Execution Copy
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CUSTODIAL AND DISBURSEMENT AGREEMENT
AMONG
DB STRUCTURED PRODUCTS, INC., AS BUYER,
MORTGAGE IT HOLDINGS, INC. AND MORTGAGE IT, INC. EACH AS A SELLER,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS CUSTODIAN AND DISBURSEMENT AGENT,
Dated as of July 12, 2006
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TABLE OF CONTENTS
Page
Section 1. Definitions................................................. 3
Section 2. Delivery of Asset File...................................... 7
Section 3. Custodial Asset Schedule and Exception Report; Trust 11
Receipt .................................................
Section 4. Obligations of Custodian.................................... 13
Section 5. Release of Asset Files...................................... 14
Section 6. Fees and Expenses of Custodian.............................. 16
Section 7. Removal or Resignation of Custodian and Disbursement Agent.. 16
Section 8. Examination of Files, Books and Records..................... 17
Section 9. Insurance................................................... 17
Section 10. Representations and Warranties.............................. 17
Section 11. Disbursement Agent Duties................................... 18
Section 12. No Adverse Interest......................................... 22
Section 13. Indemnification............................................. 22
Section 14. Reliance of Custodian and Disbursement Agent................ 23
Section 15. Term of Agreement........................................... 25
Section 16. Notices..................................................... 25
Section 17. GOVERNING LAW............................................... 25
Section 18. Authorized Representatives.................................. 25
Section 19. Amendment................................................... 25
Section 20. Cumulative Rights........................................... 25
Section 21. Assignment; Binding Upon Successors......................... 26
Section 22. Entire Agreement; Severability.............................. 26
Section 23. Execution in Counterparts................................... 00
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Xxxxxxx 00. Tax Reports................................................. 26
Section 25. Assignment by Buyer......................................... 26
Section 26. SUBMISSION TO JURISDICTION; WAIVERS......................... 27
Section 27. Confidentiality............................................. 27
Annex 1 Asset Schedule Delivery Information
Annex 1-A Wet Funded Loan Schedule Delivery Information
Annex 2 Form of Dry Loan Trust Receipt
Annex 3 Form of Wet Funded Loan Trust Receipt
Annex 4 Review Procedures
Annex 5-A Form of Request For Release And Receipt
Annex 5-B Form of Request For Release of Documents And Receipt
Annex 5-C Form of Request For Release
Annex 6 Authorized Representatives of Buyer
Annex 7 Authorized Representatives of Seller
Annex 8 Authorized Representatives of Custodian
Annex 9 Authorized Representatives of Disbursement Agent
Annex 10 Reserved
Annex 11 Exception Codes
Annex 12 Form Transmittal & Bailment Letter
Annex 13 Form Transmittal & Bailment Letter
Annex 14 REO Properties Review Procedures
Annex 15 Form of Lost Note Affidavit/Assignment of Mortgage
Annex 16 Form of Attorney's Bailee Letter
Annex 17 Form of Warehouse Lender's Release
Annex 18 Form of Seller's Release
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CUSTODIAL AND DISBURSEMENT AGREEMENT, dated as of July 12, 2006
("Custodial Agreement"), made by and among:
(i) MortgageIT Holdings, Inc., a Maryland corporation (including its
successors in interest "Holdings") and MortgageIT, Inc., a New York
corporation (including its successors in interest "MIT" and together
with Holdings, the "Sellers" and each individually a "Seller");
(ii) DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian for Buyer pursuant
to this Custodial Agreement (in such capacity, including its
successors in interest and any successor Custodian as permitted
hereunder, "Custodian"), and as disbursement agent for Buyer pursuant
to this Custodial Agreement (in such capacity, including its
successors in interest and any successor Disbursement Agent as
permitted hereunder, "Disbursement Agent"); and
(iii) DB STRUCTURED PRODUCTS, INC., a Delaware corporation (including its
successors in interest, "DBSP" or "Buyer");
RECITALS
Seller and Buyer are parties to the Master Repurchase Agreement, dated
as of the date hereof (as amended, supplemented or otherwise modified and in
effect from time to time, the "Repurchase Agreement"), pursuant to which Seller
and Buyer have agreed, subject to the terms and conditions of the Repurchase
Agreement, to enter into transactions (each a "Transaction") in which Buyer has
agreed to purchase from time to time from Seller certain Assets, with a
simultaneous agreement by Seller to repurchase such Assets.
It is a condition precedent to the effectiveness of the Repurchase
Agreement that the parties hereto execute and deliver this Custodial Agreement
to provide for the appointment of Custodian as custodian and Disbursement Agent
as disbursement agent hereunder. Accordingly, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS.
Unless otherwise defined herein, capitalized terms used herein and
defined in the Repurchase Agreement shall have the meanings assigned to such
terms in the Repurchase Agreement, and the following terms shall have the
following meanings:
"Affiliate" shall have the meaning specified in the Repurchase
Agreement.
"Agency" shall mean Xxxxxxx Mac or Xxxxxx Mae, as applicable.
"Applicable Guide" shall mean with respect to Xxxxxx Xxx or Xxxxxxx
Mac, the applicable guide published by either Xxxxxx Mae or Xxxxxxx Mac setting
forth the requirements each Loan needs to satisfy in order to be eligible for
purchase by Xxxxxx Mae or Xxxxxxx Mac, as such guide may be amended or
supplemented from time to time or any other set of criteria established by
Xxxxxx Mae or Xxxxxxx Mac, as applicable, that a Loan must satisfy in order to
be eligible for purchase by Xxxxxx Mae or Xxxxxxx Mac, as the case may be.
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"Approved Title Insurance Company" shall mean a title insurance
company that has not been disapproved by Buyer in its sole discretion in a
written notice to the Custodian and the Sellers by the Buyer.
"Asset" shall mean a Loan or REO Property.
"Asset File" shall mean, as to each Asset, those documents listed in
Sections 2(a), 2(b) or 2(c), as applicable, that are delivered to the Custodian
or which at any time come into the possession of the Custodian.
"Asset Schedule" shall mean the asset schedule, including but not
limited to computer tape or other electronic medium generated by or on behalf of
Sellers and delivered or transmitted to Buyer and Custodian, which provides
information relating to Purchased Assets, including information specified on
Annex 1 to this Custodial Agreement and, with respect to Wet Funded Loans, any
additional information specified on Annex 1 and Annex 1-A to this Custodial
Agreement.
"Assignment of Mortgage" means, with respect to any Mortgage, an
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form (excluding only the name of the assignee), sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located.
"Authorized Representative" shall have the meaning specified in
Section 18.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of
1978, as amended from time to time.
"Business Day" shall mean any day other than (i) a Saturday or Sunday
or (ii) a day on which banking institutions in the State of New York or any of
Custodian, Disbursement Agent, Seller or Buyer is authorized or obligated by law
or executive order to be closed.
"Buyer" shall have the meaning specified in the preamble to this
Custodial Agreement.
"Confirmation" shall have the meaning specified in the Repurchase
Agreement.
"Custodial Asset Schedule and Exception Report" shall mean, with
regard to an Asset Schedule, the Loan data specified in Annex 19, including but
not limited to a list of the exception codes set forth on Annex 11 hereto
indicating any Exceptions with respect to each Asset listed on such Asset
Schedule. Each Exception Report shall set forth, with regard to both any Assets
being sold to the Buyer on any applicable Purchase Date as well as any Assets
previously sold to the Buyer and held by Custodian hereunder, all Exceptions,
together with any updates thereto from the time last delivered.
"Custodial Delivery Failure" shall have the meaning specified in
Section 13(b).
"Custodian" shall have the meaning specified in the preamble to this
Custodial Agreement.
"Daily Aged Report" shall have the meaning specified in Section 3(b).
"Daily Report" shall have the meaning specified in Section 11(d)(ii).
"Default" shall have the meaning set forth in the Repurchase Agreement
"Disbursement Account" shall have the meaning specified in Section
11(a)(i).
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"Disbursement Agent" shall have the meaning specified in the preamble
to this Custodial Agreement.
"Dry Loan" shall mean a Loan with respect to which the Asset File
contains all required Loan Documents.
"Electronic Tracking Agreement" means the Electronic Tracking
Agreement dated as of July 12, 2006 among Buyer, Sellers, MERSCORP, Inc. and
Mortgage Electronic Registration, Systems, Inc., as the same may be amended,
modified or supplemented from time to time; provided that if no Loans are or
will be MERS Designated Mortgage Loans, all references herein to the Electronic
Tracking Agreement shall be disregarded.
"Electronic Transmission" shall mean the delivery of information in an
electronic format acceptable to the applicable recipient thereof. An Electronic
Transmission shall be considered written notice for all purposes hereof (except
when a request or notice by its terms requires execution).
"Escrow Instruction Letter" shall mean a closing instruction letter
from Seller to the Settlement Agent in substantially the form of Annex 10.
"Exception" shall mean, with respect to any Asset, any variances from
the delivery requirements of Section 2 hereof with respect to the Asset Files
and indicating such exceptions using the codes set forth on Annex 11 hereto.
"Event of Default" shall have the meaning provided in Section 18 of
the Repurchase Agreement.
"Xxxxxx Mae" shall mean Xxxxxx Xxx, and its successors in interest.
"Xxxxxxx Mac" shall mean Xxxxxxx Mac, and its successors in interest.
"Governmental Authority" shall mean, with respect to any Person, any
nation or government, any state or other political subdivision thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any court or arbitrator having
jurisdiction over such Person, any of its subsidiaries or any of their
properties.
"Interim Funder" shall mean with respect to each MERS Designated Loan,
the Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
"Last Endorsee" shall have the meaning set forth in Section 2(a)(1).
"Loan" means a first lien or second lien, fixed rate or adjustable
rate, wet- or dry-funded, residential mortgage loan or home equity mortgage loan
originated by a Seller in accordance with the Underwriting Guidelines and in
each case meeting the requirements of Exhibit D to the Repurchase Agreement.
"Loan Documents" shall mean, with respect to a Loan, the documents
comprising the Asset File for such Loan.
"Lost Note Affidavit" means a lost note affidavit in the form of Annex
11 attached hereto.
"Margin Deficit" shall have the meaning set forth in the Master
Repurchase Agreement.
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"MBS" shall have the meaning provided in Section 5(c)(ii).
"MERS" shall mean Mortgage Electronic Registration Systems, Inc., and
its successors in interest.
"MERS Designated Loan" Means any Loan where the Seller has designated
or shall designate MERS as, and has taken or will take such action as is
necessary to cause MERS to be, the mortgagee of record with respect to each Loan
in a Transaction, and in accordance with the MERS Procedures.
"MERS Identification Number" shall mean the eighteen digit number
permanently assigned to each MERS Designated Loan.
"MERS Procedures Manual" shall mean the MERS Procedures Manual to be
delivered to Buyer by MERS in the event that any of the Loans are registered
with MERS, as it may be amended, supplemented or modified from time to time.
"MERS(R) System" shall mean an Electronic Agent's mortgage electronic
registry system, as more particularly described in the MERS Procedures Manual.
"Mortgage Note" shall mean a promissory note or other evidence of
indebtedness of the obligor thereunder, representing a Loan, and secured by the
related Mortgage.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated association or government (or any agency, instrumentality or
political subdivision thereof).
"Release Limit" shall have the meaning specified in Section 5(a).
"REO Documents" shall mean, with respect to a REO Property, the
documents comprising the Asset File for such REO Property.
"REO Property" means a real property (including all improvements and
fixtures thereon) acquired by Seller through foreclosure sale or by deed in lieu
of foreclosure or otherwise.
"Repurchase Agreement" shall have the meaning specified in the
Recitals.
"Request for Release" shall mean a request of Seller in the form of
Annex 5-A, 5-B, or 5-C, hereto.
"Required Delivery Item" shall have the meaning specified in Section
3(a).
"Required Delivery Time" shall have the meaning specified in Section
3(a).
"Required Party" shall have the meaning specified in Section 3(a).
"Review Procedures" shall have the meaning specified in Section 3(c).
"Seller Funded Wire Amount" shall have the meaning specified in
Section 11(a)(ii).
"Seller's Release" shall have the meaning set forth in Section 2(a).
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"Settlement Agent" shall have the meaning set forth in Section
11(h)(2).
"Settlement Agent" means a title company, escrow company or attorney
that is (i) unaffiliated with Sellers, (ii) bonded by an Approved Title
Insurance Company and (iii) insured against errors and omissions in an amount
satisfactory to Buyer in its sole discretion, to which the proceeds of any
Transaction related to a Wet Funded Loan are to be wired prior to the occurrence
of such Transaction in accordance with local law and practice in the
jurisdiction where such Wet Funded Loan is being originated.
"Transaction Account" shall mean the Disbursement Account or Wire-Out
Account.
"Transaction Notice" means a written request of Seller to enter into a
Transaction, in the form set forth in the Master Repurchase Agreement or such
other form as shall be mutually agreed upon among Seller and Buyer, which is
delivered to Buyer and Custodian.
"Trust Receipt" shall mean a trust receipt in the form of either Annex
2 or Annex 3, as applicable, delivered to the Buyer by Custodian covering all of
the Loans subject to this Custodial Agreement from time to time, as reflected on
the Custodial Asset Schedule and Exception Report attached thereto in accordance
with Section 3.
"Underwriting Guidelines" means Sellers' underwriting guidelines in
effect as of the date of this Agreement which have been approved in writing by
the Buyer, as the same may be amended or modified from time to time in
accordance with the terms of the Master Repurchase Agreement.
"Warehouse Lender" shall mean any lender providing financing to a
Seller for the purpose of warehousing, originating or purchasing Loans, which
lender has a security interest in such Loans to be purchased by the Buyer.
"Warehouse Lender's Release" shall mean a letter, in the form of Annex
17, from a Warehouse Lender to Buyer, unconditionally releasing all of Warehouse
Lender's right, title and interest in certain Loans identified therein upon
receipt of payment by the Warehouse Lender.
"Wet Funded Loan" shall mean a Loan (i) that is sold to Buyer
simultaneously with the origination thereof by the originator, (ii) that is
funded in part or in whole with proceeds of the sale of the Loan to Buyer paid
directly to a Settlement Agent, (iii) [reserved], (iv) and for which all of the
Loan Documents specified in the Custodial Agreement have not been delivered to
Custodian in accordance with the Custodial Agreement.
"Wire Amount" shall mean the amount to be wired to the Warehouse
Lender or Seller in accordance with the Warehouse Lender's Release or the
Repurchase Agreement, as applicable, for any Loan which is not a Wet Funded Loan
and shall mean the amount to be wired to the Settlement Agent pursuant to the
Escrow Instruction Letter in the case of a Wet Funded Loan.
"Wire-out Account" shall have the meaning specified in Section
11(a)(ii).
SECTION 2. DELIVERY OF ASSET FILE.
The applicable Sellers shall release to Custodian the following
original documents pertaining to each Asset in accordance with the required
delivery times set forth in Section 3(a), each of which Assets shall be
identified in the related Asset Schedule.
