the information in the
Mortgage Note;
(B) if the Program Code indicates a Cash Window Transaction,
verify the Loan Identification Data appearing in the "LOAN #" column
by comparing the related information in any of the related Applicable
Agency Documents;
(C) if the Program Code indicates a Cash Window Transaction,
Conduit Transaction or Conversion Transaction, verify the Loan
Identification Data appearing in the "TAKEOUT INVESTOR", "SALE PRICE",
"COMMITMENT #", and "COMMITMENT EXPIRATION DATE" columns by comparing
such Loan Identification Data to the information appearing in the
Commitment; and
(D) if the Program Code indicates a Cash Window Transaction or
a Conduit Transaction, verify the Loan Identification Data appearing
in the "WAREHOUSE LENDER" column by comparing such Loan Identification
Data to the information appearing in the Warehouse Lender's Release or
Seller's Release, as applicable.
After applying the applicable procedures set forth in clauses (A), (B) and (C)
above, any discrepancies between the Loan Identification Data and documents
comprising the Submission Package shall be noted by Custodian in the appropriate
column immediately below each item of Loan Identification Data.
(b) With respect to each Request for Certification, following completion
by Custodian of the procedures set forth in Section (4)(a).
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(i) Custodian shall review each applicable set of documents
comprising the Submission Package and shall ascertain whether (A) each
such document is in Custodian's possession, (B) each such document
accurately conforms with the Loan Identification Data set forth in the
Request for Certification or as modified by any notations supplied by
Custodian pursuant to Section 4(a)(ii), (C) each such document appears
regular on its face, (D) each such document in the Submission Package
appears on its face to conform to the requirements of Exhibit A, Exhibit B-
1, Exhibit C-1 or Exhibit F, as applicable, (E) unless the Program Code
indicates either a Dry Transaction or a Conversion Transaction, the
Mortgage Loan is listed on a schedule attached to a Warehouse Lender's
Release or a Seller's Release, as the case may be, (F) either (1) if the
Release Payment is a dollar amount, the amount appearing the "RELEASE
PAYMENT" column on the Request for Certification is equal to or exceeds the
Release Payment, or (2) if the Program Code indicates either a Dry
Transaction or a Conversion Transaction, or if the Release Payment is a
formula, as indicated in Exhibit G-1, the Custodian need not verify the
amount, if any, appearing in the "RELEASE PAYMENT" column and (G) (1) with
respect to the wire transfer instructions as set forth in FHLMC Form 987
(Wire Transfer Authorization for a Cash Warehouse Delivery) such wire
transfer instructions are identical to Purchaser's Wire Instructions to
Seller or (2) the Payee Number set forth on Xxxxxx Xxx Form 1068 (Fixed-
Rate, Graduated-Payment, or Growing-Equity Mortgage Loan Schedule) or
Xxxxxx Mae Form 1069 (Adjustable-Rate Mortgage Loan Schedule), as
applicable, is identical to the Payee Number that has been identified by
Purchaser in the Request for Certification.
(ii) If Custodian determines that the documents in the Submission
Package and the Mortgage Loan to which they relate conform in all respects
with Section 4(b)(i). Custodian shall so indicate in the space provided in
its Certification Report with a Mortgage Loan Approval Code. If Custodian
determines that the documents in a Submission Package and the Mortgage Loan
to which they relate conform in all respects with Section 4(b)(i) except
that the endorsement of the Mortgage Note is missing, Custodian may, but
shall not be obligated to, prepare such endorsement pursuant to the Limited
Power of Attorney. If documents in the Submission Package do not conform in
all respects with Section 4(b)(i) or are missing and/or do not conform.
Custodian shall annotate its Certification Report with a Mortgage Loan
Suspension Code followed by each applicable Exception Code such that
Purchaser is informed of each and every missing document and/or non-
conformity in the space provided in its Certification Report. With respect
to each Mortgage Loan that has been given a Mortgage Loan Suspension Code,
Purchaser shall, on each Business Day during which such Mortgage Loan
Suspension Code is in effect, send to Custodian an Unidentified/Suspension
Mortgage Loan Directive or a notice in the form of Exhibit I-3, with
respect to the relate Submission Package.
(c) Custodian shall use its reasonable efforts to perform a
Certification with respect to any Submission Package delivered after 12:00 Noon
New York City time on a related Delivery Date for which it has received a
Request for Certification. Upon completion of its Certification, Custodian shall
deliver a Certification Report to Purchaser. All applicable documents comprising
a Submission Package relating to Mortgage Loans with respect to which
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Custodian has assigned a Mortgage Loan Approval Code shall be delivered by
Custodian in the form and specific order required by Seller, via overnight
courier in accordance with the Delivery Instructions on the applicable Delivery
Date and, except with respect to Mortgage Loans for which FHLMC is the Takeout
Investor, under cover of a fully completed Notice of Bailment prepared by
Custodian in accordance with the terms of the Bailee Letter. If Seller fails to
instruct Custodian regarding the order and specific form for a delivery to
Takeout Investor of such applicable documents, the Custodian shall deliver such
applicable documents in the original form and specific order received from
Seller. With respect to Conduit Transactions in which the Takeout Investor is
The Prudential Home Mortgage Corporation each folder must be clearly market
"SRF". In those cases where a copy of any intervening mortgage assignment, or an
unrecorded original of any intervening mortgage assignment are delivered to the
Custodian, Seller shall cause the original of such instrument to be recorded. If
Delivery Instructions direct Custodian to deliver any portion of a Submission
Package to a location that is not Takeout Investor's office, Custodian must
receive Purchaser's written consent to make deliveries to such location prior to
complying with such Delivery Instructions. Upon receipt of one written approval
from Purchaser, such written approval shall, unless Custodian receives a notice
from Purchaser to the contrary, be deemed to apply to all Delivery Instructions
delivered in the future by Seller that list such location. Following delivery by
Custodian of the applicable portion of a Submission File to Takeout Investor,
all remaining documents comprising such Submission Package shall be held by
Custodian until receipt by Custodian of written instructions from Purchaser to
destroy such documents. Each month, Purchaser may, but shall not be obligated
to, deliver to Custodian a notice in the form of Exhibit O, informing Custodian
of all files that Purchaser has authorized Custodian to destroy.
All applicable documents comprising a Submission Package relating to
Mortgage Loans with respect to which Custodian has assigned a Mortgage Loan
Suspension Code shall be held by Custodian until receipt from Purchaser of
instructions. On each Business Day during which a Mortgage Loan shall have a
Mortgage Loan Suspension Code assigned to it, Purchaser shall send to Custodian
an Unidentified/Suspension Mortgage Loan Directive with respect to such Mortgage
Loan.
(d) At any time following the delivery of a Certification, in the
event Custodian becomes aware of any defect with respect to such Submission
Package or the related forms, including the return of documents to the Custodian
from Takeout Investor due to a defect in such documents, the Custodian shall
give prompt oral notice of such defect to the Purchaser, followed by a written
specification thereof.
Section 5. Funding by the Takeout Investor. Custodian shall promptly
-------------------------------
notify Purchaser, either electronically or by facsimile, upon receipt, in
accordance with Purchaser's Wire Instructions to Seller, of funds by Custodian.
