CUSTODY AGREEMENT DATED AS OF March 27, 2008 BY AND BETWEEN DHI MORTGAGE COMPANY, LTD. (THE “SELLER”) AND
Exhibit 10.2
DATED AS OF March 27, 2008
BY AND BETWEEN
DHI MORTGAGE COMPANY, LTD.
(THE “SELLER”)
(THE “SELLER”)
AND
U.S. BANK NATIONAL ASSOCIATION
IN ITS CAPACITY AS ADMINISTRATIVE AGENT AND REPRESENTATIVE OF CERTAIN BUYERS
(THE “CUSTODIAN”)
IN ITS CAPACITY AS ADMINISTRATIVE AGENT AND REPRESENTATIVE OF CERTAIN BUYERS
(THE “CUSTODIAN”)
INDEX OF DEFINED TERMS
Agent |
1 | |||
Agreement Preamble |
4 | |||
Appraisal Report |
2 | |||
Approved MBS Custodian |
2 | |||
Bailee |
2 | |||
Buyers |
1 | |||
Certified |
2 | |||
Current Repurchase Agreement |
1 | |||
Custodian’s |
2 | |||
| 1 | ||||
Electronic |
2 | |||
Flood Insurance Policy |
3 | |||
JPMorgan |
1 | |||
Lender’s |
3 | |||
Loan |
3 | |||
MBS Custodial Agreement |
2 | |||
MERS |
3 | |||
MERS |
3 | |||
Mers® |
3 | |||
Mortgage |
3 | |||
Pool |
4 | |||
Preliminary |
4 | |||
Primary |
4 | |||
Repurchase |
4 | |||
Seller |
1 | |||
Shipping |
4 | |||
Supplemental |
4 |
Table of Contents
| 4.4. | Shipping Schedule | 11 | ||||||||
| 4.5. | Minimum Face Amount of MBS | 11 | ||||||||
| 4.6. | Shipment of Files | 11 | ||||||||
| 4.7. | Payment of Proceeds of Whole Loans and MBS Sold | 11 | ||||||||
| 4.8. | If U.S. Bank is Custodian for the Approved Investor | 12 | ||||||||
| 4.9. | Custodian Not Responsible to Obtain Acknowledgement or Confirm Status | 12 | ||||||||
| 4.10. | Shipment of Files or Loan Papers to the Seller | 12 | ||||||||
| 4.11. | Release and Indemnification | 13 | ||||||||
| 5. | RIGHT OF INSPECTION BY BUYERS AND THE SELLER | 13 | ||||||||
| 6. | CUSTODIAN’S FEES | 13 | ||||||||
| 7. | TERMINATION OF AGREEMENT | 13 | ||||||||
| 8. | RESIGNATION OR REMOVAL OF CUSTODIAN | 14 | ||||||||
| 8.1. | Qualifications of Custodian | 14 | ||||||||
| 8.2. | Resignation of the Custodian or any Successor Custodian | 14 | ||||||||
| 8.3. | Removal of the Custodian or any Successor Custodian | 14 | ||||||||
| 8.4. | Effective Date of Resignation or Removal | 15 | ||||||||
| 8.5. | Successor | 15 | ||||||||
| 8.6. | Merger of the Custodian or any Successor Custodian | 15 | ||||||||
| 9. | LIMITATION ON OBLIGATIONS OF AND RELIANCE BY CUSTODIAN; INSURANCE | 16 | ||||||||
| 10. | NOTICES | 16 | ||||||||
| 11. | NO ASSIGNMENT OR DELEGATION BY XXXXXXXXX | 00 | ||||||||
| 00. | BUYERS’ ASSIGNMENTS AND PARTICIPATION | 17 | ||||||||
| 13. | CONFIDENTIALITY | 17 | ||||||||
| 13.1. | Seller’s Information | 17 | ||||||||
| 13.2. | Privacy of Customer Information | 17 | ||||||||
| 14. | CONTROLLING LAW AND VENUE | 18 | ||||||||
| 15. | AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES | 18 | ||||||||
| 16. | WAIVER OF JURY TRIAL | 18 | ||||||||
| 17. | ENTIRE AGREEMENT | 19 | ||||||||
| 18. | EXHIBITS | 19 | ||||||||
| 19. | INDULGENCES, NOT WAIVERS | 19 | ||||||||
| 20. | TITLES NOT TO AFFECT INTERPRETATION | 19 | ||||||||
| 21. | PROVISIONS SEPARABLE | 19 | ||||||||
| 22. | RELATIONSHIP OF THE SELLER AND THE CUSTODIAN | 19 | ||||||||
THIS CUSTODY AGREEMENT (as it may be supplemented, amended or restated from time to time, this
“Custody Agreement”) entered into as of March 27, 2008 by and among DHI MORTGAGE COMPANY, LTD. (the
“Seller”), a Texas limited partnership, and U.S. BANK NATIONAL ASSOCIATION (“U.S. Bank”), a
national banking association, as agent and representative of the Buyers under the Current
Repurchase Agreement (defined below) (in such capacity, the “Administrative Agent”) and as
custodian under this Custody Agreement (in such capacity, the “Custodian”) recites and provides as
follows:
The Seller, U.S. Bank and the other buyers named therein as buyers (collectively with U.S.
Bank, the “Buyers”) and the Administrative Agent have entered into a Master Repurchase Agreement
dated as of March 27, 2008 (as it may be supplemented, amended or restated from time to time, the
“Current Repurchase Agreement”). Pursuant to the Current Repurchase Agreement, the Seller has
agreed to sell and transfer to the Buyers against transfer of funds by the Buyers certain Eligible
Loans (as that term is defined in the Current Repurchase Agreement), with a simultaneous agreement
by the Buyers that the Buyers will transfer to Seller such Eligible Loans against the transfer of
funds by the Seller with the requirement that the Basic Papers relating to the Purchased Loans (as
that term is defined in the Current Repurchase Agreement) must be delivered to the Custodian
pending repurchase by the Seller.
The Buyers and the Seller desire that the Seller deposit with the Custodian from time to time
the Basic Papers for all Purchased Loans, to be held by the Custodian acting as documents custodian
and representative of the Administrative Agent and the Buyers in respect of the Purchased Loans
under the Current Repurchase Agreement until each Purchased Loan has been repurchased or until
possession and custody of the Basic Papers for such Purchased Loan have been delivered to the
Seller or another Person as contemplated by and in accordance with the terms of this Custody
Agreement.
In consideration of the mutual promises and covenants hereinafter set forth, and for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Definitions.
1.1. General Definitions. Capitalized terms defined in the Current Repurchase Agreement that are used but not defined
differently herein have the same meanings here as there, and reference is here made to the Current
Repurchase Agreement for the definitions of such capitalized terms and for all purposes, the
Current Repurchase Agreement and this Custody Agreement being complementary and intended by the
parties to be read together (although in the event of any conflict or inconsistency between the
Current Repurchase Agreement and this Custody Agreement, the Current Repurchase Agreement shall
govern and control.) For the purposes of this Custody Agreement, the following terms shall have
the indicated meanings unless the context or use indicates another or different meaning and intent,
and the definitions of such terms are equally applicable to their singular and plural forms.
“Appraisal Report” means a written report of an Appraisal or a Broker’s Price Opinion setting
forth the appraiser’s or broker’s opinion and method of determination of the fair market value of
the subject Mortgaged Premises, including a statement of all material assumptions made, and dated
and signed by such appraiser or broker, who, and the form of which report, must comply with all
relevant Agency guidelines.
“Approved MBS Custodian” means either (x) U.S. Bank, holding MBS as securities intermediary,
(y) a Person (other than U.S. Bank) approved by the Administrative Agent who has agreed to hold MBS
and the proceeds of any sale or other disposition thereof as custodian, agent and bailee for the
Administrative Agent pursuant to a custodial agreement (an “MBS Custodial Agreement”) in a form
approved by the Administrative Agent which such Person has executed with the Administrative Agent
or (z) such other Person as shall have been approved for that purpose by the Administrative Agent.
“Bailee Letter” means a transmittal letter for shipments of Purchased Loans by the Custodian
to an Approved Investor substantially in one of the form attached as Exhibit A.
“Certified Copy” means a copy of an original Basic Paper or Supplemental Paper accompanied by
(or on which there is stamped) a certification by an officer of either a title insurer or an
authorized agent of a title insurer (whether a title agency or a closing attorney) or, except where
otherwise specified below, by an Authorized Seller Representative or an officer of a Servicer (if
other than the Seller) of the relevant Mortgage Loan, that such copy is a true copy of the original
and (if applicable) that the original has been sent to the appropriate governmental filing office
for recording in the jurisdiction where the related Mortgaged Premises are located. Each such
certification shall be conclusively deemed to be a representation and warranty by the certifying
officer, agent, Authorized Seller Representative or officer of the relevant Servicer, as
applicable, to the Buyers, the Administrative Agent and the Custodian upon which each may rely.
“Custodian’s Exception Report” is a report issued by the Custodian listing Purchased Loans
whose Basic Papers have been reviewed by the Custodian and appear not to satisfy the review
standards and requirements stated in this Custody Agreement and indicating (either by coding, a
summary statement or both) the defect or deficiency disclosed by such review for each Purchased
Loan (or grouping of Purchased Loans) listed therein.
“Electronic Agent” means MERSCORP, Inc. or its successor in interest or assigns.
“Electronic Tracking Agreement” means a written Electronic Tracking Agreement among the
Seller, the Administrative Agent, MERS and the Electronic Agent, in form and substance reasonably
acceptable to the Seller and the Administrative Agent, as it may be supplemented, amended, restated
or replaced from time to time.
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“Flood Insurance Policy” means (i) any policy of insurance issued in accordance with the Flood
Disaster Protection Act of 1973, as amended from time to time or, if repealed, any superseding
legislation governing similar insurance coverage, or (ii) any other policy of insurance providing
similar coverage against loss sustained by floods or similar hazard that conforms to the flood
insurance requirements prescribed by the Federal Insurance Administration.
“Lender’s Title Insurance Policy” means an American Land Title Association or California Land
Title Association (extended coverage) form or a Texas Land Title Association form lender’s title
insurance policy, including all riders or endorsements thereto, together with such additional
endorsements as are required under relevant Agency guidelines or Approved Investor’s requirements,
as applicable, in an amount not less than the original principal balance of the relevant Mortgage
Loan, insuring the holder of the Mortgage Loan that the related Mortgage constitutes a valid Lien
on the related Mortgaged Premises, subject only to (i) (if the Seller has represented the relevant
Mortgage Loan to be a Second Lien Loan) the lien of a single senior Mortgage on the related
Mortgage Premises, (ii) liens for real estate taxes and governmental-improvement assessments not
delinquent, (iii) easements and restrictions that do not materially and adversely affect the
marketability of title to such Mortgaged Premises or prohibit or interfere with their use as a
Single-family residential dwelling, (iv) (if such Mortgaged Premises constitute a unit in a
condominium) a declaration of condominium or other similar document that evidences the creation of
such condominium and a condominium endorsement, (v) reservations as to oil, gas or mineral rights,
provided such rights do not include the right to remove buildings or other improvements on or near
the surface of the related Mortgaged Premises or to mine or drill on the surface thereof or
otherwise enter the surface for purposes of removing oil, gas or minerals, (vi) agreements for the
installation, maintenance or repair of public utilities, provided such agreements do not create or
evidence liens on the Mortgaged Premises, or authorize or permit any Person to file or acquire
claims of liens against the Mortgaged Premises, or (vii) such other exceptions that are acceptable
under the relevant Agency guidelines or Approved Investor’s requirements, as applicable.