(a) With respect to each Loan (other than a Wet Funded Loan):
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(i) 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 Person (in the event that the Loan was
acquired by the Last Endorsee in a merger, the signature must be in
the following form: "[Last Endorsee], successor by merger to [name of
predecessor]"; in the event that the Loan was acquired or originated
by the Last Endorsee while doing business under another name, the
signature must be in the following form: "[Last Endorsee], formerly
known as [previous name]");
(ii) The original Mortgage with evidence of recording thereon, or
a copy thereof certified by originator, the title company, the escrow
agent or the closing attorney to be a true and correct copy of the
original that has been duly delivered to the appropriate recording
office;
(iii) The originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of
recording thereon, or a copy thereof certified by originator, the
title company, the escrow agent or the closing attorney to be a true
and correct copy of the original that has been duly delivered to the
appropriate recording office;
(iv) The original, or a copy thereof if the original is out for
recordation, of the Assignment of Mortgage in blank for each Loan, in
form and substance acceptable for recording and signed in the name of
the Last Endorsee (in the event that the Loan was acquired by the Last
Endorsee in a merger, the signature must be in the following form:
"[Last Endorsee], successor by merger to [name of predecessor]"; in
the event that the Loan was acquired or originated while doing
business under another name, the signature must be in the following
form: "[Last Endorsee], formerly known as [previous name]"), except in
the case of such Loan, if any, that has been originated in the name of
or assigned to MERS and registered under the MERS(R) System);
(v) The originals of all intervening assignments of mortgage, if
any, with evidence of recording thereon, showing an unbroken chain of
title from the originator thereof to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) or a copy thereof certified by
the Originator, the title company, the escrow agent or the closing
attorney to be a true and correct copy of the original that has been
duly delivered to the appropriate recording office;
(vi) The original attorney's opinion of title and abstract of
title or the original mortgagee title insurance policy, or if the
original mortgagee title insurance policy has not been issued, the
irrevocable commitment to issue the same;
(vii) The original of any security agreement or equivalent
document executed in connection with the Loan; and
(viii) If any of the above documents has been executed by a
person holding a power of attorney, as notified to the Custodian in
writing an original or photocopy of such power certified by the
applicable Seller to be a true and correct copy of the original;
provided, however, that as to the documents listed in clauses (ii), (iii) and
(v) above which have been delivered or are being delivered to recording offices
for recording and have not been returned to the applicable Seller in time to
permit their delivery hereunder at the time of such transfer, and in lieu of
delivering such original documents or conformed copies where permitted, the
applicable Seller has
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delivered to Custodian a true copy thereof. The applicable Seller shall deliver
such original documents, together with any related policy of title insurance not
previously delivered, on behalf of the applicable Seller to Custodian promptly
after they are received. Without any further act by any party, such Seller shall
be deemed to (x) certify to the Buyer that the Loans subject to the Transaction
on such date are not subject to a lien of any third-party and (y)
unconditionally release all right, title, interest and/or claim of any kind to
or with respect to such Loans, upon payment from the Buyer of the amount of the
Purchase Price contemplated under the Repurchase Agreement (calculated in
accordance with the terms thereof) in accordance with the wiring instructions
set forth in the Repurchase Agreement, and shall evidence such certification and
release by executing and delivering to the Buyer a certificate in the form of
Annex 18 hereto (the "Seller's Release").
(b) With respect to each REO Property:
(i) A copy of the original deed with evidence of recording
thereon, or a trustee or sheriff's deed or certificate of foreclosure
or other similar instrument to the REO Property in the name of the
applicable Seller, or copy thereof together with an officer's
certificate of applicable Seller certifying that such represents a
true and correct copy of the original and that such original has been
or is being submitted for recordation in the appropriate governmental
recording office of the jurisdiction where the REO Property is
located.
(ii) A mortgage, deed of trust, warranty deed or similar
instrument, signed by applicable Seller or the fee holder of record
and prepared in blank, on the REO Property which is otherwise
acceptable for recording in the appropriate governmental recording
office of the jurisdiction where the REO Property is located.
All assignment, deed, conveyancing and other documents shall be
consistent with standard conveyancing practice and law, as applicable to the
type of REO Property in question. The documents with respect to the conveyance
of any condominium unit from Seller to Buyer shall conform to the requirements
of the condominium association. Seller, at its expense, shall prepare all deeds
and other documents customarily required in accordance with applicable laws and
customs with respect to the transfer of the REO Properties to Buyer.
(c) With respect to each Wet Funded Loan, no later than seven (7)
Business Days following the applicable Purchase Date, Seller shall deliver to
Custodian the documents listed in Section 2(a).
(d) With respect to all Asset Files:
(i) From time to time, the Sellers shall forward to the Custodian
additional original documents or additional documents evidencing any
assumption, modification, consolidation or extension of a Loan
approved by the Sellers, or other documents with respect to an Asset,
in accordance with the terms of the Repurchase Agreement, and upon
receipt of any such other documents, Custodian shall hold such other
documents as the Buyer shall request from time to time.
(ii) 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 Sellers in time to permit their delivery
hereunder at the time required, in lieu of delivering such original
documents, the applicable Seller shall deliver to the Custodian a copy
thereof certified by such Seller, originating Lender, the Settlement
Agent, title company or escrow closing company as a true, correct and
complete copy of the original that has
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been duly delivered to the appropriate recording office, with a
conformed recorded copy to follow as soon as the same is received by
the applicable Seller.
[The remainder of this page has been intentionally left blank.]
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SECTION 3. CUSTODIAL ASSET SCHEDULE AND EXCEPTION REPORT; TRUST RECEIPT.
(a) With respect to each category of Asset, Sellers shall provide to
the indicated required parties (each, a "Required Party") the required delivery
items (each, a "Required Delivery Item") set forth in the table below by the
corresponding required delivery time (the "Required Delivery Time"):
ASSET REQUIRED DELIVERY TIME REQUIRED DELIVERY ITEMS REQUIRED PARTY
-------------------- ------------------------------------- ------------------------------------- -----------------------------
Loans (other than 4:00 p.m. New York City time, one (1) Notice of proposed purchase and Custodian and Buyer
Wet Funded Loans) Business Day prior to the related delivery of an Asset Schedule.*
Purchase Date.
3:00 p.m. New York City time, one (1) All documents required to be Custodian
Business Day prior to the related delivered pursuant to Section 2(a).
Purchase Date. Pursuant to Section
3(a)(i) below, Custodian will review
up to 1000 Asset Files per Business
Day.
Wet Funded Loans 5:00 p.m. New York City time, one (1) An estimate of the Purchase Price for Buyer
Business Day prior to the related such Wet Funded Loans to be purchased
Purchase Date. on the Purchase Date.
Between 9:30 a.m. and 4:30 p.m. New Notice of proposed purchase and Custodian, Disbursement Agent
York City time on the related delivery of an Asset Schedule and Buyer
Purchase Date. (containing the information set forth
on Annexes 1 and 1-A hereto).*
No later than seven (7) Business Days All documents required to be Custodian and Buyer
following the related Purchase Date. delivered pursuant to Section 2(a)
and 2(c).
REO Property 4:00 p.m. New York City time, one (1) Transaction Notice and delivery of Custodian and Buyer
Business Day prior to the related Asset Schedule.
Purchase Date.
3:00 p.m. New York City time, one (1) All documents required to be Custodian
Business Day prior to the related delivered pursuant to Section 2(b).
Purchase Date. Pursuant to Section
3(a)(i) below, Custodian will review
up to 1000 Asset Files per Business
Day.
*A maximum of two (2) Transaction Notices shall be permitted on any day with
regard to Assets other than Wet Funded Loans, and a maximum of six (6)
Transaction Notices shall be permitted on any day with regard to Wet Funded
Loans.
(i) With respect to up to 1000 Asset Files delivered to the Custodian
on any single Business Day, and provided that the the Custodian has received
each applicable Required Delivery Item by the Required Delivery Time set forth
above, the Custodian will deliver to the Buyer by Electronic Transmission, no
later than 12:00 noon New York time (or with respect to each such Wet Funded
Loan,
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5:00 p.m. New York time) on the Purchase Date, a Trust Receipt as set forth in
Section 3(b), a Custodial Asset Schedule and Exception Report for each Asset
purchased by the Buyer on such date, with Exceptions identified by Custodian as
current as of the date and time of delivery of such Custodial Asset Schedule and
Exception Report; provided that, if more than 1000 Asset Files are delivered to
the Custodian on the Business Day prior to the Purchase Date, the Custodian
shall have one additional Business Day to review each additional set of 1000
Asset Files and deliver the Trust Receipt, Custodial Asset Schedule and
Exception Report.
(ii) Upon discovery by the Custodian of a Document Exception,
Custodian shall immediately send to Sellers and the Buyer, by Electronic
Transmission, a Custodial Asset Schedule and Exception Report listing such
Document Exception(s). In the event Custodian has not received all documents
required to be delivered pursuant to Section 2(c) with respect to a Wet Funded
Loan on or prior to the seventh (7th) Business Day after the related Purchase
Date, Custodian shall, on the 8th Business Day following the Purchase Date,
notify the Buyer and Sellers by Electronic Transmission of such failure.
(b) Custodian shall deliver to the Buyer a Trust Receipt in the form
of Annex 2 with respect to Dry Loans and in the form of Annex 3 with respect to
Wet Funded Loans sold to the Buyer on such Purchase Date and any prior Purchase
Date and held by Custodian hereunder, and shall deliver to the Buyer via
facsimile or Electronic Transmission, a Custodial Asset Schedule and Exception
Report for Assets which are not Wet Funded Loans and a detailed listing of all
Wet Funded Loans to the Buyer and Sellers, which shall be attached to the
related Trust Receipt. Each Custodial Asset Schedule and Exception Report and
detailed listing of Wet Funded Loans delivered by Custodian to the Buyer shall
supersede and cancel the Custodial Asset Schedule and Exception Report and
detailed listing of Wet Funded Loans previously delivered by Custodian to the
Buyer hereunder, and shall replace the then existing Custodial Asset Schedule
and Exception Report and detailed listing of Wet Funded Loans to be attached to
the Trust Receipt. Custodian shall also deliver to Sellers and the Buyer no
later than 5:00 p.m. New York time on each Business Day, by Electronic
Transmission, a daily aging report setting forth such information as may be
reasonably required by the Buyer (the "Daily Aged Report"). Custodian shall
monitor each Asset on a daily basis in order that all information set forth on
the Daily Aged Report is accurate as of the time such Daily Aged Report is
delivered. Disbursement Agent shall provide to Custodian all information in its
possession that Custodian requires in order to complete and deliver each Daily
Aged Report. In no event shall Custodian list any Asset on a Custodial Asset
Schedule and Exception Report if Custodian has not yet reviewed the related
Asset File.
(c) Each Custodial Asset Schedule and Exception Report shall list all
Exceptions using such exception codes as are set forth on Annex 11 hereto, as
may be amended from time to time. The delivery of each Trust Receipt and
Custodial Asset Schedule and Exception Report to the Buyer shall be Custodian's
representation that, other than the Exceptions listed as part of the Exception
Report: (i) all documents required to be delivered in respect of each Asset
pursuant to Section 2 of this Custodial Agreement have been delivered and are in
the possession of the Custodian as part of the Asset File for such Asset; (ii)
Custodian is holding each Asset identified on the Custodial Asset Schedule and
Exception Report, pursuant to this Custodial Agreement, as the bailee of and
custodian for the Buyer and/or its designees and all such documents have been
reviewed by Custodian and appear on their face to be regular and to relate to
such Asset and to satisfy the requirements set forth in Section 2 of this
Custodial Agreement and the review procedures attached hereto as Annex 4 (the
"Review Procedures").
(d) In connection with any Trust Receipt and Custodial Asset Schedule
and Exception Report delivered hereunder by the Custodian, Custodian shall make
no representations as to and shall not be responsible to verify (A) the
validity, legality, enforceability, due authorization, recordability,
sufficiency, priority, perfection or genuineness of any of the documents
contained in each Asset File or
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(B) the collectability, insurability, effectiveness or suitability of any such
Asset. Subject to the following sentence, the Sellers and Buyer hereby give the
Custodian notice that from and after the Purchase Date, the Buyer shall own (or,
alternatively, have a security interest in) each Asset identified on a Custodial
Asset Schedule and Exception Report until such time that the Custodian receives
written notice from the Buyer that the Buyer no longer owns or has a security
interest in such Asset. In the event that the Buyer does not purchase the Assets
proposed to be purchased from a Seller prior to 5:00 p.m. (New York City time)
on such Purchase Date, upon written notice thereof from the such Seller,
acknowledged by the Buyer, Custodian shall hold or release to such Seller,
pursuant to such Seller's written instructions, the Assets in respect of the
Custodial Asset Schedule and Exception Report delivered by Custodian on such
Purchase Date.
(e) Notwithstanding anything to the contrary set forth herein, in the
event that the Custodial Asset Schedule and Exception Report or detailed listing
of Wet Funded Loans attached to the Trust Receipt is different from the most
recently delivered Custodial Asset Schedule and Exception Report or detailed
listing of Wet Funded Loans, then the most recently delivered Custodial Asset
Schedule and Exception Report or detailed listing of Wet Funded Loans, as
applicable, shall control and be binding upon the parties hereto.
SECTION 4. OBLIGATIONS OF CUSTODIAN.
(a) Custodian shall maintain continuous custody of all items
constituting the Asset Files in secure facilities in accordance with customary
standards for such custody and shall reflect in its records the interest of
Buyer therein. Each Mortgage Note (and Assignment of Mortgage) shall be
maintained in fire resistant facilities.
(b) With respect to the documents constituting each Asset File,
Custodian shall (i) act exclusively as the bailee of, and custodian for, Buyer,
(ii) hold all documents constituting such Asset File received by it for the
exclusive use and benefit of Buyer, and (iii) make disposition thereof only in
accordance with the terms of this Custodial Agreement or with written
instructions furnished by the Buyer; provided, however, that in the event of a
conflict between the terms of this Custodial Agreement and the written
instructions of Buyer, Buyer's written instructions shall control.
(c) In the event that (i) any Buyer, the Sellers or the Custodian
shall be served by a third-party with any type of levy, attachment, writ or
court order with respect to any Asset File or any document included within an
Asset File or (ii) a third-party shall institute any court proceeding by which
any Asset File or a document included within any Asset File shall be required to
be delivered otherwise than in accordance with the provisions of this Custodial
Agreement, the party receiving such service shall promptly deliver or cause to
be delivered to the other parties to this Custodial Agreement copies of all
court papers, orders, documents and other materials concerning such proceedings.
Custodian shall, to the extent permitted by law or any court order, continue to
hold and maintain all the Asset Files that are the subject of such proceedings
pending delivery to the Custodian of a final, nonappealable order of a court of
competent jurisdiction permitting or directing disposition thereof. Upon final
determination of such court, Custodian shall dispose of such Asset File or any
document included within such Asset File as directed by the Buyer, which shall
give a direction consistent with such determination. Expenses of Custodian
(including reasonable attorneys' fees and related expenses) incurred as a result
of such proceedings shall be borne by Sellers.
(d) During the term of this Custodial Agreement, if Custodian
discovers any nonconformity with the review criteria in, as applicable, Annex 4
or Annex 14 (relating to REO Properties), with respect to any Asset File,
Custodian shall, by means of the Custodial Asset Schedule and Exception Report,
give written specification of such nonconformity to Buyer and the Sellers.
