EXHIBIT 10.69
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XXXXXX COMMERCIAL PAPER INC.,
Buyer
and
PAN AMERICAN BANK, FSB,
Seller
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Custodian
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CUSTODIAL AGREEMENT
As of November 6, 1997
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TABLE OF CONTENTS
Page
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Section 1 Definitions.......................................... 1
Section 2 Deposit of Purchased Mortgage Loans;
Effecting a Transaction.............................. 4
Section 3 Repurchase Date...................................... 4
Section 4 Trust Receipt........................................ 5
Section 5 Obligations of the Custodian......................... 6
Section 6 Substitution......................................... 7
Section 7 Additional Collateral................................ 7
Section 8 Future Defects....................................... 8
Section 9 Release for Servicing................................ 8
Section 10 Limitation on Release................................ 9
Section 11 Release for Payment.................................. 9
Section 12 Fees of Custodian.................................... 9
Section 13 Removal of Custodian With Respect
to some or all of the Purchased Mortgage Loans....... 9
Section 14 Examination and Copies of
Mortgage Files....................................... 10
Section 15 Insurance of Custodian............................... 10
Section 16 Covenants of Seller.................................. 11
Section 17 Periodic Statements.................................. 11
Section 18 Governing Law; Counterparts.......................... 11
Section 19 No Adverse Interest of Custodian..................... 12
Section 20 Custodian Representations............................ 12
Section 21 Termination by Custodian............................. 12
Section 22 Transfer of Purchased Mortgage Loans
Upon Termination of a Transaction.................... 12
Section 23 Notices.............................................. 13
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Page
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Section 24 Successor and Assigns................................ 13
Section 25 Concerning the Custodian............................. 13
Section 26 Indemnification...................................... 14
Section 27 Obligations of the Custodian With Respect
to the Trust Receipts................................ 14
Section 28 Authorized Representatives........................... 15
Section 29 Reproduction of Documents............................ 15
Section 30 Entire Agreement..................................... 16
ANNEXES
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ANNEX A ADDITIONAL DEFINITIONS
EXHIBITS
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EXHIBIT 1 FORM OF TRUST RECEIPT
EXHIBIT 2 FORM OF REQUEST FOR RELEASE OF DOCUMENTS
AND RECEIPTS
EXHIBIT 3 AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF THE SELLER
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF THE BUYER
EXHIBIT 6 FORM OF MORTGAGE LOAN SCHEDULE
EXHIBIT 7 FORM OF CUSTODIAL DELIVERY
EXHIBIT 8 FORM OF NOTICE TO CUSTODIAN
EXHIBIT 9 FORM OF REPURCHASE RELEASE
EXHIBIT 10 FORM OF LOST NOTE AFFIDAVIT
THIS CUSTODIAL AGREEMENT, dated as of November 6, 1997 (this
"Agreement"), is made by and between Xxxxxx Commercial Paper Inc. (the "Buyer"),
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having an address at 000 Xxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, Xxx Xxxx 10285-0900,
Pan American Bank, FSB (the "Seller"), having an address at 1300 South El Camino
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Real, X.X. Xxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx Xxxxx, and
Bankers Trust Company of California, N.A. (the "Custodian"), having an address
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at 0 Xxxx Xxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Buyer and the Seller may, from time to time, enter into
transactions (each, a "Transaction") in which the Buyer shall purchase from the
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Seller certain Purchased Mortgage Loans, with a simultaneous agreement by the
Seller to repurchase such Purchased Mortgage Loans as provided in that certain
Master Repurchase Agreement Governing Purchases and Sales of Mortgage Loans
dated as of October 31, 1997 between the Seller and the Buyer (the "Master
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Repurchase Agreement") and a Confirmation between the Seller and the Buyer (the
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"Confirmation"; as to each Transaction, the related Confirmation and the Master
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Repurchase Agreement are referred to collectively as, the "Repurchase
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Agreement"). The Seller shall deliver to the Custodian upon execution of this
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Agreement a true and correct copy of the Master Repurchase Agreement.
WHEREAS, Buyer has requested Custodian to act as custodian on behalf
of the Registered Holder(s) (as defined herein) for purposes of holding the
Purchased Mortgage Loans purchased pursuant to the Repurchase Agreement;
WHEREAS, the Custodian is a national banking association, is otherwise
authorized to act as Custodian pursuant to this Agreement, and has agreed to act
as custodian/bailee for hire for the Registered Holder(s), all as more
particularly set forth herein; and
WHEREAS, the Seller shall from time to time deliver Purchased Mortgage
Loans to the Custodian that are subject to a Transaction, and has agreed to
deliver or cause to be delivered to the Custodian certain documents with respect
to the Purchased Mortgage Loans subject to each Transaction in accordance with
the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
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Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Master Repurchase Agreement.
Additional Collateral: Shall have the meaning set forth in Section 7
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hereof.
Agreement: This Custodial Agreement and all amendments and
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attachments hereto and supplements hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of
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transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the party indicated therein, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law.
Authorized Representative: Shall have the meaning set forth in
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Section 28 hereof.
Business Day: Any day excluding Saturday or Sunday and any day on
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which banks located in the States of New York or California are authorized or
permitted to close for business.
Buyer: Xxxxxx Commercial Paper Inc., or its successor in interest or
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assigns.
Custodial Delivery: The letter executed by the Seller in order to
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deliver the Mortgage Files to the Custodian pursuant to this Agreement prior to
the related Purchase Date, a form of which is attached as Exhibit II to the
Master Repurchase Agreement.
Custodian: Bankers Trust Company of California, N.A., or any
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successor in interest or assigns, or any successor to the Custodian under this
Agreement as herein provided.
Mortgage: The mortgage, deed of trust or other instrument securing a
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Mortgage Note, which creates a first or second lien on a first or second
priority ownership interest in an unsubordinated estate in fee simple in real
property securing the Mortgage Note.
Mortgage File: Shall have the meaning set forth in Annex A attached
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hereto.
Mortgage Loans: Non-securitized whole loans, namely: (i)
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conventional residential mortgage loans, (ii) Wet Ink Mortgage Loans and (iii)
such other types of non-securitized whole loans as may be agreed upon by the
parties hereto in writing from time to time.