Each notice shall identify all such funds by (i) the amount, (ii) the source
from which such funds were received and (iii) to the extent received by
Custodian, Seller's name. Unless Custodian is otherwise instructed by Assignee,
Custodian shall promptly transfer such funds to Purchaser in accordance with
Purchaser's Wire Instructions to Custodian.
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Section 6. Default. If Seller fails to fulfill any of its
-------
obligations under the Purchase Agreement or hereunder or in connection with the
exercise by Purchaser of any remedy pursuant to Section 3 of the Purchase
Agreement then, subject to the provisions of Section 3(c) hereof, Purchaser may,
by notice to Custodian, (a) appoint Custodian as its delegee to complete the
endorsements on the Mortgage Notes held by Custodian and to complete and record
at Purchaser's expense the related blank Assignments of Mortgages relating to
the affected Mortgage Loan in accordance with Purchaser's instructions and, when
applicable, and (b) require Custodian to deliver to Purchaser, Takeout Investor
or Successor Servicer the Submission Packages (or any portion thereof specified
by Purchaser) in Custodian's possession or under Custodian's control to which
the failure relates.
Section 7. Access to Documents. Upon reasonable prior written notice
-------------------
to Custodian, Purchaser (and if the Mortgage Loans have been assigned, Assignee)
and its agents, accountants, attorneys and auditors will be permitted during
normal business hours to examine and copy at their expense the Submission
Packages, documents, records and other papers in possession of or under the
control of Custodian relating to any or all of the Mortgage Loans in which
Purchaser has an interest. Upon the request of Purchaser (or, if applicable,
Assignee) and at the cost and expense of Purchaser (or, if applicable,
Assignee), Custodian shall provide such Purchaser (or, if applicable, Assignee)
with copies of the Mortgage Notes, Assignments of Mortgage and other documents
in Custodian's possession relating to any of the Mortgage Loans in which
Purchaser (or, if applicable, Assignee) has an interest.
Section 8. Custodian's Fees and Expenses: Successor Custodian:
--------------------------------------------------
Standard of Care. (a) It is understood that Seller will be charged for
----------------
Custodian's fees for its services under this Agreement in such amounts and in
the manner set forth in the related Purchase Agreement. Notwithstanding the
foregoing, Custodian has no lien on, and shall not attempt to place a lien on,
any of the Mortgage Loans or proceeds thereof to secure the payment of its fees.
(b) Subject to the provisions of any other agreement between
Custodian and Purchaser, Custodian may only resign for cause. Such resignation
shall take effect upon the earlier of (i) the appointment of a successor
Custodian by Purchaser and delivery of all the Submission Packages and any
portion of the related documents in Custodian's possession to the successor
Custodian, and (ii) the delivery of all the Submission Packages and any portion
of the related documents in Custodian's possession to the Purchaser or its
designee pursuant to (c) below.
(c) In the event of any such resignation, Custodian shall promptly
transfer to the successor Custodian all Submission Packages and related
documents in Custodian's possession and the successor Custodian shall hold
Submission Packages and related documents in accordance with this Agreements. If
Purchaser directs the removal of Custodian, Purchaser shall be responsible for
all expenses associated with the transfer of the Submission Packages and any
related documents in Custodian's possession and for any fee of the successor
Custodian in excess of the fees of the initial Custodian hereunder. The
Purchaser shall have 90 days in which to appoint and designate an acceptable
successor Custodian. If the Purchaser fails to appoint a successor Custodian
within such 90-day period, then Custodian shall deliver possession and custody
of the Submission Packages and any related Submission Packages in Custodian's
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possession to Purchaser at the address specified on the cover page hereof, or if
a timely written designation is received by Custodian, to any designee of
Purchaser.
(d) Custodian shall have responsibility only for the Submission
Packages and the contents thereof which have been actually delivered to it and
which have not been released to Seller, Purchaser, the 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 performance of its duties
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
its own mortgage warehouse loan customers. 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 either Seller, the Agency, Purchaser or Assignee.
(e) Custodian shall incur no liability to any Entity for Custodian's
acts or omissions hereunder, except for liabilities which (i) arise from
Custodian's gross negligence or willful misconduct or (ii) solely with respect
to the Purchaser, which arise from Custodian negligently or intentionally
failing to (A) issue an accurate Certification Report, provided, however, any
such liability shall not be incurred with respect to the issuance of an
inaccurate Certification Report if the defect causing such inaccuracy would not
have been ascertainable by the Custodian applying the procedures expressly set
forth in this Agreement, (B) timely deliver the Submission Package in accordance
with the Delivery Instructions or Purchaser's written instructions, as
applicable, (C) prevent the loss, damage or destruction of any document included
in a Submission Package when held by Custodian, (D) perform its obligations
under Section 5 or (E) comply with an Unidentified/Suspension Mortgage Loan
Directive; provided, however, Custodian shall have no liability hereunder if
Custodian's failure to perform resulted from the inaction or action of any other
Entity, other than Entities that are affiliated with Custodian or are acting
under the direct control of Custodian. Custodian's liability under this
Agreement shall be limited to direct damages resulting from aforesaid. In
addition Custodian shall not be liable, directly or indirectly, for any losses,
claims, damages, liabilities or expenses which would have been avoided had any
Entity making a claim taken reasonable action to mitigate such losses, claims,
damages, liabilities or expenses or (2) special or consequential damages, even
if Custodian had been advised of the possibility of such damages; provided,
however, that Purchaser's direct damages resulting from a decline in the market
value of a Mortgage Loan shall not be deemed special or consequential damages.
(f) Custodian shall be entitled to reply upon the advice of its legal
counsel from time to time and shall not be liable for any action or inaction by
it in reliance upon such advice. Custodian also shall be entitled to reply upon
any notice, document, correspondence, request or directive received by it from
Seller, Takeout Investor, Purchaser or Assignee, as the case may be, that
Custodian believes to be genuine and to have been signed or presented by the
proper and duly authorized officer or representative thereof, and shall not be
obligated to inquire as to the authority or power of any person so executing or
presenting such documents or as to the truthfulness of any statements set forth
therein.
(g) Seller hereby indemnifies, defends and holds Custodian harmless
from and against any claim, legal action, liability or loss that is initiated
against or incurred by Custodian,
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including court costs and reasonable attorney's fees and disbursements, in
connection with Custodian's performance of its duties under this Agreement,
including those involving ordinary negligence, but excluding those involving
gross negligence or willful misconduct of Custodian.
(h) Custodian undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement, it being expressly understood
that there are no implied duties hereunder.
Section 9. Assignment by Purchaser. Purchaser hereby notifies
-----------------------
Custodian that Purchaser shall assign, as of the date of the purchase of all of
its right, title and interest in and to all Mortgage Loans purchased by
Purchaser pursuant to the Purchase Agreement and all rights of Purchaser under
the Purchase Agreement (and this Agreement) in respect of such Mortgage Loans
represented thereby to Assignee, subject only to an obligation on the part of
Assignee to deliver each such Mortgage Loan to Custodian or to Purchaser to
permit Custodian, Purchaser or its designee to make delivery thereof to Takeout
Investor, but not otherwise. Seller hereby irrevocably consents to such
assignment. Assignment by Purchaser of the Mortgage Loans as provided in this
Section 9 shall not release Purchaser from its obligations otherwise under this
Agreement. Subject to any limitations in any agreement between Assignee and
Purchaser, Assignee may, upon notice of Purchaser's default as provided in
Section 3(b) hereof, directly enforce and exercise such rights under this
Agreement that have been assigned or pledged to it and, until otherwise notified
by Assignee, Purchaser shall no longer have any such rights. Custodian shall
assume that any assignment from Purchaser to Assignee is subject to no-
limitations that are not expressly set forth in this Agreement.