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SECTION 5. RELEASE OF ASSET FILES.
(a) From time to time until Custodian is otherwise notified by the
Buyer in writing, which notice shall be given by the Buyer in its good faith and
reasonable judgment, the Custodian shall, upon receipt of written request of
Sellers, release Asset Files relating to Assets in the possession of Custodians
to Sellers or their designee, for the purpose of correcting documentary
deficiencies relating thereto against a Request for Release and Receipt
delivered by Electronic Transmission by Sellers in the form of Annex 5-A hereto.
The preceding sentence regarding the Asset Files in Custodian's possession shall
be operative only to the extent that at any time Custodian shall not have
released to Sellers or their designee pursuant to clause (a) or (b) of this
Section 5, more than the lesser of ten (10) Asset Files and Asset Files
representing Assets the aggregate principal balance or [book] value, in the case
of REO Property, of which does not exceed $5,000,000 at any one time pertaining
to Assets at the time being held by Custodian on behalf of the Buyer (the
"Release Limit"). In the event Sellers request the release of an Asset File to
Sellers or their designee with respect to an Asset, which release would result
in Custodian having released Asset Files pertaining to Assets at the time being
held by Custodian on behalf of the Buyer with an aggregate outstanding principal
balance and/or [book] value, or in a number greater than the Release Limit,
Custodian shall notify the Buyer and obtain written consent from the Buyer prior
to such requested release. Custodian shall promptly notify the Buyer in its
Daily Report that it has released any Asset File to Sellers or their designee.
Sellers or their designee shall hold each Asset File delivered to it pursuant to
this Section 5(a) as bailee for the Buyer. Sellers or their designee shall
return to Custodian each Asset File previously released within ten (10) Business
Days of receipt thereof. Sellers hereby further covenant to the Buyer and
Custodian that any such request by Sellers for release of Asset Files pursuant
to this Section 5(a) shall be solely for the purposes of correcting clerical or
other non-substantial documentation problems in preparation for returning such
Asset Files to Custodian for ultimate sale or exchange and that Sellers have
requested such release in compliance with all terms and conditions of such
release set forth herein and in the Repurchase Agreement.
(b) From time to time until Custodian is otherwise notified by the
Buyer, which notice shall be given by the Buyer in its good faith and reasonable
judgment, and as appropriate for the servicing of any of the Assets, Custodian
shall, upon written receipt from Sellers of a Request for Release of Documents
and Receipt in the form of Annex 5-B hereto, release to Sellers or their
designee the Asset File set forth in such request relating to Assets in the
possession of Custodian. The preceding sentence respecting release to Sellers,
or their designee, of Custodian's Asset Files shall be operative only to the
extent that at any time Custodian shall not have released to Sellers or their
designee pursuant to clause (a) or (b) of this Section 5, Asset Files pertaining
to Assets at the time being held by Custodian on behalf of the Buyer in excess
of the Release Limit. In the event Sellers or their designee request the release
of an Asset File to Sellers or their designee with respect to an Asset, which
release would result in Custodian having released Asset Files pertaining to
Assets at the time being held by Custodian on behalf of the Buyer in excess of
the Release Limit, Custodian shall notify the Buyer in its Daily Report and
obtain written acknowledgment from the Buyer prior to such requested release.
Custodian shall promptly notify the Buyer that it has released any Asset File to
Sellers or their designee. Sellers or their designee shall hold each Asset File
delivered to it pursuant to this Section 5(b) as bailee for the Buyer. Sellers
or their designee shall return to Custodian each Asset File previously released
to such Seller or Seller's designee within ten (10) Business Days of receipt
thereof. Sellers hereby further covenant to the Buyer and Custodian that any
such request by Sellers or their designee for release of Asset Files pursuant to
this Section 5(b) shall be solely for the purposes of servicing of any of the
Assets and that Sellers have requested such release in compliance with all terms
and conditions of such release set forth herein and in the Repurchase Agreement.
(c) (i) From time to time Custodian is hereby authorized, upon receipt
of written request of Sellers to release Asset Files in the possession of
Custodian to a third-party purchaser
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for the purpose of resale thereof pursuant to a fully executed and acknowledged
and agreed Request for Release delivered via Electronic Transmission by Sellers
in the form of Annex 5-C hereto. For the avoidance of doubt, under no
circumstances shall the Buyer have any obligation to consent to any such Request
for Release after the occurrence of a Default or an Event of Default. On such
Request for Release, Sellers shall indicate the Assets to be sold, the purchase
price for such Assets anticipated to be received, the name and address of the
third-party purchaser, the preferred method of delivery, and the date of desired
delivery.
(ii) Any transmittal of documentation for Assets in the
possession of Custodian in connection with the sale thereof to a third-party
purchaser will be under cover of a transmittal letter substantially in the form
attached as Annex 12 hereto, duly completed and executed by Custodian. Any
transmittal of documentation for Assets in the possession of Custodian in
connection with the shipment to a custodian or trustee in connection with the
formation of a mortgage pool supporting a mortgage-backed security (an "MBS")
will be under cover of a transmittal letter substantially in the form attached
as Annex 13 hereto. Promptly upon (x) the remittance by such third-party
purchaser of the full purchase price of the Asset and the remittance by the
Sellers or third-party purchaser of the Repurchase Price therefor and any other
Obligations then due and payable or (y) the issuance of such MBS, the Buyer
shall notify Custodian in writing thereof.
(d) So long as no Default or Event of Default has occurred and is
continuing, Custodian and Buyer shall take such steps as they may reasonably be
directed from time to time by Sellers in writing, which Sellers deem necessary
and appropriate, to transfer promptly and deliver to Sellers any Asset File in
the possession of Custodian relating to any Asset which was previously a
Purchased Asset but which Sellers, with the written consent of the Buyer, have
notified Custodian has ceased to be an Eligible Asset or the release of which
would not cause Sellers to violate Section 6 of the Repurchase Agreement. In
furtherance of the foregoing, upon receipt of written request from Sellers in
the form of Annex 5-A hereto, which must be acknowledged by the Buyer, Custodian
shall release to Sellers the requested Asset Files. With regard to Custodian's
obligations under this clause (d), a Default or Event of Default shall be deemed
to have occurred and be continuing only upon the Buyer's written notice (which
may be by facsimile) to the Custodian of such Default or Event of Default.
(e) Following written notification by the Buyer (which may be by
facsimile) to Custodian that a Default or an Event of Default has occurred and
is continuing, Custodian shall not release, or incur any liability to Sellers or
any other Person for refusing to release, any item relating to a Purchased Asset
to Sellers or any other Person without the express prior written consent and at
the direction of the Buyer.
(f) From time to time until the Custodian is otherwise notified by
Buyer, and with the prior written consent of Buyer (and a copy thereof shall be
sent by Buyer to Sellers), the Sellers may substitute for one or more Purchased
Assets one or more substitute Assets having aggregate Purchase Prices equal to
or greater than the Purchase Prices of the Assets being substituted for, or
obtain the release of one or more Purchased Assets hereunder in accordance with
the terms of the Repurchase Agreement. In connection with any such requested
substitution or release, the Sellers will provide notice to the Custodian and
Buyer no later than 12:00 p.m. (New York City time), on the date of such
request, specifying the Assets to be substituted for or released and the
substitute Assets to be purchased in substitution therefor, if any, and shall
deliver with such notice a revised Assets Schedule indicating any substitute
Assets. If the Custodian and Buyer have received notice in accordance with the
preceding sentence, the Custodian will effect the requested substitution or
release no later than 3:00 p.m. (New York City time), two (2) Business Days
following the day on which such request was made after the Custodian has
certified to Buyer on such Business Day that the matters set forth in Section
3(a) hereof with respect to any substitute Assets are true and correct.
Custodian shall at all times monitor any release of
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Purchased Assets under this Section 5, and shall track the period of time which
has elapsed for any such release of Purchased Assets and shall report such
information to the Buyer daily and in the same manner as Custodian provides a
Custodial Asset Schedule and Exception Report.
(g) Prior to any shipment of any Asset Files, or other Loan Documents
or REO Documents hereunder, the Sellers shall deliver to the Custodian written
instructions as to the method of shipment and shipper(s) the Custodian is to
utilize in connection with the transmission of such Asset Files or other Loan
Documents or REO Documents in the performance of the Custodian's duties
hereunder. The Sellers shall arrange for the provision of such services at their
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 loss or damage to Asset
Files or other Loan Documents or REO Documents as the Sellers deem appropriate.
Without limiting the generality of the provisions of Section 13 below, it is
expressly agreed that in no event shall the Custodian have any liability for any
losses or damages to any person, including without limitation, the Sellers, or
Buyer, arising out of actions of the Custodian consistent with the instructions
of the Sellers except to the extent such losses or damages arise due to the
Custodian's gross negligence or willful misconduct. In the event the Custodian
does not receive such written instructions, the Custodian shall be authorized
and shall be indemnified as provided herein from losses resulting from its
utilization of a nationally recognized courier service.
SECTION 6. FEES AND EXPENSES OF CUSTODIAN.
Custodian shall charge such fees for its services under this Custodial
Agreement as are set forth in a separate agreement between Custodian and
Sellers, the payment of which fees, together with Custodian's expenses
(including, without limitation, legal fees and expenses) incurred in connection
herewith, shall be the joint and several obligation of Sellers. The failure of
Sellers to pay any such fees shall not excuse the performance by Custodian of
any of its obligations hereunder. The obligations of the Sellers to pay
Custodian such fees and reimburse Custodian for such expenses in connection with
services provided by Custodian prior to the termination of this Custodial
Agreement and the earlier of the resignation or removal of Custodian shall
survive such termination, resignation or removal.
SECTION 7. REMOVAL OR RESIGNATION OF CUSTODIAN AND DISBURSEMENT AGENT.
(a) Custodian or Disbursement Agent may at any time resign and
terminate their obligations under this Custodial Agreement upon at least sixty
(60) days' prior written notice to Sellers and Buyer. Promptly after receipt of
notice of Custodian's or Disbursement Agent's resignation, as applicable, Buyer
shall appoint, by written instrument, a successor custodian or a successor
disbursement agent, as applicable, subject to written approval by Sellers (which
approval shall not be unreasonably withheld, delayed or conditioned). One
original counterpart of such instrument of appointment shall be delivered to
each of Sellers, Custodian, Disbursement Agent and the successor custodian. In
the event that no successor custodian or disbursement agent shall have been
appointed within such sixty (60) day notice period, Custodian or Disbursement
Agent, as applicable, may petition any court of competent jurisdiction to
appoint a successor custodian or disbursement agent, as the case may be.
(b) Buyer, with the consent of Sellers (which consent shall not be
unreasonably withheld), upon at least thirty (30) days' prior written notice to
Custodian, Disbursement Agent and Sellers, may remove and discharge Custodian
(or any successor custodian thereafter appointed) from the performance of its
obligations under this Custodial Agreement. Buyer, without the consent of
Sellers, upon at least thirty (30) days' prior written notice to Custodian,
Disbursement Agent and Sellers, may remove and discharge Disbursement Agent (or
any successor disbursement agent thereafter appointed) from the performance of
its obligations under this Custodial Agreement. Promptly after the giving of
notice of removal of Custodian and Disbursement Agent, Buyer shall appoint, by
written instrument, a
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successor custodian, with the consent of Sellers (which consent shall not be
unreasonably withheld), and a disbursement agent, which appointment shall
require no other approval. One original counterpart of such instrument of
appointment shall be delivered to the Buyer, Sellers, Custodian, Disbursement
Agent and the successor custodian and disbursement agent.
(c) In the event of any such resignation or removal, Custodian shall
promptly transfer to the successor custodian, as directed in writing, all the
Asset Files being administered under this Custodial Agreement to the successor
Custodian or as otherwise directed by Buyer. The cost of the shipment of Asset
Files arising out of the removal for cause or resignation of Custodian shall be
at the expense of Custodian; provided, however, that if the reason for
Custodian's resignation is due in part to the non-payment of the fees and
expenses due to it hereunder by Sellers, then the shipment cost of such shipment
of Asset Files shall not be an expense of Custodian, but shall be at the expense
of Sellers. Sellers shall be responsible for the fees and expenses of the
successor custodian and the fees and expenses for endorsing the Mortgage Notes
and assigning the Mortgages to the successor custodian if required pursuant to
this paragraph.
SECTION 8. EXAMINATION OF FILES, BOOKS AND RECORDS.
Upon two (2) Business Days' prior written notice to Sellers and
Custodian and at Sellers' expense, Buyer, Sellers and each of their respective
agents, accountants, attorneys and auditors will be permitted during the
Custodian's normal business hours to examine, inspect, and make copies of the
Asset Files and any and all documents, records and other instruments or
information in the possession of or under the control of Custodian relating to
any or all of the Assets.
SECTION 9. INSURANCE.
(a) At its own expense, Custodian shall maintain at all times during
the existence of this Custodial Agreement and keep in full force and effect a
fidelity bond. All such insurance shall be in amounts, with standard coverage
and subject to standard deductibles, all as are 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 Xxxxxx Xxx or Xxxxxxx Mac in the
Applicable Guide. A certificate of an Authorized Representative of Custodian
shall be furnished to Sellers and Buyer, upon written request, stating that such
insurance is in full force and effect.
(b) At its own expense, Disbursement Agent shall maintain at all times
during the existence of this Custodial Agreement and keep in full force and
effect a fidelity bond. 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 Disbursement Agents with
duties similar to those of the Disbursement Agent herein. A certificate of an
Authorized Representative of Disbursement Agent shall be furnished to Sellers
and Buyer, upon written request, stating that such insurance is in full force
and effect.
SECTION 10. REPRESENTATIONS AND WARRANTIES.
(a) Custodian represents and warrants to Buyer that:
(i) Custodian has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under,
this Custodial Agreement, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this Custodial
Agreement;
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(ii) no consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of Custodian) is required in connection with
the execution, delivery, performance, validity or enforceability of
this Custodial Agreement;
(iii) this Custodial Agreement has been duly executed and
delivered on behalf of Custodian and constitutes a legal, valid and
binding obligation of Custodian enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity (whether enforcement is sought in a proceeding in equity or
at law); and
(iv) Custodian is not an Affiliate of Sellers.
(b) Disbursement Agent represents and warrants to the Buyer that:
(i) Disbursement Agent has the corporate power and authority and
the legal right to execute and deliver, and to perform its obligations
under, this Custodial Agreement, and has taken all necessary corporate
action to authorize its execution, delivery and performance of this
Custodial Agreement;
(ii) no consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of Disbursement Agent) is required in
connection with the execution, delivery, performance, validity or
enforceability of this Custodial Agreement;
(iii) this Custodial Agreement has been duly executed and
delivered on behalf of Disbursement Agent and constitutes a legal,
valid and binding obligation of Disbursement Agent enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity (whether enforcement is sought in a
proceeding in equity or at law); and
(iv) Disbursement Agent is not an Affiliate of Sellers.
(c) Sellers hereby make to Custodian and Disbursement Agent the same
representations and warranties that Sellers made to the Buyer under Section 12
of the Repurchase Agreement.
SECTION 11. DISBURSEMENT AGENT DUTIES.
(a) Establishment of Disbursement Account and Wire-out Account.