Mortgage Loan Schedule: A schedule in written and computer readable
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formats of Purchased Mortgage Loans, containing the information set forth in
Exhibit 6 hereto and otherwise acceptable to Buyer and Custodian, attached to
each Custodial Delivery.
Mortgage Note: The note or other evidence of the indebtedness of a
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Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
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evidenced by a Mortgage Note.
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Notice of Default: Written notice delivered by Buyer to Custodian and
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Seller, or by Seller to Custodian and Buyer, identifying the defaulting party
and the Event of Default.
Person: Any individual, corporation, partnership, joint venture,
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association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Purchase Date: With respect to each Purchased Mortgage Loan, the date
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on which such Purchased Mortgage Loan is purchased by the Buyer pursuant to the
Repurchase Agreement. The Purchase Date shall be specified in the Custodial
Delivery.
Purchased Mortgage Loans: Each Mortgage Loan, and/or any other
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evidence of ownership of a Mortgage Loan mutually agreed upon by the Buyer and
the Seller and identified to the Custodian, transferred or caused to be
transferred by the Seller to the Buyer or its designee (including the Custodian)
in a Transaction under the Master Repurchase Agreement, any Additional
Collateral and any Substituted Collateral delivered pursuant to this Agreement.
Registered Holder: Shall have the meaning set forth in Section 27
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hereof.
Request for Release: Shall have the meaning set forth in Section 9
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hereof.
Seller: Pan American Bank, FSB, or its successors in interest or
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assigns.
Substituted Collateral: Shall have the meaning set forth in Section 6
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hereof.
Trust Receipt: A trust receipt issued by the Custodian evidencing the
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Purchased Mortgage Loans it holds, in the form attached hereto as Exhibit 1, and
delivered to Buyer by the Custodian in accordance with Section 4 hereof.
Wet Ink Mortgage Loan: A non-securitized whole loan, namely a
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conventional mortgage loans secured by a first or second lien on a one to four
family residential property for which a Mortgage File has not been delivered to
the Custodian.
Written Instructions: Written communications received by the
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Custodian from an Authorized Representative of the Buyer or the Seller,
including communications received by telex or other telecommunications device
capable of transmitting or creating a written record.
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Section 2. Deposit of Mortgage Loans; Effecting a Transaction
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(a) For delivery of no more than 100 Mortgage Files, no later than
9:30 a.m. (California time) on the Business Day prior to each Purchase Date and
for delivery of more than 100 Mortgage Files, no later than 9:30 a.m.
(California time) on the third (3) Business Day prior to each Purchase Date,
Seller shall deliver or cause to be delivered to the Custodian (i) the Mortgage
Files with respect to the related Purchased Mortgage Loans (other than those
relating to Wet Ink Mortgage Loans), (ii) the Custodial Delivery and (iii) the
related Mortgage Loan Schedule.
(b) On each Purchase Date upon receipt of the Trust Receipt and the
Mortgage Loan Schedule from the Custodian, the Buyer shall transfer to Seller
cash in an amount equal to the related Purchase Price.
(c) Buyer and Seller agree that in effecting each Transaction, the
transfer of the cash and the Purchased Mortgage Loans between Buyer and Seller
is intended to be, and shall be deemed to be, simultaneous. During any period
that cash and/or the Purchased Mortgage Loans are held by or for Buyer or
Seller, until such transfer has been completed, the party holding such cash
and/or Purchased Mortgage Loans shall be deemed to be holding such cash and/or
Purchased Mortgage Loans in trust for the benefit of the delivering party and
shall be obligated to return such cash and/or Purchased Mortgage Loans upon the
delivering party's request.
(d) With respect to any Wet Ink Mortgage Loans that become
Purchased Mortgage Loans under the Repurchase Agreement, Seller shall deliver or
shall cause to be delivered to the Custodian (i) a Mortgage Loan Schedule in
computer readable format on the Purchase Date and (ii) a complete Mortgage File
within five Business Days following the related Purchase Date.
(e) On and after the date on which each Transaction is consummated
until the Repurchase Date or as extended by written notice signed by both Buyer
and Seller and delivered to Custodian, or until Custodian shall receive a Notice
of Default, Custodian shall hold the Purchased Mortgage Loans related to such
Transaction in trust for the exclusive benefit of the Registered Holder and
shall not act upon Written Instructions of Buyer or Seller to deliver the
Purchased Mortgage Loans other than as expressly provided in this Agreement.
Section 3. Repurchase Date
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Seller shall notify Buyer and the Custodian at least one day prior
to each Repurchase Date. Buyer shall send a Repurchase Release in the form of
Exhibit 9 to the Custodian by 12:00 noon (New York time) on each Repurchase Date
listing the Purchased Mortgage Loans to be released thereon. On the Repurchase
Date for each Transaction, unless the Custodian receives on the Business Day
prior to such Repurchase Date a Notice of Default or Written Instructions from
both the Buyer and the Seller that the Repurchase Date has been extended, and
provided that Buyer has notified Custodian by telephone that it or the
Registered Holder has received the Repurchase Price specified in the Repurchase
Release for the related Transaction, the Buyer and the Registered Holder hereby
irrevocably instruct the Custodian to release to
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the Seller or its designee the Purchased Mortgage Loans with respect to such
Transaction. Upon surrender to the Custodian of the related Trust Receipt in
connection therewith the Custodian shall issue a new Trust Receipt and Mortgage
Loan Schedule indicating any Mortgage Loans relating to the surrendered Trust
Receipt that were not repurchased by Seller.
Section 4. Trust Receipt.