Section 10. Insurance. Custodian shall, at its own expense,
---------
maintain at all times during the existence of this Agreement such (a) fidelity
insurance, (b) theft of documents insurance, (c) forgery insurance and (d)
errors and omissions insurance as Custodian deems, from time to time
appropriate.
Section 11. Representations, Warranties and Covenants.
-----------------------------------------
(a) By Custodian. Custodian hereby represents and warrants to, and
------------
covenants with, Seller and Purchaser that, as of the date hereof and at all
times while Custodian is performing services under this Agreement:
(i) Custodian is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
(ii) Custodian has the full power and authority to hold each
Mortgage Loan and to execute, deliver and perform, and to enter into and
perform its duties and obligations as contemplated by, this Agreement, has
duly authorized the execution, delivery and performance of this Agreement
and has duly executed and delivered this Agreement, and this Agreement
constitutes a legal, valid and binding obligation of Custodian, enforceable
against it in accordance with its terms, except as the enforcement thereof
may be limited by applicable receivership, conservatorship or similar
debtor relief
-17-
laws and except that certain equitable remedies may not be available
regardless of whether enforcement is sought in equity or law.
(b) By Seller. Seller hereby represents and warrants to, and
---------
covenants with, Custodian and Purchaser that, as of the date hereof and
throughout the term of this Agreement:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
(ii) Seller has the full power and authority to hold each Mortgage
Loan and to execute, deliver and perform, and to enter into and consummate
all transactions contemplated by, this Agreement, has duly authorized the
execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of Seller, enforceable against it in accordance with
its terms, except as the enforcement thereof may be limited by applicable
receivership, conservatorship or similar debtor relief laws and except that
certain equitable remedies may not be available regardless of whether
enforcement is sought in equity or law.
(c) By Purchaser. Purchaser hereby represents and warrants to, and
------------
covenants with, Custodian and Seller that, as of the date hereof and throughout
the term of this Agreement:
(i) Purchaser is acquiring the Mortgage Loans for its own account
only and not for any other person;
(ii) Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Mortgage Loans;
(iii) Purchaser has been furnished with all information regarding
the related Mortgage Loans that it has requested from Seller;
(iv) Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
(v) Purchaser has the full power and authority to hold each
Mortgage Loan and to execute, deliver and perform, and to enter into and
consummate all transactions contemplated by, this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and
has duly executed and delivered this Agreement, and this Agreement
constitutes a legal, valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except as the enforcement thereof
may be limited by applicable receivership, conservatorship or similar
debtor relief laws and except that certain equitable remedies may not be
available regardless of whether enforcement is sought in equity or law.
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Section 12. No Adverse Interests. By its acceptance of each Submission
--------------------
Package, Custodian covenants and warrants to Purchaser that: (a) as of the date
of payment by Purchaser of the Release Payment, Custodian, solely in its
capacity as Custodian, holds no adverse interests, by way of security or
otherwise, in the related Mortgage Loan and (b) Custodian hereby waives and
releases any such interest in such Mortgage Loan which it, acting solely in its
capacity as Custodian, has or which it may thereafter acquire prior to the time
of release of such Mortgage Loan from the terms of this Agreement.
Section 13. Amendments. This Agreement may be amended from time to time
----------
only by written agreement of Seller, Purchaser and Custodian except that, if
this Agreement shall have been assigned by Purchaser, no amendment shall be
effective unless the amendment is also signed by Assignee. Purchaser shall give
at least five days' prior written notice to Assignee of any proposed amendment
to this Agreement and shall furnish Assignee with a copy of each such amendment
within five days after it is executed and delivered.
Section 14. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
Section 15. Agreement for Exclusive Benefit of Parties: Assignment.
-------------------------------------------------------
This Agreement is for the exclusive benefit of the parties hereto and their
respective successors and permitted assigns hereunder and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever. This Agreement shall bind the parties hereto and their respective
successors, but, except for the assignments provided in Sections 3(b) and 9,
shall not be assigned or pledged by any party without the prior written consent
of the other parties. Written notice from Assignee to Custodian (with a copy to
Purchaser) that Purchaser has defaulted in any material respect under any
funding or loan agreement relating to the financing of Purchaser's purchase of
Mortgage Loans shall be conclusive for all purposes of this Agreement.
Section 16. Effect of Invalidity of Provisions. In case any one or more
----------------------------------
of the provisions contained in this Agreement should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 17. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York, without regard
to conflict of laws rules.
Section 18. Consent to Service. Each party irrevocably consents to the
------------------
service of process by registered or certified mail, postage prepaid, to it at
its address given in or pursuant to Section 19.
Section 19. Notices. Any notices, consents, directions and other
-------
communications given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered by facsimile or electronic
transmission, or personally delivered
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at, or sent by overnight courier to the addresses of the parties hereto set
forth on the cover page hereof or such other address as any party shall give in
a notice to the other parties pursuant to this Section 19.
Section 20. Certification. Custodian hereby acknowledges that each time
-------------
it enters the Approval Code on a Request for Certification in the "Approval
Code" column, it is making an express representation and warranty to Purchaser
that it has performed the Certification as specified in Sections 4(a) and
(b) with respect to the related Mortgage Loan.
Section 21. Construction. The headings in this Agreement are for
------------
convenience only and are not intended to influence its construction. References
to Sections and Exhibits in this Agreement are to the Sections of and Exhibits
to this Agreement. The Exhibits are part of this Agreement. In this Agreement,
the singular includes the plural, the plural the singular, and the words "and"
and "or" are used in the conjunctive or disjunctive as the sense and
circumstances may require.
IN WITNESS WHEREOF, Seller, Purchaser and Custodian have caused this
Agreement to be duly executed as of the date and year first above written.
Seller's Name: UNITED FINANCIAL MORTGAGE:
-------------------------
_________________________
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By: /s/ G. A. Mangiarocina
-------------------------------------
Name: XXXXXX X. MANGIAROCINA
Title: FVP
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: XXXXXX X. XXXX
Title: SECOND VICE PRESIDENT
Telephone No:
EXHIBIT A
DRY SUBMISSION PACKAGE
With respect to each Mortgage Loan being offered by Seller for sale to
Purchase Seller shall deliver and release to Custodian the following documents:
(i) The original Mortgage Note endorsed, "Pay to the order of
_______________________, without recourse" and signed in the
???????????????
other instrument that authorized and empowered such third-party
to sign or a copy of such power of attorney together with an
Officer's Certificate (or a certificate from the recorder's
office) certifying that such copy presents a true and correct
reproduction of the original and that such original has been duly
recorded or delivered for recordation in the appropriate records
of the jurisdiction in which the related Mortgaged Property is
located;
(ii) If Seller did not originate the Mortgage Loan, all original
intervening assignments duly executed and acknowledged and in
recordable form, which together with the Assignment of Mortgage,
evidence the chain of mortgage assignments from the originator of
the Mortgage Loan to Seller, and/or copies of all such
intervening mortgage assignments, together with an Officer's
Certificate, or a certificate from the recorder's office,
certifying that any such copy represents a true and correct
reproduction of the original of such instrument and that such
original has been duly recorded or delivered for recordation in
the appropriate records of the jurisdiction where the Mortgaged
Property is located;
(iii) An original Assignment of Mortgage, in blank, in recordable form
but unrecorded signed in the name of Seller by any authorized
officer; and
(iv) A copy of the Mortgage naming the Seller, or if the Seller was
not the originator, the originator, as the "mortgagee" or
"beneficiary" thereof, and either bearing evidence that such
instrument has been recorded in the appropriate jurisdiction
where the property with respect to the Mortgage Property is
located or a duplicate or conformed copy of the Mortgage,
together with a certificate of an officer of the originator
certifying that such copy represents a true and correct copy of
the original and that such original has been submitted to the
title insurance company for recordation
in the appropriate governmental recording office of the
jurisdiction where the Mortgage Property is located.