“Loan Number” means the loan number assigned to a Purchased Loan by the Seller and customarily
used by the Seller in its internal and external communications referring to that Purchased Loan.
“MERS” means Mortgage Electronic Registration Systems, Inc. or its successors or assigns.
“MERS Procedures Manual” means the MERS Procedures Manual, as it may be amended from time to
time.
“MERS® System” means the Electronic Agent’s mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
“Mortgage Assignment” means an assignment, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the name of the assignee and/or the Mortgage
recordation information which has not yet been returned from the applicable recorder’s office),
which is in form sufficient under the laws of the U.S. jurisdiction where the related Mortgaged
Premises are located to reflect of record the sale of the Mortgage.
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“Pool Insurance Policy” means a premium-paid policy of mortgage loan pool insurance issued by
an insurance company having a AAA or AA rating from Standard & Poor’s (a division of The
XxXxxx-Xxxx Companies, Inc.) or Fitch Ratings, or Aaa or Aa rating from Xxxxx’x Investors Service,
Inc. for claims-paying ability, in form and substance satisfactory to the Seller and insuring the
holder of a pool of Mortgage Loans against all or a portion of the loss sustained by reason of a
default by a Customer in the payment of principal and interest thereon.
“Preliminary Title Report” means a title report prepared by a company qualified to issue a
Lender’s Title Insurance Policy that sets forth (i) the legal description of the Mortgaged Premises
and (ii) the status of title to the Mortgaged Premises as of the stated effective date of such
title report.
“Primary Mortgage Insurance Policy” means a mortgage insurance policy, issued by a private
mortgage insurance company having a claims-paying ability rating of AAA or AA from Standard &
Poor’s (a division of The XxXxxx-Xxxx Companies, Inc.) or Fitch Ratings, or Aaa or Aa from Xxxxx’x
Investors Service, Inc., for claims-paying ability, in form and substance satisfactory to the
Seller and insuring the holder of a Mortgage Loan against all or a portion of the loss sustained by
reason of a default by a Customer in the payment of principal and interest thereon, together with
all riders and endorsements thereto.
“Record Layout” means the standard instructions and format for transmitting to the Custodian’s
Mortgage Banking Services Division required information for each Mortgage Loan Transmission File
submitted, substantially as stated in Exhibit B, as such standard instructions may be updated or
modified from time to time by the Custodian. The resulting file created whether in
computer-readable or hard copy form is a “Mortgage Loan Transmission File”.
“Repurchase Request” means a request for the Seller’s repurchase of Purchased Loans in the
form of Exhibit H or another form reasonably acceptable to the Custodian, to be completed by the
Seller, signed by an Authorized Seller Representative and delivered to the Custodian as provided in
Section 4.
“Request/Confirmation” has the meaning set forth in the Current Repurchase Agreement.
“Shipping Request” means a request to ship Files to an Approved Investor in the form of
Exhibit I or another form reasonably acceptable to the Custodian, to be completed by the Seller, signed by an Authorized Seller Representative and delivered to the
Custodian as provided in Section 4.
“Supplemental Papers” means the Loan Papers for a particular Purchased Loan that are to be
held in trust by the Seller and must be delivered to the Custodian promptly following written
request therefor made by the Administrative Agent or the Custodian after the occurrence of any
Default, Event of Default or Termination event under the Current Repurchase Agreement. The
Supplemental Papers are listed on Exhibit D.
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“Trust Receipt” means the form attached as Exhibit E.
1.2. Other Definitional Rules. Other definitional rules applicable to this Custody
Agreement are as follows:
(a) Legal and accounting terms not otherwise defined shall have the meanings given them
under New York statutory and case law and under GAAP, respectively.
(b) Defined terms may be used in the singular or the plural, as the context requires.
(c) Except where otherwise specified, all times of day are local times in Minneapolis,
Minnesota.
(d) Wherever the word “including” or a similar word is used in this Custody Agreement,
unless the context clearly requires otherwise, for example, if preceded by “not”, it shall
be read as if it were written, “including by way of example but without in any way limiting
the generality of the foregoing concept, subject or description”.
(e) Unless the context plainly otherwise requires, wherever the term “Administrative
Agent” is used in this Custody Agreement, it shall be read as if it were written “the
Administrative Agent (as agent and representative of the Buyers)”.
2.1. Reaffirmation of Administrative Agent’s Lien. Although the parties to the
Current Repurchase Agreement specifically intend that the Current Repurchase Agreement and the
purchases of Mortgage Loans made pursuant to it are to be treated as repurchase transactions under
Title 11 of the United States Code (the “Code”), including all rights that accrue to the Buyers and
the Administrative Agent by virtue of Code sections 559, 561 and 562, if, contrary to the intent of
the parties, any court of competent jurisdiction characterizes any Transaction as a financing,
rather than a purchase, under applicable law including the applicable provisions of the Code,
Seller has granted to Administrative Agent and Administrative Agent is deemed to have, for the
benefit of itself and the Buyers, a first priority perfected security interest in and to the
Purchased Loans to secure the payment and performance of all of the Seller’s obligations under this Agreement and the Current Repurchase
Agreement. In the event of such a recharacterization of the Current Repurchase Agreement, the
Seller hereby grants to the Administrative Agent, and reaffirms the continuing first priority Lien
granted by the Seller to the Administrative Agent in the Current Repurchase Agreement, in and
against (i) all Purchased Loans now or hereafter sold by the Seller to the Buyers, delivered or
caused to be delivered by the Seller to the Custodian or the Administrative Agent or in any other
way or manner identified to the Administrative Agent or the Custodian as Purchased Loans, (ii) all
Purchased Loans Support and Files and other Purchased Loan Loan Papers now or hereafter delivered
to the Custodian or to any other agent, bailee or designee of the Administrative Agent or the
Custodian and (iii) the proceeds thereof. The parties agree that the Lien granted and reaffirmed
herein shall continue and remain perfected with its first priority under the provisions of the
applicable UCC, real estate law or other applicable Law, notwithstanding that the Custodian may
deliver one or more of the Loan Papers or other papers evidencing or relating to any such Purchased
Loan to the Seller (or to its servicer, subservicer or designee) for the purpose of (x) correcting
or completing such papers or the related File or (y) collecting or other servicing or handling of
such Purchased Loan, as provided herein.
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2.2. Delivery.
(a) Wet Loans. Submissions of Wet Loans for purchase by the Buyers shall be
made by electronic transmission of a Request/Confirmation with a Mortgage Loan Transmission
File listing such Wet Loans, by the deadline therefor specified in the Current Repurchase
Agreement.
(b) Conversion of Wet Loans to Dry Loans. Concurrently with physical delivery
to the Custodian of the Basic Papers to convert Wet Loans previously submitted into Dry
Loans, the Seller shall deliver to the Custodian (by either mail or courier) a submission
list listing each Mortgage Loan being converted.
(c) Dry Loans Initially Submitted as Such. Submissions to the Custodian for
inclusion in the Purchased Loans of Dry Loans that were not previously submitted as Wet
Loans shall be made by electronic transmission of a Request/Confirmation with a Mortgage
Loan Transmission File listing such Dry Loans, and concurrent physical delivery to the
Custodian of a submission list and the Basic Papers for such Dry Loans by no later than
10:30 AM (Minneapolis time) on the Business Day such Dry Loans are to be first included as
Purchased Loans.
(d) File Folders. The Seller shall place all Basic Papers delivered to the
Custodian in an appropriate file folder and in a logical order, properly secured, and
clearly marked with the Customer’s last name and the Loan Number. The Seller shall not
deliver to the Custodian, nor shall the Custodian be required to assume, or deemed to have
assumed, custody of the File for any Purchased Loan that does not contain all of the Basic
Papers. If such an incomplete File is delivered to the Custodian, within one (1) Business
Day following examination of such File within the applicable time frame specified in Section
3.1, the Custodian shall notify the Seller that the Custodian is retaining the File pending the Custodian’s receipt of the missing Basic Papers
(although the related Purchased Loan shall have zero Purchase Value until all Basic Papers
are so received except to the extent (if any) that the Administrative Agent exercises its
discretionary authority under the Current Repurchase Agreement to count and treat such
Purchased Loan as having Purchase Value.) The Basic Papers required to be included in each
File shall consist of all documents listed on Exhibit C.
2.3. Follow-up by the Seller. The Seller shall deliver or cause to be delivered to
the Custodian as soon as they are available and without any requirement for the Custodian to
request them, and in any case promptly following any Custodian’s request therefor, originals of all
Basic Papers, and of any Supplemental Papers that the Custodian has theretofore required, when
copies, commitments or preliminary reports were initially submitted, except for Appraisal Reports,
originals of which shall not be delivered unless the Custodian shall specifically request them on a
case-by-case basis as provided for in Section 2.4. Any such trailing documents shall be submitted
under cover of a form substantially similar to Exhibit G.
-6-
2.4. Supplemental Papers. Although the Supplemental Papers are not required to be
submitted to the Custodian unless requested, by submitting any Single-family Mortgage Loan to the
Custodian, the Seller shall be deemed to represent to the Custodian and the Buyers that (i) the
Seller, or (if the Seller is not the Servicer) the related Mortgage Loan’s Servicer, has possession
of the Supplemental Papers for each Purchased Loan, has no claim, title or ownership interest in
them, shall hold them in trust for the Administrative Agent and the Buyers and shall deliver them
(or such of them as the Administrative Agent or the Custodian shall from time to time request) to
the Custodian promptly upon the Administrative Agent’s or the Custodian’s request and (ii) each
Supplemental Paper meets the standards and requirements of all relevant definitions and provisions
of the Current Repurchase Agreement and this Custody Agreement.
3.1. Custodian’s Examination of Basic Papers. The Custodian will examine Files
submitted to it by the Seller in accordance with the following schedule:
| If the number of Files | ||
| received by the | ||
| Custodian by 10:30 AM | then the Custodian will | |
| on a Business Day is | examine them | |
50 files or less
|
on the same Business Day | |
51-100 files
|
by the next Business Day | |
more than 100 files
|
by one additional Business Day for each additional 100 files increment |
to confirm that the Basic Papers in such File appear on their faces to satisfy the following
relevant requirements without obvious defect (the Custodian shall not be required to make any
independent examination of any Purchased Loans beyond the review specifically required hereby and
such examination responsibilities do not extend to any Supplemental Papers or any other papers
contained in any File):
(a) each Mortgage Note and Mortgage in the File bears an original signature or
signatures purporting to be the signature or signatures of the Person or Persons named as
the maker and mortgagor or grantor under such Mortgage Note and Mortgage or, if a Certified
Copy of the Mortgage is submitted, that such Certified Copy bears what appears to be a
reproduction of such signature or signatures.
(b) the Mortgage Note in the File bears an endorsement by the named holder or payee
endorsing such Mortgage Note in blank, with an original signature that purports to be the
signature of an Authorized Seller Representative (although the Custodian shall have no
obligation to determine whether the certificate was authorized or issued by any particular
person or officer or by a person who in fact is an Authorized Seller Representative, or
otherwise is authentic).
(c) any power of attorney in the File bears an original signature purporting to be the
signature of the maker of the Mortgage Note and the mortgagor or grantor of the Mortgage or
if a Certified Copy of the power of attorney is submitted, that such Certified Copy bears
what appears to be a reproduction of such signature.
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(d) the original of the Mortgage Assignment in blank in the File bears an original
signature that purports to be the signature of an Authorized Seller Representative (although
the Custodian shall have no obligation to determine whether the certificate was authorized
or issued by any particular person or officer or by a person who in fact is an Authorized
Seller Representative, or otherwise is authentic); provided that if the Electronic Tracking
Agreement has been duly entered into, no Mortgage Assignment is required for any Mortgage
Loan that has been originated in the name of MERS and registered under the MERS® System with
U.S. Bank as Interim Funder.
(e) the information set forth in the Mortgage Loan Transmission File for such File
appears to be correct (insofar as the accuracy of such information can be reasonably
determined from an examination of the File delivered to the Custodian).
(f) the original principal amount of the note described in the Mortgage in the File as
being secured by such Mortgage matches the original principal amount of the Mortgage Note in
the File.
(g) each document for which a Certified Copy is submitted as permitted under a relevant
provision of Exhibit C appears to be a Certified Copy (although the Custodian shall have no
obligation to determine whether the certification was authorized or issued by any particular person or officer or otherwise is authentic or complies with the
provisions of the definition of “Certified Copy”).
3.2. When Wet Loans’ Basic Papers Are Submitted. When the Basic Papers for a
Purchased Loan that was initially purchased as a Wet Loan are delivered on any Business Day, the
Custodian, in its sole discretion, may include that Purchased Loan in the calculation of the
Purchase Value of the Purchased Loans on that Business Day before reviewing the Basic Papers on the
assumption that such Purchased Loan is an Eligible Loan; provided that such Basic Papers must be
reviewed in accordance with Section 3.1 before seven (7) Business Days have expired after the
Purchased Loan has been purchased (but if such Basic Papers are delivered on the last of such seven
(7) Business Days, such Basic Papers may be reviewed in accordance herewith on the next succeeding
Business Day following such delivery); provided further that if the Custodian reasonably determines
from its initial review of such Basic Papers that they are incomplete or incorrect and that such
condition of incompleteness or incorrectness is correctable and returns the subject Basic Papers to
the Seller for corrective action under a Trust Receipt in the form of Exhibit E, then the affected
Purchased Loan(s) shall not be required to be repurchased by the Seller unless and until the Seller
fails to correct and return such Basic Papers to the Custodian within nineteen (19) calendar days
after the Custodian so returned them to the Seller. If following such review the related Purchased
Loan appears on a Custodian’s Exception Report, then such Purchased Loan shall be excluded from any
determination of Purchase Value until such Purchased Loan has been removed from the Custodian’s
Exception Report and all Basic Papers for such Purchased Loan are in the possession of the
Custodian.
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3.3. Limited Scope of Examination of Supplemental Papers. If after the occurrence of
any Default or Event of Default, the Seller is requested to deliver any Supplemental Papers to the
Custodian with respect to any Purchased Loan, the Custodian shall receive and file such
Supplemental Papers but shall not be required to review any such documents other than to determine
that such documents appear on their face to be the documents required to be delivered.
3.4. Submission List Errors or Omissions. If the Custodian discovers errors or
omissions in any submission list, it may either correct them itself or request that the Seller
correct them (and the Seller agrees hereby promptly to do so).
3.5. Custodian’s Exception Reports. When the Custodian has completed its review
pursuant to Section 3.1 of Files delivered to it, the Custodian will issue to the Seller a
Custodian’s Exception Report for such Files that it discovers contain errors or omissions either by
fax or electronically, in each case within one (1) Business Day after the Custodian’s review of the
Files except during high volume periods (such as at the end of each month) when issuance of
Custodian’s Exception Reports for Files received will ordinarily be provided within five (5)
Business Days following their examination within the applicable time frame specified in Section 3.1. The Custodian shall provide Custodian’s
Exceptions Reports to the Buyers upon request.
3.6. Custodian’s Exception Report Loans Ordinarily Not Included in Purchase Value
Calculation. The Purchased Loans on the Custodian’s Exception Report and Purchased Loans whose
Basic Papers are returned to the Seller for correction or completion pursuant to the second proviso
of the first sentence of Section 3.2, shall not be included by the Administrative Agent in any
calculation of Purchase Value after the related Purchase, until all such exceptions relating to it
are cured except to the extent (if any) that the Administrative Agent exercises its discretionary
authority, if any, under the Current Repurchase Agreement to count and include such Purchased Loans
in the calculation of Purchase Value.
3.7. Correction of Exceptions. The Custodian may ship Mortgage Notes listed in its
Exceptions Report to the Seller for correction under a Trust Receipt. Upon correction or
completion of any such Mortgage Note and the Custodian’s receipt of the corrected Mortgage Note or
File with all corrected or completed Basic Papers in it in the case of other Loan Papers that have
been corrected pursuant to the Custodian’s Exception Report, unless the Custodian has current
actual knowledge that the relevant Purchased Loan has been liquidated or is the subject of another
uncured Disqualifier, the Custodian shall remove the listing of that Purchased Loan from its next
Custodian’s Exception Report.
3.8. Possession of Files. All Purchased Loan Files at any time delivered to the
Custodian hereunder shall be held by the Custodian in a fire resistant vault, drawer or other
suitable depository maintained and controlled solely by the Custodian, in a manner customarily used
by institutional mortgage documents custodians and not commingled with any other assets or property
of, or held by, the Custodian for others. The Custodian shall also make appropriate notations in
the Custodian’s books and records to reflect that the File has been purchased by the Buyers, and
the Buyers own such File.
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3.9. Papers Previously Certified by the Custodian. If Mortgage Loans are purchased
from a seller for which U.S. Bank was documents custodian for the Purchased Loans sold, U.S. Bank
makes no warranty as to the condition of the Files, the completeness, accuracy or any other
characteristics of the Files or the circumstances or documentation under which the Purchased Loans
were previously certified, other than as set forth in this Custody Agreement. No previous
certification by U.S. Bank to or for any other Person or entity will be construed to benefit any
party to this Custody Agreement or anyone claiming by, through or under any such party; provided
that nothing herein shall be construed to relieve U.S. Bank of any direct obligation under any
other agreement between U.S. Bank and any third party.
4.1. Shipping Direction. The Seller may from time to time direct the Custodian to
ship any of the Purchased Loans as set forth in this Section, and unless a Default or an Event of
Default has occurred and is continuing, the Custodian shall do so (and will do so at the direction
of the Administrative Agent even if a Default or an Event of Default has occurred and is
continuing); provided that if the Custodian disagrees with any information set forth in any
Shipping Request (for sales or transfers) received, the Custodian may correct it with notice to the
Seller, or require that the Seller correct it as a condition to the Custodian’s processing such
Shipping Request.
4.2. Shipping Purchased Loans. The Seller may direct the Custodian to ship any of the
Purchased Loans (i) that the Seller intends to sell as whole loans to an Approved Investor for
reasonably equivalent value in a bona fide transaction (including sales of Purchased Loans under a
repurchase agreement for financing purposes) or (ii) to a custodian or trustee for an Approved
Investor for pooling and securitization as MBS and sale of such securities to an underwriter or
other third party, by delivering a Shipping Request substantially in the form of Exhibit I to the
Custodian with all blanks completed to identify (a) the Purchased Loans to be so shipped and sold,
(b) the name, address, and contact information (including contact name, phone number and fax
number) of the custodian/trustee of Approved Investor and/or Approved Investor, (c) the name, if
any, with which the Custodian is to complete the Mortgage Notes’ endorsement in blank before
shipping them, (d) the courier to use and the Seller’s account number to be charged and (e) the
scheduled closing date and for securitizations, the date when the Seller expects the proceeds of
the sale of the MBS created will be wired to the Administrative Agent. If such closing date is
subsequently changed, the Seller will give the Custodian prompt notice thereof.
4.3. Repurchases. If the Seller elects to repurchase any Purchased Loans, the Seller
shall deliver a Repurchase Request to the Administrative Agent and the Custodian stating the
scheduled repurchase date and identifying those Purchased Loans, whereupon the Custodian shall
release and return such Files to the Seller if (and only if) both (i) the Seller shall have paid
the Repurchase Price therefor to the Administrative Agent in accordance with the Current Repurchase
Agreement (unless such Repurchase Price is deducted from any Margin Excess) and (ii) (unless the
Administrative Agent in its discretion shall elect to allow such repurchase notwithstanding the
existence of an Event of Default pursuant to Section 18.9 of the Current Repurchase Agreement) no
Event of Default shall have occurred and then be continuing. If the Custodian disagrees with any
information set forth in any Repurchase Request received, the Custodian may require that the Seller
correct it as a condition to the Custodian’s processing it.
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Before the Custodian transfers the Purchased Loans so designated, the Seller will deposit in the Repurchase Settlement Account a cash
amount equal to the sum of the Repurchase Prices for the Purchased Loans being repurchased (except
to the extent the same is to be deducted from any Margin Excess), determined without regard to any
Disqualifier that may be applicable. The Administrative Agent’s determination of the Repurchase
Price for each such Purchased Loan, absent manifest error, shall be conclusive. Upon the Administrative Agent’s receipt of such
funds in the Repurchase Settlement Account (or its deduction from any Margin Excess) if no Event of
Default shall have occurred and then be continuing (unless the Administrative Agent has exercised
its discretion to allow such repurchase notwithstanding the existence of an Event of Default
pursuant to Section 18.9 of the Current Repurchase Agreement), all claims, rights, liens and
security interests of the Administrative Agent, however arising, in and to the Purchased Loans that
were so listed in the Repurchase Request, shipped by the Custodian and for which the Administrative
Agent was so paid pursuant to this Section, shall terminate and be released. The Administrative
Agent will notify the Custodian in writing that Administrative Agent has received the full
Repurchase Price and shall so instruct the Custodian to release the related Purchased Loans and the
Custodian shall do so.
4.4. Shipping Schedule. If the number of Files to be shipped pursuant to any one or
more of the foregoing provisions of this Section 4 is one hundred fifty (150) or less and the
Shipping Request is received by 10:00 AM (Minneapolis time) on a Business Day, the Custodian will
use its best efforts to ship the Files on that same Business Day. If more than one hundred fifty
(150) files are to be shipped or the Shipping Request is received later than 10:00 AM (but not
later than 2:00 PM) on a Business Day, the Custodian will use its best efforts to ship them on the
next Business Day, unless more than two hundred fifty (250) Files are to be shipped, in which event
one additional Business Day shall be added for each increment of two hundred (200) files in excess
of two hundred fifty (250) files to be shipped, limited to a maximum of ten (10) Business Days.
4.5. Minimum Face Amount of MBS. Any new MBS delivered to an Approved MBS Custodian
pursuant to Section 4.3 shall be in a face amount of not less than the aggregate Purchase Price of
the Purchased Loans so delivered in exchange for such new MBS.
4.6. Shipment of Files. Upon receipt of a Shipping Request and such other required
documents and information, the Custodian shall ship such Files (or such of the Basic Papers
therefrom as the relevant Approved Investor requires) under cover of either (i) a Bailee Letter in
substantially the form of the Bailee Letter attached as Exhibit A (the Custodian may make changes
to such forms from time to time at its election) or (ii) such form as may be required under any
Agency program pursuant to which the relevant Files are being shipped.
4.7. Payment of Proceeds of Whole Loans and MBS Sold. Upon purchase by an Approved
Investor of Purchased Loans to be sold as Whole Loans or, in the case of Purchased Loans to be
securitized as MBS, upon the sale of the resulting securities to their underwriter or purchaser,
the Seller will:
(a) cause the purchasing Approved Investor to wire to the Administrative Agent, in
immediately available funds for deposit in the Repurchase Settlement Account, all proceeds
of such sale of Whole Loans or MBS to which the Seller is entitled; and
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(b) deposit, or cause to be deposited, in the Repurchase Settlement Account such
additional funds, if any, as are needed to cause the total amount so deposited in respect of
the Purchased Loans shipped to at least equal the aggregate Repurchases Prices of all such
Purchased Loans shipped, and the Administrative Agent’s determination of such amounts for
each Purchased Loan shall be conclusive, absent manifest error.
Upon the Administrative Agent’s receipt of such funds in the Repurchase Settlement Account, all
claims, rights, liens and security interests of the Administrative Agent and the Buyers, however
arising, in and to the Purchased Loans that were so listed in the Shipping Request, shipped by the
Custodian and for which the Administrative Agent was so paid pursuant to clauses (a) and (b) of
this Section shall terminate and be released.
4.8. If U.S. Bank is Custodian for the Approved Investor. It is understood that U.S.
Bank may also function as an agent, representative, bailee and/or document custodian for any
Approved Investor to whom (or whose designee) the Seller may request that Purchased Loans be
shipped, in which event the Custodian will segregate from other Purchased Loans’ Files, but will
not physically deliver, the affected Files, but may instead issue its trust receipt or custodian’s
receipt to such Approved Investor acknowledging when it is appropriate to do so that the Custodian
is holding the affected Files exclusively for such Approved Investor. The trust receipt or
custodian’s receipt may be in the form of either a written or electronic receipt in favor of the
Approved Investor.
4.9. Custodian Not Responsible to Obtain Acknowledgement or Confirm Status. In no
event shall the Custodian have any obligation to (i) obtain written acknowledgement of receipt from
the addressee of any Bailee Letter or other communication sent by the Custodian hereunder or (ii)
confirm the status as an Approved Investor of any Person to which it has been instructed to deliver
Mortgage Loans or MBS as long as such Person is listed on Schedule AI to the Current Repurchase
Agreement in the form most recently provided to the Custodian by the Administrative Agent.
4.10. Shipment of Files or Loan Papers to the Seller. From time to time and as
appropriate for the servicing of any of the Purchased Loans, the Custodian may release to the
Seller the Files or the Loan Papers under a Trust Receipt in the form of Exhibit E. The Seller
hereby acknowledges that pursuant to such Trust Receipt the Seller holds the Loan Papers returned
to the Seller in trust for the Administrative Agent (as agent and representative of the Buyers) and
that the Buyers shall continue to be the owners of the Purchased Loans and the related Files
pursuant to the Current Repurchase Agreement and the Seller shall not dispute the Buyers’ ownership
thereof pursuant to the Current Repurchase Agreement. The Seller shall promptly return to the
Custodian the File or such Loan Papers (whichever the case may be) when the Seller’s need therefor
in connection with such servicing no longer exists (but not later in any case, without the
Custodian’s consent, than nineteen (19) calendar days after the Custodian shipped them), unless the
Purchased Loan shall be liquidated and the proceeds thereof paid to the Administrative Agent for
deposit to the Repurchase Settlement Account (or deducted from any Margin Excess) in satisfaction
of the Repurchase Price, with any excess to be paid over to the Seller unless a Default or Event of Default has
occurred and is continuing, in which case the balance of such proceeds shall be retained in the
Repurchase Settlement Account for application to the Obligations. This provision respecting release
to the Seller of Files and Loan Papers by the Custodian shall be operative only to the extent that
at any time the Custodian shall not have released to the Seller Files or Loan Papers pertaining to
more than (i) the Aggregate Outstanding Purchase Price from time to time, or (ii) Ten Million
Dollars ($10,000,000) in principal of Purchased Loans, whichever is less.
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4.11. Release and Indemnification. The Custodian shall not be liable for executing,
failing to execute, or for any mistake in the execution of, such request or instructions in
connection with the certification, release or shipment of any Loan Papers, except in the case of
the gross negligence or willful misconduct of the Custodian. Seller hereby releases and agrees, to
indemnify, pay, defend and hold harmless the Custodian and each of its officers, directors,
employees or agents (the “Indemnified Custodian Parties”) from and against any and all claims,
liabilities, obligations, losses, damages, penalties, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys’ fees and disbursements) of any kind whatsoever which
may be imposed upon, incurred by or asserted against any of the Indemnified Custodian Parties in
any way relating to or arising out of this Custody Agreement or any of the transactions
contemplated hereby, whether from the discretionary or nondiscretionary acts or omissions of any of
the Indemnified Custodian Parties or any other Person, in whole or in part arising out of any act
or omission of any of the Indemnified Custodian Parties and based on any claim or theory of strict
liability, or sole, comparative or contributory negligence, except for a particular Indemnified
Custodian Party’s fraud, gross negligence or willful misconduct. The foregoing indemnification
shall survive the termination or assignment of this Agreement and the resignation or removal of the
Custodian hereunder. It is the Seller’s intention to hereby indemnify the Indemnified Custodian
Parties against their own sole or concurrent ordinary negligence to the fullest extent allowed by
law.
Upon at least five (5) Business Days’ written notice to the Custodian, the Buyers, the Seller
or the Authorized Seller Representatives, may at any time, during ordinary business hours, inspect
and examine the Files in the possession and custody of the Custodian at such place or places where
such Files are deposited.
6. Custodian’s Fees.
The Seller promises to pay the fees of the Custodian accrued under this Custody Agreement
pursuant to a separate arrangement between them, subject to adjustment annually, or more frequently
if and as the Custodian and the Seller may agree from time to time.
This Custody Agreement shall become effective on and as of the date hereof and shall terminate
upon the Custodian’s receipt of written notice of termination signed by all of the Buyers,
determined for purposes of this Section as excluding the Person serving as the Administrative
Agent, and delivery of all Files then held by the Custodian to a successor custodian or, if
authorized in writing by the Administrative Agent, to the Seller or its designee. Notwithstanding
any such termination, the Buyers’ ownership interest in the Purchased Loans and their proceeds
shall continue in effect until all Obligations of the Seller to the Buyers and the Administrative
Agent have been paid and satisfied in full. The termination of this Custody Agreement shall not
operate to remove U.S. Bank as Administrative Agent for purposes of the Current Repurchase
Agreement.
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8.1. Qualifications of Custodian. The Administrative Agent shall be the Custodian,
unless the Administrative Agent shall resign as Custodian (which does not necessarily obligate the
Administrative Agent to resign as Administrative Agent, the two roles may be bifurcated). The
Custodian shall satisfy the same qualifications as is required of the Administrative Agent
according to the terms of the Current Repurchase Agreement and shall at all times be a commercial
bank or trust company organized and doing business under the laws of the United States of America
or any state, district or territory of it authorized under such laws to exercise corporate trust
powers, having a combined capital and unimpaired surplus of at least One Hundred Million Dollars
($100,000,000) and subject to supervision or examination by federal, state, district or territorial
Governmental Authority. If such commercial bank or trust company publishes reports of conditions
at least annually, pursuant to law or to the requirements of its supervising or examination
Governmental Authority, then for the purposes of this Section, the combined capital and unimpaired
surplus of such commercial bank or trust company shall be deemed to be its combined capital and
unimpaired surplus as set forth in its most recent report of condition so published. In case the
Custodian shall cease at any time to be eligible in accordance with the provisions of this Section,
the Custodian shall resign immediately in the manner and with the effect hereinafter specified in
this Section 8.
8.2. Resignation of the Custodian or any Successor Custodian. The Custodian or any
successor hereafter appointed may resign at any time by giving written notice of resignation to the
Seller, the Administrative Agent and the Buyers and complying with the applicable provisions of
this Section 8. Upon receiving such notice of resignation, with the Seller’s consent, which
consent shall not unreasonably be delayed or withheld (provided that the Seller’s consent shall not
be required if a Default has occurred that has not been cured by the Seller or declared in writing
by the Administrative Agent to have been waived or any Event of Default has occurred that the
Administrative Agent has not declared in writing to have been cured or waived), a successor Custodian shall be promptly appointed by
the Required Buyers, or, if the Required Buyers fail to do so on or before sixty (60) days have
elapsed after notice to the Seller, the Administrative Agent and the Buyers of the Custodian’s
election to resign, by the Administrative Agent, by written instrument, in quadruplicate, one copy
of which instrument shall be delivered to the resigning Custodian, one copy to the Administrative
Agent, one copy to the Seller and one copy to the successor Custodian.
8.3. Removal of the Custodian or any Successor Custodian. If (a) the Custodian or any
successor shall cease to be eligible in accordance with the provisions of Section 8.1 and shall
fail to resign after written request by the Required Buyers; (b) a receiver of the Custodian (or
such successor) or of its property shall be appointed or any Governmental Authority shall take
charge or control of Custodian (or such successor) or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation or (c) the Custodian (or such successor) shall be
grossly negligent in the performance of its material duties and obligations under this Custody
Agreement or engage in willful misconduct concerning any such material duties and obligations,
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then, in any such case, upon the consent of the Required Buyers, excluding for purposes of this
section any Buyer who is then the custodian hereunder, and the Seller (provided that the Seller’s
consent shall not be required if a Default has occurred that has not been cured by the Seller or
declared in writing by the Administrative Agent to have been waived or any Event of Default has
occurred that the Administrative Agent has not declared in writing to have been cured or waived),
the Custodian (or such successor) may be removed and a successor custodian appointed by written
instrument, in triplicate, one copy of which shall be delivered to the custodian so removed, one
copy to the Administrative Agent and one copy to the successor custodian.
8.4. Effective Date of Resignation or Removal. No resignation or removal of the
Custodian or any successor as custodian of the Loan Papers shall be effective until a successor
Custodian is appointed pursuant to the provisions of this Section 8 and has accepted the
appointment as provided in this Section 8; provided that if such appointment has not been so made
or if the Custodian’s duties have not been assumed by the appointed successor on or before ninety
(90) days after the date of the Custodian’s said notice of resignation, the Custodian may deliver
the Files then in its possession to the Administrative Agent at no cost to the Seller and cease
acting as Custodian hereunder, and shall have no further responsibility therefor, at the close of
business on the tenth (10th) Business Day after such ninety-day period. The Custodian
or any successor hereafter appointed shall continue to act as custodian under this Custody
Agreement until it delivers the Files to a duly appointed successor, or to the Administrative Agent
under the circumstances last above described.
8.5. Successor. Any successor Custodian appointed as provided in this Section 8 shall
execute and deliver to the Buyers, the Administrative Agent and the Seller and to the
Administrative Agent’s predecessor Custodian an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor Custodian shall become effective and such
successor Custodian, without any further act, deed or conveyance, shall become vested with all the
rights and obligations of its predecessor, with like effect as if originally named as the Custodian and
shall assume all the duties and obligations in this Custody Agreement as Custodian (but not the
duties and obligations of the Administrative Agent under the Current Repurchase Agreement unless
the successor Custodian is also a successor Administrative Agent); provided that upon the written
request of the Seller, the Required Buyers or the successor Custodian, the Custodian ceasing to act
shall execute and deliver (a) an instrument transferring to such successor Custodian all of the
rights of the Custodian so ceasing to act and (b) to such successor Custodian such instruments as
are necessary to transfer all Loan Papers then in the hands of the Custodian to such successor
Custodian (including endorsements in blank and assignments in blank of all such Mortgage Notes and
Mortgages that are not already endorsed or assigned in blank). Upon the request of any such
successor Custodian made from time to time, the Seller shall execute any and all papers which the
successor Custodian shall reasonably request or require to more fully and certainly vest in and
confirm to such successor Custodian all such rights. No successor Custodian shall accept
appointment as provided in this Section unless at the time of such acceptance such successor
Custodian shall be eligible under the provisions of Section 8.1.
8.6. Merger of the Custodian or any Successor Custodian. Any Person into which the
Custodian or any successor custodian may be merged or converted or with which it may be
consolidated, or any Person surviving or resulting from any merger, conversion or consolidation to
which the Custodian or successor custodian shall be a party or any Person succeeding to the
commercial banking business of the Administrative Agent or such successor custodian, shall be the
successor custodian without the execution or filing of any paper or any further act on the part of
any of the parties, but only if such Person is eligible under the provisions of Section 8.1.
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The Custodian agrees to use its best judgment and good faith in the performance of any
obligations and duties required under this Custody Agreement and shall incur no liability to any
other party to this Custody Agreement for its acts or omissions hereunder, except as may result
from its fraud, gross negligence or willful misconduct. The Custodian shall be entitled to rely
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. The Custodian shall also be entitled to rely upon any
notice, document, correspondence, request or directive received by it from any other party to this
Custody Agreement that the 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. The Custodian shall at its own expense
maintain at all times during the existence of this Custody Agreement and keep in full force and
effect fidelity insurance, theft of documents insurance, and forgery insurance. All such insurance
shall be with standard coverage and subject to deductibles as is customary for insurance typically
maintained by banks which act as custodians and shall be in such amounts and with an insurance
company as are reasonably acceptable to the Administrative Agent.
10. Notices.
All notices, demands, consents, requests and other communications required or permitted to be
given or made hereunder, except as otherwise specifically provided in this Custody Agreement, shall
be in writing and shall be either (a) delivered in person, or (b) mailed, by certified, registered
or express mail, postage prepaid, addressed to the respective parties hereto at their respective
addresses specified below, or (c) sent in a prepaid overnight delivery envelope via a
nationally-recognized courier service that provides weekday next-day delivery service to the
addressee’s location, (d) faxed to their respective fax numbers (with a paper copy mailed the same
day as aforesaid) as hereinafter set forth or (e) emailed and displayed or acknowledged as received
as hereinafter set forth; provided that any party may change its address for notice by designating
such party’s new address in a notice to the sending party given at least five (5) Business Days
before it shall become effective. All notices shall be conclusively deemed to have been properly
given or served when received in person, regardless of how sent. Regardless of when received, all
notices shall be conclusively deemed to have been properly given or served if addressed to the
parties as set out below:
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If to the Seller:
DHI Mortgage Company, Ltd.
00000 Xxxxx Xxxxx Xxxxxxx, xxxxx X000
Xxxxxx, XX 00000
00000 Xxxxx Xxxxx Xxxxxxx, xxxxx X000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
email: XXxxxx@xxxxxxxxxxx.xxx
Telephone: 000-000-0000
Fax: 000-000-0000
email: XXxxxx@xxxxxxxxxxx.xxx
If to the Custodian:
U.S. Bank National Association
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxx.xxx
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxx.xxx
The Custodian shall not assign, transfer, pledge or grant a security interest in any of its rights,
benefits or privileges hereunder nor delegate or appoint any other Person to perform or carry out
any of its duties, responsibilities or obligations under this Custody Agreement; any act or instrument purporting to effect any such assignment, transfer, pledge, grant delegation or
appointment shall be void.
The Buyers shall be entitled to assign interests and sell participation in the Repurchase Agreement
in accordance with the relevant provisions of the Current Repurchase Agreement, provided that the
Custodian retains the exclusive authority, notwithstanding any such participation arrangements, to
execute this Custody Agreement (including all Exhibits) as Custodian and to act alone as the
Custodian.
13. Confidentiality.
13.1. Seller’s Information. The Custodian is bound by the provisions of Section 16.8
of the Current Repurchase Agreement regarding confidentiality of the Seller’s proprietary
information.
13.2. Privacy of Customer Information. The Custodian is bound by the provisions of
Section 16.9 of the Current Repurchase Agreement regarding confidentiality of Seller Customer
Information.
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This Agreement (including this choice-of-law provision) and the other Repurchase Documents
shall be governed by and construed and all controversies and disputes arising under, in connection
with or relating to this Agreement and the other Repurchase Documents shall be resolved, in
accordance with the laws of the State of New York (pursuant to Section 5-1401 of the New York
General Obligations Law to the extent such laws would otherwise not apply) and the United States of
America applicable to contracts made and to be wholly performed within such State. The Seller, the
Administrative Agent and the Buyers each hereby irrevocably submits to the nonexclusive
jurisdiction and venue of the United States District Court for the Southern District of New York
located in the Borough of Manhattan Division in the City of New York or, if such court does not
have jurisdiction, the Supreme Court of the State of New York, New York County for the purpose of
any action or other proceeding arising under, in connection with or relating to the Repurchase
Documents or any related Transaction, pursuant to Section 5-1402 of the New York General
Obligations Law to the extent such submission would otherwise not be effective. To the fullest
extent permitted by applicable law, the Seller and the Custodian each irrevocably waives any
objection which he, she or it may now or hereafter have to the laying of venue for any such
proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Nothing herein shall
affect any applicable right of any party at any time to initiate any suit in the United States
District Court for the Southern District of New York, Manhattan Division, or to remove any pending
suit to that Court. Nothing herein shall affect the right of the Custodian to accomplish service
of process in any manner permitted by applicable law or to commence legal proceedings or otherwise
proceed against the Seller in any other jurisdiction or court.
This Custody Agreement is for the exclusive benefit of the parties hereto and the Buyers
(including in the case of the Buyers, the Buyers’ participants), and their respective successors
and permitted assigns, and shall not be deemed to create or confer any legal or equitable right,
remedy, or claim upon any other Person whatsoever.
16. Waiver of Jury Trial.
THE SELLER AND THE CUSTODIAN EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS CUSTODY AGREEMENT OR ANY OF THE OTHER FACILITIES PAPERS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. This waiver of right to trial by jury is separately given, with
knowledge of its purpose and effect and voluntarily, by the Seller and the Custodian, and this
waiver is intended to encompass individually each instance and each issue as to which the right of
a jury trial would otherwise accrue. Each of the parties is hereby authorized to submit this
Custody Agreement to any court having jurisdiction over the subject matter and the parties hereto,
so as to serve as conclusive evidence of the foregoing waiver of the right to jury trial. Further,
the Seller hereby certifies that no representative or agent of the Custodian has represented,
expressly or otherwise, to any shareholder, director, officer, agent or representative of the
Seller that the Custodian will not seek to enforce this waiver of jury trial provision.
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17. Entire Agreement.
This Custody Agreement contains the entire agreement among the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof, including any prior custody agreements. The express terms
hereof control and supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Custody Agreement may not be modified or amended other than by an
agreement in writing executed by the parties hereto.
18. Exhibits.
All Exhibits and Schedules referred to herein or attached hereto are hereby incorporated by
reference into, and made a part of, this Custody Agreement.
Neither the failure nor any delay on the part of a party hereto to exercise any right, remedy,
power or privilege under this Custody Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any
other occurrence. No waiver shall be effective unless it is writing and is signed by the parties
asserted to have granted such waiver.
The titles of Sections contained in this Custody Agreement are for convenience only, and they
neither form a part of this Custody Agreement nor are they to be used in the construction or
interpretation hereof.
21. Provisions Separable.
The provisions of this Custody Agreement are independent of and separable from each other, and
no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other provisions may be invalid or unenforceable in whole or in part.
The Custodian shall be entitled to deal with the Seller and any and all Loan Papers, payments,
instructions, notices or other instruments on the basis that the Buyers have purchased the
Purchased Loans from the Seller and are the sole owners legal and beneficial title thereto, without
regard to whether any other Person has any ownership or other interest in the Purchased Loans.
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(The remainder of this page is intentionally blank;
unnumbered counterpart signature pages follow.)
unnumbered counterpart signature pages follow.)
-20-
| DHI MORTGAGE COMPANY, LTD. | ||||
| BY: DHI MORTGAGE COMPANY GP, INC. | ||||
| ITS: GENERAL PARTNER | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | CFO/EVP | |||
[Signature Page 1 to Custody Agreement]
| U.S. BANK NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
[Signature Page 2 to Custody Agreement]
Attached:
Exhibit A
|
- | Form of Bailee Letter | ||
Exhibit B
|
- | Standard Record Layout | ||
Exhibit C
|
- | List of Basic Papers | ||
Exhibit D
|
- | List of Supplemental Papers | ||
Exhibit E
|
- | Form of Trust Receipt | ||
Exhibit F
|
- | [reserved] | ||
Exhibit G
|
- | Form for transmittal of trailing Basic Papers | ||
Exhibit H
|
- | Form of Repurchase Request | ||
Exhibit I
|
- | Form of Shipping Request |
EXHIBIT A
CUSTODY AGREEMENT
CUSTODY AGREEMENT
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO INVESTORS FOR PURCHASE OR TO NON-AGENCY MBS
CUSTODIAN FOR SECURITIZATION AND PURCHASE OF MBS]
OF LOANS TO INVESTORS FOR PURCHASE OR TO NON-AGENCY MBS
CUSTODIAN FOR SECURITIZATION AND PURCHASE OF MBS]
U.S. BANK NATIONAL ASSOCIATION
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
[Date]
[Investor’s and/or MBS Issuer’s Custodian’s name and address]
| Re: | “Bailee Letter” for DHI Mortgage Company, Ltd’s Mortgage Loan(s) shipped
herewith for your inspection and (purchase or return)(securitization) |
Ladies and Gentlemen:
Pursuant to the request of DHI Mortgage Company, Ltd. (the “Mortgage Company”), U.S. Bank National
Association (the “Administrative Agent/Custodian”), as documents custodian for mortgage loans sold
by the Mortgage Company to the Buyers under the Master Repurchase Agreement dated as of March 27,
2008, among the Mortgage Company, the Administrative Agent and the Buyers from time to time party
thereto (as it may be supplemented, amended or restated from time to time, the “Master Repurchase
Agreement”; capitalized terms used herein and not defined herein to have the meanings assigned to
such terms in the Current Repurchase Agreement), hereby delivers with this letter to you, as
bailee, limited and conditional possession of the promissory notes evidencing the mortgage loans
(“Loans”) described on the attached Exhibit A and the related loan documents (collectively, the
“Loan Papers”), for you to inspect the Loan Papers for each Loan and either purchase (accept it for
securitization) (and pay the Administrative Agent/Custodian for it) or return its Loan Papers to
the Administrative Agent/Custodian, and for no other use or purpose. Detailed terms of this
bailment are stated in Paragraph 6 below. The Loan Papers are also delivered conditionally: if you
are unwilling to accept the terms and conditions of this bailment, as specified below, you must
immediately return all Loan Papers to the Administrative Agent/Custodian.
Ex A-1
[Investor’s name]
[Date]
Page 2
[Date]
Page 2
2. Either Purchase or Return Loans
(check if applicable) Please examine the Loan Papers and decide whether you will purchase any
or all of the Loans. To purchase one or more Loans, send a list to the Administrative
Agent/Custodian indicating which Loans you are buying and remit the Pay-off Price (defined in
Paragraph 3 below) for each Loan by federal funds immediately available to the Administrative
Agent/Custodian wired to:
(check if applicable) Please examine the Loan Papers and determine whether the issuer of
mortgage-backed securities for whom you are custodian (the “Issuer”) will accept them for inclusion
in the pool of mortgage loans from which mortgage-backed securities (the “Subject Securities”) will
be issued (“Securitization”). To accept one or more Loans for Securitization, send a list to the
Administrative Agent/Custodian indicating which Loans the Issuer is accepting and remit the Pay-off
Price (defined in Paragraph 3 below) for each Loan by federal funds immediately available to the
Administrative Agent/Custodian wired to:
Address for wire in all cases:
U.S. Bank National Association
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
ABA number 000000000
For Credit Account No. 104756234365
Further Credit — DHI Mortgage Company, Ltd. Repurchase Settlement Account
U.S. Bank National Association
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
ABA number 000000000
For Credit Account No. 104756234365
Further Credit — DHI Mortgage Company, Ltd. Repurchase Settlement Account
Please return the Loan Papers for all Loans that you decide not to purchase to the Administrative
Agent/Custodian addressed to:
Address for all returns:
U.S. Bank National Association
800 Nicollet Mall
Mortgage Banking Services
Xxxxxxxxxxx, XX 00000
U.S. Bank National Association
800 Nicollet Mall
Mortgage Banking Services
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Phone: 000-000-0000
Phone: 000-000-0000
3. Pay-off Price
The “Pay-off Price” for each Loan is the greater of:
(x) the minimum payment required for the Mortgage Company’s repurchase of such Loan so that
the Mortgage Company can sell it to you (the “Release Price”), as set forth in the “Repurchase
Price Amount” column of Exhibit A; or
(y) the purchase price that you (the Issuer) and the Mortgage Company have agreed on for such
Loan (the “Agreed Purchase Price”).
Ex A-2
[Investor’s name]
[Date]
Page 3
[Date]
Page 3
If you pay the Administrative Agent/Custodian only the Agreed Purchase Price for a Loan whose
Release Price is more than that, while you (or the Issuer) will thereupon become the owner of that
Loan, the Administrative Agent/Custodian, for the benefit of the Buyers, retains a
security interest in that Loan, which security interest will not be released unless and until
either you (the Issuer) or the Mortgage Company pays the difference and gives the
Administrative Agent/Custodian a written notice saying what the payment is for. The notice must
give the Administrative Agent/Custodian enough information to enable it to both (i) identify the
Loan with the payment and (ii) determine that the amount of the payment at least equals the excess
of the Loan’s Release Price over its Agreed Purchase Price.
Pursuant to the Master Repurchase Agreement, the Mortgage Company has sold the Loans to the Buyers,
and the Custodian holds the Loan Papers, the Loans they evidence and all related security,
collateral support and other rights on behalf of the Buyers.
5. UCC § 9-313(h) Perfection by Possession
Although the parties intend that all Transactions under the Master Repurchase Agreement be sales
and purchases and not loans, if any one or more Transactions are recharacterized as loans by a
court of competent jurisdiction, the parties have agreed that the Mortgage Company has pledged the
Loans to the Administrative Agent, for the benefit of the Buyers, as security for such
recharacterized Transactions. To invoke UCC § 9-313(h) to maintain the perfection by possession of
the Loan Papers of the security interest in the Loans held by the Administrative Agent/Custodian
(as agent and representative of the Buyers) as secured party, we instruct you hereby, concurrently
with this delivery of the Loan Papers, (1) to hold possession of the Loan Papers for the benefit of
the Administrative Agent/Custodian as secured party, or (2) to redeliver the Loan Papers to the
Administrative Agent/Custodian.
6. The Mortgage Company’s, the Buyers’ and Your Respective Interests in the Loans and the Loan
Papers — You Are Only a Bailee
We are delivering bare possession of the Loan Papers to you as bailee for your (the Issuer’s)
inspection and decision whether you (the Issuer) will buy (Securitize) and pay us (for the Mortgage
Company’s credit) for the related Loans or (have you) return to the Administrative Agent/Custodian
the Loan Papers for the Loans that you do not purchase (the Issuer does not accept for
Securitization) and pay for. The Buyers retain and reserve all of their ownership rights in the
Loans and the Loan Papers, until you purchase (the Issuer Securitizes), and actually make(s)
payment to the Administrative Agent/Custodian for, the Loans in accordance with this bailee letter.
Neither you or the Issuer acquires any ownership or security interest in them by our delivery of
them to you and neither will acquire any interest in them unless and until you or the Issuer has
paid us for them. No sale on credit is being made, and no credit is being extended to you. This
bailee letter and our delivery of the Loan Papers to you creates a “true bailment” under applicable
law, and your interest in the Loan Papers and their related Loans is and will be limited to that of
a bailee under such law, with no ability to pass a greater interest to another (the Issuer or
anyone else), unless and until you (or the Issuer) purchase(s) and wire(s) payment of the Pay-off Price (defined below) for the Loans you decide to purchase (that the Issuer accepts for
Securitization) (if any) to the Administrative Agent/Custodian in strict accordance with Paragraph
2 and the other provisions of this bailee letter.
Ex A-3
[Investor’s name]
[Date]
Page 4
[Date]
Page 4
7. Administrative Agent/Custodian has Exclusive Authority to Give Instructions
With respect to the Loans, only the Administrative Agent/Custodian has authority (A) to request or
direct you (the Issuer) (i) where to make payment, (ii) where to return the Loan Papers for Loans
you decide (the Issuer decides) not to purchase (Securitize) or (iii) to take any other action, or
(B) to make any agreement with you (or the Issuer). Unless the Administrative Agent/Custodian
hereafter gives you different written instructions or advice, this bailee letter provides all
instructions and advice for the Loans and the Loan Papers. Neither you nor the Issuer may honor
any notice, direction or other communication from the Mortgage Company (or anyone else) concerning
the Loans or the Loan Papers unless it is specifically confirmed in writing by the Administrative
Agent/Custodian.
You may not make payment for the Loans to anyone but the Administrative Agent/Custodian unless you
are otherwise specifically instructed in writing by the Administrative Agent/Custodian. Until the
Administrative Agent/Custodian has received payment of the full Pay-Off Price for a Loan, you may
not deliver any of its Loan Papers to anyone other than the Administrative Agent/Custodian without
written authorization from the Administrative Agent/Custodian. DO NOT SEND ANY PAYMENTS OR ANY
LOAN PAPERS TO THE MORTGAGE COMPANY.
9. 45-Day Notice of Issuer’s Decision to Securitize; You or the Issuer Must Pay for Loans You
Don’t Specifically Notify Us Are Rejected
It is very important that you promptly notify us in writing of the Issuer’s decision with respect
to each Loan so that we will know at all times which specific Loans will remain subject to the
Custody Agreement and which will not. Accordingly, you agree to give the Administrative
Agent/Custodian written notice on or before forty-five (45) days after the date of this bailee
letter that identifies which (if any) of the enclosed Loans the Issuer elects not to Securitize,
and you agree to pay us for all of the enclosed Loans that you do not list in that notice.
Notwithstanding any other provision of this bailee letter, the enclosed Loan Papers are delivered
to you on the express and controlling condition that, unless the Administrative Agent/Custodian has
already received the Pay-Off Price for each of the Loans or the Subject Security based on them has
already been issued by the Issuer, you will return any or all of them to us, as Administrative
Agent/Custodian, promptly upon your receipt of our written direction to do so and in any event
within forty-five (45) calendar days after the date of this Bailee Letter, regardless of whether or not the Issuer has decided to (include such Loans in the pool of Loans
from which the Subject Security will be created) (Securitize the related Loan or Loans), excluding
only those Loans (if any) for which you have already paid us the Pay-Off Price or from which such a
security has already been created and issued.
Ex A-4
[Investor’s name]
[Date]
Page 5
[Date]
Page 5
11. You Agree to Keep the Loan Papers Safe
You agree to keep all of the enclosed Loan Papers in a fire-resistant vault and safe from loss,
theft and other casualty and agree to bear any losses, costs or expenses the Mortgage Company, the
Administrative Agent/Custodian and the Buyers may incur as a result of any such event.
If any other written instruction or advice you receive from us, the Mortgage Company or anyone else
in respect of the Loans is inconsistent with this bailee letter, then this bailee letter shall
control unless the Administrative Agent/Custodian confirms in writing that the other instruction or
advice controls.
Please immediately indicate your receipt of this bailee letter and the enclosed Loan Papers, and
your acceptance of and agreement to the bailment and the other terms and conditions stated above,
by dating and signing the enclosed copy of this bailee letter and returning it to us (although your
doing so will not be necessary to the effectiveness of any of this bailee letter’s terms,
provisions or conditions).
| Very truly yours, | ||||
| U.S. BANK NATIONAL ASSOCIATION, | ||||
| Administrative Agent/Custodian | ||||
Attached:
Exhibit A — Schedule of Loans Shipped
Exhibit A — Schedule of Loans Shipped
RECEIPT ACKNOWLEDGED AND BAILMENT, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON , 200
_____
| [INVESTOR’S NAME AND/OR NAME OF | ||||
| MBS ISSUER’S CUSTODIAN] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Ex A-5
Exhibit A to Bailee Letter
Schedule of Loans Shipped
Date: [Date]
| Repurchase Price | ||||
| Mortgagor Name | Loan Number | Amount | ||
Ex A to Bailee Letter
EXHIBIT B
TO CUSTODY AGREEMENT
TO CUSTODY AGREEMENT
RECORD LAYOUT
Types of Acceptable
Formats:
|
1. Excel Workbooks (XLS) | |
| 2. Comma Seperated Value (CSV or TXT) | ||
| 3. Flat File (TXT) | ||
| 4. Data File (DAT) | ||
| 5. Other (Must be approved by Mortgage Banking Services) | ||
General Information:
|
1. Transmission times are 8:00 A.M., 10:00 A.M., and 12:00 Noon - Mountain Time | |
| 2. You must send separate files segregatred by funding type, check, wire, future dated, construction | ||
File Name:
|
Your Customer Code, Transmission Type (Wire,Check etc.), Date, Letter to indicate File # for the day | |
| Example: XYZWIMMDDYYYYA.XLS (first file of day), XYZWIMMDDYYYYB.XLS (second file of day) | ||
Generating File from your System: |
Refer to File Layout tab for file layout and field requirements. Some fields require specific data, refer to the Legend tab for conversion details. Any change to the file requires testing & validation prior to going into production (contact Mortgage Banking for details) | |
Manual Input on Excel Spreadsheet: |
1. The spreadsheet is provided by U.S. Bank Mortgage Banking
department 2. Some information on the spreadsheet has been pre-populated for your convenience. If you delete information pre-populated you must replace it. |
|
| 3. Do not Delete Rows or Add Rows in the spreadsheet | ||
| 4. Do not reformat cells in the spreadsheet | ||
| 5. Do not add Tabs to the spreadsheet | ||
| 8. Do not use a space bar to clear a fields, use the delete key | ||
| 9. It is a good idea to save a back up copy of the blank spreadsheet | ||
| 00.Xxx may want to create a working directory and a completed directory, open the blank spreadsheet in the working directory and save to the completed. This way the spreadsheet you start with will always be blank. |
Ex B-1
[MBS Issuer’s Custodian’s name]
[Date]
Page 2
[Date]
Page 2
acquisition_cost
|
Acquisition Cost (%) Discount (1 Point = 99.000) | numeric | 1 | 9 | x | |||||||||||
address
|
Property Xxxxxx Xxxxxxx | xxxxxxx | 00 | 00 | x | |||||||||||
address2
|
Property Xxxxxx Xxxxxxx 0 | xxxxxxx | 00 | 00 | x | |||||||||||
amortization_code
|
Amortization Type (See Legend) | char | 100 | 2 | x | |||||||||||
armindex
|
ARM Index (See Legend) | varchar | 102 | 10 | x | |||||||||||
armlcap
|
Maximum Interest Rate on ARM | numeric | 112 | 9 | x | Required if ARM loan | ||||||||||
armmargin
|
% as Indicated on Note which is added to the current index value to calculate the gross interest rate at the time of an interest rate change. | numeric | 121 | 9 | x | Required if ARM loan | ||||||||||
balloon_flag
|
Balloon — (Yes or No) | smallint | 130 | 2 | x | |||||||||||
bank_name
|
Receiving Bank Name for Wire Funding |
varchar | 132 | 30 | x | Required if funding by wire |
||||||||||
borr_1_first_name
|
Borrower One first name | varchar | 162 | 20 | x | |||||||||||
borr_1_last_name
|
Borrower One last name | varchar | 182 | 20 | x | |||||||||||
borr_2_first_name
|
Borrower Two first name | varchar | 202 | 20 | x | |||||||||||
borr_2_last_name
|
Borrower Two last name | varchar | 222 | 20 | x | |||||||||||
city
|
Property City | varchar | 242 | 40 | x | |||||||||||
collateral_key
|
Loan Number | varchar | 282 | 20 | x | |||||||||||
collateral_key_related
|
If Second Mortgage, Loan Number of First Mortgage | varchar | 302 | 20 | x | Required if Second Mortgage |
||||||||||
construction_cost
|
numeric | 322 | 9 | x | Required if Construction loan |
|||||||||||
credit_grade_code
|
Credit Grade (See Legend) | varchar | 331 | 20 | x | |||||||||||
curr_appraised_value
|
Current fair market value of mortgaged property as of recent date and determined in accordance with Title XI of FIRREA by a qualified appraiser who is a member of the American Institute of Real Estate Appraisers or other group of professional appraisers | numeric | 351 | 9 | x | Required if Current Appraised Value is different than Original Appraised Value |
Ex B-2
[MBS Issuer’s Custodian’s name]
[Date]
Page 3
[Date]
Page 3
curr_cltv
|
Combined loan to value ratio (%) at time of funding, calculation based on (1) the first and second mortgage amounts and (2) the appraised value of the property. | numeric | 360 | 9 | x | Required if there is a 1st and 2nd Mortgage and the Current CLTV if different than Original CLTV | ||||||||||
curr_ltv
|
Loan to Value (%) ratio of the note amount to the appraised value of the mortgaged property. | numeric | 369 | 9 | x | Required if Current LTV is different than Original LTV | ||||||||||
curr_rate
|
Current Interest Rate (%) of mortgage loan | numeric | 378 | 9 | x | Required if Current Rate is different than Original Rate | ||||||||||
curr_upb
|
Current unpaid principle balance |
numeric | 387 | 9 | x | |||||||||||
debt_service_ratio
|
Ration (%) of the borrower’s total monthly obligations to monthly income. | numeric | 396 | 9 | x | |||||||||||
doc_level_code
|
Document Level Code (See Legend) |
varchar | 405 | 20 | x | |||||||||||
fico_score
|
Numeric score provided by Fair Xxxxx & Co and used to evaluate the primary borrower’s credit history and underwrite the loan | smallint | 425 | 2 | x | |||||||||||
firstdue
|
Date first Principle & Interest payment is due | datetime | 427 | 8 | x | |||||||||||
funding_amount
|
Wire or Check Amount | numeric | 435 | 9 | x | |||||||||||
funding_date
|
Date of Wire Transfer for funding | datetime | 444 | 8 | x | Required if Wire funding (Check funding will populate when check clears) |
||||||||||
funding_id
|
Check or Draft # | varchar | 452 | 20 | Required if Funding by Check or Draft |
|||||||||||
funding_method_code
|
Wire or Check (1 = Wire 3 = Check) |
char | 472 | 2 | x | |||||||||||
interest_only_flag
|
Interest Only Loan (Yes or No) | smallint | 474 | 2 | x | |||||||||||
interest_only_period
|
Specified the length of time (in months) which the Interest Only payments will apply. | smallint | 476 | 2 | x | Required if Interest Only loan |
||||||||||
inv_commit_expire_date
|
Takeout commitment expiration date |
datetime | 478 | 8 | x | |||||||||||
inv_commit_price
|
Takeout commitment price (%) | numeric | 486 | 9 | x |
Ex B-3
[MBS Issuer’s Custodian’s name]
[Date]
Page 4
[Date]
Page 4
investor_code
|
Investor Code of investor committed to purchase the loan (See Legend) | varchar | 495 | 4 | x | |||||||||||
is_ff_eligible
|
Indicates if the Loan meets the eligibility requirements for sale to Xxxxxx Mae or Xxxxxxx Mac (Yes or No) | smallint | 499 | 2 | x | |||||||||||
is_negam
|
Payment Option ARM allows borrowers to choose variety of monthly payment options within a specified period of time from the first payment due date at the interest rate in effect during the preceding month. Loan is subject to adjustments to the minimum monthly payment and/or recast at specified intervals. (Yes or No) | smallint | 501 | 2 | x | |||||||||||
lien_position
|
Lien type of mortgage (1 = 1st Mortgage, 2 = 2nd Mortgage) | varchar | 503 | 20 | x | |||||||||||
maturity
|
The date when the mortgage loan is due to be repaid in full | datetime | 523 | 8 | x | |||||||||||
mers_flag
|
Registerd on MERS (Yes or No) | smallint | 531 | 2 | x | |||||||||||
mers_min
|
MIN # registered with MERS | varchar | 533 | 20 | x | Required if MERS flag = Yes |
||||||||||
mtg_ins_pct
|
% of the mortgage covered by insurance (1st Mtg only) | numeric | 553 | 9 | x | |||||||||||
occupancy_code
|
Occurpancy Code (See Legend) | varchar | 562 | 20 | x | |||||||||||
orig_appraised_value
|
Original fair market value of mortgaged property as of recent date and determined in accordance with Title XI of FIRREA by a qualified appraiser who is a member of the American Institute of Real Estate Appraisers or other group of professional appraisers | numeric | 582 | 9 | x | |||||||||||
orig_rate
|
Initial Interest Rate (%) of mortgage loan | numeric | 591 | 9 | x | |||||||||||
orig_upb
|
Note Amount | numeric | 600 | 9 | x | |||||||||||
original_cltv
|
Original combined loan to value ratio (%) at time of funding, calculation based on (1) the first and second mortgage amounts and (2) the appraised value of the property. | numeric | 609 | 9 | x |
Ex B-4
[MBS Issuer’s Custodian’s name]
[Date]
Page 5
[Date]
Page 5
original_ltv
|
Original Loan to Value (%) ratio of the note amount to the appraised value of the mortgaged property. | numeric | 618 | 9 | x | |||||||||||
original_term
|
Term of note in months | smallint | 627 | 2 | x | |||||||||||
origination_date
|
Note Date | datetime | 629 | 8 | x | |||||||||||
originator_code
|
If the loan was purchased from another entity and not closed in your name, (B = Broker, C = Correspondent) | varchar | 637 | 20 | x | Required if purchase from another entity |
||||||||||
payee1_abanum
|
Receiving Xxxx XXX # | xxxxxxx | 000 | 00 | x | Requiired if Wire Funding |
||||||||||
payee1_accountnum
|
Closing Agent Account Number | varchar | 677 | 128 | x | Required if Wire Funding |
||||||||||
payee1_address
|
Receiving Bank Xxxxxx Xxxxxxx | xxxxxxx | 000 | 00 | x | Required if Wire Funding |
||||||||||
payee1_city
|
Receiving Bank City | varchar | 865 | 40 | x | Required if Wire Funding |
||||||||||
payee1_instruction1
|
Information for Beneficiary | varchar | 905 | 60 | x | Optional if Wire Funding |
||||||||||
payee1_name
|
Closing Agent Name | varchar | 965 | 60 | x | Required if Wire Funding |
||||||||||
payee1_state
|
Receiving Bank State | varchar | 1025 | 2 | x | Required if funding by wire |
||||||||||
payee2_accountnum
|
Beneficiary Bank Account # If
Bene Bank different from Receiving Bank |
varchar | 1027 | 128 | x | Required if funding by wire and if Bene BK is different than Receiving BK | ||||||||||
payee2_instruction2
|
Repeat Code # | varchar | 1155 | 60 | x | Required if Wire Funding |
||||||||||
payee2_name
|
Beneficiary Bank Name If Bene
Bank different from Receiving Bank |
varchar | 1215 | 60 | x | Required if funding by wire and if Bene BK is different than Receiving BK | ||||||||||
pmt_change_frequency
|
# months between scheduled interest rate changes |
smallint | 1275 | 2 | x | Required if ARM loan | ||||||||||
prepay_penalty_flag
|
Prepayment Penalty (Yes or No) | smallint | 1277 | 2 | x | |||||||||||
prepay_period
|
Stated in Months | smallint | 1279 | 2 | x | Required if Prepay Penalty Flag = Yes |
||||||||||
product_code
|
Product Code (See Legend) | varchar | 1281 | 20 | x |
Ex B-5
[MBS Issuer’s Custodian’s name]
[Date]
Page 6
[Date]
Page 6
property_type_code
|
Property Type Code (See Legend) |
varchar | 1301 | 20 | x | |||||||||||
purpose_code
|
Purpose Code (See Legend) | varchar | 1321 | 20 | x | |||||||||||
servicing_status_code
|
Servicing Status Code (See Legend) |
char | 1341 | 4 | x | |||||||||||
state
|
Property State | char | 1345 | 2 | x | |||||||||||
units
|
Number of units purchased as stated on the mortgage documents | smallint | 1347 | 2 | x | |||||||||||
wap_price
|
Weighted Average Price | numeric | 1349 | 9 | x | Required if specified in loan agreement |
||||||||||
zip
|
Property Zip | varchar | 1358 | 10 | x | |||||||||||
repeat_code
|
Repeat Code # | varchar | 1368 | 10 | Required for repeat wires |
|||||||||||
wire_type
|
Type of wire F = Freeform, S = Semi Repeat Code, R = Repeat Code | varchar | 1378 | 1 | x | Required |
Ex B-6
EXHIBIT C
To Custody Agreement
To Custody Agreement
LIST OF BASIC PAPERS
The following are the Basic Papers for Purchased Loans:
(a) the original Mortgage Note, bearing all intervening endorsements to negotiate it
from the original payee named therein to the Seller and endorsed by the Seller as follows:
Pay To The Order Of
Without Recourse
[COMPANY’S NAME]
[signature]
[name, title]
[COMPANY’S NAME]
[signature]
[name, title]
(b) the recorded original or a Certified Copy of the power of attorney for each maker
of the Mortgage Note who (if any) did not personally execute the Mortgage Note and for whom
the Mortgage Note was executed by an attorney-in-fact;
(c) the recorded original or a Certified Copy of the Mortgage securing such Mortgage
Note;
(d) the signed original of a Mortgage Assignment assigning the Mortgage in blank in a
form that is complete so as to be recordable in the jurisdiction where the Mortgaged
Premises are located without the need for completion of any blanks or supplying of any other
information; provided that no Mortgage Assignment is required for any Mortgage that has been
originated in the name of MERS and registered under the MERS® System; and
(e) originals or Certified Copies of all intervening assignments (if any) reflecting a
complete chain of assignment of such Mortgage from the original mortgagee to the Seller;
provided that intervening assignments are not required for any Mortgage that has been
originated in the name of MERS and registered under the MERS® System.
Ex C-1
EXHIBIT D
TO CUSTODY AGREEMENT
TO CUSTODY AGREEMENT
LIST OF SUPPLEMENTAL PAPERS
(a) Except for FHA or VA Loans for which the relevant Agency Guidelines specify that no
Lender’s Title Insurance Policy is required, an original Lender’s Title Insurance Policy, a
commitment to issue one or (if applicable) a Preliminary Title Report (and by submitting a
Preliminary Title Report, the Seller will be deemed to warrant and represent to the
Custodian that the real property covered by the relevant Mortgage is located in California).
(b) Except for “stated value” Mortgage Loans for which no appraisal is required, a true
and complete copy of the pages from the initial Appraisal Report for the Mortgaged Premises,
together with such pages from the Appraisal Reports of all Current Appraisals or Current
Broker’s Price Opinions therefor (if any) required by the Repurchase Agreement, that (1)
identify the Mortgaged Premises, (2) state the appraiser’s or broker’s opinion of their
value and (3) contain the appraiser’s or broker’s signed signature block.
(c) For any FHA Mortgage Loan, the original or a copy of the HUD-1 Settlement Statement
signed by the maker(s) of the Mortgage Note and by its escrow/settlement Custodian with the
certifications by each that are required by HUD Mortgagee Letter 86-10 dated May 5, 1986, or
(ii) for any other Mortgage Loan, a copy of the HUD-1 Settlement Statement accompanied by
(or stamped with) a certification signed by the escrow/settlement agent stating
substantially that the statement is an accurate account of the Mortgage Loan transaction (or
a copy of such statement signed by the maker(s) of the Mortgage Note).
(d) (If applicable) the Purchase Commitment covering such Purchased Loan.
(e) A certificate of the Standard Hazard Insurance Policy for the related Mortgaged
Premises (and, when received, the original policy of such insurance).
(f) A certificate of the Flood Insurance Policy covering the Mortgaged Premises or the
Mortgage Loan’s originator’s (or its agent’s or contractor’s) written statement that no part
of the Mortgaged Premises is in a special flood hazard area according to the relevant
Federal Emergency Management Administration or Corps of Engineers flood map.
(g) (If applicable) the original assumption agreement.
(h) Except for Purchased Loans covered by a Purchase Commitment under the express terms
of which the Approved Investor does not require mortgage insurance, for each conventional
loan whose original loan-to-value ratio was greater than eighty percent (80%), a certificate
of Primary Mortgage Insurance Policy covering such Mortgage Loan or a certificate of a Pool Insurance Policy covering a pool of Mortgage Loans of which
such Purchased Loan is a part.
Ex D-1
(i) If applicable, evidence of Notice to Customer and Rescission required by the
federal Truth-in-Lending Law and Federal Reserve Regulation Z, and evidence of all
disclosure statements required by the Real Estate Settlement Procedures Act and implementing
regulations.
(j) Evidence of completion or a certificate of completion, as appropriate under the
circumstances.
(k) All other original papers related to such Purchased Loan.
Ex D-2
EXHIBIT E
TO CUSTODY AGREEMENT
TO CUSTODY AGREEMENT
TRUST RECEIPT
Temporary Release of Mortgage Note
The undersigned hereby acknowledges receipt this
_____
day of ,
_____
, from U.S.
Bank National Association(the “Custodian”) of the following described property (hereinafter called
“Mortgage Note”):
Mortgage Note for Loan #
_____
Mortgagor Name:
The undersigned represents, warrants and agrees that:
1. The undersigned has requested and obtained possession of the Mortgage Note from the
Custodian for one of the purposes set forth below and for no other purpose:
Correction of:
2. The Mortgage Note and the proceeds thereof are and will remain the property of, and subject
to the security interest held by, the Custodian and the undersigned will keep the Mortgage Note and
any such proceeds segregated and identifiable and free and clear of all liens, charges and
encumbrances.
3. The Mortgage Note will be redelivered to the Custodian or its designee as soon as the
purpose for which possession was taken has been accomplished, and in any event within nineteen (19)
calendar days from the date hereof.
4. In the event of any default in the performance of any term or condition of this Trust
Receipt, all or any part of the obligations secured by the Mortgage Note may be declared
immediately due and payable without notice or demand or the Administrative Agent can require the
undersigned to repurchase the Purchased Loan to which the Mortgage Note relates for the Repurchase
Price.
5 Additional limitations, if any:
| [DHI MORTGAGE COMPANY, LTD.] | ||||||
| By | ||||||
| Its | ||||||
Ex E-1
Exhibit F [reserved]
Ex F-1
EXHIBIT G
TO CUSTODY AGREEMENT
TO CUSTODY AGREEMENT
FORM FOR TRANSMITTAL OF TRAILING DOCUMENTS
| To: | U.S. Bank National Association 000 Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000 Attention: Xxxxx Xxxxxx, Mortgage Banking Services Phone: 000-000-0000 Fax: 000-000-0000 From: DHI Mortgage Company, Ltd. 00000 Xxxxx Xxxxx Xxxxxxx Xxxxx X-000 Xxxxxx, XX 00000 Attention: Xxxx Xxxxx Telephone: 000-000-0000 Fax: 000-000-0000 |
Ladies and Gentlemen:
Pursuant to the Section 2.2 of the Custody Agreement dated March 27, 2008 (as amended, the
“Custody Agreement”) among DHI Mortgage Company, Ltd. (the “Seller”) and U.S. Bank National
Association, as agent and representative of the buyers party to the Current Repurchase Agreement
referred to therein (in that capacity, the “Administrative Agent”), and as custodian (the
“Custodian”), the Seller hereby submits the following Basic Papers for the following File, as
trailing documents for placement in such File:
| ORIGINAL PRINCIPAL | BASIC PAPERS DELIVERED | |||||
| LOAN NO. | CUSTOMER'S NAME | AMOUNT | HEREWITH | |||
| Very truly yours, | ||||
| DHI MORTGAGE COMPANY, LTD. | ||||
| BY: DHI MORTGAGE COMPANY GP, INC. | ||||
| ITS: GENERAL PARTNER | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Phone: | ||||
| email: | ||||
Ex G-1
EXHIBIT H
TO CUSTODY AGREEMENT
TO CUSTODY AGREEMENT
REPURCHASE REQUEST
| Date: |
| To: | U.S. Bank National Association Attention: Xxxxx Xxxxxx, Mortgage Banking Services 000 Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000 Phone: 000-000-0000 Fax: 000-000-0000 |
Ladies and Gentlemen:
Pursuant to the Section 4.3 of the Custody Agreement dated March 27, 2008 (as amended, the
“Custody Agreement”) among DHI Mortgage Company, Ltd. (the “Seller”), and U.S. Bank National
Association, as agent and representative of the buyers party to the Current Repurchase Agreement
referred to therein (in that capacity, the “Administrative Agent”), and as custodian (the
“Custodian”), the Seller elects to repurchase the following Purchased Loans:
| LOAN NO. | CUSTOMER'S NAME | NOTE AMT. | ||
Please either confirm that the aggregate Repurchase Price for the Purchased Loans to be
repurchased is $ or advise the Seller of the correct aggregate Repurchase Price.
Upon the Administrative Agent’s acknowledgment to Custodian of receipt of payment of the
aggregate Repurchase Price, please ship the Files either by or by such other
courier service as we have designated to you as “approved”. The courier will act as an independent
contractor bailee acting solely as our bailee for hire. We agree that you will not be responsible
for any delays in shipment caused by the courier or any other actions or inactions of the courier,
including, without limitation, any loss of any Loan Papers.
Ex H-1
Please have the courier xxxx us by using our acct # . If you have any questions or need
any additional documentation, please call at (
_____
)
_____
..
| DHI MORTGAGE COMPANY, LTD. | ||||
| BY: DHI MORTGAGE COMPANY GP, INC. | ||||
| ITS: GENERAL PARTNER | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Ex H-2
Exhibit I to Custody Agreement
Shipping Request
(date)
(date)
| To: | U.S. Bank National Association (Custodian) 000 Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000 Attention: Xxxxx Xxxxxx, Mortgage Banking Services |
| From: | DHI Mortgage Company, Ltd. 00000 Xxxxx Xxxxx Xxxxxxx Xxxxx X-000 Xxxxxx, XX 00000 Attention: Xxxx Xxxxx Telephone: 000-000-0000 Fax: 000-000-0000 |
Re: Shipping Identified Purchased Loans to Custodian of (or to) Approved Investor for
Securitization or sale
Ladies and Gentlemen:
Pursuant to the Section 4 of the Custody Agreement dated March 27, 2008 (as amended, the
“Custody Agreement”) among DHI Mortgage Company, Ltd. (the “Seller”), and U.S. Bank National
Association as a buyer and as agent and representative of the Buyers party thereto (in that
capacity, the “Administrative Agent”) and certain other Buyers, and as custodian (the “Custodian”),
the Seller hereby requests the shipment of the Files specified on Exhibit A attached hereto or
specified Basic Papers and/or Supplemental Papers from such File to the custodian/trustee of (an Approved Investor) or to the Approved Investor at the address below:
(Name of Custodian of Approved Investor and/or of Approved Investor)
(address)
(name of person or department to whose attention Files are to be sent)
(Phone Number)
(address)
(name of person or department to whose attention Files are to be sent)
(Phone Number)
The Mortgage Notes so shipped shall be endorsed in the name of .
The Custodian is directed to use (name of courier) and to charge Seller’s
account number , with such courier for shipping charges.
Ex I-1
The Seller requests shipment under the appropriate form of bailee letter from the
Administrative Agent/Custodian to the custodian/trustee for the Approved Investor or to the
Approved Investor.
The courier designated above will act as an independent contractor bailee acting solely on
your behalf as custodian for hire for the Administrative Agent, as those and other capitalized
terms used but not defined herein are defined in the Custody Agreement, as it may have been
supplemented, amended or restated. We agree that you will not be responsible for any delays in
shipment caused by the courier or any other actions or inactions of the courier, including, without
limitation, any loss of any Loan Papers.
| DHI MORTGAGE COMPANY, LTD. | ||||
| BY: DHI MORTGAGE COMPANY GP, INC. | ||||
| ITS: GENERAL PARTNER | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Ex I-2
Exhibit A to Shipping Request
Date: [Date]
| Investor Name | Mortgagor Name | Loan Number | Loan Amount | |||
Ex A-1 to Shipping Request