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No later than 1 p.m. (New York City time) on each Purchase Date
(provided Custodian has timely received the items required pursuant to Section
2(a) herein), the Custodian shall issue to Buyer (via fax with original to
follow the next Business Day) a Trust Receipt relating to the Purchased Mortgage
Loans which are not Wet Ink Mortgage Loans (with a Mortgage Loan Schedule and
exception report attached thereto) to the effect that with respect to such
Purchased Mortgage Loans, (i) all of the documents in paragraphs (a), (c), (e)
and, to the extent provided, (b), (d), (f), (g), (h) and (i) of the definition
of "Mortgage File" are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately
reflects the information contained in the documents in the Mortgage File as to
(A) the name of the mortgagor, (B) the address of the Mortgaged Property,
(C) the original interest rate on the Mortgage Note, (D) the original principal
amount of the Mortgage Note, and (E) the maturity date of the Mortgage Note;
(iv) the Mortgage Note and the Mortgage each bears an original signature or
signatures purporting to be the signature or signatures of the person or persons
named as the maker and mortgagor or grantor or, in the case of certified copies
of the Mortgage, that such copies bear a reproduction of such signature or
signatures; (v) the original principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount of the Mortgage Note;
(vi) if the Mortgage Note does not name "Seller" as the holder or payee, the
Mortgage Note bears original endorsements that complete the chain of ownership
from the original holder or payee to the last endorsee (the "Last Endorsee");
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(vii) if the Mortgage does not name "Seller" as the mortgagee or beneficiary,
the original of the Assignment of Mortgage from the named mortgagee or
beneficiary bears the original signature purporting to be the signature of the
named mortgagee or beneficiary (and any other necessary party including
subsequent assignors) or in the case of copies certified by the Seller, that
such copies bear a reproduction of such signature or signatures and that the
Assignment of Mortgage and any intervening assignments of mortgage complete the
chain of title from the originator to the Last Endorsee; and (viii) each
Mortgage Note in its possession has been endorsed as provided in the definition
of "Mortgage File"; and (ix) each Assignment of Mortgage has been executed as
provided in the definition of "Mortgage File". With respect to each Purchased
Mortgage Loan which is a Wet Ink Mortgage Loan, the Custodian shall deliver a
Trust Receipt to Buyer with respect thereto (meeting the above requirements) no
later than the second Business Day following receipt by the Custodian of the
related Mortgage File. The Custodian shall notify Buyer in writing in the event
that the Custodian does not receive a Mortgage File relating to a Wet Ink
Mortgage Loan within five Business Days from the related Purchase Date.
Notwithstanding the foregoing, the Custodian shall not be responsible for
ensuring that the Mortgage Loan Schedule attached to any Trust Receipt in the
possession of a Registered
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Holder as a result of a substitution pursuant to Section 6 hereof is the most
current Mortgage Loan Schedule. Each Registered Holder may request the Custodian
to provide such Registered Holder with a copy of the current Mortgage Loan
Schedule with respect to a related Trust Receipt.
The Seller shall be solely responsible for providing each and every
document required for each Mortgage File to the Custodian in a timely manner and
for completing or correcting any missing, incomplete or inconsistent documents,
and the Custodian shall not be responsible or liable for taking any such action,
causing the Seller or any other Person or entity to do so or notifying any
Person (other than Buyer to the extent specifically required in this Agreement)
that any such action has or has not been taken. The Custodian makes no
representations as to and shall not be responsible to verify (i) the validity,
legality, enforceability, sufficiency, due authorization, recordability, or
genuineness of any document in any Mortgage File or any of the Purchased
Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Section 5. Obligations of the Custodian; Certain Representations and
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Warranties.
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(a) With respect to the Mortgage Files delivered to the Custodian
or which come into the possession of the Custodian, the Custodian is, following
the related transfer pursuant to Section 2(b) above, the custodian for the
Registered Holder, exclusively. The Custodian shall, following the related
transfer pursuant to Section 2(b) above, hold all documents received by it for
the exclusive use and benefit of the related Registered Holder, and shall make
disposition thereof only in accordance with this Agreement and the instructions
furnished by such Registered Holder. The Custodian shall segregate and maintain
continuous custody of the Mortgage Files in secure and fire-resistant facilities
in accordance with customary standards for such custody. To the extent that the
Custodian is unable to locate or produce any document contained in the Mortgage
File as required under this Agreement, Custodian shall, upon the request of the
Registered Holder of the related Purchased Mortgage Loan, promptly exercise its
best efforts to locate or replace, at its own expense, such documents (or in the
case of a Mortgage Note, deliver a Lost Note Affidavit in the form of Exhibit 10
attached hereto); provided, that (i) Custodian previously delivered to such
Registered Holder a Trust Receipt with respect to such document; (ii) such
document is not outstanding pursuant to a Request for Release; and (iii) such
document is still subject to this Agreement.
(b) The Custodian shall promptly notify the Registered Holder(s) if
(i) Seller fails to pay any amount due to the Custodian under this Agreement;
(ii) the Custodian has actual knowledge that any mortgage, pledge, lien,
security interest or other charge or encumbrance has been placed on the Mortgage
Files other than in the ordinary course of business; or (iii) the
representation, warranty and covenant contained in Section 5(c) below were to
become untrue or incorrect at any time during the term of this Agreement.
(c) The Custodian hereby represents, warrants and covenants to the
Buyer or Seller that, as of the date hereof, it is not controlled by, under
common control with or otherwise affiliated with or related to Seller or Buyer.
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(d) The Custodian, the Buyer and the Seller each hereby represents
and warrants to each other party that this Agreement has been duly authorized,
executed and delivered by such party and constitutes the legal, valid and
binding obligation of such party enforceable in accordance with its terms.
Section 6. Substitution.
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(a) Within 5 Business Days of the Custodian's receipt of a Request
for Release of Documents and Receipt in the form of Exhibit 2 attached hereto,
the Custodian will transfer, or cause to be transferred, the Purchased Mortgage
Loans specified in such Request to the Seller or its designee in exchange for
the simultaneous transfer by the Seller to the Custodian of Mortgage Loans
("Substituted Collateral"). One Business Day prior to the date of substitution,
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Seller must deliver or cause to be delivered to Custodian, the Mortgage Files
for the Substituted Collateral together with a Custodial Delivery and Mortgage
Loan Schedule. It is expressly understood and agreed that the Custodian shall
have no duty to perform any valuation of collateral and shall have no
responsibility to ascertain the adequacy of any Substituted Collateral.