All documents delivered to Custodian have been and as to future deliveries will
be placed by Seller in an appropriate file folder, properly secured, and clearly
marked with Seller's loan number identifying such Mortgage Loan.
In those cases where a copy of a Mortgage, or any intervening mortgage
assignment, or an unrecorded original of any intervening mortgage assignment are
delivered to the Custodian, Seller shall cause the original of such instrument
to be recorded.
EXHIBIT B-1
CASH WINDOW SUBMISSION PACKAGE
With respect to each Mortgage Loan being offered by Seller for sale to
Purchaser pursuant to a Cash Window Transaction, Seller shall deliver and
release to Custodian the
???????????????????????????????????????????????????????????????
original assumption agreement, together with the original of any surety
agreement or guaranty agreement relating to the Mortgage Note or any such
assumption agreement, and if the Mortgage Note has been signed by a third
party on behalf of the Mortgagor, the original power of attorney or other
instrument that authorized and empowered such Entity to sign or a copy of
such power of attorney together with an officer's certificate (or a
certificate from the recorder's office) certifying that such copy presents
a true and correct reproduction of the original and that such original has
been duly recorded or delivered for recordation in the appropriate records
of the jurisdiction in which the related Mortgaged Property is located and
if FHLMC is the Agency for the related Mortgage Loan, the Xxxxxxx Mac loan
number should appear on the top right hand corner of the Mortgage Note:
(ii) With respect to each Mortgage Loan that has been designated for
sale to FNMA, an original Assignment of Mortgage to FNMA in recordable form
but unrecorded signed in the name of Seller by an authorized officer;
(iii) If Seller did not originate a Mortgage Loan, all necessary
intervening assignments to show a complete chain of title from the
originating mortgagee to Seller;
(iv) An original Assignment of Mortgage, in blank, in recordable
form but unrecorded (which Assignment of Mortgage may be in the form of a
blanket assignment of two or more such Mortgages to the extent permitted by
applicable law) signed in the name of Seller by an authorized officer;
(v) A Warehouse Lender's Release, from any Warehouse Lender having
a security interest in the Mortgage Loans or, if there is no Warehouse
Lender with respect to such Mortgage Loans, a Seller's Release, from
Seller, addressed to Purchaser, releasing any and all right, title and
interest in such Mortgage Loans;
(vi) Delivery Instructions;
(vii) A copy of a Confirmation: and
(viii) The Applicable Agency Documents, listed on Exhibit B-2 and
Exhibit B-3.
All documents delivered to Custodian will be placed by Seller in an appropriate
file folder, properly secured, and clearly marked with Seller's appropriate
FHLMC or FNMA loan number
identifying such Mortgage Loan in the form and order required by the Agency.
In those cases where a copy of any intervening mortgage assignment, or an
unrecorded original of any intervening mortgage assignment are delivered to the
Custodian, Seller shall cause the original of such instrument to be recorded.
(i) FHLMC Form 1 (Fixed-Rate Mortgage Purchase Contract Conventional Home
Mortgages - Original Cash) or FHLMC Form 9 (Fixed-Rate Mortgage Purchase
Contract Conventional Home Mortgages - Gold Cash), or FHLMC Form 2
(Adjustable Rate Purchase Contract Conventional Home Mortgages).
(ii) FHLMC Form 1034 (Custodial Certification Schedule).
(iii) FHLMC Form 996 (Warehouse Lender Release of Security Interest)./1/
(iv) FHLMC Form 987 (Wire Transfer Authorization for a Cash Warehouse
Delivery).
(v) FHLMC Form 960 (Transfer of Servicing) (if supplied by Seller).
___________________________________
/1/ Consisting either of the form submitted by Seller to Custodian naming
Purchaser as Warehouse Lender or a substituted form completed by Custodian
naming Purchaser as Warehouse Lender.
EXHIBIT B-3
FNMA DOCUMENT LIST
(i) Either a Standard Mandatory Delivery Commitment or a Negotiated Mandatory
Delivery Commitment or a Negotiated Market-Rate Standby Commitment.
(ii) FNMA Form 1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity Mortgage
Loan Schedule) or FNMA Form 1069 (Adjustable-Rate Mortgage Loan
Schedule).
(iii) FNMA Form 2004 (Security Release Certification) (executed by Purchaser
and Seller)./1/
(iv) FNMA Form 360 (Incumbency Certificate) (executed by Seller naming person
authorized to instruct FNMA on where to wire funds)./2/
(v) All original intervening assignments (if any) duly executed and
acknowledged and in recordable form, but unrecorded.
/1/ Consisting either of the form submitted by the Seller to the Custodian
naming a person other than the Purchaser as Warehouse Lender or a
substituted form completed by the Custodian naming the Purchaser as
Warehouse Lender.
/2/ If applicable.
EXHIBIT B-4
[LETTERHEAD OF PURCHASER]
FNMA MASTER BAILEE LETTER
_______ __,199_
The Chase Manhattan Bank, N.A.
Mortgage Banking Division
2 Chase Manhattan Plaza (20th Floor)
New York, New York 10081
Attention: Xxxxx Xxxx
Ladies and Gentlemen:
In connection with its Conforming Whole Loan Purchase: Cash Window
Program, the undersigned Xxxxx Xxxxxx Real Estate Securities Inc. ("Purchaser")
shall from time to time, cause The Chase Manhattan Bank, N.A., as custodian
("Custodian"), to deliver to the Federal National Mortgage Association ("FNMA")
original promissory notes ("Mortgage Notes") evidencing certain mortgage loans
("Mortgage Loans"), along with certain other documents comprising the related
files ("Mortgage Documents"). Custodian is hereby instructed to prepare and
insert a Notice of Bailment in the form of Schedule A hereto with respect to
each Mortgage Loan ("Notice of Bailment"), in each file of Mortgage Documents
delivered by Custodian to FNMA.
Except as otherwise provided herein, each Mortgage Document so
delivered to FNMA is to be held by FNMA, as agent for Custodian, and subject to
only Purchaser's direction and control.
Upon Purchaser's receipt of all of the proceeds from the sale of a
Mortgage Loan in accordance with the wiring instructions set forth in FNMA's
Form 482 or 1068 all of Purchaser's legal or equitable interest in the Mortgage
Loan shall terminate.
The persons listed on the attached Schedule B are the authorized
representatives ("Authorized Representatives") of Purchaser. Custodian shall not
honor any communication relating to a Mortgage Loan, which is not confirmed by
the written or telephonic consent, confirmed in writing at the request of
Custodian, of an Authorized Representative of Purchaser.