(i) Disbursement Agent shall establish and maintain a
disbursement account (the "Disbursement Account") for and on behalf of
Buyer entitled "Disbursement Account, Deutsche Bank National Trust
Company, as Disbursement Agent for DBSP, Reference Number 53656." The
Disbursement Account shall be owned by and under the exclusive
dominion and control of Buyer. None of Disbursement Agent, Sellers nor
any other Person claiming on behalf of or through Sellers or
Disbursement Agent shall have any right or authority, whether express
or implied, to close or make use of, or, except as
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expressly provided herein, withdraw any funds from, the Disbursement
Account. Buyer shall provide Disbursement Agent with written notice by
4:30 p.m. New York City time on any applicable Business Day
authorizing Disbursement Agent to disburse funds deposited in the
Disbursement Account on such Business Day in accordance with this
Custodial Agreement. Funds retained in the Disbursement Account shall
remain uninvested. Disbursement Agent shall reconcile the Disbursement
Account on a daily basis. Unless otherwise instructed by the Buyer in
writing before 5:00 p.m. New York City time on each Business Day,
Disbursement Agent shall either (i) withdraw all collected amounts as
of 5:00 p.m. New York City time then standing to the credit of the
Disbursement Account and deposit such amounts into the following
account maintained by the Buyer set forth below or (ii) follow such
other instructions set forth in such written notice received by the
Disbursement Agent by 5:00 p.m. New York City time:
The Bank of New York
ABA: 000-000-000
Acct #: XXX-000000
Xxxx. Name: DPX
Attn: Xxxxxxx Xxxxxxxxxx
Ref: MortgageIT
or, if such funds cannot be deposited into the foregoing account at
the end of such Business Day, on the next Business Day.
(ii) In connection with the funding of any Wet Funded Loans or
the purchase of any other Asset by Sellers simultaneously with the
purchase of such Asset by the Buyer, Disbursement Agent shall
establish and maintain a Wire-out Account (the "Wire-out Account") for
and on behalf of Seller entitled "Wire-out Account, Deutsche Bank
National Trust Company, as Disbursement Agent for MortgageIT. Number
53657." With respect to any Wet Funded Loan to be funded or any other
Asset to be purchased on any Business Day, unless there are sufficient
funds in the Wire-out Account, the applicable Seller shall deposit
into the Wire-out Account no later than 11:00 a.m. New York time on
such Business Day an amount (the "Seller Funded Wire Amount") equal to
the difference between the Wire Amount and the amount to be funded by
the Buyer from the Disbursement Account in accordance with Section
11(d)(i). Sellers hereby request that Disbursement Agent, and
Disbursement Agent shall, transfer the Seller Funded Wire Amount to
the Disbursement Account, and in the same manner, as Disbursement
Agent disburses funds from the Disbursement Account with respect to
such Asset, in accordance with Section 11(b). The Wire-out Account
shall be owned by and under the exclusive dominion and control of the
applicable Seller. None of Disbursement Agent, the Buyer nor any other
Person claiming on behalf of or through the Buyer or Disbursement
Agent shall have any right or authority, whether express or implied,
to close or make use of, or, except as expressly provided herein,
withdraw any funds from, the Wire-out Account. Funds retained in the
Wire-out Account shall remain uninvested. Disbursement Agent shall
reconcile the Wire-out Account on a daily basis. The Disbursement
Agent shall not be responsible for verifying any wire instructions.
(iii) Upon request, Disbursement Agent shall provide the
applicable Seller or the Buyer with a wire transaction report in form
reasonably satisfactory to the applicable parties.
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(b) Disbursements.
(i) On each proposed Purchase Date, pursuant to written
instructions from the Buyer, Disbursement Agent will disburse funds in
the Disbursement Account by 5:00 p.m. New York City time in accordance
with the wire instructions set forth in the applicable Asset Schedule,
which wire instructions shall be sent to the Disbursement Agent by the
applicable Seller by 4:30 p.m. New York City time, provided that: (A)
all conditions to disbursement set forth therein shall have been
satisfied; (B) sufficient funds exist in the Disbursement Account
(taking into account amounts required to be transferred from the
related Wire-out Account pursuant to Section 11(a)(ii)); (C) such
instructions do not include any Seller as payee; and (D) if a conflict
exists between the instructions of the Buyer and the instructions of
Sellers, Disbursement Agent shall follow the Buyer's instructions. In
the event that the funds maintained in the related Wire-out Account
are not sufficient to permit the funding of the full Wire Amount for
any Asset, no funds shall be disbursed from the Disbursement Account
to fund or acquire such Asset.
(ii) For each disbursement pursuant to Section 11(b)(i) hereof,
Disbursement Agent shall promptly notify the applicable Seller by
Electronic Transmission of the related federal wire reference number
when it becomes available.
(c) Reports; Monitoring.
(i) On each Business Day, Disbursement Agent shall provide to the
Buyer a reconciliation report with respect to all cash activity in
each Transaction Account. Additionally, upon request Disbursement
Agent shall provide to Sellers a reconciliation report with respect to
all cash activity on the Wire-out Account.
(ii) No later than 5:00 p.m. New York City time on each Business
Day, Disbursement Agent shall provide to the Buyer a daily report
setting forth such information as may reasonably be required by Buyer
(a "Daily Report").
(iii) Upon request of the Buyer, Disbursement Agent shall provide
to Sellers a Daily Report reflecting the information set forth thereon
as of the time of the transmission of such report.
(iv) Disbursement Agent shall provide to the Buyer any reports
with respect to any aspect of the transactions contemplated by this
Custodial Agreement, to the extent the requested information is in the
possession of Disbursement Agent, as Buyer may request.
(v) Disbursement Agent shall track and monitor all information
required to be provided to any party hereunder pursuant to any report
required to be delivered hereunder, including but not limited to: (A)
all amounts disbursed by the Disbursement Agent for the funding of any
Wet Funded Loan and (B) the date such funds were disbursed.
(vi) Disbursement Agent shall provide all information in its
possession to Custodian, to the extent Custodian requests, in order to
permit Custodian to comply with its requirements under this Custodial
Agreement, including, but not limited to, the preparation and delivery
of each updated Custodial Asset Schedule and Exception Report and the
Daily Aged Report.
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(d) Set-off. Custodian and Disbursement Agent agree that they shall
not exercise any right of set-off, banker's lien or any similar right in
connection with funds on deposit in any Transaction Account.
(e) Fees and Expenses of Disbursement Agent.
(i) Disbursement Agent shall charge such fees for its services
under this Custodial Agreement as are set forth in a separate
agreement between Disbursement Agent and Sellers, the payment of which
fees, together with Disbursement Agent's expenses (including, but not
limited to, legal fees and expenses) in connection herewith, shall be
solely the joint and several obligation of Sellers. The failure of
Sellers to pay any such fees shall not excuse the performance by
Disbursement Agent of any of its obligations hereunder. The
obligations of the Sellers to pay Disbursement Agent such fees and
reimburse Disbursement Agent for such expenses in connection with
services provided by Disbursement Agent prior to the termination of
this Custodial Agreement and the earlier of the resignation or removal
of Disbursement Agent shall survive such termination, resignation or
removal.
(ii) Sellers shall be responsible for the standard fees and
charges of Disbursement Agent applicable to each Transaction Account.
To the extent that Seller has not paid such fees within a reasonable
amount of time from Sellers' receipt of notice of such fees and
charges, Disbursement Agent shall provide written notice to the Buyer
of Sellers' failure to pay such fees and the Buyer shall have the
option, in its sole discretion, to cure such failure.
(f) In performing its obligations under this Section 11, except as
specifically provided in this Custodial Agreement, Disbursement Agent will not
follow instructions from any party other than the Buyer.
(g) Establishment of Settlement Account.
(i) Upon the receipt by the Custodian of (A) a Request for
Release executed by the applicable Seller and the Buyer in the form of
Annex 5(c) hereto identifying the Purchased Assets to be released and
(B) confirmation from the Buyer that the Repurchase Price for such
Purchased Assets has been received by the Buyer, the Custodian shall
release such Purchased Assets from the Buyer's Trust Receipt, and so
long as the Custodian shall not have been notified in writing by the
Buyer that a Default exists;
(ii) The Disbursement Agent has established and shall maintain
that certain non-interest-bearing segregated trust account, Acct No.
53658 (the "Settlement Account"), in the name of the Sellers. The
Buyer shall possess all right, title, and interest in and to all funds
from time to time on deposit in, and assets credited to, the
Settlement Account and in all proceeds thereof. The Disbursement Agent
and Sellers hereby acknowledge and agree that the Settlement Account
is subject to the exclusive dominion and control of the Buyer, and the
Disbursement Agent shall transfer funds from the Settlement Account
solely in accordance with instructions from the Buyer. Funds held in
the Settlement Account shall not be invested.
(iii) The Disbursement Agent shall pay to the Buyer all amounts
due to the Buyer on deposit in the Settlement Account by 5:00 p.m.
(New York City time) on each Business Day and, to the extent that
Custodian shall not have been notified that a Margin Deficit or
Default exists, and the Buyer has authorized release of such funds,
any excess
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amount of such funds shall be remitted to the Sellers as soon
thereafter as is practicable on such date. All amounts deposited in
the Settlement Account after 5:00 pm. (New York City time) on each
Business Day shall be paid by the Disbursement Agent to the Buyer on
the following Business Day. The Sellers shall provide the Buyer and
Disbursement Agent with a daily reconciliation of amounts received in
the Settlement Account no later than 5:00 p.m. each Business Day.
SECTION 12. NO ADVERSE INTEREST.
By execution of this Custodial Agreement, each of Disbursement Agent
and Custodian represent and warrant that it currently holds, and during the
period that such Assets are held pursuant to this Custodial Agreement shall
hold, no adverse interest, by way of security or otherwise, in any Asset, and
hereby waives and releases any such interest which it may have in any Asset as
of the date hereof. The Assets shall not be subject to any security interest,
lien or right to set-off by Custodian, Disbursement Agent or any third-party
claiming through Custodian or Disbursement Agent, and neither Custodian nor
Disbursement Agent shall pledge, encumber, hypothecate, transfer, dispose of, or
otherwise grant any third-party interest in the Assets.
SECTION 13. INDEMNIFICATION.
(a) Each of the Sellers jointly and severally agrees to indemnify,
defend and hold Custodian, Disbursement Agent and their Affiliates, directors,
officers, agents and employees harmless from and against against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, or out of pocket expenses of any kind or nature whatsoever, including
attorneys' and agents' fees and expenses, that may be imposed on, incurred by,
or asserted against it or them in any way relating to or arising out of this
Custodial Agreement or any action taken or not taken by it or them hereunder
unless such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs or out of pocket expenses or disbursements were imposed
on, incurred by or asserted against Custodian or Disbursement Agent because of
the breach by Custodian or Disbursement Agent, as applicable, of its obligations
hereunder, which breach was caused by a Custodial Delivery Failure (as defined
below) or by gross negligence, willful misconduct or lack of good faith on the
part of Custodian or Disbursement Agent, as applicable or any of its respective
directors, officers, agents or employees. Each of Disbursement Agent and
Custodian agree that it will promptly notify Sellers of any such claim, action
or suit asserted or commenced against it and that Sellers may assume the defense
thereof with counsel reasonably satisfactory to Disbursement Agent or Custodian,
as applicable, at Sellers' sole expense, that Custodian or Disbursement Agent,
as applicable, will cooperate with Sellers on such defense, and that Custodian
or Disbursement Agent, as applicable, will not settle any such claim, action or
suit without the consent of Sellers; provided, however, that if a conflict of
interest shall exist between the Sellers and the Custodian or Disbursement
Agent, as applicable, the Custodian shall be entitled to retain separate counsel
from the Sellers. The foregoing indemnification shall survive any resignation or
removal of Custodian or Disbursement Agent, as applicable, or the termination or
assignment of this Custodial Agreement.
(b) In the event that Custodian fails to produce a Mortgage Note,
Assignment of Mortgage or any other document related to an Asset that was in its
possession pursuant to Section 2 within two (2) Business Days after required or
requested by a Seller or the Buyer, and provided that (i) Custodian previously
delivered to the Buyer a Custodial Asset Schedule and Exception Report which did
not list such document as an Exception on the related Purchase Date; (ii) such
document is not outstanding pursuant to a Request for Release and Receipt in the
form annexed hereto as either Annex 5-A, or Annex 5-B or Annex 5-C; and (iii)
such document was held by Custodian on behalf of a Seller or the Buyer, as
applicable (a "Custodial Delivery Failure"), then Custodian shall (a) with
respect to any missing Mortgage Note, promptly deliver to the Buyer or to the
applicable Seller, if the Asset is sold back
-22-
to such Seller, upon request, a Lost Note Affidavit in the form of Annex 15
hereto and (b) with respect to any missing document related to such Asset,
including but not limited to a missing Mortgage Note, (1) indemnify Sellers and
the Buyer, as applicable, in accordance with Section 13(c) For the avoidance of
doubt, the Custodian shall not release to the Sellers any Mortgage Note or the
related Asset File, unless the Buyer shall otherwise consent or direct, until
the Buyer has received the related Repurchase Price together with any and all
other Obligations then due and payable, and the Buyer has so notified the
Custodian.
(c) Custodian agrees to indemnify and hold harmless the Buyer, each
Seller, and their respective present or former Affiliates, directors, officers,
employees, agents and representatives against any and all losses, liabilities,
obligations, damages, penalties, actions, judgments, suits, claims, costs,
expenses (including reasonable attorneys' fees) incurred by, or asserted against
it or them, directly relating to or arising out of in any way relating to or
arising out of a Custodial Delivery Failure. The foregoing indemnification shall
survive the termination or assignment of this Custodial Agreement and the
resignation or removal of the Custodian hereunder and shall apply with equal
force and effect to any successor Custodian appointed pursuant to this Custodial
Agreement.
(d) Disbursement Agent agrees to indemnify and hold Buyer, each
Seller, and its respective present or former Affiliates, directors, officers,
employees, agents and representatives harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including reasonable
attorneys' fees, that may be imposed on, incurred by, or asserted against it or
them in any way relating to or arising out of Disbursement Agent's breach of
this Custodial Agreement, arising out of its gross negligence, willful
misconduct or lack of good faith; provided, however, the Disbursement Agent
shall not be liable for any breaches caused by another party's breach of this
Custodial Agreement or any other Program Document. The foregoing indemnification
shall survive the resignation or removal of Disbursement Agent or any
termination or assignment of this Custodial Agreement and shall apply with equal
force and effect to any successor Disbursement Agent appointed pursuant to this
Custodial Agreement.
SECTION 14. RELIANCE OF CUSTODIAN AND DISBURSEMENT AGENT.
(a) In the absence of bad faith on the part of either Custodian or
Disbursement Agent, Custodian and Disbursement Agent may conclusively rely and
shall be fully protected in acting or refraining from acting, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
request, instruction, certificate, opinion or other document furnished to
Custodian or Disbursement Agent (including such items received via Electronic
Transmission), reasonably believed by Custodian or Disbursement Agent to be
genuine and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Custodial Agreement; provided, however,
that in the case of any Loan Document or other request, instruction, document or
certificate which by any provision hereof is specifically required to be
furnished to Custodian or Disbursement Agent, Custodian or Disbursement Agent
shall be under a duty to examine the same in accordance with the requirements of
this Custodial Agreement.
(b) Neither Custodian nor Disbursement Agent shall have any duties or
responsibilities except those that are specifically set forth in this Custodial
Agreement. Custodian shall have no responsibility nor duty with respect to any
Asset File while not in its possession. If Custodian requests instructions from
the Buyer with respect to any act, action or failure to act in connection with
this Custodial 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 Buyer with respect to an Asset File
without incurring any liability therefor to Buyer or any other Person.
-23-
(c) Neither Custodian, Disbursement Agent, nor any of their directors,
officers, agents or employees shall be liable for any action or omission to act
hereunder except for its or their own negligence, willful misconduct or lack of
good faith. In no event shall the Custodian, Disbursement Agent or any of their
directors, officers, agents or employees have any responsibility to ascertain or
take action except as expressly provided herein.
(d) Neither Custodian nor Disbursement Agent, nor any of their
directors, officers, agents or employees shall be liable to the Buyer or any
other Person with respect to any action taken or not taken by it in good faith
in the performance of its obligations under this Custodial Agreement or in
accordance with the Buyer's instructions. The obligations of the Custodian,
Disbursement Agent or any of their directors, officers, agents or employees
shall be determined solely by the express provisions of this Custodial
Agreement.
(e) Custodian nor Disbursement Agent may consult with counsel, and the
advice or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by Custodian or
Disbursement Agent in good faith and in accordance therewith; provided such
action shall be in compliance with all the terms expressly provided herein.
(f) No provision of this Custodial Agreement shall require Custodian
or Disbursement Agent to expend or risk its own funds or otherwise incur
financial liability in the performance of its duties under this Custodial
Agreement if it shall have reasonable grounds for believing that repayment of
such funds or indemnity satisfactory to it is not reasonably assured to it.
(g) Any entity into which Custodian or Disbursement Agent may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which Custodian or
Disbursement Agent shall be a party, or any entity succeeding to the business of
Custodian or Disbursement Agent shall be the successor of Custodian or
Disbursement Agent hereunder without the execution or filing of any paper with
any party hereto or any further act on the part of any of the parties hereto
except where an instrument of transfer or assignment is required by law to
effect such succession, anything herein to the contrary notwithstanding.
(h) The Custodial shall use the same degree of care and skill as is
reasonably expected of the financial institutions acting in comparable
capacities which are held to a standard of care of gross negligence, and this
Section 14 shall not be interpreted to impose upon the Custodial a higher
standard of care than that set forth in this sentence.
(i) The Custodian shall have no responsibility or duty with respect to
any Loan Documents while not in its possession. If the Custodian requests
instructions from the Buyer with respect to any action or failure to act in
connection with this Custodial Agreement, the Custodian shall be entitled to
refrain from taking such action and continue to refrain from acting unless and
until the Custodian shall have received written instructions from the Buyer
without incurring any liability therefore to the Buyer or any other Person.
(j) In order to comply with laws, rules, regulations, and executives
orders in effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Custodian is required, to obtain, verify and record
certain information relating to individuals and entities which maintain a
business relationship with the Custodian. Accordingly, each of the parties
hereto agrees to provide the Custodian, upon its request from time to time, such
identifying information and documentation as may be available for such party in
order to enable the Custodian to comply with Applicable Law.
-24-
SECTION 15. TERM OF AGREEMENT.
Promptly after written notice from Buyer of the termination of the
Repurchase Agreement and payment in full of all amounts owing to Buyer
thereunder, Custodian shall deliver all documents remaining in the Asset Files
to the applicable Sellers, and, except as otherwise set forth herein, this
Custodial Agreement shall thereupon terminate.
SECTION 16. NOTICES.
All demands, notices and communications hereunder shall be in writing
(including without limitation by Electronic Transmission, email or telecopy) and
shall be deemed to have been duly given when received by the recipient party at
the address shown on its signature page hereto, or at such other addresses as
may hereafter be furnished to each of 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. Each
party hereto hereby represents and warrants that its office is located at the
respective address set forth on its signature page hereto, and each such party
shall notify each other party hereto if such address should change.
SECTION 17. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 18. AUTHORIZED REPRESENTATIVES.
Each individual designated as an authorized representative of Buyer or
its successors or assigns, Sellers, Disbursement Agent and Custodian,
respectively (an "Authorized Representative"), is authorized to give and receive
notices, requests and instructions and to deliver certificates and documents in
connection with this Custodial Agreement on behalf of Buyer, Sellers,
Disbursement Agent and Custodian, as the case may be, and the specimen signature
for each such Authorized Representative, initially authorized hereunder, is set
forth on Annexes 6, 7-A, 7-B, 8 and 9 hereof, respectively. From time to time,
Buyer, Sellers, Disbursement Agent and Custodian or their respective successors
or permitted assigns may, by delivering to the others a revised annex, change
the information previously given pursuant to this Section 18, but each of the
parties hereto shall be entitled to rely conclusively on the then current annex
until receipt of a superseding annex.
SECTION 19. AMENDMENT.
This Custodial Agreement may be amended from time to time by written
agreement signed by Sellers, Buyer, Custodian and Disbursement Agent.
SECTION 20. CUMULATIVE RIGHTS.
The rights, powers and remedies of Custodian, Disbursement Agent and
Buyer under this Custodial Agreement shall be in addition to all rights, powers
and remedies given to Custodian, Disbursement Agent and Buyer by virtue of any
statute or rule of law, the Repurchase Agreement or any other agreement, all of
which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing Buyer's interest in the Purchased
Assets. This Custodial Agreement shall inure to the benefit of the successors
and assigns of the parties hereto. Nothing in this Custodial Agreement shall be
construed to give any person or entity other than the parties hereto, and
-25-
their successors and assigns, any legal or equitable right, remedy or claim
under this Custodial Agreement.
SECTION 21. ASSIGNMENT; BINDING UPON SUCCESSORS.
This Custodial Agreement may not be assigned in whole or in part by
Sellers, Custodian or Disbursement Agent without the prior written consent of
Buyer. The Buyer may assign its rights and obligations under this Agreement upon
at least ten (10) Business Days written notice to Custodian. Within such period,
and so long and the Custodian has received all information necessary to allow it
to perform its know your customer procedures with regard to such assignee, the
Custodian will either confirm that it may legally transact business with the
proposed assignee pursuant to the limitations and requirements of Section 14(j)
and the requirements and limitations of Custodian's know your customer rules
that may be in effect from time to time, or advise the Buyer that Custodian may
not transact business with such assignee. The Buyer shall provide Custodian with
written acknowledgment that the assignee is assuming all of the obligations of
any Buyer under this Custodial Agreement to the extent applicable. All rights of
Custodian, Disbursement Agent, Sellers and Buyer under this Custodial Agreement
shall inure to the benefit of Custodian, Disbursement Agent, Sellers and Buyer
and their successors and permitted assigns, and all obligations of Sellers shall
bind its successors and assigns.
SECTION 22. ENTIRE AGREEMENT; SEVERABILITY.
This Custodial Agreement contains the entire agreement with respect to
the rights and obligations of Custodian and Disbursement Agent relating to the
Purchased Assets among Custodian, Disbursement Agent, Buyer and Sellers. If any
of the provisions of this Custodial Agreement shall be held invalid or
unenforceable, this Custodial Agreement shall be construed as if not containing
such provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
SECTION 23. EXECUTION IN COUNTERPARTS.
This Custodial Agreement may be executed in counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
SECTION 24. TAX REPORTS.
Custodian shall not be responsible for the preparation or filing of
any reports or returns relating to federal, state or local income taxes with
respect to this Custodial Agreement, other than in respect of Custodian's
compensation or for reimbursement of expenses.
SECTION 25. ASSIGNMENT BY BUYER.
Buyer hereby notifies Custodian that Buyer may assign, as of the
applicable Purchase Date, all of its right, title and interest in and to some or
all of the Purchased Assets to a third-party assignee (an "Assignee"), subject
to the requirement set forth in Section 21 and an obligation on the part of the
Assignee to release its interest in each such Purchased Asset to Buyer to permit
Custodian, Buyer or its designees to make delivery thereof in accordance with
the terms of this Custodial Agreement. Each Seller hereby irrevocably consents
to any such assignment. Subject to any limitations in any agreement among the
Assignee and Buyer, the Assignee may, upon written notice of Buyer's default to
the Custodian (with a copy to the Buyer) pursuant to the agreement effecting the
assignment of Buyer's right, title and interest in and to the Purchased Assets
assigned to Assignee, directly enforce and exercise such rights under this
Custodial Agreement that have been assigned or pledged to it and, until
otherwise
-26-
notified by the Assignee, the Buyer shall no longer have any of such rights.
Custodian shall assume that any assignment from Buyer to the Assignee is subject
to no limitations that are not expressly set forth in this Custodial Agreement.
SECTION 26. SUBMISSION TO JURISDICTION; WAIVERS.
EACH OF BUYER, SELLERS, CUSTODIAN AND DISBURSEMENT AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER PROGRAM DOCUMENTS, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND
AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH EACH OTHER
PARTY HERETO SHALL HAVE BEEN NOTIFIED;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OTHER REPURCHASE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
SECTION 27. CONFIDENTIALITY.
Each of Custodian and Disbursement Agent hereby acknowledges and
agrees that (i) all written or computer-readable information provided by Buyer
or Sellers regarding Buyer or Sellers and (ii) the terms of this Custodial
Agreement and the Repurchase Agreement (the "Confidential Information"), shall
be kept confidential and shall not be divulged to any Person other than the
parties hereto without the Buyer's and Sellers' prior written consent.
Notwithstanding anything herein to the contrary, the foregoing shall not be
construed to prohibit (i) disclosure of any and all information that is or
becomes publicly known, or information obtained by the Custodian or Disbursement
Agent from sources other than the parties hereto, (ii) disclosure of any and all
information (A) required to be disclosed by applicable rule or regulation, (B)
to any government agency or regulatory body having or claiming authority to
regulate or oversee any aspect of Custodian's or Disbursement Agent's business
or that of its
-27-
affiliates, (C) pursuant to any subpoena, civil investigative demand or similar
demand or request of any court, regulatory authority, arbitrator or arbitration
to which the Custodian or Disbursement Agent or any affiliate, officer,
director, employer or shareholder of Custodian or Disbursement Agent or any
affiliate, officer, director, employer or shareholder of Custodian or
Disbursment Agent is a party or (D) to any affiliate, independent auditor or
internal auditor, agent, employee or attorney of Custodian or Disbursement Agent
having a need to know the same, provided that the Trustee or Custodian advises
such recipient of the confidential nature of the information being disclosed, or
(iii) any other disclosure authorized by this Agreement or the parties hereto.
To the extent that Custodian or Disbursement Agent, as applicable, is required
to disclose Confidential Information pursuant to the requirements of any legal
proceeding, Custodian or Disbursement Agent, as applicable, shall notify Buyer
and Sellers in writing within one Business Day of its knowledge of such legally
required disclosure so that Buyer or Sellers may seek an appropriate protective
order and/or waive Custodian's or Disbursement Agent's compliance, as
applicable, with this Custodial Agreement. In the absence of a protective order
or waiver, Custodian or Disbursement Agent, as applicable, may disclose the
relevant Confidential Information if, in the opinion of its counsel, failure to
disclose such Confidential Information would subject Custodian or Disbursement
Agent, as applicable, to liability for contempt, censure or other legal penalty
or liability.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Custodial Agreement was duly executed by the
parties hereto as of the day and year first above written.
MORTGAGEIT HOLDINGS, INC., as Seller MORTGAGEIT, INC., as Seller
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------------ ---------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxx
Title: President and Chief Financial Title: Chief Financial Officer
Officer
Address for Notices: Address for Notices:
00 Xxxxxx Xxxx 33 Maiden Lane
0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx Attention: Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxx Xxxx Xxxxxxx
Telecopier No.: (000) 000-0000 Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000 Telephone No: (000) 000-0000
DB STRUCTURED PRODUCTS, INC., as Buyer
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx XxXxxxxx
------------------------------------
Name: Xxxx XxXxxxxx
Title: Authorized Signatory
Address for Notices:
DB Structured Products, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DEUTSCHE BANK NATIONAL TRUST DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian COMPANY, as Disbursement Agent
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxx
------------------------------------ ---------------------------------
Name: Xxxxxxx Xxxxx Name: Aim Xxxxx
Title: Authorized Signer Title: Assistant Vice President
Address for Notices:
Address for Notices: 0000 Xxxx Xx. Xxxxxx Place
0000 Xxxx Xx. Xxxxxx Xxxxx Xxxxx Xxx, Xxxxxxxxxx 00000
Xxxxx Xxx, Xxxxxxxxxx 00000 Attention: Mortgage Custody-MG062C
Attention: Mortgage Custody-MG062C Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000 Telephone No: (000) 000-0000
Telephone No: (000) 000-0000
Annex 1
SELLER LOAN SCHEDULE DELIVERY INFORMATION
For each Loan, Seller shall provide the following items of
information:
Global Asset Securitization
Asset-Backed Securities
Field List
RECORDTYPE
FILEDATE
SOURCEAPP
RECORDTYPE0
WIRETYPE
TOTALSUBLEDGERREC
RECORDTYPE1
RECEIVINGBANKABA
REPETITIVEPROFILEID
CLEARINGACCT
WIREDOLLARAMT
PMTTYPE
RECEIVINGBANKADDRESS
BENEFICIARYTYPE
BENEFICIARYIDTYPE
BENEFICIARYID
BENEFICIARYADDRESS
LOANNO
BORROWERNAME
ORIGBAL
CURRENTBAL
RATE
USERDEFINED
EXECUTIONDATE
REPETITIVEDETAIL
CMSCOMMENT
RECORDTYPE2
SUBLEDGER
SUBLEDGERACCT
DOLLARAMT
TRANSACTIONCODE
RECORDTYPET
#OFWIRES
TOTAL$AMT
RECEIVINGBANKNAME
Annex 1
LOAN_TYPE
Loan ID
borr_1_first
borr_1_last
borr_2_first
borr_2_last
ADDRESS
CITY
STATE
ZIP
Orig Balance
Current Balance
Appraised Value
sale price_bpo
PI
current p_i
pmt freq
orig coupon
current coupon
origination date
first due
maturity date
nxt pmt date
orig term
std remaining term
current LTV
orig LTV
current CLTV
orig CLTV
simult 2nd
lien position
senior bal
junior bal
IO flag
IO period
adjstmt type
index type
product type
prop type
units
occup type
purpose
cash out
doc level
balloon flag
PMI company
Annex 1
Annex 1-A
WET FUNDED LOAN ASSET SCHEDULE DELIVERY INFORMATION
For each Wet Funded Loan, Seller shall provide the following items of
information, in addition to those items listed on Annex 1:
FIELD NAME DESCRIPTION
---------- -----------
Loan Id Client Loan Identification number right justified
Lname Primary Borrower Name (Last, First)
LNAmount Original Face Amount of Note
BankName Name of Receiving Bank
Faddress Funding Address
Fcity Funding City
Fstate Funding State
Filler1 1419663
AcctName Account Name of Beneficiary
AcctPhone Phone Number of Beneficiary
AcctAddress Address of Beneficiary
ABANum ABA Number
FundAmt Wire Amount or Check Amount
Fundtext Customer Account Number
FEFFDate Funding Effective Date
FundRef DB Disbursement A/C #
FNAME2 2nd fund wire Name
FCITY2 2nd fund wire City
MERS Tracking Number Number provided by MERS
Annex 1-A-1
Annex 2
FORM OF DRY LOAN TRUST RECEIPT
DB Structured Products, Inc.
Aspen Funding Corp.
Newport Funding Corp.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X'Xxxxx
____________, 200_
Re: Custodial and Disbursement Agreement, dated as of [___________] [__],
2006 (the "Custodial and Disbursement Agreement"), among MortgageIT
Holdings, Inc., as Seller, MortgageIT, Inc., as Seller, Deutsche Bank
National Trust Company as Custodian and Disbursement Agent, and DB
Structured Products, Inc. as Purchaser.
Ladies and Gentlemen:
Deutsche Bank National Trust Company, as custodian (the "Custodian"),
hereby acknowledges that on the date of this Trust Receipt, DB Structured
Products, Inc. ("Purchaser") has been identified as the registered owner of this
Trust Receipt evidencing ownership of certain mortgage loans (the "Mortgage
Loans") listed by identifying number on the schedule attached to this Trust
Receipt and further identified in the books and records of the Custodian, and
further acknowledges that (i) all documents required to be delivered in respect
of each Asset pursuant to Section 2 of this Custodial Agreement have been
delivered and are in the possession of the Custodian as part of the Asset File
for such Asset; (ii) Custodian is holding each Asset identified on the Custodial
Asset Schedule and Exception Report, pursuant to this Custodial Agreement, as
the bailee of and custodian for the Buyer and/or its designees, and (iii) all
such documents have been reviewed by Custodian and appear on their face to be
regular and to relate to such Asset and to satisfy the requirements set forth in
Section 2 of this Custodial Agreement and the review procedures attached hereto
as Annex 4 (the "Review Procedures"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Trust Receipt is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the holder of this Trust Receipt
by virtue of the acceptance hereof assents and by which such holder is bound.
Any transfer of this Trust Receipt may be registered upon presentation of
this Trust Receipt by the transferee hereof, duly assigned to the transferee, at
the office of the Custodian.
This Trust Receipt supersedes any Trust bearing an earlier date.
Annex 2-1
This Trust Receipt shall not be valid or become obligatory for any purpose
unless and until the Certificate of Authentication appearing below has been duly
executed by the Custodian.
IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly
executed.
Deutsche Bank National Trust Company,
as Custodian
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is one of the
Trust Receipts issued under the
above-described Agreement.
Dated:
By:
---------------------------------
Authorized Officer
Annex 2-2
Annex 3
FORM OF WET FUNDED LOAN TRUST RECEIPT
DB Structured Products, Inc.
Aspen Funding Corp.
Newport Funding Corp.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X'Xxxxx
____________, 200_
Re: Custodial and Disbursement Agreement, dated as of [___________] [__],
2006 (the "Custodial and Disbursement Agreement"), among MortgageIT
Holdings, Inc., as Seller, MortgageIT, Inc., as Seller, Deutsche Bank
National Trust Company as Custodian and Disbursement Agent, and DB
Structured Products, Inc. as Purchaser.
Ladies and Gentlemen:
Deutsche Bank National Trust Company, as custodian (the "Custodian"),
hereby acknowledges that on the date of this Wet Funded Loan Trust Receipt, DB
Structured Products, Inc. ("Purchaser") has been identified to it as the
registered owner of this Wet Funded Loan Trust Receipt evidencing ownership of
certain mortgage loans (the "Mortgage Loans") listed by identifying number on
the schedule attached to this Wet Funded Loan Trust Receipt, to be serviced by
GMAC Mortgage Corporation ("Servicer"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Wet Funded Loan Trust Receipt is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the holder of
this Wet Funded Loan Trust Receipt by virtue of the acceptance hereof assents
and by which such holder is bound.
Any transfer of this Wet Funded Loan Trust Receipt may be registered upon
presentation of this Wet Funded Loan Trust Receipt by the transferee hereof,
duly assigned to the transferee, at the office of the Custodian.
This Wet Funded Loan Trust Receipt supersedes any Wet Mortgage Trust
Receipt bearing an earlier date.
This Wet Funded Loan Trust Receipt shall not be valid or become obligatory
for any purpose unless and until the Certificate of Authentication appearing
below has been duly executed by the Custodian.
Annex 3-A-1
IN WITNESS WHEREOF, the Custodian has caused this Wet Funded Loan Trust
Receipt to be duly executed.
Deutsche Bank National Trust Company,
as Custodian
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Wet Funded Loan Trust Receipt is
one of the Trust Receipts issued
under the above-described Agreement.
Dated:
By:
---------------------------------
Authorized Officer
Annex 3-A-2
Annex 4
REVIEW PROCEDURES
This Annex sets forth Custodian's review procedures for each item
listed below delivered by Seller pursuant to the Custodial and Disbursement
Agreement (the "Agreement") to which this Annex is attached. Capitalized terms
used herein and not defined herein shall have the meanings ascribed to them in
the Agreement.
1. the Mortgage Note and the Mortgage each appear to bear an original
signature or signatures purporting to be the signature or signatures
of the Person or Persons named as the maker and Mortgagor, or in the
case of copies of the Mortgage permitted under Section 2(a)(ii) of the
Agreement, that such copies bear a reproduction of such signature;
2. amount of the Mortgage Note is the same as the amount specified on the
related Mortgage and Asset Schedule;
3. the mortgagee is the same as the payee on the Mortgage Note;
4. the Mortgage contains a legal description other than address, city and
state and has evidence of recording thereon provided that Custodian
shall have no responsibility for the accuracy or completeness of such
legal description;
5. the Asset File contains the original attorney's opinion of title and
abstract of title or the original mortgagee title insurance policy, or
if the original mortgagee title insurance policy has not been issued,
the irrevocable commitment to issue the same;
6. the notary section (acknowledgment) is present and attached to the
related Mortgage and is signed;
7. the original Mortgage Note, the Mortgage delivered pursuant to the
Agreement, and the original Assignment of Mortgage, or copy, as the
case may be, appear regular on their face and relate to such Mortgage
Loans;
8. the Mortgage Note is endorsed in blank by the named holder or payee
thereof;
9. each original Assignment of Mortgage and any intervening assignment of
mortgage, if applicable, appears to bear the original signature of the
named mortgagee or beneficiary including any subsequent assignors, as
applicable, or in the case of copies permitted under Section 2(a)(v)
of the Agreement, that such copies appear to bear a reproduction of
such signature of signatures, and the intervening assignments of
mortgage evidence a complete chain of assignment and transfer of the
related Mortgage from the originating Person to Seller;
10. the date of each intervening assignment is on or after the date of the
related Mortgage and/or the immediately preceding assignment, as the
case may be;
Annex 4-1
11. the notary section (acknowledgment) is present and attached to each
intervening assignment and is signed;
12. based upon a review of the Note, the loan identification number, the
borrower name, the property address (including, street address, city,
state and zip code), the original loan amount, the interest rate, and
the maturity date for each asset class as set forth in the Asset
Schedule delivered by Seller to Custodian are correct;
Annex 4-2
Annex 5-A
FORM OF REQUEST FOR RELEASE AND RECEIPT
Date: __________, 200_
To: [Address]
Re: Custodial and Disbursement Agreement, dated as of [___________] [__],
2006 (the "Custodial and Disbursement Agreement"), among MortgageIT
Holdings, Inc., as Seller, MortgageIT, Inc., as Seller, Deutsche Bank
National Trust Company as Custodian and Disbursement Agent, and DB
Structured Products, Inc. as Buyer.
The undersigned, [Seller] (the "Seller"), acknowledges receipt from
Deutsche Bank National Trust Company, acting as agent, bailee and custodian (in
such capacity, the "Custodian") for the exclusive benefit of DB Structured
Products, Inc. (the "Buyer") under the Master Repurchase Agreement (the
"Repurchase Agreement"), dated as of [_________] [__], 2006, by and among
Sellers and Buyer, of the following described documentation for the identified
Loan (the "Documentation"), possession of which is entrusted to Seller solely
for the purpose of correcting the following documentary defects relating
thereto:
Borrower Name Loan Number Loan Amount Loan Document
------------- ----------- ----------- -------------
It is hereby acknowledged that a security interest pursuant to the
Uniform Commercial Code in the Documentation herein above described and in the
proceeds of said Documentation has been granted to the Buyer pursuant to the
Repurchase Agreement.
In consideration of the aforesaid delivery by Custodian, Seller hereby
agrees to hold said Purchased Assets in trust for the Buyer as provided under
and in accordance with all provisions of the Repurchase Agreement and the other
Program Documents and to return said Documentation no later than the close of
business on the tenth day following the date hereof, or if such day is not a
Business Day, on the immediately preceding Business Day, to Deutsche Bank
National Trust Company 0000 X. Xx Xxxxxx Xxxxx, Xxxxx Xxxxxx, XX 00000,
Attention: MG062C.
Annex 5-A-1
[SELLER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Acknowledged and Agreed (if more than 5 Asset Files are requested to be
released):
DB STRUCTURED PRODUCTS, INC.,
as Buyer
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
Annex 5-A-2
Annex 5-B
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To: [Address]
Re: Custodial and Disbursement Agreement, dated as of [___________] [__],
2006 (the "Custodial and Disbursement Agreement"), among MortgageIT
Holdings, Inc., as Seller, MortgageIT, Inc., as Seller, Deutsche Bank
National Trust Company as Custodian and Disbursement Agent, and DB
Structured Products, Inc. as Buyer.
In connection with the administration of the Loans held by you as
Custodian on behalf of the Buyer, we request the release, to be delivered to
[Servicer], as servicer (the "Servicer"), of the (Asset File/[specify
documents]) for the Loan described below, for the reason indicated.
Borrower's Name, Address & Zip Code: Ship Files To:
Name:
Address:
Telephone Number:
Loan Number:
Reason for Requesting Documents (check one)
__1. Loan Paid in Full. (Seller hereby certifies that all amounts received in
connection therewith which are required to be remitted to Buyer have been
credited to Buyer.)
__2. Mortgage Required for servicing
__3. Loan Liquidated or Foreclosed By _____________. (Seller hereby certifies
that all proceeds of insurance, condemnation or other liquidation have been
finally received and credited to Buyer.)
__4. Other (explain) ____________________________.
If box 1 or 2 above is checked, and if all or part of the Asset File
was previously released to us, please release to us our previous request and
receipt on file with you, as well as any additional documents in your possession
relating to the specified Loan.
If box 3 above is checked, upon our return of all of the above
documents to you as Custodian, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
Annex 5-B-1
It is hereby acknowledged that a security interest pursuant to the
Uniform Commercial Code in the Purchased Assets hereinabove described and in the
proceeds of said Purchased Assets has been granted to Buyer pursuant to the
Repurchase Agreement.
In consideration of the aforesaid delivery by Custodian, the Servicer
hereby agrees to hold said Purchased Assets in trust for Buyer as provided under
and in accordance with all provisions of the Custodial and Disbursement
Agreement and each other Program Document and to return said Purchased Assets to
Custodian no later than the close of business on the tenth day following the
date hereof or, if such day is not a Business Day, on the immediately preceding
Business Day.
The Servicer hereby acknowledges that it shall hold said Purchased
Assets in trust for, and as bailee of, the Buyer and shall return said Purchased
Assets only to Custodian if Loan has not paid in full or completely liquidated
as certified above.
[SELLER]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
Acknowledged and Agreed (if greater than 5 Asset Files)
DB STRUCTURED PRODUCTS, INC.,
as Buyer
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Annex 5-B-2
Annex 5-C
FORM OF REQUEST FOR RELEASE
Date: [DATE]
The undersigned, [Seller] (the "Seller"), requests release from
Deutsche Bank National Trust Company, acting as agent, bailee and custodian (in
such capacity, "Custodian") for the exclusive benefit of the Buyer (as that term
and other capitalized terms not otherwise defined herein are defined in that
certain Master Repurchase Agreement (the "Agreement"), dated as of [__________]
[__], 2006, between the Seller and DB Structured Products, Inc. (the "Buyer")
and other parties, of the following described documentation for the Loans
identified on the Asset Schedule attached hereto, possession of which shall be
delivered to ____________________ (the "Approved Purchaser") in connection with
the sale thereof. The anticipated closing date for such sale is [DATE] and the
anticipated purchase proceeds [MBS] shall equal: $__________________.
Loan Document
Borrower's Name Loan Number Note Amount Delivered
--------------- ----------- ----------- -------------
Please send the referenced documentation to:
[NAME OF APPROVED PURCHASER]
[ADDRESS]
[TELEPHONE]
[ATTENTION:]
Please deliver documents to the Approved Purchaser via __________________,
accompanied by a transmittal letter in the form of Annex [12][13].
[SELLER],
Seller
By:
------------------------------------
Name:
Title:
Acknowledged and Agreed:
DB STRUCTURED PRODUCTS, INC.,
as Buyer
By:
---------------------------------
Annex 5-C-1
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[APPROVED PURCHASER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Annex 5-C-2
Schedule 1 to Annex 5-C
ASSET SCHEDULE
Annex 5-C-3
Annex 6
AUTHORIZED REPRESENTATIVES OF BUYER
Name Title Specimen Signature
---- ----- ------------------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
Annex 6-1
Annex 7-A
AUTHORIZED REPRESENTATIVES OF MIT
Name Title Specimen Signature
---- ----- ------------------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
Annex 7-1
Annex 7-B
AUTHORIZED REPRESENTATIVES OF HOLDINGS
Name Title Specimen Signature
---- ----- ------------------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
Annex 7-1
Annex 8
AUTHORIZED REPRESENTATIVES OF CUSTODIAN
Name Title Specimen Signature
---- ----- ------------------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
Annex 8-1
Annex 9
AUTHORIZED REPRESENTATIVES OF DISBURSEMENT AGENT
Name Title Specimen Signature
---- ----- ------------------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
Annex 9-1
Annex 10
RESERVED
Annex 10-1
Annex 11
EXCEPTION CODES
ID No. Document Exceptions Code Description
------ ------------------------ ---- ----------------------------------------
1. Assignment DNE Document Unexecuted Assignment in blank is not signed (F)
2. Assignment P Photo-Copy Assignment in blank is not original (F)
3. Assignment M Not Received No Corporate assignment in blank (F)
4. Assignment O* Original with comment Blank assignments is not notarized (F)
5. Assignment INC Incomplete/Incorrect Applies to Amount, Borrower's name is not on blank assignment
Name, Address, Legal Description, Riders
6. Assignment INC Incomplete/Incorrect Applies to Amount, Corporate assignment in blank missing D. B. A.
Name, Address, Legal Description, Riders (doing business as)
7. Assignment INC Incomplete/Incorrect Applies to Amount, Assignment in blank is not executed by Seller name
Name, Address, Legal Description, Riders on grid-3rd party
8. Assignment M Not Received Assignment to GNMA is missing (F)
9. Assignment BKT Blanket
10. Assignment BRK Break in Chain
11. Assignment CV Can't Verify
12. Assignment DNR Document/Data Not Reviewed
13. Assignment NA Not Applicable
14. Assignment in Blank INC Incomplete/Incorrect
15. Assignment in Blank M Not Received
16. Assignment in Blank P Photo-Copy
17. Chattel Mortgage M Not Received
18. Chattel Mortgage NA Not Applicable
19. Consolidation/Extension/ M Not Received Consolidation/Modification agreement is missing
Modification Agreement
20. Consolidation/Extension/ P Photo-Copy Consolidation/Modification agreement is not
Modification Agreement certified
21. Consolidation/Extension/ CV Can't Verify
Modification Agreement
22. Consolidation/Extension/ DNE Document Unexecuted
Modification Agreement
23. Consolidation/Extension/ DNR Document/Data Not Reviewed
Modification Agreement
24. Consolidation/Extension/ INC Incomplete/Incorrect Amount Less than
Annex 11-1
ID No. Document Exceptions Code Description
------ ------------------------ ---- ----------------------------------------
Modification Agreement Mortgage, Missing Legal Description
25. Consolidation/Extension/ NA Not Applicable
Modification Agreement
26. Endorsement M Not Received Endorsement in blank on the note is missing (F)
27. Endorsement DNE Document Unexecuted Endorsement in blank on the note is missing
seller's authorized signature (F)
28. Endorsement EXT Extra Erroneous endorsement must be voided and initiated
29. Endorsement INC Incomplete/Incorrect Endorsement in blank is to the takeout investor
(F)
30. Endorsement INC Incomplete/Incorrect Corporate assignment in blank is Buyer
31. Endorsement INC Incomplete/Incorrect Endorsement in blank missing D.B.A.
(doing business as)
32. Endorsement INC Incomplete/Incorrect Endorsement in blank is on the intervening Allonge
33. Endorsement INC Incomplete/Incorrect Endorsement in blank is missing authorized name
and title
34. Endorsement INC Incomplete/Incorrect Endorsement on note reads "with recourse" (F)
35. Endorsement P Photo-Copy Endorsement on note is a facsimile signature,
not a live linked signature
36. Endorsement BRK Break in Chain
37. Endorsement CV Can't Verify
38. Endorsement DNR Document/Data Not Reviewed
39. Endorsement NA Not Applicable
40. Endorsement O* Original with comment
41. Intervening Assignment M Not Received Intervening assignment (from/to) is missing
42. Intervening Assignment DNE Document Unexecuted Intervening assignment (from/to) is not signed
43. Intervening Assignment P Photo-Copy Intervening assignment (from/to) is not certified
44. Intervening Assignment O* Original with comment Corporate assignment has no legal description and
is not complete
45. Intervening Assignment BKT Blanket Assignment
46. Intervening Assignment BRK Break in Chain
47. Intervening Assignment CV Can't Verify
48. Intervening Assignment DNR Document/Data Not Reviewed
49. Intervening Assignment INC Incomplete/Incorrect Applies to Amount,
Name, Address
50. Intervening Assignment NA Not Applicable
51. Intervening Endorsement M Not Received Intervening endorsement (from/to) on note missing
(F)
52. Intervening Endorsement DNE Document Unexecuted Intervening endorsement (from/to) on the note is
missing authorized signature (F)
53. Intervening Endorsement BRK Break in Chain
54. Intervening Endorsement CV Can't Verify
55. Intervening Endorsement DNR Document/Data Not Reviewed
Annex 11-2
ID No. Document Exceptions Code Description
------ ------------------------ ---- ----------------------------------------
56. Intervening Endorsement INC Incomplete/Incorrect
57. Intervening Endorsement NA Not Applicable
58. Intervening Endorsement O* Original with comment
59. Intervening Endorsement P Photo-Copy
60. LTV M Not Received LTV/PMI certificate is missing
61. LTV P Photo-Copy LTV/MI officer's certificate is not original
62. Mortgage/Deed of Trust M Not Received Mortgage/Deed is missing (faxable cure) (F)
63. Mortgage/Deed of Trust P Photo-Copy Mortgage/Deed is not certified
64. Mortgage/Deed of Trust O* Original with comment Mortgage/Deed is missing assumption agreement
65. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Mortgage/Deed - the borrower's name and signature
Name, Address, Legal Description, Riders does not match the note
66. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Mortgage/Deed - the amount is not less or equal to
Name, Address, Legal Description, Riders the amount on the note
67. Mortgage/Deed of Trust DNE Document Unexecuted Mortgage/Deed is not signed (F)
68. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Husband and Wife's name is not on note but on
Name, Address, Legal Description,Riders mortgage
69. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Mortgage date does not match the note date
Name, Address, Legal Description, Riders
70. Mortgage/Deed of Trust O* Original with comment Mortgage/Deed is missing riders
71. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Mortgage/Deed is missing Schedule A
Name, Address, Legal Description, Riders (legal description)
72. Mortgage/Deed of Trust O* Original with comment Missing power of attorney (faxable cure) (F)
73. Mortgage/Deed of Trust O* Original with comment Mortgage/Deed not notarized
74. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Mortgage/Deed is missing one or more pages
Name, Address, Legal Description, Riders
75. Mortgage/Deed of Trust INC Incomplete/Incorrect Applies to Amount, Mortgagors name matches grid, loan number does not
Name, Address, Legal Description, Riders
76. Mortgage/Deed of Trust P Photo-Copy Mortgage/Deed copy UR
77. Mortgage/Deed of Trust P Photo-Copy Mortgage/Deed CTC UR
78. Mortgage/Deed of Trust O* Original with comment Mortgage/Deed UR
79. Mortgage/Deed of Trust CV Can't Verify
80. Mortgage/Deed of Trust DNR Document/Data Not Reviewed
Annex 11-3
ID No. Document Exceptions Code Description
------ ------------------------ ---- ----------------------------------------
81. Mortgage/Deed of Trust NA Not Applicable
82. Note M Not Received Note missing (F)
83. Note CT Copy - Certified Note is not original (F)
84. Note P Photo-Copy Note is not original (F)
85. Note CV Can't Verify Note is missing borrower's name (F)
86. Note INC Incomplete/Incorrect Applies to Amount, Note-borrower's name does not match the file (F)
Name, Address
87. Note DNE Document Unexecuted Note is missing borrower's signature (F)
88. Note INC Incomplete/Incorrect Applies to Amount, Note face amount does not match grid
Name, Address
89. Note O* Original with comment Balloon note is missing rider
90. Note INC Incomplete/Incorrect Applies to Amount, Correction on note is not initialed (F)
Name, Address
91. Note INC Incomplete/Incorrect Applies to Amount, On original note written and numeric amounts do
Name, Address not agree
92. Note INC Incomplete/Incorrect Applies to Amount, Loan number matches grid, mortgagors name does not
Name, Address
93. Note INC Incomplete/Incorrect Applies to Amount, Note is signed by a corporation
Name, Address
94. Note O* Original with comment Loan file is a second mortgage
95. Note M Not Received Credit file/shipping file received no original
note
96. Note INC Incomplete/Incorrect Applies to Amount, Principal amount, alpha and numeric, if included
Name, Address on note do not match (F)
97. Note INC Incomplete/Incorrect Applies to Amount, Property street address, city and state, do not
Name, Address match (if property address is included on the note
(F)
98. Note O* Original with comment Promissory note requires a notarization, notary is
missing (F)
99. Note DNR Document/Data Not Reviewed
100. Note NA Not Applicable
101. ORG TERM INC Incomplete/Incorrect Loan term on note does not match grid
102. Power of Attorney INC Incomplete/Incorrect Applies to Amount,
Name, Address
103. Power of Attorney M Not Received
104. Power of Attorney P Photo-Copy
105. Private Mortgage CV Can't Verify
Insurance
106. Private Mortgage M Not Received
Insurance
107. Proprietary Lease/ CV Can't Verify
Occupancy Agreement
Annex 11-4
ID No. Document Exceptions Code Description
------ ------------------------ ---- ----------------------------------------
108. Proprietary Lease/ DNE Document Unexecuted
Occupancy Agreement
109. Proprietary Lease/ DNR Document/Data Not Reviewed
Occupancy Agreement
110. Proprietary Lease/ M Not Received
Occupancy Agreement
111. Proprietary Lease/ NA Not Applicable
Occupancy Agreement
112. RATE INC Incomplete/Incorrect Interest rate on note does not match grid
113. RATE INC Incomplete/Incorrect Interest rate, alpha and numeric, if included on
note do not match (F)
114. Title Policy M Not Received Title policy missing
115. Title Policy CV Can't Verify
116. Title Policy NA Not Applicable
117. Title Policy CV Can't Verify
118. Title Policy INC Incomplete/Incorrect Applies to Amount,
Name, Address
119. Title Policy INC Incomplete/Incorrect Applies to Amount,
Name, Address
120. Title Policy M Not Received
121. Title Policy NA Not Applicable
122. TPCOMM M Not Received Commitment is missing (F)
123. UCC 1 INC Incomplete/Incorrect Amount Less than
Mortgage, Missing Legal Description
124. UCC 1 M Not Received
125. UCC 3 INC Incomplete/Incorrect Amount Less than
Mortgage, Missing Legal Description
126. UCC 3 M Not Received
127. UCC3 to Blank INC Incomplete/Incorrect Amount Less than
Mortgage, Missing Legal Description
128. UCC3 to Blank M Not Received
129. UCC3 to Blank M Not Received
Annex 11-5
Annex 12
FORM TRANSMITTAL & BAILMENT LETTER
[Custodian Letterhead]
Re: [Insert Description of Loan, including Seller's Name, Loan Amount and
Loan Number]
Ladies and Gentlemen:
Subject to the terms and conditions set forth below, we hereby
transmit the originally executed promissory note (the "Mortgage Note") relating
to the above-referenced mortgage loan (the "Loan"). We have released possession
of the Mortgage Note to you only in reliance on your agreement with the terms
and conditions set forth below.
By your acceptance of the Loan, you acknowledge that (i) DB Structured
Products, Inc. is the owner of the Loan and (ii) you have received possession of
the Mortgage Note along with certain other documents comprising the related
mortgage files (together with the Mortgage Note, the "Loan Documents"), in
trust, as bailee for and agent of Deutsche Bank National Trust Company.
("Custodian") (which holds the Loan Documents as custodian and bailee for the
benefit of DB Structured Products, Inc. Until your status as bailee is
terminated as set forth below, you agree not to deliver the Mortgage Note to
Seller or any third-party and to act only as agent for Custodian with respect to
the Loan Documents.
Your status and obligations as bailee shall automatically terminate,
without further action by any party, upon earliest to occur of (i) payment of
the full amount of the purchase price specified in your original purchase
commitment (which in no event shall be less than the Repurchase Price plus any
Obligations then due and payable) plus any servicing released premium specified
in such purchase commitment, (the "Commitment Price") for such Loan to DB
Structured Products, Inc. (the "Takeout Date") or (ii) return of the Loan
Documents to Custodian, as set forth below. DB Structured Products, Inc. does
hereby transfer, assign and convey any and all of its right, title and interest
in the Loan and Loan Document to you effective as of the Takeout Date upon
receipt of the Commitment Price in full.
For purposes of the Takeout Date set forth above, the Commitment Price
shall be deemed paid in full when Owner receives a federal wire transfer in the
amount of the Commitment Price sent to Owner in immediately available funds to:
Deutsche Bank, NY, ABA: 000-000-000, Account No.: GLA-111569, Account Name: DPX,
Attention: Xxxxxxx Xxxxxxxxxx, Ref: MortgageIT.
You agree only to send payments to DB Structured Products, Inc., as
specified above, and not to honor a change in the above wire transfer or mailing
instructions unless provided in writing and signed by DB
Structured Products, Inc.
You agree to deliver the Loan Documents: (a) Upon your receipt of DB
Structured Products, Inc.'s written request therefor (provided that such request
is received by you prior to your payment of the Commitment Price); (b) promptly,
in the event that you elect not to purchase the Loan, or (c) in the event that
the Mortgage Note is defective and requires correction. In the alternative, you
agree to take such other action with respect to the Mortgage Note and the
related Loan Documents as may be agreed upon in writing between DB Structured
Products, Inc. and you. Any delivery by you to Custodian
Annex 12-1
shall be made by express mail to the address of Custodian set forth below;
provided however, that in no case shall you return such Loan Document to
Custodian later than thirty (30) calendar days after receipt of such Loan
Document.
Any Loan Documents (or portion thereof) being returned in accordance
herewith shall be sent to Custodian by overnight courier to: Deutsche Bank
National Trust Company; [address], no later than thirty (30) calendar days after
the date hereof.
Any questions relating to the Loan Documents should be referred to the
attention of [__________] at DB Structured Products, Inc., Telephone:
[_________].
By acknowledging receipt of this Bailee Letter you shall be bound by
the terms hereof. DB Structured Products, Inc. requests that you acknowledge
receipt of the Loan Documents and this Bailee Letter by signing and returning
the enclosed copy of this Bailee Letter in the enclosed self-addressed envelope;
provided, however, that your failure to do so does not nullify Buyer's
acceptance of the terms of this Bailee Letter.
Sincerely,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:
------------------------------------
Name:
Title:
Acknowledged and Agreed this __ day of _______, 200_
DB STRUCTURED PRODUCTS, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Annex 00-0
Xxxxx 00
XXXX XXXXXXXXXXX & XXXXXXXX LETTER
[Custodian Letterhead]
[Custodian/Trustee]
--------------------------
--------------------------
Re: Shipment of Loans for Pool Formation
Ladies and Gentlemen:
Attached please find those Loans listed separately on the attached
schedule, which are owned by DB Structured Products, Inc. and are being
delivered to you, as custodian/trustee, for certification in connection with the
formation of a mortgage pool supporting the issuance of a mortgage-backed
security (the "MBS") described as follows: __________________________________.
The Loans comprise a portion of the "Purchased Assets" under (and as
such term and capitalized terms not otherwise defined herein are defined in)
that certain Master Repurchase Agreement (the "Agreement"), dated as of
[__________] [__], 2006, by and among MortgageIT Holdings, Inc. and MortgageIT,
Inc. (collectively, "Sellers") and DB Structured Products, Inc. ("DBSP" or
"Buyer"). Each of the Loans is the property of the Buyer, and upon the issuance
and delivery of the proceeds of the MBS to the Buyer in an amount at least equal
to the Repurchase Price plus any Obligations then due and payable, the Buyer
transfers, assigns and conveys its right, title and interest to the Purchased
Assets to you.
Pending issuance of the MBS, you shall hold possession of such
Purchased Assets, and the documentation evidencing same as custodian, agent and
bailee for and on behalf of Buyer. In the event that any Loan is
unacceptable for purchase, return the Loan directly to Custodian at its address
set forth below. In no event shall any Loan be returned to, or sales proceeds
remitted to, Sellers. The Loan must be so returned or sales proceeds remitted in
full no later than forty-five (45) days from the date hereof. If you are unable
to comply with the above instructions, please so advise the undersigned
Custodian immediately.
Annex 13-1
NOTE: BY ACCEPTING THE LOANS DELIVERED TO YOU WITH THIS LETTER, YOU
CONSENT TO BE CUSTODIAN, AGENT AND BAILEE FOR BUYER ON THE TERMS DESCRIBED IN
THIS LETTER. CUSTODIAN REQUESTS THAT YOU ACKNOWLEDGE RECEIPT OF THE ENCLOSED
LOANS AND THIS LETTER BY SIGNING AND RETURNING THE ENCLOSED COPY OF THIS LETTER
TO CUSTODIAN; HOWEVER, YOUR FAILURE TO DO SO DOES NOT NULLIFY SUCH CONSENT.
Very truly yours,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:________________________________
________________________________
________________________________
RECEIPT ACKNOWLEDGED:
[CUSTODIAN/TRUSTEE]
By
----------------------------------
Name:
Title:
Date:
--------------------------------
Annex 13-2
Annex 14
REO PROPERTIES REVIEW PROCEDURES
This Annex sets forth Custodian's review procedures for REO Properties
with respect to each item listed below delivered by Sellers pursuant to the
Custodial and Disbursement Agreement (the "Agreement") to which this Annex is
attached. Capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Agreement.
1. The documents listed in Section 2(b) hereof have been reviewed by it and
appear regular on their face and relate to such REO Property.
2. The deed bears an original signature or signatures purporting to be the
signature or signatures of the person or persons named as the transferors or, in
the case of certified copies of the deed, if any, such copies bear a
reproduction of such signature or signatures.
3. Each mortgage, deed of trust, warranty deed or similar instrument has been
executed as provided Section 2(b) hereof.
Annex 15-1
Annex 15
FORM OF LOST NOTE AFFIDAVIT
I, as ___________________________ (title) of Deutsche Bank National
Trust Company (the "Custodian"), am authorized to make this Lost Note Affidavit
on behalf of Custodian. In connection with the administration of the Loans held
by Custodian on behalf of DB Structured Products, Inc. (the "Buyer"),
_______________ (hereinafter called "Deponent"), being duly sworn, deposes and
says that:
1. Custodian's address is:
2. [CUSTODIAN'S Address]
3. Custodian previously delivered to Buyer a Custodial Asset Schedule and
Exception Report with respect to the Mortgage Note [made by
_______________ in favor of ____________, dated _____________, in the
principal amount of $_________________] which did not indicate such
Mortgage Note is missing;
4. Such Mortgage Note was sold to Buyer by Seller pursuant to the terms
and provisions of a Master Repurchase Agreement dated and effective as
of July 12, 2006;
5. Such Mortgage Note is not outstanding pursuant to a Request for
Release of Documents;
6. Aforesaid Mortgage Note (hereinafter called the "Original") has been
lost;
7. Deponent has made or has caused to be made diligent search for the
Original and has been unable to find or recover same;
8. Custodian was Custodian of the Original at the time of loss; and
9. Deponent agrees that, if said Original should ever come into
Custodian's possession, custody or power, Custodian will immediately
and without consideration surrender the Original to Buyer.
10. Attached hereto is a true and correct copy of (i) the Mortgage Note,
endorsed in blank by the Mortgagee, as provided by the Seller or its
designee and (ii) if available, the Mortgage which secures the
Mortgage Note,
11. Deponent hereby agrees that Custodian (a) shall indemnify and hold
harmless Buyer, its successors, and assigns, against any cost, loss,
liability or damage, including reasonable attorney's fees, resulting
from the unavailability of any Originals, including but not limited to
any cost, loss, liability or damage arising solely from (i) any false
statement contained in this Lost Note Affidavit, (ii) any claim of any
party that it has already purchased a mortgage loan evidenced by the
Originals or any interest in such mortgage loan, (iii) any claim of
any borrower with respect to the existence of terms of a Loan
evidenced by the Originals, (iv) the issuance of new instrument in
lieu thereof and (v) any claim whether or not based upon or arising
from honoring or refusing to honor the Original when presented by
anyone (items (i) through (v) above are hereinafter referred to as the
"Losses") and (b) if required by any rating agency in connection with
placing
Annex 15-2
such Originals into a structured and rated transaction, shall obtain a
surety bond from an insurer acceptable to the applicable rating agency
in an amount acceptable to such rating agency to cover any Losses with
respect to such Originals.
12. This Affidavit is intended to be relied on by Buyer, its successors,
and assigns and _______________________ represents and warrants that
it has the authority to perform its obligations under this Affidavit.
EXECUTED THIS ____ day of _______, 200_,
on behalf of Custodian by:
----------------------------------------
Signature
----------------------------------------
Typed Name
On this _________ day of _______________________, 200_, before me
appeared ____________________________________________, to me personally know,
who being duly sworn did say that she/he is the ______________________________
of ______________________, and that said Lost Note Affidavit was signed and
sealed on behalf of such corporation and said _____________________________
acknowledged this instrument to be the free act and deed of said corporation.
-------------------------------------
Notary Public in and for the
State of ____________________________.
My Commission expires: _______________.
Annex 15-3
Annex 16
FORM OF ATTORNEY'S BAILEE LETTER
[Letterhead of Seller]
________ __, _____
Name of Attorney
[Address]
Custodian: Deutsche Bank National Trust
Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: MG062C
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Buyer: DB Structured Products, Inc. Seller:
00 Xxxx Xxxxxx Attn:
Xxx Xxxx, XX 00000 Facsimile:
Attention: Xxxxxxx X'Xxxxx Telephone:
Telecopier No.: (000) 000-0000 With copy to:
Telephone No.: (000) 000-0000 Attn:
Facsimile:
Telephone:
Dear Sir or Madam:
From time to time, we, (_______) (the "Seller"), will send to you (or
have sent to you) mortgage loans for which you have agreed to commence and
prosecute a foreclosure action. In connection with such foreclosure activities,
[copies of](1) one or more of the documents evidencing or otherwise relating to
such mortgage loans ("Documents") will be delivered to you. DB Structured
Products, Inc. (the "Buyer"), has financed the sale to us or origination of such
mortgage loans, and with such sale or origination we granted an ownership and/or
security interest in the Documents referred to below and the mortgage loans to
which such Documents
----------
(1) For Acceptable Attorneys to whom copies of the Documents are sent.
Annex 16-1
relate to the Buyer. Deutsche Bank National Trust Company (the "Custodian") is
acting as custodian for the Buyer in connection with the Documents.
Whenever we send you Documents to be covered by this letter agreement,
we will send such Documents to you under a transmittal letter identifying the
specific documents delivered, and the mortgage loan(s) to which they relate,
with a space at the end of the letter for you to sign and to acknowledge your
receipt of such Documents. Upon your receipt of any such Documents, you hereby
agree to fax to the Buyer and the Custodian, no later than three (3) Business
Days after your receipt thereof, our transmittal letter, signed in the
acknowledgment space by you, pursuant to which you (i) acknowledge receipt of
the Documents listed in the transmittal letter, and (ii) acknowledge that with
respect to such listed documents you are acting as bailee of the Buyer in
accordance with the terms of this Attorney's Bailee Letter.
By signing this letter agreement below where indicated, (a) you agree
that on and after the date hereof until you are otherwise notified by the Buyer
or the Custodian, any Documents delivered to you as described above will be held
by you as bailee for the Buyer, (b) you certify that, as of the date of your
receipt of any Documents, you have not received notice of any interest of any
other person or entity in such Documents or the related mortgage loans, (c) you
agree that you will commence and diligently prosecute foreclosure proceedings
with respect to the mortgage loan to which any such Documents relate and (d) you
certify that if either you or your law firm has any security interest in the
Documents or the mortgage loan to which those Documents relate you agree to
waive any interest you or your firm may acquire therein at any time, whether
arising pursuant to law or otherwise or to refuse delivery of such Documents and
return them immediately to the Custodian.
The Seller and the Buyer hereby irrevocably instruct you that any
Documents in your possession are to be held by you as bailee for the Buyer, as
provided herein until they are returned to the Custodian at the address noted
above together with a copy of this letter agreement; provided that if the Buyer
or the Custodian notifies you that the Buyer's interest in any of
above-referenced mortgage loans has been released or did not attach (the
"Release Notice"), from the date of such Release Notice you will hold the
Documents relating to such mortgage loan (and no others) as bailee for the
Seller, in which case you will follow the Seller's instructions regarding such
Documents, and such Documents shall be released to the Seller at the address
noted above, or its designee, upon conclusion of the foreclosure action, instead
of returning them to the Custodian; and provided further that prior to the date
of any Release Notice, notwithstanding anything herein or elsewhere to the
contrary, if you receive instructions from the Buyer or the Custodian which do
not comport with instructions you may have received from the Seller, including,
without limitation, instructions to deliver the Documents to the Custodian, the
Buyer or any other person or entity, you shall abide by the instructions of the
Custodian or Buyer.
You agree to immediately give telephonic notice (followed by written
notice) to the Custodian if you receive notice or any inquiry from any other
person or entity of or with respect to any interest in the Documents or the
related mortgage loan and you agree that you shall immediately notify each such
person in writing, with a copy to the Custodian, of the prior interest of the
Buyer therein.
Annex 16-2
This letter agreement supersedes any letter agreement or other
agreement or arrangement that may exist between you and the Seller.
Notwithstanding any contrary understanding with you, the Seller or any other
person or entity, or any instructions to you from the Seller, the Seller or any
other person or entity, you shall abide by the terms of this letter. No
deviation in performance of the terms of any previous letter agreement between
you and any of the undersigned shall alter any of your duties or
responsibilities as set forth herein.
Because time is of the essence, please promptly sign and date the
enclosed copy of this letter agreement and return it via overnight delivery
service to the Custodian at the above address and via telecopier, send a copy of
this executed letter agreement to the Seller. It is important that the Custodian
receive a copy of this letter agreement executed by you. Thank you for your
cooperation in assisting us with this project.
NOTE: BY ACCEPTING THE MORTGAGE LOANS DELIVERED TO YOU WITH THIS LETTER, YOU
CONSENT TO BE THE CUSTODIAN, AGENT AND BAILEE FOR THE BUYER ON THE TERMS
DESCRIBED IN THIS LETTER. THE CUSTODIAN REQUESTS THAT YOU ACKNOWLEDGE RECEIPT OF
THE ENCLOSED MORTGAGE LOANS AND THIS LETTER BY SIGNING AND RETURNING THE
ENCLOSED COPY OF THIS LETTER TO THE CUSTODIAN; HOWEVER, YOUR FAILURE TO DO SO
DOES NOT NULLIFY SUCH CONSENT.
Very truly yours,
(__________________), Seller
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DB STRUCTURED PRODUCTS, INC., Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGED AND AGREED:
By:
---------------------------------
Print Name:
-------------------------
Date:
-------------------------------
Annex 16-3
Rider A
[Letterhead of _____________________]
________ __, _____
Name of Attorney
[Address]
Re: Mortgagor:
Address of Property:
Loan Number:
Dear ___________________:
We refer to that certain letter (the "Attorney's Bailee Letter"),
dated ________________, ____, from us to you and signed by us and by DB
Structured Products, Inc. ("DBSP"), Aspen Funding Corp. ("Aspen"), Newport
Funding Corp. ("Newport"), (and collectively with DBSP, Aspen and Newport, the
"Buyers" and individually a "Buyer"), describing the terms under which you
agreed to hold certain mortgage loan documents to be sent to you from time to
time under the Attorney's Bailee Letter.
The following documents evidencing or otherwise relating to the
above-referenced mortgage loans (collectively, the "Documents") are being sent
to you under cover of this letter for the purpose of commencement and
prosecution of a foreclosure action:
[LIST ONLY THOSE DOCUMENTS THAT ARE BEING SENT]
(i) The [original] [copy of the] Mortgage Note.
(ii) The [original] [copy] of the guarantee executed in connection with
the Mortgage Note.
(iii) The [original] [copy of the] Mortgage with evidence of recording
thereon, or a certified copy thereof.
(iv) The [originals] [copies] of all assumption, modification,
consolidation or extension agreements (if any) with evidence of
recording thereon, or certified copies thereof.
(v) An [original] [copy of the] Assignment of Mortgage to
"______________".
(vi) The [originals] [copies] of [identify any particular] intervening
assignments of mortgage with evidence of recording thereon, or
certified copies thereof.
(vii) The [original] [copy of the] [attorney's opinion of title and
abstract of title] or [the original mortgagee title insurance
policy], [or if the original mortgagee title
insurance policy has not been issued, the irrevocable commitment to
issue the mortgagee title insurance policy [as marked by the title
company or its authorized agent]], [or the preliminary title report
for appropriate jurisdictions].
(viii) The [original] [copy] of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage Loan.
(ix) The [original] [copy of the] power of attorney or other authorizing
instrument [with evidence of recording thereon].
(x) [Identify any other documents which may be sent].
Please sign this letter in the space provided below to indicate your
acknowledgment of receipt of the documents listed above with respect to the
mortgage loan(s) identified above, and to confirm that you will hold such
documents as bailee for the Buyer under and in accordance with the terms of the
Attorney's Bailee Letter. As required by the Attorney's Bailee Letter, please
fax to the Buyer and the Custodian (with a copy to us), a copy of this letter
signed by you, not later than three (3) business days after your receipt of this
letter. We appreciate your cooperation.
Sincerely yours,
________________________________________
By:
------------------------------------
Name:
Title:
ACKNOWLEDGMENT:
I acknowledge receipt of the Documents as listed above in this letter and
of notice of the ownership and/or security interests in such documents described
in the Attorney's Bailee Letter referred to above. I confirm the certifications
made by me in the Attorney's Bailee Letter with respect to such documents and
agree to act as bailee for the Buyer with respect to such documents on the terms
set forth in the Attorney's Bailee Letter and to comply in all other respects
with the terms of the Attorney's Bailee Letter.
Print Name:
Date:
Annex 17
FORM OF WAREHOUSE LENDER'S RELEASE
(Date)
DB Structured Products, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Certain Loans Identified on Schedule A hereto and owned by
[Seller]
The undersigned hereby releases all right, interest, lien or claim of
any kind with respect to the mortgage loan(s) described in the attached Schedule
A, such release to be effective automatically without any further action by any
party upon payment in one or more installments, in immediately available funds
of $__________________, in accordance with the following wire instructions:
Very truly yours,
[WAREHOUSE LENDER]
By:
------------------------------------
Name:
Title:
Annex 17-1
Annex 18
FORM OF SELLER'S RELEASE
DB Structured Products, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we hereby certify
to you that the mortgage loan(s) is not subject to a lien of any warehouse
lender and (b) we hereby release all right, interest or claim of any kind with
respect to such mortgage loan, such release to be effective automatically
without any further action by any party upon payment from Buyers to the related
Sellers of an aggregate amount equal to the Purchase Price _______________ in
accordance with our wire instructions in effect on the date of such payment.
NAME: XXXXX Bank
ABA#: XXXXXXX
Account Number: XXXXXXX
Account Name: Customer Account
Loan Mortgagor Street Address City State Zip
---- --------- -------------- ---- ----- ---
____ ___________ ___________________ ________________ _______ ________
Very truly yours,
[_]
By:
------------------------------------
Name:
Title:
Annex 18-1
Annex 19
DB Trust Receipt Loan Schedule Data Fields
Loan Number
Name
Address
City
State
Zip
Original Principal Balance
Original Note Rate
Maturity Date
Totals on Bottom:
Total Loan Count
Total Original Principal Balance
Annex 19-1