(b) The Custodian shall deliver to the related Registered Holder
(via fax with the original to follow the next Business Day), no later than 2
p.m. (New York City time) one (1) Business Day after such substitution by the
Seller, (i) a Trust Receipt and Mortgage Loan Schedule that reflects the
applicable Purchased Mortgage Loans; provided that in the event the Custodian
has not received the items required to be delivered pursuant to Section 6(a)
above prior to 9:30 a.m. (California time) on the date of substitution or the
number delivered is, in the reasonable judgment of the Custodian, excessive,
then the Custodian shall deliver such Trust Receipt and Mortgage Loan Schedule
within two (2) Business Days after the date of substitution. Upon receipt from
the Custodian, Buyer shall cancel and return the old Trust Receipt to the
Custodian the next Business Day. In issuing such Mortgage Loan Schedule and
Trust Receipt, the Custodian shall employ the same procedures as set forth in
Section 4 in reviewing the Mortgage Files.
Section 7. Additional Collateral.
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(a) The Seller may, from time to time, deliver to the Custodian,
additional Mortgage Loans (the "Additional Collateral") as an addition to the
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Purchased Mortgage Loans already held by the Custodian with respect to a
Transaction. In such event, the Seller shall deliver to the Custodian the
Mortgage Files for the Additional Collateral together with a Custodial Delivery
and Mortgage Loan Schedule, with a copy to the Registered Holder(s) and, if
Buyer is not the applicable Registered Holder at such time, the Buyer, stating
that the Additional Collateral is being delivered with respect to an identified
Transaction. It is expressly understood and agreed that the Custodian shall
have no duty to perform any valuation of collateral and shall have no
responsibility to ascertain the adequacy of any Additional Collateral.
(b) The Custodian shall deliver to the related Registered Holder
(via fax with the original to follow the next Business Day) no later than 1 p.m.
(New York City time) one (1) Business Day after receipt of such Additional
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Collateral from the Seller, a Trust Receipt and Mortgage Loan Schedule and
exception report that reflects the delivery of the Additional Collateral;
provided that, in the event that the Custodian does not receive the items
required to be delivered pursuant to Section 7(a) above by no later than 9:30
a.m. (California time) on the date of delivery, then the Custodian shall deliver
such a Trust Receipt and Mortgage Loan Schedule within two (2) Business Days
after the date of delivery. In issuing such Mortgage Loan Schedule and Trust
Receipt, the Custodian shall employ the same procedures as set forth in Section
4 in reviewing the Mortgage Files.
Section 8. Future Defects.
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During the term of this Agreement, if the Custodian discovers any
defect with respect to the Mortgage Files, the Custodian shall give written
specification of such defect to the Seller, the Registered Holder(s) and, if
Buyer is not a Registered Holder, Buyer. For purposes of this Section, "defect"
shall mean a failure of a document to correspond to the information set forth in
the applicable Mortgage Loan Schedule or the absence of a Mortgage File or any
other document required pursuant to this Agreement. The Seller shall be solely
responsible for completing or correcting any missing, incomplete or inconsistent
documents, and the Custodian shall not be responsible or liable for taking any
such action, causing the Seller or any other person or entity to do so or
notifying any Person that any such action has or has not been taken.
Section 9. Release for Servicing.
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(a) From time to time and as appropriate for the foreclosure or
servicing of any of the Purchased Mortgage Loans, the Custodian is hereby
authorized, upon receipt of a Request for Release of Documents and Receipt in
the form of Exhibit 2 attached hereto ("Request for Release"), with a copy to
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the applicable Registered Holder and, if Buyer is not the applicable Registered
Holder at such time, Buyer, to release or cause to be released to the Seller or
the Seller's Authorized Representative the related Mortgage File or the
documents of the related Mortgage File set forth in such Request for Release;
provided, that any document released to Seller or Seller's Authorized
Representative pursuant to a Request for Release shall be returned to Custodian
no later than thirty (30) days from the date on such Request for Release.
(b) All Mortgage Files or documents of Mortgage Files released by
the Custodian to the Seller or, at the Seller's written direction, the Seller's
Authorized Representative pursuant to this Section 9 shall be held by the Seller
or the Seller's Authorized Representative, as applicable, in trust for the
benefit of the related Registered Holder. The Seller or the Seller's Authorized
Representative, as applicable, shall return to the Custodian, the Mortgage File
or other such documents of Mortgage Files when the need therefor in connection
with such foreclosure or servicing no longer exists (but in any event no later
than thirty (30) days from the date on such Request for Release), unless the
Mortgage Loan shall be liquidated, in which case, the Seller or, if the Mortgage
File or documents were released to the Seller's Authorized Representative, the
Seller's Authorized Representative shall deliver to Custodian an additional
Request for Release that has been acknowledged and agreed by Buyer, with a copy
to the Registered Holder, certifying such
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liquidation. Upon receipt of the related Mortgage File or other such documents
from the Seller, Custodian shall return the related Request for Release to
Seller, with a copy to Buyer and the related Registered Holder, acknowledging
receipt of such Mortgage File or other such documents.
Section 10. Limitation on Release.
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The foregoing Section 9 shall be operative only to the extent that
at any time the Seller or the Seller's Authorized Representative shall not have
requested to have released to the Seller or the Seller's Authorized
Representative in total active Mortgage Files or documents (including those
requested) pertaining to five (5) Mortgage Loans at the time being held by the
Custodian under this Agreement. The Mortgage Note and/or Assignment of Mortgage
or any additional Mortgage Files or documents requested to be released by the
Seller or the Seller's Authorized Representative may be released only upon the
written acknowledgment of the Request for Release by the Registered Holder(s).
The limitations of this paragraph shall not apply to the release of Mortgage
Files to the Seller or, at Seller's written direction, the Seller's Authorized
Representative under Section 11 below.
Section 11. Release for Payment.
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Upon the payment in full of any Mortgage Loan, and upon receipt by
the Custodian of a Request for Release certifying that such payment in full has
been received, (with a copy to the applicable Registered Holder and, if Buyer is
not the applicable Registered Holder at such time, Buyer), the Custodian shall
promptly release the related Mortgage File to the Seller or, at Seller's written
direction, the Seller's subservicer. After such release the Custodian shall
amend the Mortgage Loan Schedule attached to the related Trust Receipt to
reflect the release of the applicable Mortgage Loan and shall deliver to the
related Registered Holder such amended Mortgage Loan Schedule. Buyer's lien on
any such Mortgage Loans shall not be deemed to be released until Buyer receives
the proportionate amount of the Repurchase Price relating to such Mortgage Loans
from Seller in accordance with the Repurchase Agreement.
Section 12. Fees of Custodian.
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The Custodian shall charge such fees for its services under this
Agreement as are set forth in a separate agreement between the Custodian and the
Seller, the payment of which fees, together with the Custodian's expenses in
connection herewith, shall be solely the obligation of the Seller.
Section 13. Removal of Custodian With Respect to Some or All of the Purchased
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Mortgage Loans.
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Buyer may (i) require the Custodian to complete the endorsements on
the Mortgage Notes in the name of the applicable Registered Holder and to
complete the Assignments of Mortgage in the name of the applicable Registered
Holder and/or (ii) remove and discharge the Custodian from the performance of
its duties under this Agreement with respect to some or all of the Mortgage
Loans by 60 days' written notice from Buyer to the Custodian and Seller. In the
event that Buyer removes the Custodian from the performance of its duties
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under this Agreement with respect to all of the Mortgage Loans, Buyer may, in
its sole discretion, either appoint a successor Custodian to act on behalf of
Buyer by written instrument, or terminate this Agreement. In the event of any
such new appointment, the Custodian shall promptly transfer to the successor
Custodian or the applicable Registered Holder, as directed by Buyer, the
applicable Mortgage Loan documents being administered under this Agreement. In
the event of any such appointment, Buyer shall be responsible for the fees of
the successor Custodian and all reasonable out-of-pocket expenses in connection
with such transfer.
In the event of termination of this Agreement, the Custodian shall
follow the reasonable instructions of the Registered Holder(s) with respect to
the disposition of the respective Mortgage Loan documents. Concurrently with the
transfer and release of all of the Mortgage Files by the Custodian, the
Registered Holder(s) shall submit the related Trust Receipts to the Custodian
for cancellation. Notwithstanding the foregoing, in the event that Buyer
terminates this Agreement with respect to some, but not all, of the Mortgage
Loans, this Agreement shall remain in full force and effect with respect to any
Purchased Mortgage Loans for which this Agreement is not terminated hereunder.
In addition, Buyer and Custodian may, at the sole option of Buyer, enter into a
separate custodial agreement which shall be mutually acceptable to the parties
with respect to any or all of the Mortgage Loans with respect to which this
Agreement is terminated.
Section 14. Examination and Copies of Mortgage Files.
----------------------------------------
(a) Upon the written request by a Registered Holder or Buyer, such
Registered Holder or Buyer, as applicable, and its respective agents,
accountants, attorneys, auditors and prospective purchasers will be permitted,
upon three Business Days' prior notice, during normal business hours to examine
the Mortgage Files and any other documents, records and papers in the possession
of or under the control of the Custodian relating to any or all of the Purchased
Mortgage Loans. The Seller shall be responsible for any expenses in connection
with such examinations.
(b) Upon the written request of the Buyer or a Registered Holder,
the Custodian shall provide the Seller, the Buyer or such Registered Holder, as
the case may be, at such party's expense, with copies of the Mortgage Notes,
Mortgages, Assignment of Mortgages and other documents relating to one or more
of the Mortgage Loans.
Section 15. Insurance of Custodian.
----------------------
At its own expense, the Custodian shall maintain at all times
during the existence of this Agreement and keep in full force and effect a
fidelity bond and document hazard insurance. All such insurance shall be in
amounts, with standard coverage and subject to standard deductibles, all as is
customary for insurance typically maintained by institutions which act as
custodian. The minimum coverage under any such bond and insurance policies shall
be at least equal to the corresponding amounts required by FNMA in the FNMA
Mortgaged-Backed Securities Selling Guide and the FNMA Servicing Guide or by
FHLMC in the FHLMC Seller's & Servicer's Guide. A certificate of an Authorized
Representative of the Custodian shall be furnished
10
to the Seller and the Registered Holder(s), upon request, stating that such
insurance is in full force and effect.
Section 16. Covenants of Seller.
-------------------
Seller covenants to Buyer as of the date that any Mortgage File
documents are released to the Seller or the Seller's subservicer pursuant to a
Request for Release that:
(a) if the Request for Release has been submitted for the release
of a Purchased Mortgage Loan that has been paid in full, all amounts received in
connection with the payment in full of the Purchased Mortgage Loan have been
credited to the Buyer as provided in the Repurchase Agreement;
(b) if item No. 1 has been checked on the Request for Release, the
Repurchase Price for the applicable Purchased Mortgage Loan has been credited to
the Buyer as provided in the Repurchase Agreement;
(c) if item No. 2 has been checked on the Request for Release, a
Custodial Delivery has been delivered simultaneously therewith listing the
Purchased Mortgage Loan to be delivered in lieu of the Substituted Collateral;
and
(d) if item No. 3 has been checked on the Request for Release, all
proceeds of foreclosure, insurance, condemnation or other liquidation have been
finally received and credited to the Buyer pursuant to the Repurchase Agreement.
Section 17. Periodic Statements.
-------------------
Within ten (10) days of each anniversary of the date of this
Agreement, or upon the reasonable request of the Buyer, the Seller or a
Registered Holder at any other time, the Custodian shall provide to the Buyer,
the Seller or such Registered Holder, as the case may be, a list of all the
Purchased Mortgage Loans for which the Custodian holds a Mortgage File. Such
list may be in the form of a copy of a Mortgage Loan Schedule, if applicable,
with manual deletions to specifically denote any Purchased Mortgage Loans paid
off, repurchased, substituted or added since the date of this Agreement.
Section 18. Governing Law; Counterparts.
---------------------------
This Agreement shall be governed by the internal laws of the State
of New York, without giving effect to the conflict of laws principles thereof.
For the purpose of facilitating the execution of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute and be one and the same
instrument.
11
Section 19. No Adverse Interest of Custodian.
--------------------------------
By execution of this Agreement, the Custodian represents and
warrants that it currently holds, and during the existence of this Agreement
shall hold, no adverse interest, by way of security or otherwise, in any
Purchased Mortgage Loan, and hereby waives and releases any such interest which
it may have in any Purchased Mortgage Loan as of the date hereof. The Purchased
Mortgage Loans shall not be subject to any security interest, lien or right of
set-off by Custodian or any third party claiming through Custodian (other than
in the ordinary course of business), and Custodian shall not pledge, encumber,
hypothecate, transfer, dispose of, or otherwise grant any third party interest
in, the Purchased Mortgage Loans.
Section 20. Custodian Representations.
-------------------------
Custodian (and any successor custodian as of the appointment of
such custodian) hereby represents and warrants as of the date hereof and as of
each date it delivers an executed Trust Receipt that:
(a) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all licenses
necessary to carry on its business as it is now being conducted;
(b) it is qualified to act as a custodian;
(c) it is not an Affiliate of Seller or Buyer and covenants and
agrees with Buyer and Seller that prior to any such affiliation in the future,
it shall notify Buyer and Seller;
Section 21. Termination by Custodian.
------------------------
Custodian may terminate its obligations hereunder upon 30 days'
prior written notice to Buyer, the Registered Holder(s) and Seller. Such
resignation shall take effect upon (i) the appointment of a successor custodian
acceptable to Buyer within such 30 day period; and (ii) delivery of all Mortgage
Loan Files to the successor custodian, and if no successor has been appointed
within such 30 day period, the Custodian may petition a court of competent
jurisdiction to appoint a successor custodian.
Upon such termination and appointment of successor Custodian and
receipt of all outstanding Trust Receipts, the Custodian shall (i) promptly
transfer to the successor Custodian, as directed in writing by the Registered
Holder(s), all Mortgage Files being administered under this Agreement, and (ii)
if the endorsements on the Mortgage Notes and the Assignments of Mortgage have
been completed in the name of the Custodian, assign the Mortgages and endorse
without recourse the Mortgage Notes to the successor Custodian or as otherwise
directed in writing by the Registered Holder(s).
Section 22. Transfer of Purchased Mortgage Loans Upon Termination of a
----------------------------------------------------------
Transaction.
-----------
If the Custodian is furnished with written notice in the form of
Exhibit 8 attached hereto (i) from the Buyer and the Seller that a Transaction
12
with respect to the Repurchase Agreement has been terminated, or (ii) from the
Buyer that an Event of Default under the Repurchase Agreement has occurred as to
any or all of the Purchased Mortgage Loans, the Custodian shall release to such
Persons as designated in such notice, the Mortgage Files relating to the
Purchased Mortgage Loans that are no longer subject to the Transaction, and
shall deliver to the related Registered Holder an amended Trust Receipt with a
Mortgage Loan Schedule attached thereto, listing all of the Purchased Mortgage
Loans still subject to a Transaction.
Section 23. Notices.
-------
All demands, notices and communications hereunder (including,
without limitation, Trust Receipts) shall be in writing and shall be deemed to
have been duly given if mailed, by registered or certified mail, return receipt
requested, or, if by other means, including telex or other telecommunication
device capable of transmitting or creating a written record directly to the
office of the recipient, when received by the recipient party at the address
shown on the first page hereof, or at such other addresses as may hereafter be
furnished to the other parties by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee (as evidenced, in the
case of registered or certified mail, by the date noted on the return receipt,
or in the case of telex or other telecommunication device, the date noted on the
confirmation of such transmission).
Section 24. Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Buyer may assign its rights hereunder as
provided in the Repurchase Agreement.
Section 25. Concerning the Custodian.
------------------------
Custodian shall have no duties or responsibilities except those
that are specifically set forth herein. Custodian shall have no responsibility
nor duty with respect to any Mortgage Loan Files while not in its possession. If
Custodian requests instructions from the Registered Holder(s) with respect to
any act, action or failure to act in connection with this Agreement, Custodian
shall be entitled to refrain from taking such action and continue to refrain
from acting unless and until Custodian shall have received written instructions
from the related Registered Holder with respect to a Mortgage File without
incurring any liability therefor to Buyer, Seller or any other Person.
Custodian shall not be liable for any action or omission to act
hereunder except for its own negligence or lack of good faith or willful
misconduct. In no event shall Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
Without limiting the generality of the foregoing, Custodian may
rely upon and shall be protected in acting in good faith upon any notice or
other communication received by it and which it reasonably believes to be
genuine and duly authorized with respect to all matters pertaining to this
Agreement and its duties hereunder.
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Section 26. Indemnification.
----------------
Seller agrees to reimburse, indemnify and hold harmless the
Custodian and its directors, officers, employees, or agents from and against any
and all liability, loss, cost and expense, including reasonable fees and
expenses of counsel arising from or connected with Custodian's execution and
performance of this Agreement, including but not limited to the claims of any
third parties, including Buyer, except in the case of loss, liability or expense
resulting from negligence or willful misconduct on the part of Custodian. Such
indemnification shall survive the termination of this Agreement and the
resignation or removal of the Custodian hereunder.
Section 27. Obligations of the Custodian With Respect to the Trust Receipts.
---------------------------------------------------------------
(a) The Custodian shall keep a register in which the Custodian
shall provide for the registration of transfers of Trust Receipts as provided
herein and in which it shall record the name and address of the Person to whom
such Trust Receipt is issued (the "Registered Holder"). Buyer shall be the
-----------------
initial Registered Holder for all Purchased Mortgage Loans. Each Trust Receipt,
upon initial issuance or reissuance, shall be dated the date of such issuance or
reissuance and shall evidence the receipt and possession by the Custodian on
behalf of the Registered Holder of the Trust Receipt of the Mortgage Files and
the Registered Holder's right to possess those Mortgage Files. The Custodian
shall treat the person or entity in whose name the Trust Receipt is registered
as the person or entity entitled to possession of the Mortgage Files evidenced
by such Trust Receipt for all purposes whatsoever, subject to the terms of this
Agreement, and the Custodian shall not be affected by notice of any facts to the
contrary. No Trust Receipt shall be valid for any purpose unless substantially
in the form set forth in Exhibit 1 to this Agreement and executed by manual
signature of an Authorized Representative of the Custodian. Such signature upon
any Trust Receipt shall be conclusive evidence, and the only evidence, that such
Trust Receipt has been duly delivered under this Agreement. Trust Receipts
bearing the manual signatures of individuals who were, at the time when such
signatures were affixed, Authorized Representatives of the Custodian shall bind
the Custodian, notwithstanding that such individuals have ceased to be so
authorized prior to the delivery of those Trust Receipts. Each Trust Receipt
shall have attached thereto a Mortgage Loan Schedule with an exception report
with respect to the applicable Purchased Mortgage Loans. Any transferee or
assignee of the Trust Receipt shall succeed to all the rights of the
transferring Registered Holder under this Agreement with respect to such Trust
Receipt and the related Purchased Mortgage Loans upon notice to the Custodian
and delivery to the Custodian of the appropriate evidence of such transfer and
assignment.
(b) The Registered Holder may transfer its interest in the
Mortgage Files covered by any Trust Receipt by delivering to the transferee (the
"Transferee") such Trust Receipt, together with an appropriate notice to the
-----------
Custodian in the form of Exhibit 8 hereto (the "Notice to the Custodian").
-----------------------
Within five (5) Business Days of receipt of the Notice to the Custodian and the
Trust Receipt from the Transferee, the Custodian shall deliver, in accordance
with the written instructions of the Transferee, a Trust Receipt issued in the
name of the Transferee and to the place indicated in any such written direction
from the Transferee. Upon receipt of the Notice to the Custodian from the
14
Registered Holder, the Custodian shall change its records to reflect that such
Transferee is the Registered Holder of the Mortgage Files.
(c) In the event that (i) any mutilated Trust Receipt is
surrendered to the Custodian, or the Custodian receives evidence to its
satisfaction of the destruction, loss or theft of any Trust Receipt and (ii)
there is delivered to the Custodian such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice to the
Custodian that such Trust Receipt has been acquired by a bona fide purchaser,
the Custodian shall execute and deliver a new Trust Receipt to such Registered
Holder in exchange for or in lieu of any such mutilated, lost or stolen Trust
Receipt.
(d) Simultaneously with the relinquishment of a Trust Receipt to
the Custodian by the Registered Holder thereof and the delivery by the Custodian
of the related Mortgage Files to the Seller or its designee pursuant to Section
3 above or to such Registered Holder or a designee of the Registered Holder, the
Trust Receipt shall be canceled and the related Mortgage Files will no longer be
subject to this Agreement.
Section 28. Authorized Representatives.
--------------------------
Each individual designated as an authorized representative of the
Custodian, the Seller and the Buyer (each, an "Authorized Representative"), is
-------------------------
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this Agreement on behalf of the
Custodian, the Seller and the Buyer, respectively, and the specimen signature
for each such Authorized Representative of the Custodian, the Seller and the
Buyer initially authorized hereunder is set forth on Exhibits 3, 4 and 5,
respectively. From time to time, Custodian, the Seller and the Buyer may, by
delivering to the others a revised exhibit, change the information previously
given pursuant to this Section, but each of the parties hereto shall be entitled
to rely conclusively on the then current exhibit until receipt of a superseding
exhibit. The Seller shall deliver or cause to be delivered to Custodian an
Authorized Representatives exhibit for each subservicer designated by the Seller
in connection with Sections 9, 10 and 11 of this Agreement; provided, that the
Custodian shall not recognize any request from Seller's subservicer unless and
until the Seller has given the Custodian written notice identifying such
subservicer and such Authorized Representatives exhibit is received by the
Custodian. The Custodian shall be entitled to rely conclusively upon (i)
written notice from the Seller identifying a subservicer authorized to give
instructions under Sections 9, 10 and 11 of this Agreement until receipt of
written notice from the Seller revoking such authority and (ii) the most recent
Authorized Representatives exhibit delivered to it by a subservicer of the
Seller until receipt of a superseding exhibit. If the Custodian shall at any
time receive conflicting instructions from the Seller and a subservicer of the
Seller, the Custodian shall be entitled to rely on the instructions of the
Seller.
Section 29. Reproduction of Documents.
-------------------------
This Agreement and all documents relating thereto, including,
without limitation, (i) consents, waivers and modifications which may hereafter
be executed, and (ii) certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
15
microcard, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 30. Entire Agreement.
----------------
No amendment or waiver of any provision of this Agreement nor
consent to any departure herefrom shall in any event be effective unless the
same shall be in writing and signed by all the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. This Agreement, together with the
Exhibits, Annexes and other writings referred to herein or delivered pursuant
hereto, constitute the entire agreement and understanding of the parties with
respect to the matters and transactions contemplated by this Agreement and
supersede any prior agreement and understandings with respect to those matters
and transactions.
Section 31. Transmission of Custodial Files.
-------------------------------
Written instructions as to the method of shipment and shipper(s)
that the Custodian is directed to utilize in connection with the transmission of
Mortgage Files in the performance of Custodian's duties hereunder shall be
delivered to the Custodian by Seller prior to any shipment of any Mortgage Files
hereunder. In the event the Custodian does not receive written instructions as
provided for in the preceding sentence, the Custodian is hereby authorized and
shall be indemnified as provided herein by Seller to utilize a national
recognized securities courier service provided that the Custodian employs
prudent care in arranging for such courier service in accordance with industry
standards. Seller will arrange for the provision of such services at its sole
cost and expense (or, at the Custodian's option, reimburse the Custodian for all
costs and expenses incurred by the Custodian consistent with such instructions)
and will maintain such insurance against such loss or damage to the Mortgage
Files during shipment as the Seller deems appropriate.
16
IN WITNESS WHEREOF, the Buyer, the Seller and the Custodian have
caused their names to be duly signed hereto by their respective officers
thereunto duly authorized, all as of the date first above written.
XXXXXX COMMERCIAL PAPER INC.,
Buyer
By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------------
Name: Authorized Signatory
---------------------------------
Title:
---------------------------------
PAN AMERICAN BANK, FSB,
Seller
By: /s/ XXXXXXXX X. GRILL
---------------------------------
Name: Xxxxxxxx X. Grill
---------------------------------
Title: President
---------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Custodian
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------
Title: Assistant Secretary
---------------------------------
17
ANNEX A
ADDITIONAL DEFINITIONS
In addition to the Definitions set forth in Section 1, the following
words and phrases, unless the context otherwise requires, shall have the
following meaning:
Mortgage File: With respect to each Mortgage Loan, the following
-------------
original documents constituting an original mortgage file:
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _______, without recourse" and signed in
the name of the last endorsee (the "Last Endorsee") by an authorized
officer (in the event that the Mortgage Loan was acquired by the Last
Endorsee in a merger, the signature must be in the following form:
"[the Last Endorsee], successor by merger to [name of predecessor]";
in the event that the Mortgage Loan was acquired or originated while
doing business under another name, the signature must be in the
following form: "[the Last Endorsee], formerly known as [previous
name]";
(b) the original of any guarantee executed in connection with the Mortgage
Note (if any);
(c) the original Mortgage with evidence of recording thereon or copies
certified by Seller to have been sent for recording;
(d) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon or copies
certified by Seller to have been sent for recording;
(e) the original Assignment of Mortgage in blank for each Mortgage Loan,
in form and substance acceptable for recording and signed in the name
of the Last Endorsee (in the event that the Mortgage Loan was acquired
by the Last Endorsee in a merger, the signature must be in the
following form: "[the Last Endorsee], successor by merger to [name of
predecessor]"; in the event that the Mortgage Loan was acquired or
originated while doing business under another name, the signature must
be in the following form: "[the Last Endorsee], formerly known as
[previous name]";
(f) the originals of all intervening assignments of mortgage with evidence
of recording thereon or copies certified by Seller to be true and
correct and to have been sent for recording;
(g) the original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if any);
1
(h) the original policy of title insurance or a true copy thereof or if
such policy has not yet been delivered by the insurer, the commitment
or binder to issue the same; and
(i) the original power of attorney, if any, or a copy thereof certified by
an authorized officer of the Seller, for any document described above.
From time to time, the Seller shall forward to the Custodian
additional original documents or additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan.
With respect to any documents which have been delivered or are being
delivered to recording offices for recording and have not been returned to the
Seller in time to permit their delivery hereunder at the time of such transfer,
in lieu of delivering such original documents, Seller shall deliver to Custodian
a true copy thereof with a certification by the Seller on the face of such copy
substantially as follows: "I [name and title of signatory] of Seller do hereby
certify that this is a true, correct and complete copy of the original, which
has been transmitted for recordation." The Seller shall deliver such original
documents to the Custodian promptly after they are received.
In the event that item (h) is missing from the Mortgage File with
respect to a Custodial Delivery, notwithstanding such missing item, such
Mortgage File shall be deemed complete provided that such item is delivered to
the Custodian within 5 Business Days of such Custodial Delivery.
2
EXHIBIT 1
FORM OF TRUST RECEIPT
(date)
[To be addressed to the Registered Holder]
Re: The Custodial Agreement, dated as of November 6, 1997 (the
"Custodial Agreement"), among Xxxxxx Commercial Paper Inc.
("Buyer"), Pan American Bank, FSB ("Seller"), and Bankers Trust
Company of California, N.A.("Custodian")
Ladies and Gentlemen:
The Custodian hereby acknowledges that the above named person has been
identified to it as the Registered Holder of this Trust Receipt and has the
rights of a "Registered Holder" under the Custodial Agreement with respect to
the Purchased Mortgage Loans identified in the Mortgage Loan Schedule attached
hereto. Pursuant to the Custodial Agreement, the Custodian shall hold the
Purchased Mortgage Loans, identified in the Mortgage Loan Schedule attached
hereto (other than any Mortgage Loan listed on the attachment hereto which has
been paid in full and released in accordance with the provisions of the
Custodial Agreement) for the exclusive benefit of the above addressee.
In accordance with the provisions of Section 4 of the Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as to each
Purchased Mortgage Loan identified in the Mortgage Loan Schedule attached hereto
(other than any Mortgage Loan paid in full or any Mortgage Loan listed on the
attachment hereto) it has received the Mortgage Files and, it has reviewed the
Mortgage Files and has determined that, except as noted in the exception report
attached hereto (i) all documents in paragraphs (a), (c), (e), and, to the
extent provided in the Mortgage Files, (b), (d), (f), (g), (h and (i) of the
definition of "Mortgage File" are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule respecting such Mortgage
Loan accurately reflects the information contained in the documents in the
Mortgage File as to (A) the name of the mortgagor, (B) the address of the
Mortgaged Property, (C) the original interest rate on the Mortgage Note, (D) the
original principal amount of the Mortgage Note, and (E) the maturity date of the
Mortgage Note; (iv) the Mortgage Note and the Mortgage each bears an original
signature or signatures purporting to be the signature or signatures of the
person or persons named as the maker and mortgagor or grantor or, in the case of
certified copies of the Mortgage, that such copies bear a reproduction of such
signature or signatures; (v) the original principal amount of the indebtedness
secured by the Mortgage is identical to the original principal amount of the
Mortgage Note; (vi) if the Mortgage Note does not name "Seller" as the holder or
payee, the Mortgage Note bears original endorsements that complete the chain of
ownership from the original holder or payee to the Last Endorsee; (vii) if the
Mortgage does not name "Seller" as the
1
mortgagee or beneficiary, the original of the Assignment of Mortgage from the
named mortgagee or beneficiary bears the original signature purporting to be the
signature of the named mortgagee or beneficiary (and any other necessary party
including subsequent assignors) or in the case of copies certified by the
Seller, that such copies bear a reproduction of such signature or signatures and
that the Assignment of Mortgage and any intervening assignments of mortgage
complete the chain of title from the originator to the Last Endorsee; and (viii)
each Mortgage Note in its possession has been endorsed as provided in the
definition of "Mortgage File"; and (ix) each Assignment of Mortgage has been
executed as provided in the definition of "Mortgage File". Notwithstanding the
foregoing, the Custodian shall not be responsible for ensuring that the Mortgage
Loan Schedule attached hereto in the possession of a Registered Holder as a
result of a substitution pursuant to Section 6 of the Custodial Agreement is the
most current Mortgage Loan Schedule. The Registered Holder hereof may request
the Custodian to provide it with a copy of the current Mortgage Loan Schedule
with respect to this Trust Receipt. The Custodian makes no representations as to
and shall not be responsible to verify (i) the validity, legality,
enforceability, sufficiency, due authorization, recordability, or genuineness of
any document in any Mortgage File or any of the Purchased Mortgage Loans
identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the above-referenced Custodial Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Custodian
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
2