Please execute and return the enclosed copy of this Master Bailee
Letter in the enclosed self-addressed envelope.
Sincerely,
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
(Purchaser)
By:________________________________________
Name:
Title:
Agreed to:
THE CHASE MANHATTAN BANK, N.A.
(Custodian)
By:________________________________________
Name:
Title:
Dated: As of the date first set forth above
SCHEDULE A
TO EXHIBIT B-4
NOTICE OF BAILMENT
------------------
[FNMA Address]
Re: [Insert Description of Loan, including Borrower's Name,
Loan Amount and FNMA's Loan Number]
-----------------------------------
Ladies and Gentlemen:
Pursuant to the Master Bailee Letter, dated ______ __, 199_ (the
"Master Bailee Letter"), between Xxxxx Xxxxxx Real Estate Securities Inc.
("Purchaser") and The Chase Manhattan Bank, N.A. (the "Custodian"), you are
hereby notified that the enclosed original promissory note with respect to the
referenced loan together with certain other documents comprising the related
file with respect to that loan (the "Mortgage Documents") being herby delivered
to you herewith are to be held by you as agent of Custodian (which holds the
Mortgage Documents as custodian and bailee for the benefit of Purchaser).
Any Mortgage Documents (or portion thereof) not purchased by you
in accordance with the provisions of the Xxxxxx Xxx Guide shall be sent to the
Custodian by overnight courier to: [insert address for return of documents].
Any questions relating to the Mortgage Documents should be
referred to the Purchaser at (000) 000-0000.
Sincerely,
THE CHASE MANHATTAN BANK, N.A.
By:____________________________
Name:__________________________
Title:_________________________
SCHEDULE B
TO EXHIBIT B-4
AUTHORIZED REPRESENTATIVES OF PURCHASER
---------------------------------------
Name Title Authorized Signature
---- ----- --------------------
EXHIBIT C-1
CONDUIT SUBMISSION PACKAGE
With respect to each Mortgage Loan being offered by Seller for
sale to Purchaser, pursuant to a Conduit Transaction. Seller shall deliver and
release to Custodian the following documents:
(i) The original Mortgage Note endorsed, "Pay to the order of
________________________________, without recourse" and signed in the name
of Seller by an authorized officer and, if Seller did not originate the
Mortgage Loan, bearing an unbroken chain of endorsements from the
originator thereof to Seller; (if applicable) the original assumption
agreement, together with the original of any surety agreement or guaranty
agreement relating to the Mortgage Note or any such assumption agreement,
and if the Mortgage Note has been signed by a third party on behalf of the
Mortgagor, the original power of attorney or other instrument that
authorized and empowered such Entity to sign or a copy of such power of
attorney together with an officer's certificate (or a certificate from the
recorder's office) certifying that such copy presents a true and correct
reproduction of the original and that such original has been duly recorded
or delivered for recordation in the appropriate records of the jurisdiction
in which the related Mortgaged Property is located;
(ii) A Mortgage meeting one of the following requirements:
(A) The original Mortgage bearing evidence that the Mortgage
has been duly recorded in the records of the jurisdiction in which the
Mortgaged Property is located; or
(B) A copy of the Mortgage together with an officer's
certificate (which may be a blanket officer's certificate of Seller
covering all such Mortgage Loans), or a certificate from the
recorder's office, certifying that such copy represents a true and
correct reproduction of the original Mortgage and that such original
has been duly recorded or delivered for recordation in the appropriate
records of the jurisdiction in which the Mortgage Property is
located;
(iii) If Seller did not originate the Mortgage Loan, all
original intervening assignments duly executed and acknowledged and in
recordable form, which together with the Assignment of Mortgage, evidence
the chain of mortgage assignments from the originator of the Mortgage Loan
to Seller, and/or two copies of each such intervening mortgage assignments,
each copy together with an officer's certificate, or a certificate from the
recorder's office, certifying that such copy represents a true and correct
reproduction of the original of such instrument and that such original has
been duly recorded or delivered for recordation in the appropriate records
of the jurisdiction where the Mortgaged Property is located;
(iv) An original Assignment of Mortgage, in blank, in recordable
form but unrecorded signed in the name of Seller by an authorized officer:
(v) A Warehouse Lender's Release, from any Warehouse Lender having
a security interest in the Mortgage Loans or, if there is no Warehouse
Lender with respect to such Mortgage Loans, a Seller's Release, from
Seller, addressed to Purchaser, releasing any and all right, title and
interest in such Mortgage Loans;
(vi) Delivery Instructions;
(vii) A copy of a Commitment;
(viii) A copy of a Confirmation;
(ix) Each Mortgage Loan, as identified by Seller, relating to a
Mortgage Note with an original principal amount in excess of 80% of the
appraised value of the related Mortgaged Property at the time of
origination of such Mortgage Loan, either (A) an original of the
certificate/commitment of Primary Mortgage Insurance Policy, issued by the
applicable insurer, without verification of the expiration date thereon, or
(B) an Officer's Certificate (which may be a blanket Officer's Certificate
of Seller covering all such Mortgage Loans), certifying that an appraisal
report has been obtained by Seller which shows that the appraised value of
the Mortgage Property is such that the outstanding principal balance of
such Mortgage Note is less than 80% of such appraised value; and*
(x) An Underwriter's Form.*
_____________________________
*Not applicable to Submission Packages in which the Delivery Instructions
require delivery of the Submission Package to Springfield, Illinois.
EXHIBIT C-2
[LETTERHEAD OF PURCHASER]
CONDUIT MASTER BAILEE LETTER
__________, 199_
[ADDRESS]
The Chase Manhattan Bank, N.A.
Mortgage Banking Division
2 Chase Manhattan Plaza (20th Floor)
New York, New York 10081
Attention: Xxxxx Xxxx
Ladies and Gentlemen:
The undersigned Xxxxx Xxxxxx Real Estate Securities Inc. ("Purchaser")
shall from time to time, cause The Chase Manhattan Bank, N.A., as custodian
("Custodian"), to deliver to [Conduit] ("Takeout Investor") original promissory
notes ("Mortgage Notes") evidencing certain mortgage loans ("Mortgage Loans"),
along with certain other documents comprising the related files ("Custodial
File") and, in each case, a Notice of Bailment in the form of Schedule A hereto
with respect to each Mortgage Loan ("Notice of Bailment"), for inspection by
Takeout Investor prior to the possible purchase by Takeout Investor of such
Mortgage Loans pursuant to commitments ("Commitments") from certain sellers of
Mortgage Loans ("Seller"). Prior to its delivery to Takeout Investor, all of
Seller's right, title and interest in each Mortgage Loan and proceeds thereof
shall have been conveyed to Purchaser in accordance with each Seller's agreement
with Purchaser. Initially capitalized terms used herein but not defined herein
shall have the respective meanings ascribed to such terms in the Takeout
Investor [Acknowledgement] Agreement, dated ___________, 199_ (as amended,
supplemented or otherwise modified from time to time, the "TIAA") between
Takeout Investor and Purchaser.
Except as otherwise provided herein and/or in the TIAA, each Custodial File
so delivered to Takeout Investor is to be held by Takeout Investor, as agent for
Custodian, and subject to only Purchaser's direction and control until released
as provided herein. The TIAA shall govern the manner in which Takeout Investor
and Purchaser may agree on the amount to be paid by Takeout Investor for each
Mortgage Loan accepted for purchase. The proceeds of the sale of each Mortgage
Loan accepted for purchase must be remitted immediately upon settlement by
Takeout Investor, by wire transfer in immediately available funds, in accordance
with the wire instructions set forth in the Notice of Bailment which shall be
placed in each Custodial File by Custodian prior to the shipment of each
Custodial File to Takeout Investor. Takeout Investor shall be responsible for
making certain that all of the proceeds from the sale of the Mortgage Loan are
received in accordance with the wire transfer instructions set forth on each
Notice of Bailment.
Upon Purchaser's receipt of all of the proceeds from the sale of a Mortgage
Loan in accordance with the wiring instructions in the applicable Notice of
Bailment, all of Purchaser's legal or equitable interest in the Mortgage Loan
shall terminate.
All Mortgage Documents held by Takeout Investor which are received by
Takeout Investor from Custodian with respect to a Mortgage Loan that is not
purchased must be returned immediately to Custodian at the address for delivery
of documents set forth on the Notice of Bailment. Purchaser reserves the right
at any time, until a Mortgage Loan has been purchased by Takeout Investor, to
demand the return of the related Mortgage Documents to Custodian, and Takeout
Investor agrees to return to Custodian the Mortgage Documents pertaining to a
Mortgage Loan not purchased by Takeout Investor immediately upon such demand by
Purchaser.
The persons listed on the attached Schedule B are the authorized
representatives ("Authorized Representatives") of Purchaser. Takeout Investor
shall not honor any communication from Sellers relating to a Mortgage Loan,
which is not confirmed by the written or telephonic consent of an Authorized
Representative of Purchaser, or until Purchaser has received the minimum amount
of proceeds of the sale of such Mortgage Loan.
In the event Takeout Investor is not able for any reason to comply with the
terms of ??? Bailee Letter. Takeout Investor shall immediately return the
Custodial File to Custodian at the above address.
Takeout Investor acknowledges that the Custodial File is being delivered in
accordance with its instructions. Takeout Investor shall not deliver a Custodial
File to any third party without the prior written consent of Purchaser unless
such third party is a wholly owned subsidiary of Takeout Investor or a custodian
and bailee of Takeout Investor who is receiving such Custodial File with written
notice of the bailment created by this Master Bailee Letter.
In the event Takeout Investor is not able for any reason to comply with the
terms of this Master Bailee Letter, Takeout Investor shall immediately return
each Custodial File in Takeout Investor's possession to Custodian at the address
for delivery of documents set forth in the related Notice of Bailment.
Custodial File shall be delivered to Takeout Investor in accordance with
its instructions.
No deviation in performance of the terms of any previous bailment agreement
will alter any of Takeout Investor's duties or responsibilities as provided
herein.
By accepting delivery of a Custodial File containing a Notice of Bailment,
Takeout Investor shall be bound by the terms hereof. Please execute and return
the enclosed copy of this Master Bailee Letter in the enclosed self-addressed
envelope.
Sincerely,
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
(Purchaser)
By:___________________________
Name:
Title:
The undersigned Custodian executes this Master Bailee Letter solely
for purposes of appointing Takeout Investor its custodian and bailee to hold the
Custodial Files in accordance with the terms of this Master Bailee Letter.
Agreed to:
THE CHASE MANHATTAN BANK, N.A.
(Custodian)
Agreed to:
[CONDUIT]
(Takeout Investor)
By:_____________________________________________
Name:
Title:
Dated: As of the date first set forth above
SCHEDULE A
TO EXHIBIT C-2
NOTICE OF BAILMENT
CONDUCT ADDRESS
RE: [Insert Description of Loan, inluding Borrower's Name,
Loan Amount and Loan number]
---------------------------------
Ladies and Gentlemen:
Pursuant to the Master Bailee Letter, dated _______ ___, 199_ (the
"Master Bailee Letter"), between Xxxxx Xxxxxx Real Estate Securities Inc.
("Purchaser") and The Chase Manhattan Bank, N.A. (the "Custodian"), you are
hereby notified that the enclosed original promissory note with respect to the
referenced loan together with certain other documents comprising the related
file with respect to that loan (the "Mortgages Documents") being hereby
delivered to you herewith are to be held by you as agent of Custodian (which
holds the Mortgage Documents as custodian and bailee for the benefit of
Purchaser.)
Any Mortgagee Documents (or portion thereof) not purchased by you in
accordance with the provisions of the Xxxxxx Xxx Guide shall be sent to the
Custodian by overnight courier to: [insert address for return of documents].
Any questions relating to the Mortgage Documents should be referred to
the Purchaser at (000) 000-0000.
Sincerely,
THE CHASE MANHATTAN BANK, N.A.
BY: ______________________________
Name:_____________________________
Title:____________________________
SCHEDULE B
TO EXHIBIT C-2
AUTHORIZED REPRESENTATIVES OF PURCHASER
---------------------------------------
Name Title Authorized Signature
---- ----- --------------------
EXHIBIT D
CONVERSION SUBMISSION PACKAGES
1. To convert from a Dry Transaction to Cash Window Transaction. Seller shall
deliver to Custodian:
A. if FNMA is the Takeout Investor, an original Assignment of
Mortgage to FNMA, in recordable form but unrecorded, signed in
the name of Seller by an authorized officer;
B. the Applicable Agency Documents; and
C. Delivery Instructions.
2. To convert from a Dry Transaction to a Conduit Transaction, Seller shall
deliver to Custodian:
A. a Mortgage meeting one of the following requirements:
(i) The original Mortgage bearing evidence that the
Mortgage has been duly recorded in the records of the
jurisdiction in which the Mortgaged Property is located; or
(ii) A copy of the Mortgage together with an officer's
certificate (which may be a blanket officer's certificate of
Seller covering all such Mortgage Loans), or a certificate
from the recorder's office, certifying that such copy
represents a true and correct reproduction of the original
Mortgage and that such original has been duly recorded or
delivered for recordation in the appropriate records of the
jurisdiction in which the Mortgaged Property is located;
B. a copy of a Commitment;
C. Delivery Instructions;
D. Each Mortgage Loan, as identified by Seller, relating to a
Mortgage Note with an original principal amount in excess of 80%
of the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan, either (A) an original
of the certificate/commitment of Primary Mortgage Insurance
Policy, issued by the applicable insurer, without verification of
the expiration date thereon, or (B) an Officer's Certificate
(which may be a blanket Officer's Certificate of Seller covering
all such Mortgage Loans), certifying that an appraisal report has
been obtained by Seller which shows that the appraised value of
the Mortgage
Property is such that the outstanding principal balance of such
Mortgage Note is less than 80% of such appraised value;
E. An Underwriter's Form; and
F. A copy of a Confirmation.
EXHIBIT I
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
REQUEST FOR CERTIFICATION
CLIENT: , PAYEE NUMBER (ONLY APPLICABLE TO FNMA CASH WINDOW TRANSACTION):
EXPECTED DELIVERY DATE OF MORTGAGE FILE IS _________________, 199_
# OF
ULOG FACE MONTHS TO TAKEOUT
REF NO. CODE LOAN # LAST NAME AMOUNT MATURITY NOTE RATE INVESTOR SALE PRICE COMMITMENTS
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COMMITMENT COMPLETION
EXPIRATION DELIVERY RELEASE WAREHOUSE EXCEPTION
DATE DATE PAYMENT LENDER CODE
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EXHIBIT F
D Dry Transaction
W Cash Window Transaction
C Conduit Transaction
II. V Conversion Code
III. Certificate Codes
A Mortgage Loan Absentee Code
N Mortgage Loan Suspension Code
Y Mortgage Loan Approval Code
IV. Unidentified/Suspension Mortgage Loan Directives
H Hold Directive
R Return Directive
D Delivery Directive
V. Exception Codes
1. Note is missing
2. Note is not original
3. Note missing the borrower's name
4. Note - the borrower's name does not match the file
5. Note is missing the borrower's signature
6. Endorsement in blank on the note is missing
7. Endorsement in blank on the note is missing Seller's authorized signature
8. Intervening Endorsement (from/to) on the note is missing
9. Intervening Endorsement (from/to) on the note is missing authorized signature
10. Mortgage/deed is missing
11. Mortgage/deed is not certified
12. Mortgage/deed is missing assumption agreement
13. Mortgage/deed - the borrower's name and signature does not match the note
14. Mortgage/deed - the amount is not less or equal to the amount on the note
15. Mortgage/deed not signed
16. Intervening assignment (from/to) is missing
17. Intervening assignment (from/to) is not signed
18. Intervening assignment (from/to) is not certified
19. Assignment in blank is missing
20. Assignment in blank not signed
21. Assignment in blank is not original
22. Assignment to FNMA is missing
23. Assignment to FNMA is not signed
24. Assignment to FNMA is not original
25. Warehouse/Sellers Release/Letter is missing
26. Warehouse/Sellers Release/Letter is not signed
27. Commitment is missing
28. LTV/PMI certificate is missing
29 LTV MI officer's certificate is not original
30 Third party underwriters form is missing
31. Consolidation/modification agreement is missing
32. Consolidation/modification agreement is not certified
33. FHLMC purchase contract confirmation is missing
34. FHLMC purchase contract confirmation is missing the price
35. FHLMC midanet/mortgage detail listing is missing
36. FHLMC Form 1034/certification schedule is missing
37. From the FHLMC Form 1034 all files are not present
38. FHLMC Form 996 is missing
39. FHLMC Form 996 wire instruction is incorrect
40. FHLMC Form 987 is missing
41. FHLMC Form 987 wire instruction is incorect
42. FHLMC 960
43. FNMA mandatory delivery commitment is missing
44. FNMA mandatory delivery commitment is missing the price
45. FNMA Form 1068/1069 mornet is missing
46. FNMA Form 1068/1069 - all files are not present
47. FNMA Form 1068/1069 Payee Code is incorrect
48. FNMA Form 1068/1069 Information does not correspond to the note.
49. FNMA 2004 is missing
50. FNMA 360 is missing
51. Delivery Instructions missing
52. Submission Package does not appear regular on its face but no other
Exception Code is applicable
EXHIBIT G.1
[WAREHOUSE LENDER'S RELEASE]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We hereby release all right, interest or claim of any kind with respect to
the mortgage loan(s) referenced below, such release to be effective
automatically without any further action by any party, upon receipt, in one or
more installments, from Xxxxx Xxxxxx Real Estate Securities Inc., in accordance
with the wire instructions which we delivered to you in a letter dated
_________, 199_, in immediately available funds, of an aggregate amount equal to
the product of A multiplied by B (such product being rounded to the nearer
$0.01) multiplied by C*
Street
Loan # Mortgagor Address City State Zip
--------- ------------- ------------- --------- -------- ---------
Very truly yours,
[WAREHOUSE LENDER]
By:_____________________________
Name:___________________________
Title:__________________________
*A = weighted average trade price
B = principal amount of the mortgage loans
C = 1 minus the discount set forth on the related funding
confirmation
EXHIBIT G-2
[WAREHOUSE LENDER'S WIRE INSTRUCTIONS]
Xxxxx Xxxxxx Real Estate Securities, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx Xxxxxx Real Estate Securities, Inc. Conforming Whole Loan
Purchase: Cash Window Program with [Seller]
---------------------------------------------------------------
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions applicable
to the above-referenced Conforming Whole Loan Purchase: Cash Window Program.
Wire Instructions:
-----------------
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below.
This letter supersedes and replaces any prior notice specifying the name of
[Warehouse Lender] and setting forth wire instructions and shall remain in
effect until superseded and replaced by a letter, in the form of this letter,
executed by each of us and acknowledged by you.
Very truly yours,
[SELLER]
By:_____________________________
Name:___________________________
Title:__________________________
[WAREHOUSE LENDER(S)]*
BY:_____________________________
Name:___________________________
Title:__________________________
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By: ________________________
Name:
Title:
______________________
* The authorized officer of each warehouse lender executing this letter
must be the same authorized officer as signs the Warehouse Lender's
Release. Not applicable if there is no warehouse lender.
EXHIBIT H-1
[SELLER'S RELEASE]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we hereby
certify to you that the mortgage loan(s) is not subject to a lien of any
warehouse lender and (b) we hereby release all right, interest or claim of any
kind with respect to such mortgage loan, such release to be effective
automatically without any further action by any party upon payment from
Purchaser to Seller of an aggregate amount equal to the product of A multiplied
by B (such product being rounded to the nearer $0.01) multiplied by C* in
accordance with our wire instructions in effect on the date of such payment.
Street
Loan # Mortgagor Address City State Zip
--------- ------------- ------------ --------- ----------- ---------
Very truly yours,
[SELLER]
By:_____________________________
Name:___________________________
Title:__________________________
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related funding
confirmation
Date:_
[SELLER'S WIRE INSTRUCTIONS]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Mortgage Loan Custodial Agreement dated as of _________, 199_,
among Xxxxx Xxxxxx Real Estate Securities In., [Seller] and
[Custodian]
------------------------------------------------------------------
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the above-referenced Custodial Agreement.
Set forth below are the Seller's Wire Instructions applicable to the
above-referenced Custodial Agreement.
Wire Instructions:
-----------------
Bank Name:
City, State:
ABA #:
Account #:
A/C Name:
Please acknowledge receipt of this letter in the space provided below
and return it to Seller. This letter supersedes and replaces any prior notice
specifying the name of Seller and the Seller's Wire Instructions and shall
remain in effect until superseded and replaced by a letter, in the form of
this letter, executed by us and acknowledged by you.
Very truly yours,
[SELLER]
Name:___________________________
Title:__________________________
Receipt acknowledged by:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By: ________________________
Name:
Title:
_____________________________
. The authorized officer of executing this letter must be the same
authorized officer as signs the Seller's Release. Applicable only if
there is no Warehouse Lender.
EXHIBIT I.1
[PURCHASER'S WIRE INSTRUCTIONS TO SELLER]
Wire Instructions:
-----------------
Bank Name:
City, State:
ABA #:
Account #:
A/C Name:
Ref: [Name of Seller]
EXHIBIT 1.2
[PURCHASER'S WIRE INSTRUCTIONS TO CUSTODIAN]
Date:__
[Custodian]
[Address]
Re: Whole Loan Purchaser Program
----------------------------
Ladies and Gentlemen:
Set forth below are the Purchaser's Wire Instructions to Custodian (as
defined in all Conforming Mortgage Loan Custodial Agreements used in the above-
referenced program).
Wire Instructions:
-----------------
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided
below and return it to Xxxxx Xxxxxx Real Estate Securities Inc. ("Purchaser").
This letter supersedes and replaces any prior notice specifying the name of
Purchaser and the Purchaser's Wire Instructions to Custodian and shall remain in
effect until superseded and replaced by a letter, in the form of this letter,
executed by us and acknowledged by you.
Very truly yours,
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By:
Name:
Title:
Receipt acknowledged by:
[CUSTODIAN]
By: ____________________
Name: __________________
Title: _________________
[NOTICE BY ASSIGNEE TO CUSTODIAN OF PURCHASER'S DEFAULT]
[Custodian]
[Address]
Re: Whole Loan Purchase Program
---------------------------
Ladies and Gentlemen:
Notice is hereby given that Purchaser has materially defaulted in its
obligations under an agreement between Assignee and Purchaser relating to the
financing by Assignee of Purchaser's purchase of Mortgage Loans described on
Schedule 1 hereto. Assignee hereby (i) directs that Custodian act with respect
to the related mortgage files solely in the capacity of custodian for, and
bailee of, Assignee, (ii) directs that Custodian hold such mortgage files for
the exclusive use and benefit of Assignee and (iii) assumes the rights of
Purchaser to furnish instructions to Custodian as to the disposition of such
mortgage files and such rights shall be exercisable solely by Assignee.
Please acknowledge the foregoing by signing below and returning a copy
of this notice to us at [address].
Very truly yours,
[ASSIGNEE]
By:__________________________
Name:________________________
Title:_______________________
RECEIPT ACKNOWLEDGED:
[CUSTODIAN]
By:_______________
Name:_____________
Title:____________
cc: Xxxxx Xxxxxx Real Estate Securities Inc.
EXHIBIT K
LIMITED POWER OF ATTORNEY
Reference is hereby made to the Mortgage Loan Custodial Agreement (the
"Agreement"), dated _________, 199_, among The Chase Manhattan Bank, N.A.
("Custodian"), Xxxxx Xxxxxx Real Estate Securities Inc. ("Purchaser") and
_______ ("Seller"). Any capitalized term not otherwise defined herein shall have
the meaning assigned to such term in the Agreement.
Know all people by these presents, that Seller, a corporation
organized and existing under the laws of the State of _______, does hereby make,
constitute and appoint, ____________, ___________ or _______, or any officer
assigned to the [Corporate Trust Group] (or any successor thereto), including
any Vice President, Assistant Vice President, Trust Officer, any Assistant
Secretary, any trust officer or any other officer of Custodian customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of the
Agreement, each acting singly and independently of the other, as its true and
lawful attorney for it and in its name, place and stead to endorse a Mortgage
Note that has not otherwise been endorsed as follows:
"Pay to the order of ________________
[Name of Seller]
By: ___________________
Its: Attorney-in-Fact"
provided, however, a Mortgage Note shall only be endorsed pursuant to this Power
of Attorney pursuant to the terms and conditions set forth in Section 4(b)(ii)
of the Agreement.
IN WITNESS WHEREOF, [Name of Seller], has caused this Power of
Attorney to be executed in its name by its duly authorized officer this __ day
of ________, 199_.
[Name of Seller]
By: ___________________
Its: ___________________
STATE OF _________
ss:
COUNTY OF __________
On the __th day of _______, in the year 199_, before me personally
came __________________, to me known, who, being by me duly sworn, did depose
and say that he/she is _______________________ of [Name of Seller], the
corporation described in and which executed the above instrument and the he/she
executed said instrument by order of the board of directors of said corporation.
__________________________
Notary Public
EXHIBIT L
UNIDENTIFIED MORTGAGE LOANS LIST
With regard to [SELLER], the following mortgage loans were received by
The Chase Manhattan Bank, N.A. on [Date] and were not referenced on Xxxxx Xxxxxx
Real Estate Securities Inc.'s Request for Certification.
Loan # Last Name Face Amount Takeout Investor Expiration Date
------ --------- ----------- ---------------- ---------------
(if applicable)
UNIDENTIFIED/SUSPENSION MORTGAGE LOAN DIRECTIVE
-----------------------------------------------
Seller's Name: ______________________
Product Name: _______________________
Reference # Unidentified/ Commitment Instruction
(if applicable) Suspension Loan # Last Name Face Amount Expiration Date (Hold/Return/Delivery)
--------------- ---------- ------ --------- ----------- ---------------
EXHIBIT N
[LETTERHEAD OF SELLER]
[DATE]
TO: The Chase Manhattan Bank, N.A.
Mortgage Banking Division
2 Chase Manhattan Plaza (20th Floor)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
________________________________________________________________________________
Please deliver the Submission Package(s) as indicated on the attached list, in
accordance with the terms of the agreement, to the following:
Company Name :
Address :
City, State Zip :
Attn: :
The documents in the Submission Package shall be arranged as follows:
[LETTER OF SELLER]
[DATE]
LOANS TO BE DELIVERED BY CHASE MANHATTAN BANK, N.A. FOR [SELLER]
Loans #: Borrower's Name: Loan Amount:
------- --------------- -----------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
EXHIBIT O
PURCHASER'S INSTRUCTIONS TO CUSTODIAN TO DESTROY SPECIFIED FILES
[CUSTODIAN]
[ADDRESS]
Attention:________________
Re: Destruction of Files
--------------------
Dear_________:
You are hereby authorized to destroy any documents relating the
Mortgage Loans listed below which were delivered to you in connection with the
Mortgage Loan Custodial Agreement [XXXXXXXXXXXXX].
Loan # Last Name Face Amount
------- --------- -----------
Initially capitalized terms are defined in the Mortgage Loan
Custodial Agreement, dated ____________, 199_ among [Seller], [Purchaser] and
[Custodian].
Very truly yours,
[PURCHASER]
By:________________________________
Title:
LIST OF PRIMARY MORTGAGE INSURERS
LIST OF CONDUITS
----------------
1. BancBoston Mortgage Corporation
2. Capstead Mortgage Corporation
3. Citicorp Mortgage Corp.
4. Countrywide Correspondent
5. Fleet Mortgage Corp.
6. GE Capital Mortgage Services, Inc.
7. Xxxxxxxx Financial Corp.
8. Headlands Mortgage Corp.
9. Independent National Mortgage Corp.
10. LaSalle Talman Home Mortgage
11. Xxxxx Xxxxxx Real Estate Securities Inc.
12. Prudential Home Mortgage Corp. LEX Conduit and LEX Agency
13. Residential Funding Corporation
EXHIBIT 1-3
PURCHASER'S DELIVERY INSTRUCTIONS TO CUSTODIAN
[CUSTODIAN]
[ADDRESS]
Attention:___________
Re: Delivery of Submission Package
------------------------------
Dear _________:
Please deliver, via overnight courier, each of the Submission Packages
relating the Mortgage Loans listed below to:
________________
________________
________________
Initially capitalized terms are defined in the Mortgage Loan Custodial
Agreement, dated ____________, 199_ among [Seller], [Purchaser] and [Custodian].
Very truly yours,
[PURCHASER]
BY ______________
Title:
