EXHIBIT 10.30.2
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CUSTODIAL AND DISBURSEMENT AGREEMENT
AMONG
CDC MORTGAGE CAPITAL INC., AS BUYER,
OAK STREET MORTGAGE LLC, AS SELLER,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS CUSTODIAN,
AND
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS DISBURSEMENT AGENT
Dated as of August 25, 2004
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TABLE OF CONTENTS
Page
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Section 1 Definitions.................................................................................... 1
Section 2 Delivery of Mortgage File...................................................................... 6
Section 3 Asset Schedule and Exception Report; Trust Receipt............................................. 9
Section 4 Obligations of Custodian....................................................................... 13
Section 5 Release of Mortgage Files...................................................................... 14
Section 6 Fees and Expenses of Custodian................................................................. 17
Section 7 Removal or Resignation of Custodian and Disbursement Agent..................................... 17
Section 8 Examination of Files, Books and Records........................................................ 18
Section 9 Insurance...................................................................................... 18
Section 10 Representations and Warranties................................................................. 19
Section 11 Disbursement Agent Duties...................................................................... 20
Section 12 No Adverse Interest............................................................................ 27
Section 13 Indemnification................................................................................ 27
Section 14 Reliance of Custodian.......................................................................... 29
Section 15 Term of Agreement.............................................................................. 30
Section 16 Notices........................................................................................ 30
Section 17 Governing Law.................................................................................. 31
Section 18 Authorized Representatives..................................................................... 31
Section 19 Amendment...................................................................................... 31
Section 20 Cumulative Rights.............................................................................. 31
Section 21 Assignment; Binding Upon Successors............................................................ 31
Section 22 Entire Agreement; Severability................................................................. 32
Section 23 Execution in Counterparts...................................................................... ▇▇
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▇▇▇▇▇▇▇ ▇▇ Tax Reports.................................................................................... 32
Section 25 Assignment by Buyer............................................................................ 32
Section 26 Submission to Jurisdiction; Waivers............................................................ 32
Section 27 Confidentiality................................................................................ 33
Annex 1 Seller Asset Schedule Delivery Information
Annex 2 Trust Receipt
Annex 3 Custodial Identification Certificate
Annex 4 Review Procedures
Annex 5-A Request For Release And Receipt
Annex 5-B Form of Request For Release of Documents And Receipt
Annex 5-C 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 Escrow Instruction Paragraph
Annex 11 Exception Codes
Annex 12 Transmittal & Bailment Letter
Annex 13 Transmittal & Bailment Letter
Annex 14 [Reserved].
Annex 15 Form of Lost Note Affidavit/Assignment of Mortgage
Annex 16 Form of Settlement Report
Annex 17-A Form of Seller's Release
Annex 17-B Form of Warehouse Lender's Release
Annex 18 Form of Payment Date Report
Annex 19 Form of Electronic Tracking Agreement
Annex 20 Form of Agreement and Release
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CUSTODIAL AND DISBURSEMENT AGREEMENT ("Agreement") dated as of
August 25, 2004 made by and among:
(i) OAK STREET MORTGAGE LLC, a Delaware limited liability company
(including its successors in interest, "Seller");
(ii) DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian for Buyer
pursuant to this Agreement (in such capacity, including its
successors in interest and any successor Custodian as permitted
hereunder, "Custodian");
(iii) DEUTSCHE BANK NATIONAL TRUST COMPANY, disbursement agent for Buyer
pursuant to this Agreement (in such capacity, including its
successors in interest and any successor Disbursement Agent as
permitted hereunder, "Disbursement Agent"); and
(iv) CDC MORTGAGE CAPITAL INC., a New York corporation (including its
successors in interest, "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
Mortgage Loans, with a simultaneous agreement by Seller to repurchase such
Mortgage Loans.
It is a condition precedent to the effectiveness of the Repurchase
Agreement that the parties hereto execute and deliver this 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 respective meanings given
them in the Repurchase Agreement, and the following terms shall have the
following meanings:
"Affiliate" shall mean with respect to any Person, any "affiliate"
of such Person as such term is defined in the Bankruptcy Code.
"Agency" shall mean ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, as applicable.
"Agreement and Release" shall mean a letter in form and substance
acceptable to Buyer in its sole discretion, substantially in the form of Annex
20, from a Warehouse Lender to Buyer, (i) unconditionally releasing all of
Warehouse Lender's right, title and interest in certain Mortgage Loans
identified therein upon receipt of payment by the Warehouse Lender, and (ii)
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acknowledging that Warehouse Lender shall remove its name from the Interim
Funder field on the MERS(R) System within one Business Day of the related
Purchase Date.
"Applicable Guide" shall mean with respect to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac, the applicable guide published by either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac setting
forth the requirements each Mortgage Loan needs to satisfy in order to be
eligible for purchase by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, as such guide may be amended
or supplemented from time to time or any other set of criteria established by
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac that a Mortgage Loan must satisfy in order to be
eligible for purchase by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
"Asset Schedule and Exception Report" shall mean a list delivered by
Custodian to Buyer on each Business Day, which sets forth the Mortgage Loans
held by Custodian for the benefit of Buyer (with Mortgage Loans with Fatal
Exceptions clearly identified as such), which includes the exception codes set
forth on Annex 11 hereto indicating any Exceptions with respect to each Eligible
Asset listed thereon. Each Asset Schedule and Exception Report shall set forth
(a) the Mortgage Loans being sold to Buyer on any applicable Purchase Date as
well as the Mortgage Loans previously sold to Buyer and held by Custodian
hereunder, and (b) all Exceptions with respect thereto, with any updates thereto
from the time last delivered.
"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
Agreement.
"Confirmation" shall have the meaning specified in the Repurchase
Agreement.
"Custodial Delivery Failure" shall have the meaning specified in
Section 13(b).
"Custodial Identification Certificate" shall mean the certificate
executed by Seller in connection with the delivery of one or more Mortgage Files
to be held by Custodian pursuant to this Agreement, a form of which is attached
as Annex 3 hereto.
"Custodian" shall have the meaning specified in the preamble to this
Agreement.
"Disbursement Account" shall have the meaning specified in Section
11(a)(i).
"Disbursement Agent" shall have the meaning specified in the
preamble to this Agreement.
"Edit Check" shall mean a review conducted by the Disbursement Agent
in accordance with the Edit Check Procedures.
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"Edit Check Agreement" shall mean the separate letter agreement, if
any, between Disbursement Agent and Buyer setting forth the Edit Check
Procedures, as may be amended from time to time.
"Edit Check Procedures" shall mean, if an Edit Check Agreement has
been entered into, those certain edit check procedures set forth in the Edit
Check Agreement, and if no Edit Check Agreement has been entered into, none.
"Electronic Agent" shall mean MERSCORP, INC, and its successors in
interest.
"Electronic Tracking Agreement": The Electronic Tracking Agreement,
in a form substantially similar to the form set forth as Annex 19 hereto, among
Buyer, Seller, Custodian, Electronic Agent and MERS, as the same shall be
amended, supplemented or otherwise modified from time to time; provided that if
no Mortgage 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 the instructions from Seller
to the Settlement Agent which include the paragraph set forth on Annex 10
hereto.
"Exception" shall mean, with respect to any Mortgage Loan, any
variances from the delivery requirements of Section 2 hereof that are not Fatal
Exceptions with respect to the Mortgage Files (giving effect to Seller's right
to deliver certified copies in lieu of original documents in certain
circumstances) and indicating such exceptions using the codes set forth on Annex
11 hereto.
"▇▇▇▇▇▇ Mae" shall mean the Federal National Mortgage Association,
and its successors in interest.
"Fatal Document Exception" shall mean, with respect to any Mortgage
Loan, (i) any variance from the requirements of Section 2(i)(A), (B), (D), (F)
or (J) hereof with respect to the Mortgage Files (giving effect to Seller's
right to deliver certified copies in lieu of original documents in certain
circumstances); (ii) that the documents in the Mortgage Files referred to in the
preceding clause (i) have been reviewed by Custodian in accordance with the
Review Procedures (other than the Review Procedures set forth in 8, 9 and 10
thereof) and do not appear on their face to be regular or to relate to such
Mortgage Loan, (iii) any exception indicated as a Fatal Exception on Annex 11
hereto, or (iv) any Mortgage Loan with respect to which Custodian receives
written notice or has actual knowledge of a lien or security interest in favor
of a Person other than Buyer with respect to such Mortgage Loan.
"Fatal Document Exception Report" shall mean a report delivered by
Custodian to Seller and Buyer setting forth all Mortgage Loans with Fatal
Document Exceptions.
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"Fatal Exception" shall mean a Fatal Document Exception or a Fatal
Information Exception.
"Fatal Information Exception" shall mean, with respect to any
Mortgage Loan, (i) that any of the information required pursuant to all fields
set forth on Annex 1 hereto is not set forth with respect to such Mortgage Loan
in the related Seller Asset Schedule delivered to the Disbursement Agent with
the Transaction Request, (ii) a Mortgage Loan that fails the Edit Check
Procedure or (iii) the related Transaction Request sets forth a Purchase Price,
Pricing Rate or Asset Value that is not identical to the Purchase Price, Pricing
Rate or Asset Value calculated by the Disbursement Agent.
"▇▇▇▇▇▇▇ Mac" shall mean the Federal Home Loan Mortgage Corporation,
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
Mortgage Loan, the Person named on the MERS System as the interim funder
pursuant to the MERS Procedures Manual.
"MERS" shall mean Mortgage Electronic Registration Systems, Inc.,
and its successors in interest.
"MERS Designated Mortgage Loan" shall have the meaning assigned to
such term in Section 3 of the Electronic Tracking Agreement.
"MERS Identification Number" shall mean the eighteen digit number
permanently assigned to each MERS Designated Mortgage Loan.
"MERS Procedures Manual" shall mean the MERS Procedures Manual
attached as Exhibit B to the Electronic Tracking Agreement, as it may be
amended, supplemented or modified from time to time.
"MERS Report" shall mean the schedule listing MERS Designated
Mortgage Loans and other information prepared by an electronic agent pursuant to
the Electronic Tracking Agreement.
"MERS(R) System" shall mean an electronic agent's mortgage
electronic registry system, as more particularly described in the MERS
Procedures Manual.
"Mortgage File" shall mean, as to each Mortgage Loan, those
documents listed in Sections 2(i), 2(ii) or 2(iii) that are delivered to
Custodian or which at any time come into the possession of Custodian.
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"Mortgage Loan Documents" shall mean, with respect to a Mortgage
Loan, the documents comprising the Mortgage File for such Mortgage Loan.
"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).
"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 Asset Schedule" shall mean a list of Eligible Assets
delivered by Seller to Disbursement Agent and Buyer pursuant to Section 3(c) of
the Repurchase Agreement, and provided in electronic format, setting forth, as
to each Eligible Asset, the applicable information specified on Annex 1 to this
Agreement.
"Seller Funded Wire Amount" shall have the meaning specified in
Section 11(a)(ii).
"Seller's Release" shall mean a letter, in the form of Annex 17-A,
delivered by Seller when no Warehouse Lender has an interest in a Mortgage Loan,
unconditionally releasing all of Seller's right, title and interest in such
Mortgage Loan upon receipt of the Purchase Price by Seller.
"Seller's Wire Instructions" shall mean the wire instructions, set
forth in a letter in the form of Exhibit A to Seller's Release, to be used for
the payment of funds to Seller when no Warehouse Lender has an interest in the
Mortgage Loans to which such payment relates.
"Settlement Account" shall have the meaning specified in Section
11(a)(iii).
"Settlement Agent" shall mean, with respect to any Transaction, the
entity approved by Buyer, in its sole discretion, which may be a title company,
escrow company or attorney in accordance with local law and practice in the
jurisdiction where the related Wet-Ink Mortgage Loan is being originated, to
which the proceeds of such Transaction are to be wired pursuant to Section 3 of
the Repurchase Agreement.
"Settlement Report" shall have the meaning specified in Section
11(e).
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"Transaction Account" shall mean any of the Disbursement Account,
the Settlement Account or the Wire-out Account.
"Trust Receipt" shall mean a trust receipt in the form annexed
hereto as Annex 2 delivered to Buyer by Custodian covering all of the Mortgage
Loans subject to this Agreement from time to time, as reflected on the Asset
Schedule and Exception Report attached thereto in accordance with Section 3(e).
"Warehouse Lender" shall mean any lender providing financing to
Seller for the purpose of warehousing, originating or purchasing Mortgage Loans,
which lender has a security interest in such Mortgage Loans to be purchased by
Buyer.
"Warehouse Lender's Release" shall mean a letter, in the form of
Annex 17-B, from a Warehouse Lender to Buyer, unconditionally releasing all of
Warehouse Lender's right, title and interest in certain Mortgage Loans
identified therein upon receipt of payment by the Warehouse Lender.
"Warehouse Lender's Wire Instructions" shall mean the wire
instructions, set forth in a letter in the form of Exhibit A to the Warehouse
Lender's Release, from a Warehouse Lender to Buyer, setting forth wire
instructions for all amounts due and payable to such Warehouse Lender.
"Wet-Ink Delivery Date" shall mean the day required pursuant to
Section 2(ii)(B).
"Wire Amount" shall mean the amount to be wired to the Warehouse
Lender or Seller in accordance with the Warehouse Lender's Release or Seller's
Release, as applicable, for any Mortgage Loan which is not a Wet-Ink Mortgage
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-Ink Mortgage Loan.
"Wire-out Account" shall have the meaning specified in Section
11(a)(ii).
SECTION 2. DELIVERY OF MORTGAGE FILE.
Seller shall release to Custodian the following original documents
pertaining to each Eligible Asset in accordance with the required delivery times
set forth in Section 3(a), each of which Mortgage Loans shall be identified in
the related Seller Asset Schedule:
(i) With respect to each Eligible Asset (other than a Wet-Ink Mortgage
Loan):
(A) The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________ without recourse" and signed in
the name of the last endorsee (the "Last Endorsee") by an authorized
Person (in the event that the Eligible Asset 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 Eligible Asset was acquired or originated by the Last Endorsee
while doing business under another name, the
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signature must be in the following form: "[Last Endorsee], formerly known
as [previous name]");
(B) The original Mortgage with evidence of recording thereon, or a
copy thereof certified by Seller, the title company, the Settlement 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, and a
conformed recorded copy to follow as soon as the same is received by
Seller, and, with respect to MERS Designated Mortgage Loans, (a) the
Mortgage names MERS as the "mortgagee" or "beneficiary" thereof (or MERS
is reflected as the current mortgagee pursuant to an assignment of
mortgage with evidence of recording thereon and reflecting a complete
chain of title from the named originator in the Mortgage) and (b) in
reviewing the Mortgage, the Custodian shall confirm that each MERS
Designated Mortgage Loan has been issued a MERS Identification Number;
(C) The originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, or a
copy thereof certified by Seller, the title company, the Settlement 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;
(D) The original Assignment of Mortgage in blank for each Eligible
Asset, in form and substance acceptable for recording and signed in the
name of the Last Endorsee (in the event that the Eligible Asset 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 Eligible Asset 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 Eligible Asset that has been
originated in the name of or assigned to MERS and registered under the
MERS(R) System;
(E) 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 Mortgage Loan, MERS) or a copy thereof certified by
Seller, the title company, the Settlement 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;
(F) 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;
(G) The original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Eligible Asset;
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(H) If any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power
certified by Seller to be a true and correct copy of the original;
(I) Either a Seller's Release or a Warehouse Lender's Release;
(J) In the case of a MERS Designated Mortgage Loan where any Person
is named in the Interim Funder field on the MERS(R) System, an Agreement
and Release;
(K) With respect to each High Cost Loan, a notice of assignee's
liability under the Homeowner and Equity Protection Act of 1994, P.L.
103-325, ▇▇▇ ▇▇▇▇ ▇▇▇▇; and
(L) an original release letter for each Eligible Asset which has
been the subject of a prior interest of which an Authorized Representative
of the Custodian has actual knowledge;
provided, however, that as to the documents listed in clauses (B), (C) and (E)
above which have been delivered or are being delivered to recording offices for
recording and have not been returned to 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, Seller has delivered to Custodian
a true copy thereof, Seller shall deliver such original documents, together with
any related policy of title insurance not previously delivered, on behalf of
Seller to Custodian promptly after they are received.
(ii) With respect to each Wet-Ink Mortgage Loan:
(A) To the extent requested by Buyer, Seller shall (or shall cause
the Settlement Agent to) send Custodian a facsimile of each Escrow
Instruction Letter with respect to all Wet-Ink Mortgage Loans to be
purchased on each Purchase Date.
(B) No later than eight (8) Business Days following the applicable
Purchase Date, Seller shall deliver to Custodian the documents listed in
Section 2(i).
(iii) With respect to all Mortgage Files:
(A) From time to time, Seller shall forward to Custodian additional
original documents or additional documents evidencing any assumption,
modification, consolidation or extension of a Mortgage Loan approved by
Seller, in accordance with the terms of the Repurchase Agreement, and upon
receipt of any such other documents, Custodian shall hold such other
documents as Buyer shall request from time to time.
(B) With respect to any documents which have been delivered or are
being delivered to recording offices for recording and have not been
returned to
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Seller in time to permit their delivery hereunder at the time required, in
lieu of delivering such original documents, Seller shall deliver to
Custodian a copy thereof certified by Seller, the title company, the
Settlement 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, with a conformed recorded copy to follow as soon as the same is
received by Seller.
SECTION 3. ASSET SCHEDULE AND EXCEPTION REPORT; TRUST RECEIPT.
(a) With respect to each category of Eligible Asset, Seller 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"):
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ELIGIBLE ASSET REQUIRED DELIVERY TIME REQUIRED DELIVERY ITEMS REQUIRED PARTY
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Mortgage Loans (other than 6:00 p.m. New York time, one (1) A preliminary Transaction Request Disbursement Agent and Buyer
Wet-Ink Mortgage Loans) on Business Day prior to the for the Mortgage Loans (other than
initial Purchase Date Purchase Date Wet-Ink Mortgage Loans) requested
to be purchased the next Business
Day (delivered by Electronic
Transmission)
8:00 a.m. New York time, on the The final Transaction Request for Custodian,
Purchase Date the Mortgage Loans (other than Disbursement Agent and Buyer
Wet-Ink Mortgage Loans), together
with a Seller Asset Schedule
containing the information set
forth on Annex 1 hereto
(delivered by Electronic
Transmission)
For up to 250 Mortgage Files, All documents required to be Custodian
6:00 p.m. New York time, one delivered pursuant to Section
(1)Business Day prior to the 2(i), together with a Custodial
Purchase Date Identification Certificate
For delivery of each additional
250 Mortgage Files, one additional
Business Day prior to the
Purchase Date
Wet-Ink Mortgage Loans on 8:00 a.m. New York time, on the A preliminary Transaction Request Disbursement Agent and Buyer
initial Purchase Date Purchase Date. for the Wet-Ink Mortgage Loans
requested to be purchased on such
Business Day
1:00 p.m. New York time, on the A final Transaction Request for Custodian, Disbursement Agent
Purchase Date the Wet-Ink Mortgage Loans, and Buyer
together with a Seller Asset
Schedule containing the
information set forth on Annex 1
hereto (delivered by Electronic
Transmission)
All documents required to be Custodian
delivered pursuant to Section
2(ii)(A)
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Wet-Ink Mortgage Loans For delivery of up to 250 Mortgage Transaction Request, together Custodian, Disbursement
converting to dry Files, 6:00 p.m. New York one (1) with a Seller Asset Schedule Agent and Buyer
Mortgage Loans Business Day prior to the Wet-Ink containing the information set
Delivery Date forth on Annex 1 hereto
(delivered by Electronic
Transaction )
For delivery of each additional
250 Mortgage Files, one additional
Business Day prior to the
Wet-Ink Delivery Date
All documents required to be Custodian
delivered pursuant to Section
2(ii)(B), together with a
Custodial Identification
Certificate
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If the Custodian has received each applicable Required Delivery Item
by the Required Delivery Time set forth above, then Custodian will deliver to
Buyer and Disbursement Agent, by Electronic Transmission, no later than 12:00
noon New York time on the Purchase Date, an Asset Schedule and Exception Report
for each Mortgage Loan (clearly identifying each Mortgage Loan with a Fatal
Document Exception as such) sold hereunder on such date, with Exceptions
identified by Custodian as current as of the date and time of delivery of such
Asset Schedule and Exception Report.
Upon receipt of a Transaction Request and the related Seller Asset
Schedule from the Seller, Disbursement Agent shall confirm via Electronic
Transmission, the receipt of such request with Seller and Buyer. Upon discovery
by the Custodian of a Fatal Document Exception, the Custodian shall immediately
send to Seller, Disbursement Agent and Buyer, by Electronic Transmission, an
Asset Schedule and Exception Report listing such Fatal Document Exceptions. The
Custodian's Electronic Transmission to each of Seller, Disbursement Agent and
Buyer of an Asset Schedule and Exception Report which contains Mortgage Loans
with Fatal Document Exceptions, shall be sent "confirm receipt" or by some other
means such that Custodian has a reasonable belief that such notice has been
received by the addressee. In the event Custodian has not received all documents
required to be delivered pursuant to Section 2(ii)(B) with respect to a Wet-Ink
Mortgage Loan on or before the eighth (8th) Business Day after the related
Purchase Date, Custodian shall immediately notify Buyer, Seller and Disbursement
Agent by Electronic Transmission of such failure.
(b) Custodian shall deliver to Buyer, no later than 5:00 p.m. New
York time on each Purchase Date, a Trust Receipt in respect of all Mortgage
Loans (including Wet-Ink Mortgage Loans) sold to Buyer on such Purchase Date and
any prior Purchase Date and held by Custodian hereunder, and shall deliver to
each of Buyer and Disbursement Agent an Asset Schedule and Exception Report for
Mortgage Loans that are not Wet-Ink Mortgage Loans and a detailed listing of all
Wet-Ink Mortgage Loans. Each Asset Schedule and Exception Report and detailed
listing of Wet-Ink Mortgage Loans delivered by Custodian to Buyer and
Disbursement Agent shall supersede and cancel the Asset Schedule and Exception
Report and detailed listing of Wet-Ink Mortgage Loans previously delivered by
Custodian to Buyer and Disbursement Agent hereunder, and shall replace the then
existing Asset Schedule and Exception Report and detailed listing of Wet-Ink
Mortgage Loans to be attached to the Trust Receipt. Custodian shall incorporate
into each Asset Schedule and Exception Report delivered to Buyer and
Disbursement Agent pursuant to this Section 3(b) all updated information with
respect to the outstanding principal balance and interest paid on each Mortgage
Loan delivered to Custodian by either Disbursement Agent or Buyer. Custodian
shall also deliver to Seller, Buyer and Disbursement Agent 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
Buyer (the "Daily Aged Report"). Custodian shall monitor each Mortgage Loan 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 Mortgage Loan on an Asset Schedule and Exception Report
if Custodian has not yet reviewed the related Mortgage File.
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(c) Each 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 and shall clearly identify all Mortgage Loans
with Fatal Exceptions. With respect to any Mortgage Loan with a Fatal Exception
which is listed on the Asset Schedule and Exception Report, such Mortgage Loan
shall have an asset value of zero for purposes of the Repurchase Agreement and
this Agreement until the related Fatal Exception ceases to exist. The delivery
of each Asset Schedule and Exception Report to Buyer and Disbursement Agent
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 Mortgage Loan pursuant to Section 2 of this Agreement have been
delivered and are in the possession of Custodian as part of the Mortgage File
for such Mortgage Loan, (ii) Custodian is holding each Mortgage Loan identified
on the Asset Schedule and Exception Report, pursuant to this Agreement, as the
bailee of and custodian for 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 Mortgage Loan and satisfy the requirements set forth in
Section 2 of this Agreement and the review procedures attached hereto as Annex 4
(the "Review Procedures").
(d) In connection with an Asset Schedule and Exception Report
delivered hereunder by Custodian, Custodian shall make no representations as to
and shall not be responsible to verify (A) the validity, legality,
enforceability, due authorization, recordability, sufficiency, or genuineness of
any of the documents contained in each Mortgage File or (B) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan. Subject to
the following sentence, Seller and Buyer hereby give Custodian notice that from
and after the Purchase Date, Buyer shall own each Mortgage Loan identified on an
Asset Schedule and Exception Report until such time that Custodian receives
written notice from Buyer or Disbursement Agent that Buyer no longer owns such
Mortgage Loan. In the event that Buyer does not purchase the Eligible Assets
proposed to be purchased from Seller prior to 5:00 p.m. New York time on such
Purchase Date, upon written notice thereof from Seller, acknowledged by Buyer,
or notice from Disbursement Agent thereof, Custodian shall hold or release to
Seller, pursuant to Seller's written instructions, the Mortgage Loans in respect
of the 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 Asset Schedule and Exception Report or detailed listing of
Wet-Ink Mortgage Loans attached to the Trust Receipt is different from the most
recently delivered Asset Schedule and Exception Report or detailed listing of
Wet-Ink Mortgage Loans, then the most recently delivered Asset Schedule and
Exception Report or detailed listing of Wet-Ink Mortgage Loans 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 Mortgage 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.
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(b) With respect to the documents constituting each Mortgage File
requested to be purchased by Buyer, Custodian shall (i) act exclusively as the
bailee of, and custodian for, Buyer, (ii) hold all documents constituting such
Mortgage 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
Agreement or with written instructions furnished by Buyer; provided, however,
that in the event of a conflict between the terms of this Agreement and such
written instructions of Buyer, Buyer's written instructions shall control.
(c) In the event that (i) Buyer, Seller or Custodian shall be served
by a third party with any type of levy, attachment, writ or court order with
respect to any Mortgage File or any document included within a Mortgage File or
(ii) a third party shall institute any court proceeding by which any Mortgage
File or a document included within a Mortgage File shall be required to be
delivered otherwise than in accordance with the provisions of this Agreement,
the party receiving such service shall promptly deliver or cause to be delivered
to the other parties to this Agreement copies of all court papers, orders,
documents and other materials concerning such proceedings. Custodian shall, to
the extent permitted by law, continue to hold and maintain all the Mortgage
Files that are the subject of such proceedings pending 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
Mortgage File or any document included within such Mortgage File as directed by
Buyer which shall give a direction consistent with such determination. Expenses
of Custodian incurred as a result of such proceedings shall be borne by Seller.
SECTION 5. RELEASE OF MORTGAGE FILES.
(a) From time to time until Custodian is otherwise notified by Buyer
in writing (unless such notice is given by the Disbursement Agent in accordance
with Section 11), which notice shall be given by Buyer (or Disbursement Agent in
accordance with Section 11) only following the occurrence of a Default or an
Event of Default, Custodian shall, upon receipt of written request of Seller,
release documentation relating to Mortgage Loans in the possession of Custodian
to Seller or its designee, for the purpose of correcting documentary
deficiencies relating thereto against a Request for Release and Receipt
delivered by Electronic Transmission by Seller in the form of Annex 5-A hereto.
The preceding sentence respecting release to Seller, or its designee, of
Custodian's Mortgage Files shall be operative only to the extent that at any
time Custodian shall not have released to Seller or its designee pursuant to
clause (a) or (b) of this Section 5, Mortgage Files pertaining to Mortgage Loans
at the time being held by Custodian on behalf of Buyer with an aggregate
outstanding principal balance greater than $500,000 (the "Release Limit"). In
the event Seller or its designee requests the release of a Mortgage File to
Seller or its designee with respect to a Mortgage Loan, which release would
result in Custodian having released Mortgage Files pertaining to Mortgage Loans
at the time being held by Custodian on behalf of Buyer with an aggregate
outstanding principal balance greater than the Release Limit, Custodian shall
notify Buyer and obtain written acknowledgment from Buyer prior to such
requested release. Custodian shall promptly notify Buyer in its Daily Report
that it has released any Mortgage File to Seller or its designee. Seller or its
designee shall hold each Mortgage File delivered to it pursuant to this Section
5(a) as bailee for Buyer. Seller or its designee shall return to Custodian each
document previously released from Custodian's
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Mortgage File within twelve (12) calendar days of receipt thereof other than in
the case of payment in full or liquidation of a Mortgage Loan or as provided in
Section 5(e). Seller hereby further covenants to Buyer and Custodian that any
such request by Seller for release of Mortgage Loan Documents 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
Mortgage Loan Documents to Custodian for ultimate sale or exchange and that
Seller has requested such release in compliance with all terms and conditions of
such release set forth herein and in the Repurchase Agreement. Notwithstanding
anything to the contrary contained in the foregoing, Mortgage Notes shall be
released only for the purpose of (i) ultimate sale or exchange or (ii)
presentation, collection, renewal or registration of transfer.
(b) From time to time until Custodian is otherwise notified by Buyer
in writing (unless such notice is given by the Disbursement Agent in accordance
with Section 11), which notice shall be given by Buyer (or Disbursement Agent in
accordance with Section 11) only following the occurrence of a Default or an
Event of Default, and as appropriate for the servicing of any of the Mortgage
Loans, Custodian shall, upon written receipt from Seller or its designee of a
Request for Release of Documents and Receipt in the form of Annex 5-B hereto,
release to Seller or its designee the Mortgage File or the documents set forth
in such request relating to Mortgage Loans in the possession of Custodian. The
preceding sentence respecting release to Seller, or its designee, of Custodian's
Mortgage Files shall be operative only to the extent that at any time Custodian
shall not have released to Seller or its designee pursuant to clause (a) or (b)
of this Section 5, Mortgage Files pertaining to Mortgage Loans at the time being
held by Custodian on behalf of Buyer with an aggregate outstanding principal
balance greater than the Release Limit. In the event Seller or its designee
requests the release of a Mortgage File to Seller or its designee with respect
to a Mortgage Loan, which release would result in Custodian having released
Mortgage Files pertaining to Mortgage Loans at the time being held by Custodian
on behalf of Buyer with an aggregate outstanding principal balance greater than
the Release Limit, Custodian shall notify Buyer in its Daily Report and obtain
written acknowledgment from Buyer prior to such requested release. Custodian
shall promptly notify Buyer that it has released any Mortgage File to Seller or
its designee. Seller or its designee shall hold each Mortgage File delivered to
it pursuant to this Section 5(b) as bailee for Buyer. Seller or its designee
shall return to Custodian each document previously released from Custodian's
Mortgage File within twelve (12) calendar days of receipt thereof other than in
the case of payment in full or liquidation of a Mortgage Loan or as provided in
Section 5(e). Seller hereby further covenants to Buyer and Custodian that any
such request by Seller or its designee for release of Mortgage Loan Documents
pursuant to this Section 5(b) shall be solely for the purposes of servicing of
any of the Mortgage Loans and that Seller has requested such release in
compliance with all terms and conditions of such release set forth herein and in
the Repurchase Agreement. Notwithstanding anything to the contrary contained in
the foregoing, Mortgage Notes shall be released only for the purpose of (i)
ultimate sale or exchange or (ii) presentation, collection, renewal or
registration of transfer.
(c) (i) From time to time Custodian is hereby authorized, upon
receipt of written request of Seller to release Mortgage Files in the possession
of Custodian to a third party purchaser for the purpose of resale thereof
against a Request for Release executed by Seller which must be consented to by
Buyer in the form of Annex 5-C hereto. Buyer shall have no obligation to consent
to any such Request for Release after the occurrence and during the
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continuance of a Default or an Event of Default. On such Request for Release,
Seller shall indicate the Mortgage Loans to be sold, the purchase price for such
Mortgage Loan anticipated to be received, the name and address of the third
party purchaser, the preferred method of delivery, and the date of desired
delivery. If such Mortgage Loan is not sold within thirty (30) days, Seller or
its designee shall return to Custodian each document previously released from
Custodian's Mortgage File within thirty (30) days of receipt thereof.
(ii) Any transmittal of documentation for Mortgage Loans
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 by Custodian and
executed by Custodian. Any transmittal of documentation for Mortgage Loans 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
Mortgage Loan or (y) the issuance of such MBS, Buyer shall notify Custodian in
writing thereof.
(d) [Reserved].
(e) 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 Seller in writing, which Seller deems necessary
and appropriate, to transfer promptly and deliver to Seller any Mortgage File in
the possession of Custodian relating to any Mortgage Loan which was previously a
Purchased Asset but which Seller, with the written consent of Buyer, has
notified Custodian has ceased to be an Eligible Asset or the release of which
would not cause Seller to violate Section 4 of the Repurchase Agreement. In
furtherance of the foregoing, upon receipt of written request from Seller in the
form of Annex 5-B hereto, which must be acknowledged by Buyer, Custodian shall
release to Seller the requested Mortgage Files.
(f) Following written notification by Buyer (or Disbursement Agent
in accordance with Section 11)(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 Seller or any other Person for refusing
to release, any item relating to a Purchased Asset to Seller or any other Person
without the express prior written consent and at the direction of Buyer.
(g) Custodian shall at all times monitor any release of Purchased
Assets under this Section 5, and shall track the period of time which has
elapsed for any such release of Purchased Assets required to be returned and
shall report such information to Buyer daily and in the same manner as Custodian
provides an Asset Schedule and Exception Report.
(h) Prior to any shipment of Mortgage Files hereunder, Seller shall
deliver to Custodian written instructions as to the method of shipment and
shippers(s) Custodian is to utilize in connection with the transmission of
Mortgage Files or other loan documents in the performance of Custodian's duties
hereunder. Seller shall arrange for the provision of such services at its sole
cost and expense (or, at Custodian's option, reimburse Custodian for all costs
and expenses incurred by Custodian consistent with the instructions) and will
maintain such
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insurance against loss or damage to Mortgage Files or other loan documents as
Buyer deems appropriate. Without limiting the generality of the provisions of
Section 13(a), it is expressly agreed that in no event shall Custodian have any
liability for any losses or damages to Seller arising out of actions of
Custodian consistent with the instructions of Seller except to the extent such
losses or damages arise due to the Custodian's gross negligence or willful
misconduct. In the event Custodian does not receive such written instructions,
Custodian shall be authorized to utilize any nationally recognized courier
service.
(i) Following any permanent release of a Mortgage File hereunder,
pursuant to Sections 5(c) or (e), payment in full of a Mortgage Note or other
complete liquidation, Custodian shall reflect such release in an updated Asset
Schedule and Exception Report. Unless such updated report is requested by Buyer,
Seller or Disbursement Agent (in which case, Custodian shall provide such report
to Buyer, Seller and Disbursement Agent within one (1) Business Day), such
release shall be reflected in the next Asset Schedule and Exception Report
otherwise required to be delivered by Custodian.
SECTION 6. FEES AND EXPENSES OF CUSTODIAN.
Custodian shall charge such fees for its services under this
Agreement as are set forth in a separate agreement between Custodian and Seller,
the payment of which fees, together with Custodian's expenses in connection
herewith, shall be solely the obligation of Seller. The failure of Seller to pay
any such fees shall not excuse the performance by Custodian of any of its
obligations hereunder. The obligations of Seller to pay Custodian such fees and
reimburse Custodian for such expenses in connection with services provided by
Custodian prior to the termination of this 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 Agreement upon at least (180) days' prior
written notice to Seller 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 Seller (which
approval shall not be unreasonably withheld). One original counterpart of such
instrument of appointment shall be delivered to each of Seller, Custodian and
the successor custodian. In the event that no successor custodian or
disbursement agent shall have been appointed within such 180 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, upon at least (30) days' prior written notice to
Custodian, Disbursement Agent and Seller, may remove and discharge Custodian and
Disbursement Agent (or any successor custodian and disbursement agent thereafter
appointed) from the performance of its obligations under this Agreement.
Promptly after the giving of notice of removal of Custodian and Disbursement
Agent, Buyer shall appoint, by written instrument, a successor custodian and
disbursement agent, which appointment shall require no other approval. One
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original counterpart of such instrument of appointment shall be delivered to
each of Buyer, Seller, 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
Mortgage Files being administered under this Agreement and, if the endorsements
on the Mortgage Notes and the Assignments of Mortgage have been completed in the
name of Custodian, assign the Mortgages and endorse without recourse the
Mortgage Notes to the successor Custodian or as otherwise directed by Buyer. The
cost of the shipment of Mortgage Files arising out of the resignation of
Custodian shall be at the expense of Custodian; provided, however, that if the
sole reason for Custodian's resignation is due to the non-payment of the fees
and expenses due to it hereunder by Seller, then the shipment cost of such
shipment of Mortgage Files shall not be an expense of Custodian, but shall be at
the expense of Seller. Any cost of shipment arising out of the removal of
Custodian shall be at the expense of Seller. Seller 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 twenty-four (24) hours' prior written notice to Seller and
Custodian and at Seller's expense, Buyer, Seller and each of their respective
agents, accountants, attorneys and auditors will be permitted during normal
business hours to examine, inspect, and make copies of, the Mortgage 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
Mortgage Loans.
SECTION 9. INSURANCE.
(a) At its own expense, Custodian shall maintain at all times during
the existence of this Agreement and keep in full force and effect a fidelity
bond and document hazard insurance. All such insurance shall be in amounts, with
standard coverage and subject to standard deductibles, all as is customary for
insurance typically maintained by institutions which act as custodian. The
minimum coverage under any such bond and insurance policies shall be at least
equal to the corresponding amounts required by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac in the
Applicable Guide. A certificate of an Authorized Representative of Custodian
shall be furnished to Seller 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 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. The minimum coverage under any such
bond and insurance policies shall be at least equal to the corresponding amounts
required by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac in the Applicable Guide. A certificate of
an Authorized Representative of Disbursement Agent shall be furnished to Seller
and Buyer, upon written request, stating that such insurance is in full force
and effect.
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SECTION 10. REPRESENTATIONS AND WARRANTIES.
(a) Custodian represents and warrants to Buyer and Seller that:
(i) Custodian has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under, this
Agreement, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement;
(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 Agreement;
(iii) this Agreement has been duly executed and delivered on behalf
of Custodian and constitutes a legal, valid and binding obligation of
Custodian enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether enforcement is
sought in a proceeding in equity or at law); and
(iv) Custodian is not an Affiliate of Seller.
(b) Disbursement Agent represents and warrants to Buyer and Seller
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 Agreement, and has taken all necessary corporate action to authorize
its execution, delivery and performance of this 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
Agreement;
(iii) this 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 Seller.
(c) Seller hereby makes to Custodian the same representations and
warranties that Seller makes to Buyer under Section 10 of the Repurchase
Agreement.
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SECTION 11. DISBURSEMENT AGENT DUTIES.
(a) Establishment of Disbursement Account, Wire-out Account and
Settlement 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 CDC Mortgage Capital Inc." Account Number 42138.
The Disbursement Account shall be owned by and under the exclusive
dominion and control of Buyer. None of Disbursement Agent, Seller nor any
other Person claiming on behalf of or through Seller 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 Disbursement Account. Unless Disbursement Agent shall receive
notice in writing from Buyer to the contrary by 10:00 a.m. New York time
on any applicable Business Day, Disbursement Agent is hereby authorized by
Buyer to disburse funds deposited in the Disbursement Account on such
Business Day in accordance with this 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 Buyer in writing, before the close of business on each
Business Day, Disbursement Agent shall withdraw all collected amounts as
of 5:00 p.m. New York time then standing to the credit of the Disbursement
Account and deposit such amounts into the following account maintained by
Buyer: Bank of New York, for the A/C of CDC Mortgage Capital Inc.,
ABA#▇▇▇▇▇▇▇▇▇, Account #GLA 111569, Account Name: SER, Attn: ▇▇▇▇ ▇▇▇▇▇▇▇,
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-Ink Mortgage Loans or
the purchase of any other Mortgage Loan by Seller (provided that in no
case shall Seller sell to Buyer any Wet-Ink Mortgage Loan Seller has
previously pledged to any other party) simultaneously with the purchase of
such Mortgage Loan by 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 Oak Street Mortgage LLC" Account Number 42139.
With respect to any Wet-Ink Mortgage Loan to be funded on any Business
Day, 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 Buyer from the Disbursement Account in accordance with
Section 11(d)(i). Seller hereby requests that Disbursement Agent, and
Disbursement Agent shall, disburse the Seller Funded Wire Amount at the
same time, and in the same manner, as Disbursement Agent disburses funds
from the Disbursement Account with respect to such Mortgage Loan in
accordance with Section 11(a). The Wire-out Account shall be owned by and
under the exclusive dominion and control of Seller. None of Disbursement
Agent, Buyer nor any other Person claiming on behalf of or through 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
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Account shall remain uninvested. Disbursement Agent shall reconcile the
Wire-out Account on a daily basis. Upon the written request of Buyer,
Disbursement Agent shall be responsible to verify the information
contained on each wire to the extent of confirming that the wire
instructions on the Asset Schedule delivered by Seller are identical to
the wire instructions set forth in the related Escrow Instruction Letter,
Warehouse Lender's Release or bailee letter.
(iii) Disbursement Agent shall establish and maintain a trust
deposit account (the "Settlement Account") for and on behalf of Buyer
entitled "Settlement Account, CDC Mortgage Capital Inc.", Account Number
42140. All proceeds from the repurchase of a Mortgage Loan subject to this
Agreement by Seller or a sale of a Mortgage Loan subject to this Agreement
to a third party investor will be sent directly to the Settlement Account.
All related fees and expenses for the Settlement Account shall be borne by
Seller. The Settlement Account shall be owned by and under the exclusive
dominion and control of Buyer. None of Disbursement Agent, Seller nor any
other Person claiming on behalf of or through Seller 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 Settlement Account. Notwithstanding anything herein to the
contrary, Disbursement Agent shall be entitled to net any amounts due and
owing under this Agreement to it or Custodian from Seller from amounts
that, after application of amounts in the Settlement Account due and owing
to the Buyer, would otherwise be disbursed to Seller pursuant to this
Section 11(a)(iii). Unless Disbursement Agent shall receive notice in
writing from Buyer to the contrary by 5:00 p.m. New York time on any
applicable Business Day, Disbursement Agent is hereby authorized by Buyer
to disburse funds deposited in the Settlement Account on such Business Day
in accordance with Section 11(f). Funds retained in the Settlement Account
shall remain uninvested. Disbursement Agent shall reconcile the Settlement
Account on a daily basis. Unless otherwise instructed by Buyer in writing,
before the close of business on each Business Day, Disbursement Agent
shall withdraw all collected amounts as of 5:00 p.m. New York time then
standing to the credit of the Settlement Account and deposit such amounts
into the following account maintained by Buyer: Bank of New York, for the
A/C of CDC Mortgage Capital Inc., ABA#▇▇▇▇▇▇▇▇▇, Account #GLA 111569,
Account Name: SER, Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, or, if such funds cannot be
deposited into the foregoing account at the end of such Business Day, on
the next Business Day. Notwithstanding anything contained herein, at the
sole option of Buyer, Seller shall deposit any amounts required to be
deposited into a Buyer controlled account hereunder into any other account
designated by Buyer in writing.
(iv) Upon request, Disbursement Agent shall provide Seller or Buyer
with a wire transaction report in form reasonably satisfactory to the
applicable parties.
(b) Customer Profiles. On or prior to the first Purchase Date, Buyer
shall provide to Disbursement Agent an initial customer profile in form and
substance as determined by the Buyer and as is reasonably acceptable to the
Disbursement Agent (a "Customer Profile"), which profile will include each Class
to be purchased under the Repurchase Agreement (i.e. First Lien Mortgage Loans,
Second Lien Mortgage Loans and Wet-Ink Mortgage Loans) together with the related
Market Values, Purchase Percentages, Sub-Limits, Pricing Spread and other
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relevant information, together with the calculations required to be performed in
order to determine the Asset Value, Purchase Price, Pricing Differential and
Pricing Spread for each such Class. The Customer Profile shall, at any time and
from time to time, be in a form and substance as determined by the Buyer and as
is reasonably acceptable to the Disbursement Agent. Each Customer Profile
delivered by Buyer shall supersede the previous Customer Profile and
Disbursement Agent shall utilize the most recently delivered Customer Profile on
each day with respect to all transactions hereunder. Promptly upon receipt of a
Customer Profile, Disbursement Agent shall verbally confirm with Buyer all
changes to each field since the most recently delivered Customer Profile.
(c) Disbursement Agent Calculations and Verifications.
(i) Initial Purchase of an Eligible Asset. With respect to each
Eligible Asset, Disbursement Agent shall perform the procedures set forth
below, in such order, with respect to each Eligible Asset in the order
that the related Transaction Requests are received:
(A) On each date on which Disbursement Agent receives a
Transaction Request from Seller, together with the related Seller
Asset Schedule, Disbursement Agent shall verbally confirm the
receipt of such Transaction Request with Buyer. With respect to each
Transaction Request, Disbursement Agent shall perform an Edit Check
with respect to each Eligible Asset that Seller has requested Buyer
purchase. If any Mortgage Loan fails the Edit Check Procedures,
Disbursement Agent shall notify each of Seller and Buyer via
Electronic Transmission (which shall be sent "confirm receipt" or by
some other means such that Disbursement Agent has a reasonable
belief that such notice has been received by the addressee) of such
Fatal Information Exception, and such Transaction Request shall be
deemed to be null and void, unless waived by Buyer in writing.
(B) Upon a determination that each Eligible Asset that Seller
has requested Buyer purchase does not fail the Edit Check,
Disbursement Agent shall compare the information set forth in the
related Seller Asset Schedule with the applicable information
required pursuant to Annex 1 hereof with respect to the particular
Class and shall notify each of Seller and Buyer via Electronic
Transmission (which shall be sent "confirm receipt" or by some other
means such that Disbursement Agent has a reasonable belief that such
notice has been received by the addressee) of any Fatal Information
Exception (unless waived by Buyer in writing), and such Transaction
Request shall be deemed to be null and void.
(C) Upon a determination that there is no Fatal Information
Exception as set forth in clause (i) of the definition thereof,
Disbursement Agent shall calculate the Purchase Price and Pricing
Rate for each Eligible Asset to be purchased by Buyer pursuant to
the Transaction Request using the information set forth in the
Customer Profile. If the values calculated by Disbursement Agent do
not match the values set forth in the related Transaction Request by
Seller,
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▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall notify each of Seller and Buyer via
Electronic Transmission (which shall be sent "confirm receipt" or by
some other means such that Disbursement Agent has a reasonable
belief that such notice has been received by the addressee) of such
Fatal Information Exception (unless waived by Buyer in writing), and
such Transaction Request shall be deemed to be null and void.
(D) Upon Disbursement Agent's determination that the
Transaction Request sets forth the correct calculations of the
related Purchase Price and Pricing Rate with respect to the
Transaction, Disbursement Agent shall verify that, after taking into
account all purchase requests on the related Transaction Request,
together with all other outstanding Transactions, (i) that the
aggregate Purchase Prices for each Class is equal to or less than
the related Sub-Limits set forth in the Customer Profile and (ii)
after giving effect to the requested Transaction that there would
not be a Margin Deficit. If after giving effect to the purchases
contemplated in the Transaction Request, the aggregate Purchase
Prices of all such Transactions is greater than the Sub-Limits or
the Margin Base, Disbursement Agent shall notify each of Seller and
Buyer via Electronic Transmission (which shall be sent "confirm
receipt" or by some other means such that Disbursement Agent has a
reasonable belief that such notice has been received by the
addressee) of such Fatal Information Exception (unless waived by
Buyer in writing), and such Transaction Request shall be deemed to
be null and void.
(E) At the request of Buyer, Disbursement Agent shall verify
the wire instructions set forth in the Seller Asset Schedule only to
the extent of confirming that the wire instructions on the Asset
Schedule delivered by Seller are identical to the wire instructions
set forth in the related Escrow Instruction Letter, Seller's Release
or Warehouse Lender's Release, as applicable. Disbursement Agent
shall be under no obligation to verify such wire instructions unless
requested by Buyer.
(F) Upon a determination that giving effect to a Transaction
Request would not cause a violation of any Sub-Limit or cause a
Margin Deficit and receipt of an Asset Schedule and Exception Report
from Custodian in accordance with Section 3 and receipt of the Fatal
Document Exception Report, if any, from Custodian in accordance with
Section 3, Disbursement Agent shall disburse funds in accordance
with Section 11(d). The disbursing of funds by Disbursement Agent
shall constitute Disbursement Agent's certification that no Fatal
Exception exists with respect to any Eligible Asset that is not a
Wet-Ink Mortgage Loan and, with respect to a Wet-Ink Mortgage, no
Fatal Information Exception exists, funded pursuant to this Section
11(c)(i)(F).
(ii) Conversion of a Wet-Ink Mortgage Loan. On the date that
Custodian receives a Seller Asset Schedule containing the information set
forth on Annex 1-C and all the documents set forth in Section 2(i) with
respect to each Wet-Ink Mortgage Loan, pursuant to Section 3(a), Custodian
shall deliver an Asset Schedule and Exception Report to each of Buyer and
Disbursement Agent in accordance with Section 3(a). Upon
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Disbursement Agent's receipt of such Asset Schedule and Exception Report,
Disbursement Agent shall perform the procedures set forth in Section
11(c)(i)(A)-(E) as if such conversion were a purchase of an Eligible Asset
and if there are no Fatal Exceptions with respect to such Wet-Ink Mortgage
Loan, the related Mortgage Loan shall no longer be a Wet-Ink Mortgage
Loan.
(iii) Request for Additional Transactions for Excess Margin. Upon
Buyer's receipt of any Request for Additional Transactions for Excess
Margin, Buyer shall perform the procedures set forth in Section
11(c)(i)(C) and (D) as if such request were a Transaction Request. If,
after performing such procedures, Buyer determines that giving effect to
any such Request for Additional Transactions for Excess Margin would not
cause a violation of any Sub-Limits or cause a Margin Deficit, Buyer shall
fund any amounts required to be funded pursuant to Section 11(d)(ii).
(d) Buyer's Rights. Notwithstanding anything in Section 11 to the
contrary, all calculations required to be performed by Disbursement Agent in
this Section shall, at the sole option of Buyer, be performed by Buyer either in
addition to or in lieu of Disbursement Agent. All such calculations performed by
Buyer shall be deemed to supercede and replace in all respects any such
calculations of the Disbursement Agent.
(i) Disbursement in Respect of Purchases of Eligible Assets. On each
proposed Purchase Date, Disbursement Agent will disburse funds in the
Disbursement Account in accordance with the wire instructions in the
Seller Asset Schedule by 5:15 p.m. New York time, provided that (A)
Disbursement Agent shall have performed the procedures set forth in
Section 11(c) and 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 Seller or any Affiliate of Seller as payee,
unless otherwise authorized by Buyer in writing to Disbursement Agent; and
(D) if a conflict exists between the instructions of Buyer and the
instructions of Seller, Disbursement Agent shall follow 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 Eligible Asset, no funds shall be disbursed from the
Disbursement Account to fund or acquire such Eligible Asset. For each
disbursement pursuant to this Section 11(d)(i), Disbursement Agent shall
promptly notify Seller by Electronic Transmission of the related federal
wire reference number when it becomes available.
(ii) Disbursements in Respect of Requests for Additional
Transactions for Excess Margin. On the Business Day that Buyer determines
that the provisions of Section 11(c)(iii) have been satisfied with respect
to any Request for Additional Transactions for Excess Margin, Buyer shall
disburse an amount equal to the requested amount of the Excess Margin to
the Wire-out Account.
(e) Settlement. On the Business Day prior to the date on which
Seller intends to or is required to repurchase an Eligible Asset ("Intended
Repurchase Date") pursuant to the terms of the Repurchase Agreement (or a third
party purchases such Eligible Asset), Seller shall
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provide Disbursement Agent and Buyer with written notice of all funds
anticipated to be received by Disbursement Agent or Buyer from Seller (or such
third party) for the credit of the Settlement Account, or such other account
that the Buyer may designate, together with a settlement report containing all
information set forth on Annex 16 hereto (the "Settlement Report") by 4:00 p.m.
New York time. Upon Disbursement Agent's verification that (x) all information
required pursuant to Annex 16 hereto is set forth in the Settlement Report, and
(y) if applicable, Buyer has confirmed the accuracy of such Settlement Report in
writing, which confirmation may be delivered via Electronic Transmission,
Disbursement Agent shall immediately disburse such funds in the Settlement
Account as directed in the Settlement Report provided (i) sufficient funds exist
in the Settlement Account (ii) after giving effect to such repurchase, a Margin
Deficit would not exist and there would be no violation of any Sub-Limits and
(iii) Buyer has not disputed such disbursement prior to such disbursement.
Disbursement Agent's verification and Buyer's confirmation or disputation
referenced in the preceding sentence shall be completed, and written notice of
any disputation shall be given to Seller by Electronic Transmission, no later
than, the later of (a) 11:00 a.m. New York time or (b) two (2) hours after the
receipt of such funds, on the Intended Repurchase Date. If all amounts required
to be disbursed to Buyer pursuant to the Settlement Report are not deposited in
the Settlement Account, or such other account that Disbursement Agent holds
pursuant to this Agreement, by 4:00 p.m. New York time on the date indicated as
the "Settlement Date" in the Settlement Report, Disbursement Agent shall notify
each of Custodian, Seller and Buyer (unless it is notified in writing by Buyer
(prior to Disbursement Agent giving such notice) that Buyer has received such
funds in a designated account) and it shall be deemed to constitute an Event of
Default under the Repurchase Agreement and satisfy all notice requirements of
Buyer with respect to an Event of Default and Custodian and Seller shall treat
such notice as a notice of an Event of Default from Buyer. Notwithstanding the
foregoing sentence, if sufficient funds are not deposited in the Settlement
Account, or such other account as Disbursement Agent holds pursuant to this
Agreement, in accordance with the preceding sentence on any "Settlement Date"
and there are funds on deposit in the Wire-out Account, Seller hereby agrees
that, and Disbursement Agent shall, transfer an amount equal to the lesser of
(x) all amounts on deposit in the Wire-out Account and (y) such shortfall from
the Wire-out Account to the Settlement Account, or such other account as the
Buyer may designate, no later than 4:00 p.m. New York time on such date. If such
transferred funds are sufficient to pay all amounts required to be paid to Buyer
pursuant to the Settlement Report, no Event of Default shall be deemed to have
occurred. Notwithstanding the foregoing, if a conflict exists between the
instructions of Buyer and the Settlement Report, Disbursement Agent shall follow
Buyer's instructions.
(f) Reports; Monitoring.
(i) Upon request and in any event at the end of each calendar month,
Disbursement Agent shall provide to Buyer and Seller a reconciliation
report with respect to all cash activity in each Transaction Account.
(ii) No later than 5:00 p.m. New York time on each Business Day,
Disbursement Agent shall provide to Buyer and Seller a daily report
setting forth such information as may reasonably be required by Buyer (a
"Daily Report").
(iii) [Reserved.]
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(iv) [Reserved].
(v) Disbursement Agent shall provide to Buyer and Seller any reports
with respect to any aspect of the transactions contemplated by this
Agreement, to the extent the requested information is, or should be, in
the possession of Disbursement Agent, as Buyer may request.
(vi) 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 funded in respect of any Mortgage Loan, including, without
limitation, the Purchase Price, (B) the date such funds were disbursed,
(C) all amounts due to Buyer in respect of the Periodic Advance Repurchase
Payment, (D) the amount of any distribution in connection with any Request
for Additional Transactions for Excess Margin, (E) all Purchased Assets
and the aggregate outstanding Repurchase Prices in respect thereof and (F)
the amount of any Margin Deficit or Excess Margin.
(vii) 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 Agreement,
including, but not limited to, the preparation and delivery of each
updated Asset Schedule and Exception Report.
(g) Income Payment Dates. Notwithstanding that Buyer and Seller
intend that the Transactions under the Repurchase Agreement and hereunder to be
sales to Buyer of the Purchased Assets, Seller shall deposit into the Settlement
Account, or such other account that the Buyer may designate, the Periodic
Advance Repurchase Payment on each Payment Date. On each Payment Date, Buyer
shall forward to Disbursement Agent a payment date report in the form set forth
on Annex 18 hereto (a "Payment Date Report"). Disbursement Agent shall verify
that all amounts required to be paid to Buyer pursuant to the Payment Date
Report are deposited into the Settlement Account on each Payment Date. If such
amounts are not deposited into the Settlement Account on or prior to 5:00 p.m.
New York time on such Payment Date, Disbursement Agent shall notify each of
Custodian, Seller and Buyer (unless Disbursement Agent is notified in writing by
Buyer (prior to Disbursement Agent's sending such notice) that such amounts have
been received by Buyer in an account designated by Buyer) and it shall be deemed
to constitute an Event of Default under the Repurchase Agreement and satisfy all
notice requirements of Buyer with respect to an Event of Default and Custodian
and Seller shall treat such notice as a notice of an Event of Default from
Buyer.
(h) 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.
(i) Fees and Expenses of Disbursement Agent.
(i) Disbursement Agent shall charge such fees for its services under
this Agreement as are set forth in a separate agreement between
Disbursement Agent and Seller, the payment of which fees, together with
Disbursement Agent's expenses in
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connection herewith, shall be solely the obligation of Seller. The failure
of Seller to pay any such fees shall not excuse the performance by
Disbursement Agent of any of its obligations hereunder. The obligations of
the Seller 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 Agreement and the
earlier of the resignation or removal of Disbursement Agent shall survive
such termination or removal.
(ii) Seller 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 Seller's receipt of notice of such fees and charges,
Disbursement Agent shall provide written notice to Buyer of Seller's
failure to pay such fees and Buyer shall have the option, in its sole
discretion, to cure such failure.
(j) In performing its obligations under this Section 11, except as
specifically provided in this Agreement, Disbursement Agent will not follow
instructions from any party other than Buyer.
SECTION 12. NO ADVERSE INTEREST.
By execution of this Agreement, each of Disbursement Agent and
Custodian represent and warrant that it currently holds, and during the
existence of this Agreement shall hold, no adverse interest, by way of security
or otherwise, in any Mortgage Loan, and hereby waives and releases any such
interest which it may have in any Mortgage Loan as of the date hereof. The
Mortgage Loans 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 Mortgage Loans.
SECTION 13. INDEMNIFICATION.
(a) Seller agrees to indemnify and hold Custodian, Disbursement
Agent and their affiliates, directors, officers, agents and employees harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of this Agreement or
any action taken or not taken by it or them hereunder unless such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, cost,
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, or caused by
negligence, lack of good faith or willful misconduct 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 Seller of any such claim, action or suit asserted or commenced
against it and that Seller may assume the defense thereof with counsel
reasonably
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satisfactory to Disbursement Agent or Custodian, as applicable, at Seller's sole
expense, that Custodian or Disbursement Agent, as applicable, will cooperate
with Seller on such defense, and that Custodian or Disbursement Agent, as
applicable, will not settle any such claim, action or suit without the consent
of Seller. The foregoing indemnification shall survive any resignation or
removal of Custodian or Disbursement Agent, as applicable, or the termination or
assignment of this Agreement.
(b) In the event that Custodian fails to produce a Mortgage Note,
Assignment of Mortgage or any other document related to a Mortgage Loan that was
in its possession pursuant to Section 2 within two (2) Business Days after
required or requested by Seller or Buyer, and provided that (i) Custodian
previously delivered to Buyer an 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; and (iii) such document
was held by Custodian on behalf of Seller or Buyer, as applicable (a "Custodial
Delivery Failure"), then Custodian shall (a) with respect to any missing
Mortgage Note, promptly deliver to Buyer or 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 Mortgage Loan, including but not limited to a missing
Mortgage Note, (1) indemnify Seller and Buyer, as applicable, in accordance with
Section 13(c) below and (2) at Buyer's option, at any time the long term
obligations of Custodian are rated below the second highest rating category of
▇▇▇▇▇'▇ Investors Service, Inc. or Standard and Poor's Ratings Group, a division
of McGraw Hill, Inc., obtain and maintain, at Custodian's expense, an insurance
bond in the name of Buyer, and its successors in interest and assigns, insuring
against any losses associated with the loss of such document, in an amount equal
to the then outstanding principal balance of the related Mortgage Loan or such
lesser amount requested by Buyer in Buyer's sole discretion.
(c) Custodian agrees to indemnify and hold Buyer and Seller, and their
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 attorney's
fees, that may be imposed on, incurred by, or asserted against it or them in any
way relating to or arising out of a Custodial Delivery Failure or Custodian's
breach of this Agreement, negligence, lack of good faith or willful misconduct.
The foregoing indemnification shall survive the resignation or removal of
Custodian and any termination or assignment of this Agreement.
(d) Disbursement Agent agrees to indemnify and hold Buyer and Seller, and
their 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
attorney's fees, that may be imposed on, incurred by, or asserted against it or
them in any way relating to or arising out of Disbursement Agent's failure to
act in strict compliance with the terms of this Agreement, negligence, lack of
good faith or willful misconduct. The foregoing indemnification shall survive
the resignation or removal of Disbursement Agent or any termination or
assignment of this Agreement.
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SECTION 14. RELIANCE OF CUSTODIAN.
(a) In the absence of bad faith on the part of Custodian or Disbursement
Agent, as applicable, Custodian or Disbursement Agent may conclusively rely, 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, as applicable (including such
items received via Electronic Transmission), reasonably believed by Custodian or
Disbursement Agent, as applicable, to be genuine and to have been signed or
presented by the proper party or parties and conforming to the requirements of
this Agreement; provided, however, that in the case of any Mortgage 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, as applicable, Custodian and Disbursement Agent shall be
under a duty to examine the same in accordance with the requirements of this
Agreement.
(b) Custodian or Disbursement Agent, as applicable, shall have no duties
or responsibilities except those that are specifically set forth in this
Agreement. Custodian or Disbursement Agent, as applicable, shall have no
responsibility nor duty with respect to any Mortgage File while not in its
possession. If Custodian or Disbursement Agent requests instructions from Buyer
with respect to any act, action or failure to act in connection with this
Agreement, Custodian or Disbursement Agent, as applicable, shall be entitled to
refrain from taking such action and continue to refrain from acting unless and
until Custodian or Disbursement Agent, as applicable, shall have received
written instructions from Buyer with respect to a Mortgage File without
incurring any liability therefor to Buyer or any other Person.
(c) Other than as provided herein, neither the Custodian nor the
Disbursement Agent shall be liable for any action or omission to act hereunder
except for its or their own negligence or lack of good faith or willful
misconduct. In no event shall the Custodian or Disbursement Agent have any
responsibility to ascertain or take action except as expressly provided herein.
(d) Neither Custodian nor the Disbursement Agent 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 in accordance with this
Agreement. The obligations of the Custodian or Disbursement Agent shall be
determined solely by the express provisions of this Agreement. No
representation, warranty, covenant, agreement, obligation or duty of the
Custodian or Disbursement Agent shall be implied with respect to this Agreement
or the services of the Custodian or Disbursement Agent hereunder.
(e) Except as expressly provided herein, neither Custodian nor
Disbursement Agent shall be under a duty or obligation to inspect, review or
examine the Mortgage Files to determine that the contents thereof are genuine,
enforceable or appropriate for the represented purpose or that they have been
actually recorded, are in the proper form for recordation or that they are not
other than what they purport to be on their face.
(f) No provision of this Agreement shall require Custodian or Disbursement
Agent, as applicable, to expend or risk its own funds or otherwise incur
financial liability (other
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than expenses or liabilities otherwise required to be incurred by the express
terms of this Agreement) in the performance of its duties under this Agreement
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity is not reasonably assured to it.
(g) Any corporation into which Custodian or Disbursement Agent, as
applicable, may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
Custodian or Disbursement Agent, as applicable, shall be a party, or any
corporation succeeding to the business of Custodian or Disbursement Agent, as
applicable, shall be the successor of Custodian or Disbursement Agent, as
applicable, 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. In order to comply
with its duties under the U.S. Patriot Act, Custodian or Disbursement Agent, as
applicable, shall obtain and verify certain information and documentation from
the other parties to this Agreement, including but not limited to, such parties'
name address, and other identifying information.
(h) The Custodian or Disbursement Agent may consult with counsel selected
by the Custodian or Disbursement Agent, as applicable, and the written advice or
written opinion of such counsel shall be full and complete authorization and
protection in respect of any action reasonably taken, omitted or suffered by the
Custodian in good faith and in accordance therewith (provided that such counsel
is generally qualified, experienced and familiar with the matters at issue).
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 Mortgage
Files to Seller, and, except as otherwise set forth herein, this 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.
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SECTION 17. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 18. AUTHORIZED REPRESENTATIVES.
Each individual designated as an authorized representative of Buyer or its
successors or assigns, Seller, 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 Agreement on behalf of Buyer, Seller, 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, 8 and 9 hereof, respectively. From time to time, Buyer, Seller,
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 Agreement may be amended from time to time by written agreement
signed by Seller, Buyer, Custodian and Disbursement Agent.
SECTION 20. CUMULATIVE RIGHTS.
The rights, powers and remedies of Custodian, Disbursement Agent and Buyer
under this 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.
SECTION 21. ASSIGNMENT; BINDING UPON SUCCESSORS.
This Agreement may not be assigned in whole or in part by Seller,
Custodian or Disbursement Agent without the prior written consent of Buyer. This
Agreement may be assigned by Buyer in whole or in part without the prior written
consent of any other party hereto. Buyer shall provide Custodian with notice of
such assignment together with written acknowledgment that the assignee is
assuming all of the obligations of Buyer under this Agreement to the extent
applicable. All rights of Custodian, Disbursement Agent and Buyer under this
Agreement shall inure to the benefit of Custodian, Disbursement Agent and Buyer
and their successors and permitted assigns, and all obligations of Seller shall
bind its successors and assigns.
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SECTION 22. ENTIRE AGREEMENT; SEVERABILITY.
This Agreement, the Edit Check Agreement and the Repurchase Agreement
contain 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 Seller. If any of the provisions of
this Agreement shall be held invalid or unenforceable, this 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 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 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
only to 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 designee to
make delivery thereof in accordance with the terms of this Agreement and the
Repurchase Agreement. Seller hereby irrevocably consents to any such assignment.
Subject to any limitations in any agreement between the Assignee and Buyer, the
Assignee may, upon notice of Buyer's default, directly enforce and exercise such
rights under this Agreement that have been assigned or pledged to it and, until
otherwise notified by the Assignee, 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 Agreement.
SECTION 26. SUBMISSION TO JURISDICTION; WAIVERS.
EACH OF BUYER, SELLER, 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 REPURCHASE 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
-32-
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 ▇▇▇ 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
Seller regarding Buyer or Seller and (ii) the terms of this 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 Buyer's and Seller's prior written consent except to the extent
that (i) Custodian or Disbursement Agent reasonably deems necessary to do so in
working with legal counsel, auditors, taxing authorities or other governmental
agencies or regulatory bodies or in order to comply with any applicable federal
or state laws, (ii) any portion of the Confidential Information is in the public
domain other than due to a breach of this covenant by the Custodian or
Disbursement Agent, as the case may be, or (iii) 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 Seller within one
Business Day of its knowledge of such legally required disclosure so that Buyer
or Seller may seek an appropriate protective order and/or waive the Custodian's
or Disbursement Agent's compliance, as applicable, with this Agreement. Notice
shall be both by telephone and in writing. In the absence of a protective order
or waiver, Custodian or Disbursement Agent, as applicable, may disclose the
relevant Confidential
-33-
Information if, in the written 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]
-34-
IN WITNESS WHEREOF, this Agreement was duly executed by the parties hereto
as of the day and year first above written.
SELLER:
OAK STREET MORTGAGE, LLC
By: /s/ ▇▇▇▇▇ ▇. Royal
--------------------------------------
Name: ▇▇▇▇▇ ▇. Royal
Title: Chief Financial Officer
Address for Notices:
Oak Street Mortgage LLC
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Royal,
Chief Financial Officer
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
CDC MORTGAGE CAPITAL INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Address for Notices:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇
With a copy to:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇, Esq.,
General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇
And with a copy to:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇.▇▇▇
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage Custody-OA040C
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Disbursement Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage Custody- OA040C
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Annex 1
FIELD
ITEM # POSITION FIELD NAME TYPE SIZE DEC DESCRIPTION
------ -------- ------------- ---- ---- --- -------------------------------------------
1. 1 TransType C 2 0 Transaction type Code - denotes the type of
transaction the record represents
2. 3 Bank C 5 0 Bank Code
3. 8 Client C 4 0 Client Code (Assigned by CDC)
4. 12 Line C 4 0 Credit Line Code
5. 16 Sublimit C 4 0 Sublimit Code
6. 20 Loan Id C 13 0 Client Loan Identification number right
justified
7. 33 AltID C 13 0 Alternate Loan ID
8. 46 Lname C 28 0 Primary Borrower Name (Last, First)
9. 74 Address C 35 0 Property Address
10. 109 City C 15 0 City
11. ▇▇▇ ▇▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇▇
▇▇. ▇▇▇ ▇▇▇ ▇ 5 0 Zip Code
13. 131 County C 15 0 Name of County
14. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ 12 2 Original Face Amount of Note
15. 158 AcqPrice N 11 3 Acquisition Price of the loan, expressed as
a percentage of par
16. 169 NetLNAmt N 12 2 Net Cost of the loan to Mortgage Company
(Loan Amount* Acquisition cost)/100
17. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ 12 2 Requested warehouse amount
18. 193 WHDate C 8 0 Warehouse Date Formatted as mm/dd/yy
19. 201 AdvReq C 8 0 Date the loan advance request is made.
Formatted as mm/dd/yy
20. 209 LnTerm N 4 0 Term to maturity of the underlying loan,
expressed in months
21. 213 Rate N 6 3 Note Rate
22. 219 MtgDate C 8 0 Date the loan closed
23. 227 Purpose C 20 0 Purpose of the loan
24. 247 OLTV N 6 2 Original loan to value, expressed as,
(Original Loan Amount / Original Sales
Price or Appraised value)
25. 253 OCLTV N 6 2 Original combined loan to value, expressed
as (Original Loan Amount + Senior Lien
Balance / Original Sales Price or
Appraised Value)
26. 259 JrLienBal N 12 2 Original Amount of liens on the collateral
that are junior to the current loan.
27. 271 SRLienBal N 12 2 Original Amount of liens on the collateral
that are senior to the current loan.
28. 283 Asset C 20 0 Asset Class
29. 303 Product C 20 0 Product Code
30. 323 LienType C 20 0 Lien Type
31. 343 Balloon C 20 0 Balloon
REQ'D REQ'D
REQ'D IF 2ND REQ'D IF
FIELD REQ'D IF OR IF TAKE-
ITEM # POSITION FIELD NAME FIELDS COMMENTS ARM COMBO WET OUT
------ -------- ------------- ------ -------------------------- ----- ------ ----- -----
1. 1 TransType
2. 3 Bank X CDC
3. 8 Client X
4. 12 Line X see code table: CDLINE
5. 16 Sublimit X see code table: CDSUBLIMIT
6. 20 Loan Id X
7. 33 AltID
8. 46 Lname X
9. 74 Address X
10. 109 City X
11. 124 State X
12. 126 Zip X
13. 131 County
14. 146 LNAmount X
15. 158 AcqPrice
16. 169 NetLNAmt
17. 181 WHAmount X
18. 193 WHDate X
19. 201 AdvReq
20. 209 LnTerm X
21. 213 Rate X
22. 219 MtgDate X
23. 227 Purpose X see code table: CDPURPOSE
24. 247 OLTV X
25. 253 OCLTV X X
26. 259 JrLienBal X X
27. 271 SRLienBal X X
28. 283 Asset
29. 303 Product X see code table: CDPRODUCT
30. 323 LienType X see code table: ▇▇▇▇▇▇
▇▇. 343 Balloon X see code table: CDBALLOON
FIELD
ITEM # POSITION FIELD NAME TYPE SIZE DEC DESCRIPTION
------ -------- ------------- ---- ---- --- -------------------------------------------
32. 363 PropType C 20 0 Property type
33. 383 Occupancy C 20 0 Occupancy
34. 403 DocLevel C 20 0 Document Level
35. 423 Cgrade C 20 0 Credit Grade: A, A-, B, B-,...
36. 443 FICOScore C 4 0 Fair ▇▇▇▇▇ Credit Score
37. 447 Units C 1 0 Number of housing units
38. 448 Origin C 20 0 Origin
39. 468 Custodian C 20 0 Custodian code
40. 488 Investor C 20 0 Takeout Investor
41. 508 Commitnum C 16 0 Takeout Commitment Number
42. 524 Price N 10 6 Investor takeout price or weighted average
purchase price of all commitments
43. 534 Expires C 8 0 Takeout expiration date
44. 542 ARMIndex C 20 0 ARM index
45. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇ ▇ ▇▇▇ ▇▇▇▇▇
46. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ 6 3 ARM Periodic Floor
47. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ 6 3 ARM Life Floor
48. ▇▇▇ ▇▇▇▇▇▇▇ ▇ 6 3 ARM Initial Periodic Cap
49. ▇▇▇ ▇▇▇▇▇▇▇ ▇ 6 3 ARM Periodic Cap
50. ▇▇▇ ▇▇▇▇▇▇▇ ▇ 6 3 ARM Life Cap
51. 598 RateChange C 8 0 Date of first rate change (if an ARM)
52. 606 RateFreq N 3 0 Frequency of rate change on months (if an
ARM)
53. 609 NextRaChg C 8 0 Date of next scheduled rate change (if an
ARM)
54. 617 NextPayChg C 8 0 Date of next scheduled payment change
(if an ARM)
55. 625 Teaser N 6 3 Initial rate on the loan (if an ARM)
56. 631 CurrPI N 9 2 Current P & I
57. 640 PI N 9 2 Original P & I
58. 649 AmortType C 20 0 Amortization Type
59. 669 Agent C 20 0 Settlement Agent
60. 689 BankName C 60 0 Name of Receiving Bank
61. 749 Faddress C 35 0 Funding Address
62. ▇▇▇ ▇▇▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇
63. ▇▇▇ ▇▇▇▇▇▇ ▇ ▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
64. 801 Fzip C 5 0 Funding Zip Code
65. 806 Filler1 C 12 0 Filler
66. 818 FundType C 2 0 Funding Type
67. 820 AcctName C 60 0 Account Name of Beneficiary
68. 880 ABANum C 15 0 ABA Number
69. 895 DraftDate C 8 0 Date Draft has cleared
REQ'D REQ'D
REQ'D IF 2ND REQ'D IF
FIELD REQ'D IF OR IF TAKE-
ITEM # POSITION FIELD NAME FIELDS COMMENTS ARM COMBO WET OUT
------ -------- ------------- ------ -------------------------- ----- ------ ----- -----
32. 363 PropType X see code table: CDPROPERTY
33. 383 Occupancy X see code table: CDOCCUP
34. 403 DocLevel X see code table: CDDOCTYPE
35. 423 Cgrade X
36. 443 FICOScore X
37. 447 Units X
38. 448 Origin
39. 468 Custodian
40. 488 Investor X X
41. 508 Commitnum
42. 524 Price X X
43. 534 Expires X X
44. 542 ARMIndex X see code table: CDINDEX X
45. 562 ARMFloor
46. 568 ARMPFloor X X
47. 574 ARMLFloor X X
48. 580 ARMACap X X
49. 586 ARMPCap X X
50. 592 ARMLCap X X
51. 598 RateChange X X
52. 606 RateFreq X X
53. 609 NextRaChg X X
54. 617 NextPayChg
55. 625 Teaser
56. 631 CurrPI X
57. 640 PI X
58. 649 AmortType X see code table: CDAMORT
59. 669 Agent X X
60. 689 BankName X X
61. 749 Faddress
62. 784 Fcity X X
63. 799 Fstate
64. 801 Fzip
65. 806 Filler1
66. 818 FundType X see code table: CDFUNDING X
67. 820 AcctName X X
68. 880 ABANum X X
69. 895 DraftDate
Annex 1-5
FIELD
ITEM # POSITION FIELD NAME TYPE SIZE DEC DESCRIPTION
------ -------- ------------- ---- ---- --- -------------------------------------------
70. 903 FundAmt N 12 2 Wire Amount or Check Amount
71. 915 Fundtext C 60 0 Receiving Bank Account Number
72. 975 CheckMemo C 60 0 Memo Information for Official Checks
73. 1035 WHRef C 12 0 Check or Wire Number
74. 1047 FEFFDate C 8 0 Funding Effective Date
75. 1055 DiscMeth C 1 0 Discount Method
76. 1056 FundDate C 8 0 Fund Date
77. 1064 FundRef C 12 0 DB Disbursement A/C #
78. 1076 ShipDate C 8 0 Date the loan was shipped
79. 1084 ShipMeth C 1 0 Method of shipping the loan
80. 1085 ShipRef C 12 0 Ship reference number. User defined,
usually the airbill tracking number
81. 1097 ShipTo C 20 0 Code denoting to whom the loans were
shipped to
82. 1117 ShipType C 1 0 Code denoting type of designee to whom the
loans were shipped to
83. 1118 NoteDate C 8 0 Date the mortgage note was received by
Custodian
84. 1126 ManualBB C 1 0 Borrowing Base override flag
85. 1127 ▇▇▇▇▇▇▇▇ C 8 0 Date the loan was released for correction
86. 1135 Treturn C 8 0 Date the loan was returned from correction
87. 1143 TrnDate C 8 0 N/A
88. 1151 UpDexp C 1 0 N/A
89. 1152 Nclient C 4 0 New Client
90. 1156 ManualCom C 1 0 N/A
91. 1157 PaidOff C 1 0 Loan was repaid
92. 1158 CLTV N 6 2 Current loan to value, expressed as
(Current Balance / Original Sales Price or
Appraised Value)
93. 1164 CCLTV N 6 2 Current combined loan to value, expressed
as (Current Balance + Senior Lien Balance/
Original Sales Price or Appraised Value
94. 1170 ASofDate C 8 0 Date the data was extracted
95. 1178 PaidDate C 8 0 Paid To date of the loan
96. 1186 UPB N 12 2 Un-paid principal Balance remaining on the
loan
97. 1198 CurRate N 7 3 Current interest rate on the loan
98. 1205 LPayDate C 8 0 Last Paid date
99. 1213 NextDat C 8 0 Next Paid date
100. 1221 WHOPT C 1 0 N/A
101. 1222 FNAME2 C 60 0 2nd fund wire Name
102. 1282 FADDR2 C 60 0 2nd fund wire Address
103. 1342 FCITY2 C 15 0 2nd fund wire City
104. 1357 FSTATE2 C 2 0 2nd fund wire State
REQ'D REQ'D
REQ'D IF 2ND REQ'D IF
FIELD REQ'D IF OR IF TAKE-
ITEM # POSITION FIELD NAME FIELDS COMMENTS ARM COMBO WET OUT
------ -------- ------------- ------ -------------------------- ----- ------ ----- -----
70. 903 FundAmt X X
71. 915 Fundtext X X
72. 975 CheckMemo X X
73. 1035 WHRef X X
74. 1047 FEFFDate X X
75. 1055 DiscMeth see code table: CDDISCOUNT
76. 1056 FundDate
77. ▇▇▇▇ ▇▇▇▇▇▇▇ X DB to provide
78. 1076 ShipDate
79. 1084 ShipMeth
80. 1085 ShipRef
81. 1097 ShipTo
82. 1117 ShipType
83. 1118 NoteDate
84. 1126 ManualBB
85. 1127 ▇▇▇▇▇▇▇▇
86. 1135 Treturn
87. 1143 TrnDate
88. 1151 UpDexp
89. 1152 Nclient
90. 1156 ManualCom
91. 1157 PaidOff
92. 1158 CLTV X
93. ▇▇▇▇ ▇▇▇▇▇ X X
94. 1170 ASofDate X
95. 1178 PaidDate X
96. 1186 UPB X
97. 1198 CurRate X
98. 1205 LPayDate
99. 1213 NextDat
100. 1221 WHOPT
101. 1222 FNAME2
102. 1282 FADDR2
103. 1342 FCITY2
104. 1357 FSTATE2
Annex 1-6
FIELD
ITEM # POSITION FIELD NAME TYPE SIZE DEC DESCRIPTION
------ -------- ------------- ---- ---- --- -------------------------------------------
105. 1359 FZIP2 C 5 0 2nd fund wire Zip
106. 1364 FABANUM2 C 15 0 2nd fund wire ABA #
107. 1379 FACCOUNT2 C 60 0 2nd fund wire Account #
108. 1439 MERSMIN C 18 0 MERS NUMBER
109. 1457 ARMCONVERT C 1 0 Convertible
110. 1458 ARMMARGIN N 8 5 Gross Margin
111. 1466 ARMNEGAM C 3 0 Negative Amortization Potential
112. 1469 BALAPPRORI N 20 2 Original Appraisal
113. 1489 BALSALEPRI N 20 2 Sales Price
114. 1509 CDPMICOMP C 10 0 PMI Company
115. 1519 PMILEVEL N 3 0 Mortgage Insurance Coverage
116. 1522 CDPREPAY C 3 0 Prepayment Penalty
117. 1525 CDSECTION32 C 2 0 High Cost Loan
118. 1527 DATEFPAY C 8 0 First Payment Date Formatted as mm/dd/yy
119. 1535 DATEMAT C 8 0 Maturity Date Formatted as mm/dd/yy
120. 1543 DTIFRONT N 8 2 Debt to Income Ratio
121. 1551 SIMSECOND C 1 0 Simultaneous Second
122. 1552 DOCNOTEDATE C 8 0 Note Date Formatted as mm/dd/yy
123. 1560 SSN C 11 0 Primary Borrower Social Security Number
124. 1571 AgentAddr C 80 0 Settlement Agent Address
125. 1651 Agentphone C 25 0 Settlement Agent Phone Number
REQ'D REQ'D
REQ'D IF 2ND REQ'D IF
FIELD REQ'D IF OR IF TAKE-
ITEM # POSITION FIELD NAME FIELDS COMMENTS ARM COMBO WET OUT
------ -------- ------------- ------ -------------------------- ----- ------ ----- -----
105. 1359 FZIP2
106. 1364 FABANUM2
107. 1379 FACCOUNT2
108. 1439 MERSMIN required to the extent using MERS
109. 1457 ARMCONVERT X see code table: X
ARMCONVERT
110. 1458 ARMMARGIN X X
111. 1466 ARMNEGAM X see code table: X
ARMNEGAM
112. 1469 BALAPPRORI X
113. 1489 BALSALEPRI X
114. 1509 CDPMICOMP X see code table: CDPMICOMP
115. 1519 PMILEVEL X pct of loan balance covered
116. 1522 CDPREPAY X original number of months
117. 1525 CDSECTION32 X see code table: CDSECTION32
118. 1527 DATEFPAY X
119. 1535 DATEMAT X
120. 1543 DTIFRONT X
121. 1551 SIMSECOND X Y/N X
122. 1552 DOCNOTEDATE X
123. 1560 SSN X
124. 1571 AgentAddr X X
125. 1651 Agentphone X X
Annex 1-7
ADDPSTATE Unknown
Unknown U
Alabama AL
Alaska AK
Arizona AZ
Arkansas AR
California CA
California-Northern CA-N
California-Southern CA-S
Colorado CO
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
Florida FL
Georgia GA
Guam GU
Hawaii HI
Idaho ID
Illinois IL
Indiana IN
Iowa IA
Kansas KS
Kentucky KY
Louisiana LA
Maine ME
Maryland MD
Massachusetts MA
Michigan MI
Minnesota MN
Mississippi MS
Missouri MO
Montana MT
Nebraska NE
Nevada NV
New Hampshire NH
New Jersey NJ
New Mexico NM
New York NY
North Carolina NC
North Dakota ND
Ohio OH
Oklahoma OK
Oregon OR
Pennsylvania PA
Puerto Rico PR
Rhode Island RI
Annex 1-8
South Carolina SC
South Dakota SD
Tennessee TN
Texas TX
Utah UT
Vermont VT
Virginia VA
Virgin Islands VI
Washington WA
West Virginia WV
Wisconsin WI
Wyoming WY
ARMCONVERT Unknown
Unknown U
Convertible Y
Non-Convertible N
Not Applicable N/A
ARMLOOKBACK Unknown
Unknown U
No Look Back NO
Not Applicable N/A
15 Days 15
30 Days 30
45 Days 45
60 Days 60
ARMNEGAM Unknown
Unknown U
Negam Y
Non Negam N
ARMROUNDING Unknown
Unknown U
Nearest 1/8th N1/8
Up 1/8th U1/8
Down 1/8th D1/8
No Rounding NONE
Not Applicable N/A
CDADJTYPE Unknown
Unknown U
ARM ARM
Fixed Rate FR
Graduated Payment GPM
Growing Equity GEM
CDAMORT Fixed Level Pay
ARM ARM
Balloon Balloon
CDASSUME Unknown
Annex 1-9
Unknown U
Assumable Y
Non-Assumable N
CDBALLOON Unknown
Unknown U
Balloon Y
Non-Balloon N
CDBASIS Unknown
Unknown U
30/360 30/360
Actual/360 ACT/360
Actual/364 ACT/364
Actual/365 ACT/365
Actual/Actual ACT/ACT
CDBUYDOWN Unknown
Unknown U
Buydown Y
No Buydown N
CDDELQSTAT Unknown
Unknown U
30-59 Days 30
60-89 Days 60
90+ Days 90
Bankruptcy BK
Forbearance FB
Foreclosure FC
Foreclosure/Forbearance FCB
Normal Collections NC
Litigation LIT
Real Estate Owned REO
Ineligible Loan Status IS
CDDISCOUNT Points P
Price R
Discount Amount D
Net Loan Amount N
CDDOCTYPE Unknown
Unknown U
Alternative ALT
Easy EZ
Fast Trac FT
Full FULL
Full or Alternate F/A
Limited LIM
Lite LITE
Low LOW
No Documentation NO
Annex 1-10
No Income Qualifier NIQ
No Income Verifier NIV
No Ratio NR
Other OTH
Partial PRT
Reduced RED
Stated Documentation STD
Streamline STR
CDDOCTYPESP No Emp/Income Verification C
NAV and No Emp/Income Verification E
VVOE V
1 Paystub Obtained W
1 Paystub Obtained and VVOE X
1 Paystub and 1 W-2 and VVOE or 1Yr 1040(Self Emp) Y
Streamline S
Full Doc (2Yrs Emp Verification) Z
CDESCROW Unknown
Unknown U
Yes Y
No N
CDFUNDING Wires W
Drafts D
Official Check C
Certified Check X
CDINDEX Unknown
Unknown U
CD - 6 Month CDM6
CD - 1 Year CDY1
COFI COFI
COFI - 1 Month CM1
COFI - 6 Month CM6
COFI - 1 Year CY1
COFI - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ Reserve FED
FHLB Fund rate FHLB
FHLMC - 30 Year FH30Y
Fixed Rate FR
FNMA - 30 Day FN30D
FNMA - 60 Days FN60D
Libor - 1 Month LM1
Libor - 6 Month LM6
Libor - 1 Year LY1
National Avg Contract Rate NACR
Prime Rate - Bank PRBK
Prime Rate - WSJ PRWS
Treasury - 1 Week TW1
Annex 1-11
Treasury - 1 Month TM1
Treasury - 3 Month TM3
Treasury - 6 Month TM6
Treasury - 1 Year TY1
Treasury - 3 Year TY3
Treasury - 5 Year TY5
Treasury - 10 Year TY10
CDINTCOL Unknown
Unknown U
Advance AD
Arrears AR
Simple Interest SI
CDJUMBO Unknown
Unknown U
Conforming Loan Balance N
Non-conforming Loan Balance Y
CDLIEN Unknown
Unknown ▇
▇▇▇ ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇ 3
4th Lien 4
5th Lien 5
CDLINE 2nd Lien 2LN
1st Lien ALT A ALT1
2nd Lien ALT A ALT2
ALT A ALTA
1st Lien Conforming CON1
2nd Lien Conforming CON2
Agency Conforming CONF
Construction to Permanent CTP
HELOCS HEL
Home Improvement Loans HI
Holdback / Repurchase Loans HOLD
Hospital Line HOSP
Conforming Jumbo JUMB
MBS MBS
1st Lien Non-Performing NON1
2nd Lien Non-Performing NON2
1st Lien Performing PER1
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇&▇ Receivables PI
1st Lien Prime PRI1
2nd Lien Prime PRI2
REO REO
2nd Lien ALT A or 2nd Lien Subprime SEC
Annex 1-12
Servicing Advances SERV
Super Jumbo SJUM
Subprime SUB
1st Lien Subprime SUB1
2nd Lien Subprime SUB2
1st Lien Sub-Performing SUP1
2nd Lien Sub-Performing SUP2
CDLOANTYPE Unknown
Unknown U
Commercial COMM
Consumer CONS
Conventional CONV
Conventional w/ PMI CNVP
Conventional w/o PMI CNV
Farm FM
FHA FHA
HELOC HELC
Home Equity Loan HMEQ
HUD HUD
VA VA
CDOCCUP Unknown
Unknown U
Investment I
Non-Owner Occupied N
Primary P
Second Home S
CDOWNTYPE Unknown
Unknown U
Fee Simple FS
Leasehold LH
CDPART Unknown
Unknown U
No N
Yes Y
CDPAYTYPE Unknown
Unknown U
Blended P+I PI
Interest Only IO
Principal Only PO
Rule of 78's R78
CDPMICOMP Unknown
Unknown U
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇-Borrower Paid AMERB
▇▇▇▇▇▇-Lender Paid AMERL
Borrower Paid B
Annex 1-13
California Housing Fund CAHF
Cavalier CAVA
Commercial Credit ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Assurance CMAC
Continental CONT
FGIC FGIC
FHA FHA
First Mortgage FRST
Foremost Guaranty Corp. FMGY
General Electric GE
Home Guaranty Corp. HGIC
Integon Mortgage Guaranty INTE
Investor's Mtge. Insurance INMI
Lender Paid L
Liberty Mortgage LIB
Maryland Housing Fund ▇▇▇▇
Mtge Guaranty Insurance Corp. MGIC
No Insurance NO
PMI PMI
Policyholder's Benefit Life PBLI
Radian Guaranty RDN
Republic Mtge Ins Co RMIC
Ticor TICO
TMIC Ins. Company TMIC
Triad Guaranty Ins TGIC
United Guaranty Insurance UGI
US Mortgage Insurance USMIC
VA VA
Verex Assurance Inc. VERX
Vermont Home Mortgage VERMT
Wisconsin Mtge Assurance WMAC
CDPREPAY Unknown
Unknown U
No Prepayment Penalty N
Prepayment Penalty Y
CDPRODUCT Unknown
Unknown U
Adjustable Rate ARM
ARM - 1 Month AM1
ARM - 6 Month AM6
ARM - 1 Year AY1
ARM - 1 Year/6 Month A1/6
ARM - 18 Month/6 Month A18/6
ARM - 2 Year AY2
ARM - 2 Year/6 Month A2/6
ARM - 2 Year/1 Year A2/1
Annex 1-14
ARM - 3 Year AY3
ARM - 3 Year/6 Month A3/6
ARM - 3 Year/1 Year A3/1
ARM - 5 Year AY5
ARM - 5 Year/6 Month A5/6
ARM - 5 Year/1 Year A5/1
ARM - 6 Year AY6
ARM - 6 Year/6 Month A6/6
ARM - 6 Year/1 Year A6/1
ARM - 7 Year AY7
ARM - 7 Year/6 Month A7/6
ARM - 7 Year/1 Year A7/1
ARM - 10 Year AY10
ARM - 10 Year/6 Month A10/6
ARM - 10 Year/1 Year A10/1
ARM - 15 Year AY15
ARM - 15 Year/6 Month A15/6
ARM - 15 Year/1 Year A15/1
ARM - 30 Year AY30
ARM - 30 Year/6 Month A30/6
ARM - 30 Year/1 Year A30/1
ARM - 30 Year/2 Year A30/2
ARM - 30 Year/3 Year A30/3
Balloon - 3/15 B3/15
Balloon - 4/15 B4/15
Balloon - 5 Year B5
Balloon - 5/10 B5/10
Balloon - 5/15 B5/15
Balloon - 5/25 B5/25
Balloon - 5/30 B5/30
Balloon - 7 Year B7
Balloon - 7/10 B7/10
Balloon - 7/15 B7/15
Balloon - 7/25 B7/25
Balloon - 7/30 B7/30
Balloon - 10/20 B10/20
Balloon - 10/30 B10/30
Balloon - 15 Year B15
Balloon - 15/20 B15/20
Balloon - 15/30 B15/30
Balloon - 20/30 B20/30
Balloon - 25/30 B25/30
Fixed - 1 Year F1
Fixed - 2 Year F2
Fixed - 3 Year F3
Fixed - 4 Year F4
Annex 1-15
Fixed - 5 Year F5
Fixed - 6 Year F6
Fixed - 7 Year F7
Fixed - 8 Year F8
Fixed - 9 Year F9
Fixed - 10 Year F10
Fixed - 12 Year F12
Fixed - 15 Year F15
Fixed - 20 Year F20
Fixed - 24 Year F24
Fixed - 25 Year F25
Fixed - 30 Year F30
Fixed - 35 Year F35
Fixed - 40 Year F40
Fixed Rate FR
Fixed/ARM - 2/13 Year FA2/13
Fixed/ARM - 2/18 Year FA2/18
Fixed/ARM - 2/28 Year FA2/28
Fixed/ARM - 3/12 Year FA3/12
Fixed/ARM - 3/27 Year FA3/27
Fixed/ARM - 5/25 Year FA5/25
Graduated Payment GPM
Step - 2/28 S2/28
Step - 3/27 S3/27
Step - 5/25 S5/25
Step - 7/23 S7/23
ARM - Interest Only AIO
IO 2 Year; ARM - 1 Month I2/AM1
IO 2 Year; ARM - 6 Month I2/AM6
IO 2 Year; ARM - 1 Year I2/AY1
IO 2 Year; ARM - 1 Year/6 Month I2/A1/6
IO 2 Year; ARM - 2 Year I2/AY2
IO 2 Year; ARM - 2 Year/6 Month I2/A2/6
IO 2 Year; ARM - 2 Year/1 Year I2/A2/1
IO 2 Year; ARM - 3 Year I2/AY3
IO 2 Year; ARM - 3 Year/6 Month I2/A3/6
IO 2 Year; ARM - 3 Year/1 Year I2/A3/1
IO 2 Year; ARM - 5 Year I2/AY5
IO 2 Year; ARM - 5 Year/6 Month I2/A5/6
IO 2 Year; ARM - 5 Year/1 Year I2/A5/1
IO 2 Year; ARM - 7 Year I2/AY7
IO 2 Year; ARM - 7 Year/6 Month I2/A7/6
IO 2 Year; ARM - 7 Year/1 Year I2/A7/1
IO 2 Year; ARM - 10 Year I2/AY10
IO 2 Year; ARM - 10 Year/6 Month I2/A10/6
IO 2 Year; ARM - 10 Year/1 Year I2/A10/1
Annex 1-16
IO 3 Year; ARM - 1 Month I3/AM1
IO 3 Year; ARM - 6 Month I3/AM6
IO 3 Year; ARM - 1 Year I3/AY1
IO 3 Year; ARM - 1 Year/6 Month I3/A1/6
IO 3 Year; ARM - 2 Year I3/AY2
IO 3 Year; ARM - 2 Year/6 Month I3/A2/6
IO 3 Year; ARM - 2 Year/1 Year I3/A2/1
IO 3 Year; ARM - 3 Year I3/AY3
IO 3 Year; ARM - 3 Year/6 Month I3/A3/6
IO 3 Year; ARM - 3 Year/1 Year I3/A3/1
IO 3 Year; ARM - 5 Year I3/AY5
IO 3 Year; ARM - 5 Year/6 Month I3/A5/6
IO 3 Year; ARM - 5 Year/1 Year I3/A5/1
IO 3 Year; ARM - 7 Year I3/AY7
IO 3 Year; ARM - 7 Year/6 Month I3/A7/6
IO 3 Year; ARM - 7 Year/1 Year I3/A7/1
IO 3 Year; ARM - 10 Year I3/AY10
IO 3 Year; ARM - 10 Year/6 Month I3/A10/6
IO 3 Year; ARM - 10 Year/1 Year I3/A10/1
IO 5 Year; ARM - 1 Month I5/AM1
IO 5 Year; ARM - 6 Month I5/AM6
IO 5 Year; ARM - 1 Year I5/AY1
IO 5 Year; ARM - 1 Year/6 Month I5/A1/6
IO 5 Year; ARM - 2 Year I5/AY2
IO 5 Year; ARM - 2 Year/6 Month I5/A2/6
IO 5 Year; ARM - 2 Year/1 Year I5/A2/1
IO 5 Year; ARM - 3 Year I5/AY3
IO 5 Year; ARM - 3 Year/6 Month I5/A3/6
IO 5 Year; ARM - 3 Year/1 Year I5/A3/1
IO 5 Year; ARM - 5 Year I5/AY5
IO 5 Year; ARM - 5 Year/6 Month I5/A5/6
IO 5 Year; ARM - 5 Year/1 Year I5/A5/1
IO 5 Year; ARM - 7 Year I5/AY7
IO 5 Year; ARM - 7 Year/6 Month I5/A7/6
IO 5 Year; ARM - 7 Year/1 Year I5/A7/1
IO 5 Year; ARM - 10 Year I5/AY10
IO 5 Year; ARM - 10 Year/6 Month I5/A10/6
IO 5 Year; ARM - 10 Year/1 Year I5/A10/1
IO 7 Year; ARM - 1 Month I7/AM1
IO 7 Year; ARM - 6 Month I7/AM6
IO 7 Year; ARM - 1 Year I7/AY1
IO 7 Year; ARM - 1 Year/6 Month I7/A1/6
IO 7 Year; ARM - 2 Year I7/AY2
IO 7 Year; ARM - 2 Year/6 Month I7/A2/6
IO 7 Year; ARM - 2 Year/1 Year I7/A2/1
IO 7 Year; ARM - 3 Year I7/AY3
Annex 1-17
IO 7 Year; ARM - 3 Year/6 Month I7/A3/6
IO 7 Year; ARM - 3 Year/1 Year I7/A3/1
IO 7 Year; ARM - 5 Year I7/AY5
IO 7 Year; ARM - 5 Year/6 Month I7/A5/6
IO 7 Year; ARM - 5 Year/1 Year I7/A5/1
IO 7 Year; ARM - 7 Year I7/AY7
IO 7 Year; ARM - 7 Year/6 Month I7/A7/6
IO 7 Year; ARM - 7 Year/1 Year I7/A7/1
IO 7 Year; ARM - 10 Year I7/AY10
IO 7 Year; ARM - 10 Year/6 Month I7/A10/6
IO 7 Year; ARM - 10 Year/1 Year I7/A10/1
IO 10 Year; ARM - 1 Month I10/AM1
IO 10 Year; ARM - 6 Month I10/AM6
IO 10 Year; ARM - 1 Year I10/AY1
IO 10 Year; ARM - 1 Year/6 Month I10/A1/6
IO 10 Year; ARM - 2 Year I10/AY2
IO 10 Year; ARM - 2 Year/6 Month I10/A2/6
IO 10 Year; ARM - 2 Year/1 Year I10/A2/1
IO 10 Year; ARM - 3 Year I10/AY3
IO 10 Year; ARM - 3 Year/6 Month I10/A3/6
IO 10 Year; ARM - 3 Year/1 Year I10/A3/1
IO 10 Year; ARM - 5 Year I10/AY5
IO 10 Year; ARM - 5 Year/6 Month I10/A5/6
IO 10 Year; ARM - 5 Year/1 Year I10/A5/1
IO 10 Year; ARM - 7 Year I10/AY7
IO 10 Year; ARM - 7 Year/6 Month I10/A7/6
IO 10 Year; ARM - 7 Year/1 Year I10/A7/1
IO 10 Year; ARM - 10 Year I10/AY10
IO 10 Year; ARM - 10 Year/6 Month I10/A10/6
IO 10 Year; ARM - 10 Year/1 Year I10/A10/1
Fixed - Interest Only FIO
IO 2 Year; Fixed - 15 Year I2/F15
IO 2 Year; Fixed - 20 Year I2/F20
IO 2 Year; Fixed - 25 Year I2/F25
IO 2 Year; Fixed - 30 Year I2/F30
IO 3 Year; Fixed - 15 Year I3/F15
IO 3 Year; Fixed - 20 Year I3/F20
IO 3 Year; Fixed - 25 Year I3/F25
IO 3 Year; Fixed - 30 Year I3/F30
IO 5 Year; Fixed - 15 Year I5/F15
IO 5 Year; Fixed - 20 Year I5/F20
IO 5 Year; Fixed - 25 Year I5/F25
IO 5 Year; Fixed - 30 Year I5/F30
IO 7 Year; Fixed - 15 Year I7/F15
IO 7 Year; Fixed - 20 Year I7/F20
IO 7 Year; Fixed - 25 Year I7/F25
Annex 1-18
IO 7 Year; Fixed - 30 Year I7/F30
IO 10 Year; Fixed - 15 Year I10/F15
IO 10 Year; Fixed - 20 Year I10/F20
IO 10 Year; Fixed - 25 Year I10/F25
IO 10 Year; Fixed - 30 Year I10/F30
CDPROPERTY Unknown
Unknown U
2 Family 2F
2-4 Family 2-4F
3 Family 3F
3-4 Family 3-4F
4 Family 4F
5+ Family 5F
Condo CO
Condo - <4 floors CL4
Condo - >4 floors CG4
Condo - 1-4 floors C14
Condo - High Rise >8 floors CHR
Condo - Low Rise <5 floors CLR
Condo - Mid Rise 5-8 floors CMR
Co-op CP
Deminimus PUD DPUD
Duplex DUP
Manufactured Housing MH
Manufactured Housing/Mobile Home MHMB
Manufactured Housing-Double Wide MH2
Manufactured Housing-Single Wide MH1
Manufactured Housing-Triple Wide MH3
Mixed Use MU
Mobile Home MB
Modular MD
Multifamily MF
Other OTH
PUD PUD
PUD Attached PUA
PUD Detached PUDD
Rowhouse RH
Single Family Attached SFA
Single Family Detached SFD
Single Family Residence SFR
Townhouse TH
CDPURPOSE Unknown
Unknown U
Construction CN
Construction/Permanent CP
Debt Consolidation DC
Annex 1-19
Home Improvement HI
Investment IN
Other OTH
Purchase P
Refinance - Cashout CO
Refinance - Rate Term RT
Refinance - Unknown Type RU
CDSECTION32 Unknown
Unknown U
High Cost Y
Not High Cost N
CDSELFEMP Unknown
Unknown U
Yes Y
No N
Not Applicable N/A
PMTFREQ Unknown
Unknown U
Bi-weekly B
Monthly M
Quarterly Q
Semi-Annually S
Annually A
Annex 1-20
Annex 2
TRUST RECEIPT
CDC Mortgage Capital Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: [___________________]
[____________, 200_]
Re: Custodial and Disbursement Agreement, dated as of August 25, 2004
(the "Custodial and Disbursement Agreement"), among Oak Street
Mortgage LLC, as Seller, Deutsche Bank National Trust Company as
Custodian and Disbursement Agent, and CDC Mortgage Capital Inc., as
Buyer.
Ladies and Gentlemen:
In accordance with the provisions of Section 3(b) of the above-referenced
Custodial and Disbursement Agreement (capitalized terms not otherwise defined
herein having the meanings ascribed to them in the Custodial and Disbursement
Agreement), the undersigned, as Custodian, hereby certifies with respect to each
Mortgage Loan described in the attached Asset Schedule and Exception Report as
to all matters (subject to the Exceptions listed therein) set forth in Section
3(c) of the Custodial and Disbursement Agreement.
The delivery of the attached Asset Schedule and Exception Report evidences
that, other than the Exceptions listed as part of the Exception Report (i) all
documents required to be delivered in respect of each Mortgage Loan pursuant to
Section 2 of the Custodial and Disbursement Agreement have been delivered and
are in the possession of Custodian as part of the Mortgage File for such
Mortgage Loan, (ii) Custodian is holding each Mortgage Loan identified on the
Asset Schedule and Exception Report (except with respect to MERS Designated
Mortgage Loans), pursuant to the Custodial and Disbursement Agreement, as the
bailee of and custodian for 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 Mortgage Loan and satisfy the requirements set forth in
Section 2 of the Custodial and Disbursement Agreement and the Review Procedures
and (iv) the amount of the Mortgage Note is the same as the amount specified on
the related Mortgage, and based upon a review of the Mortgage Note, items 6, 8
through 12, 14, 21, 22, 118 and 119 of Annex 1 as set forth in the Seller Asset
Schedule delivered by Seller to Custodian are correct.
Custodian makes no representations as to, and shall not be responsible to
verify, (i) the validity, legality, enforceability, due authorization,
recordability, sufficiency, or genuineness of any of the documents contained in
each Mortgage File or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan.
Each Asset Schedule and Exception Report covering all Mortgage Loans sold
to Buyer, delivered to Buyer by Custodian shall supersede and cancel the
previously delivered Asset Schedule and Exception Report attached to the Trust
Receipt, and shall control and be
Annex 2-1
binding upon the parties hereto. The holder of this Trust Receipt is advised to
contact Custodian to determine whether the attached Asset Schedule and Exception
Report is the most recently delivered.
THIS TRUST RECEIPT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS TRUST RECEIPT OR
ANY INTEREST HEREIN WITHOUT REGISTRATION HEREOF UNDER THE ACT MAY ONLY BE MADE
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
solely in its capacity as Custodian
By ____________________________________________
Name:
Title:
By ____________________________________________
Name:
Title:
Annex 2-2
Annex 3
CUSTODIAL IDENTIFICATION CERTIFICATE
On this _____ day of _____________ ▇▇▇_, ▇▇▇ ▇▇▇▇▇▇ Mortgage LLC (the
"Seller"), under that certain Custodial and Disbursement Agreement, dated as of
August 25, 2004 (the "Custodial and Disbursement Agreement"), among Seller,
Deutsche Bank National Trust Company, as Custodian, Deutsche Bank National Trust
Company, as Disbursement Agent, and CDC Mortgage Capital Inc., as Buyer, does
hereby instruct Custodian to hold, in its capacity as Custodian, the Mortgage
Files with respect to the Mortgage Loans listed on Attachment A hereto, which
Mortgage Loans shall be subject to the terms of the Custodial and Disbursement
Agreement as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Custodial and Disbursement Agreement.
IN WITNESS WHEREOF, Seller has caused this Custodial Identification
Certificate to be executed and delivered by its duly authorized officer as of
the day and year first above written.
OAK STREET MORTGAGE LLC
By ____________________________________________
Name:
Title:
Annex 3-1
Attachment A
to Annex 3
PURCHASED ASSETS
[Attach appropriate Asset Schedules]
Annex 3A-1
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(i)(B) 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 Seller 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 on the first page and has evidence of recording thereon
provided that Custodian shall have no responsibility for the
accuracy or completeness of such legal description;
5. the notary section (acknowledgment) is present and attached to the
related Mortgage and is signed;
6. neither the original Mortgage Note, nor the copy of the Mortgage
delivered pursuant to the Agreement, nor the original Assignment of
Mortgage contain any notations on their face which appear in the
good faith judgment of Custodian to evidence any claims, liens,
security interests, encumbrances or restrictions on transfer;
7. the Mortgage Note is endorsed in blank by the named holder or payee
thereof;
8. 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 (and any other necessary party), as applicable, or in the
case of copies permitted under Section 2(i)(E) 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;
9. 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
10. the notary section (acknowledgment) is present and attached to each
intervening assignment and is signed;
11. based upon a review of the Mortgage Note, items 6, 8 through 12, 14,
21, 22, 118 and 119 of Annex 1 for each asset class as set forth in
the Seller Asset Schedule delivered by Seller to Custodian are
correct;
12. with respect to each MERS Designated Mortgage Loan, shall verify the
"MERS Identification Number" column by comparing such MERS
Identification Number to each of (a) the information in the MERS
Report and (b) the information in the Mortgage Note; and
13. with respect to each MERS Designated Mortgage Loan, shall verify
that no Person is listed as Interim Funder on the MERS(R) System,
upon the request of the Buyer. In the event that a Person is
designated as Interim Funder on any Purchase Date, the Custodian
shall be required to review such field on the next succeeding
Business Day following such Purchase Date to verify that the Interim
Funder field is blank.
Annex 4-2
Annex 5-A
REQUEST FOR RELEASE AND RECEIPT
Date: [__________, 20__]
The undersigned, Oak Street Mortgage LLC (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 CDC Mortgage Capital Inc. (the "Buyer") under the Master Repurchase
Agreement (the "Repurchase Agreement"), dated as of August 25, 2004 between
Seller and Buyer, of the following described documentation for the identified
Mortgage Loan (the "Documentation"), possession of which is entrusted to Seller
solely for the purpose of correcting the following documentary defects relating
thereto:
Documentation:__________________________________________________________________
________________________________________________________________________________
Defect:_________________________________________________________________________
________________________________________________________________________________
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 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 Buyer as provided under
and in accordance with all provisions of the Repurchase Agreement and to return
said Documentation no later than the close of business on the twelfth calendar
day following the date hereof to Deutsche Bank National Trust Company; ▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: OA040C.
Annex 5-A-1
Annex 5-B
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To: [Address]
Re: The Custodial and Disbursement Agreement, dated as of August 25,
2004 among Oak Street Mortgage LLC (the "Seller"), CDC Mortgage
Capital Inc. (the "Buyer"), Deutsche Bank National Trust Company, as
custodian (the "Custodian") and Deutsche Bank National Trust
Company, as disbursement agent (the "Disbursement Agent").
In connection with the administration of the Mortgage Loans held by
you as Custodian on behalf of Buyer, we request the release, to be delivered to
[us] [_____________ as servicer (the "Servicer")], of the (Mortgage
File/[specify documents]) for the Mortgage Loan described below, for the reason
indicated.
Mortgagor's Name, Address & Zip Code: Ship Files To:
Name:
Address:
Telephone Number:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
__1. Mortgage 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 Loan Liquidated By _____________. (Seller hereby certifies that
all proceeds of insurance, condemnation or other liquidation have been
finally received and credited to Buyer.)
__3. Other (explain) ____________________________.
If box 1 or 2 above is checked, and if all or part of the Mortgage
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 Mortgage 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
undersigned 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 to return said Purchased Assets to Custodian no later
than the twelfth calendar day following the date hereof.
The undersigned hereby acknowledges that it shall hold said
Purchased Assets in trust for, and as bailee of, Buyer and shall return said
Purchased Assets only to Custodian if Mortgage Loan has not paid in full or
completely liquidated as certified above.
Annex 5-B-2
Annex 5-C
REQUEST FOR RELEASE
[DATE]
The undersigned, Oak Street Mortgage LLC (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 Buyer (as
that term and other capitalized terms not otherwise defined herein are defined
in that certain Master Repurchase Agreement, dated as of August 25, 2004 (the
"Agreement"), between Seller and CDC Mortgage Capital Inc., as Buyer of the
following described documentation for the Eligible Assets identified on the
Seller 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
Mortgagor 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].
Annex 5-C-1
Schedule 1 to Annex 5-C
SELLER ASSET SCHEDULE
Annex 5-C-2
Annex 6
AUTHORIZED REPRESENTATIVES OF BUYER
Name Title Specimen Signature
_____________________________ _____________________________ ________________________
_____________________________ _____________________________ ________________________
_____________________________ _____________________________ ________________________
_____________________________ _____________________________ ________________________
_____________________________ _____________________________ ________________________
Annex 6-1
Annex 7
AUTHORIZED REPRESENTATIVES OF SELLER
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
ESCROW INSTRUCTION PARAGRAPH
The funds to be used for closing this transaction may be
provided via wire transfer from or on behalf of a lender to Oak
Street Mortgage, LLC. Any and all such closing funds received by you
shall be deposited in an interest-bearing account(s) in such bank or
banks approved by such lender, and any and all interest on the same
shall remain in such account(s) and shall belong to such lender.
Until such time as the closing funds are disbursed pursuant to the
escrow instructions, such closing funds shall be the property of the
lender and shall be held by you on behalf of lender and not on
behalf of any other party. If the mortgage loan is not funded by
[5:00 p.m.] New York time on the business day on which you receive
the closing funds, you are to return the closing funds via federal
funds wire transfer to the lender.
Upon the funding of the mortgage loan, all of the
documents and files relating to such mortgage loan shall be owned by
lender, and you hereby agree to act as lender's agent, custodian and
bailee for such time as you are holding the same. These instructions
shall be irrevocable and can only be modified with the approval in
writing of the lender.
Annex 10-1
Annex 11
EXCEPTION CODES
ID
No. Document Exceptions Code Description CDC Annex 11 Fatal
---- -------------------- ---- -------------------------------- -------------------------------------------- -----
1. Assignment DNE Document Unexecuted Assignment in blank is not signed (F) x
2. Assignment P Photo-Copy Assignment in blank is not original (F) x
3. Assignment M Not Received No Corporate assignment in blank (F) x
4. Assignment O* Original with comment Blank assignments is not notarized (F) x
5. Assignment INC Incomplete/Incorrect Applies to Borrower's name is not on blank assignment
Amount,Name,Address,Legal
Description,Riders
6. Assignment INC Incomplete/Incorrect Applies to Corporate assignment in blank missing D. B. A.
Amount,Name,Address,Legal (doing business as)
Description,Riders
7. Assignment INC Incomplete/Incorrect Applies to Assignment in blank is not executed by Seller
Amount,Name,Address,Legal name on grid-3rd party
Description,Riders
8. Assignment M Not Received Assignment to GNMA is missing (F) x
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/ M Not Received Consolidation/Modification agreement is missing
Extension/
Modification
Agreement
20. Consolidation/ P Photo-Copy Consolidation/Modification agreement is not
Extension/ certified
Modification
Agreement
21. Consolidation/ CV Can't Verify
Extension/
Modification
Agreement
22. Consolidation/ DNE Document Unexecuted
Extension/
Modification
Agreement
Annex 11-1
23. Consolidation/ DNR Document/Data Not Reviewed
Extension/
Modification
Agreement
24. Consolidation/ INC Incomplete/Incorrect Amount
Extension/ Less than Mortgage, Missing
Modification Legal Description
Agreement
25. Consolidation/ NA Not Applicable
Extension/
Modification
Agreement
26. Endorsement M Not Received Endorsement in blank on the note is missing (F) x
27. Endorsement DNE Document Unexecuted Endorsement in blank on the note is missing x
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 x
investor (F)
30. Endorsement INC Incomplete/Incorrect Corporate assignment in blank is CDC
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) x
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 M Not Received Intervening assignment (from/to) is missing
Assignment
42. Intervening DNE Document Unexecuted Intervening assignment (from/to) is not signed
Assignment
43. Intervening P Photo-Copy Intervening assignment (from/to) is not
Assignment certified
44. Intervening O* Original with comment Corporate assignment has no legal description
Assignment and is not complete
45. Intervening BKT Blanket Assignment
Assignment
46. Intervening BRK Break in Chain
Assignment
47. Intervening CV Can't Verify
Assignment
48. Intervening DNR Document/Data Not Reviewed
Assignment
49. Intervening INC Incomplete/Incorrect Applies to
Assignment Amount,Name,Address
50. Intervening NA Not Applicable
Assignment
51. Intervening M Not Received Intervening endorsement (from/to) on note x
Endorsement missing (F)
52. Intervening DNE Document Unexecuted Intervening endorsement (from/to) on the note x
Endorsement is missing authorized signature (F)
Annex 11-2
53. Intervening BRK Break in Chain
Endorsement
54. Intervening CV Can't Verify
Endorsement
55. Intervening DNR Document/Data Not Reviewed
Endorsement
56. Intervening INC Incomplete/Incorrect
Endorsement
57. Intervening NA Not Applicable
Endorsement
58. Intervening O* Original with comment
Endorsement
59. Intervening P Photo-Copy
Endorsement
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 M Not Received Mortgage/Deed is missing (faxable cure) (F) x
Trust
63. Mortgage/Deed of P Photo-Copy Mortgage/Deed is not certified
Trust
64. Mortgage/Deed of O* Original with comment Mortgage/Deed is missing assumption agreement
Trust
65. Mortgage/Deed of INC Incomplete/Incorrect Applies to Mortgage/Deed - the borrower's name and
Trust Amount,Name,Address,Legal signature does not match the note
Description,Riders
66. Mortgage/Deed of INC Incomplete/Incorrect Applies to Mortgage/Deed - the amount is not less or
Trust Amount,Name,Address,Legal equal to the amount on the note
Description,Riders
67. Mortgage/Deed of DNE Document Unexecuted Mortgage/Deed is not signed (F) x
Trust
68. Mortgage/Deed of INC Incomplete/Incorrect Applies to Husband and Wife's name is not on note but on
Trust Amount,Name,Address,Legal mortgage
Description,Riders
69. Mortgage/Deed of INC Incomplete/Incorrect Applies to Mortgage date does not match the note date
Trust Amount,Name,Address,Legal
Description,Riders
70. Mortgage/Deed of O* Original with comment Mortgage/Deed is missing riders
Trust
71. Mortgage/Deed of INC Incomplete/Incorrect Applies to Mortgage/Deed is missing Schedule A (legal
Trust Amount,Name,Address,Legal description)
Description,Riders
72. Mortgage/Deed of O* Original with comment Missing power of attorney (faxable cure) (F)
Trust
73. Mortgage/Deed of O* Original with comment Mortgage/Deed not notarized
Trust
74. Mortgage/Deed of INC Incomplete/Incorrect Applies to Mortgage/Deed is missing one or more pages
Trust Amount,Name,Address,Legal
Description,Riders
75. Mortgage/Deed of INC Incomplete/Incorrect Applies to Mortgagors name matches grid, loan number does
Trust Amount,Name,Address,Legal not
Description,Riders
76. Mortgage/Deed of P Photo-Copy Mortgage/Deed copy UR
Trust
77. Mortgage/Deed of P Photo-Copy Mortgage/Deed CTC UR
Trust
Annex 11-3
78. Mortgage/Deed of O* Original with comment Mortgage/Deed UR
Trust
79. Mortgage/Deed of CV Can't Verify
Trust
80. Mortgage/Deed of DNR Document/Data Not Reviewed
Trust
81. Mortgage/Deed of NA Not Applicable
Trust
82. Note M Not Received Note missing (F) x
83. Note CT Copy - Certified Note is not original (F) x
84. Note P Photo-Copy Note is not original (F) x
85. Note CV Can't Verify Note is missing borrower's name (F) x
86. Note INC Incomplete/Incorrect Applies to Note-borrower's name does not match the file x
Amount, Name, Address (F)
87. Note DNE Document Unexecuted Note is missing borrower's signature (F) x
88. Note INC Incomplete/Incorrect Applies to Note face amount does not match grid
Amount, Name, Address
89. Note O* Original with comment Balloon note is missing rider
90. Note INC Incomplete/Incorrect Applies to Correction on note is not initialed (F)
Amount, Name, Address
91. Note INC Incomplete/Incorrect Applies to On original note written and numeric amounts
Amount, Name, Address do not agree
92. Note INC Incomplete/Incorrect Applies to Loan number matches grid, mortgagors name does
Amount, Name, Address not
93. Note INC Incomplete/Incorrect Applies to Note is signed by a corporation
Amount, 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 Principal amount, alpha and numeric, if x
Amount, Name, Address included on note do not match (F)
97. Note INC Incomplete/Incorrect Applies to Property street address, city and state, do x
Amount, Name, Address not match (if property address is included on
the note (F)
98. Note O* Original with comment Promissory note requires a notorization, x
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 CV Can't Verify
Annex 11-4
Lease/Occupancy
Agreement
108. Proprietary DNE Document Unexecuted
Lease/Occupancy
Agreement
109. Proprietary DNR Document/Data Not Reviewed
Lease/Occupancy
Agreement
110. Proprietary M Not Received
Lease/Occupancy
Agreement
111. Proprietary NA Not Applicable
Lease/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 x
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) x
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 ▇▇-▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LETTER
[Custodian Letterhead]
Re: [Insert Description of Loan, including Seller's Name, Loan Amount
and Purchaser's 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 "Mortgage 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 Mortgage Loan, you acknowledge that (i)
CDC Mortgage Capital Inc. ("CDC") is the owner of the Mortgage 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
"Mortgage Loan Documents"), in trust, as bailee for and agent of Deutsche Bank
National Trust Company ("Custodian") (which holds the Mortgage Loan Documents as
custodian and bailee for the benefit of CDC). 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 Mortgage 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 Repurchase Price (as defined in the Master Repurchase
Agreement, between CDC and the Seller for such Mortgage Loan to CDC (the
"Takeout Date") or (ii) return of the Mortgage Loan Documents to Custodian, as
set forth below. CDC does hereby transfer, assign and convey any and all of its
right, title and interest in the Mortgage Loan and Mortgage Loan Document to you
effective as of the Takeout Date upon receipt of the Repurchase Price in full.
For purposes of the Takeout Date set forth above, the Repurchase
Price shall be deemed paid in full when CDC receives a federal wire transfer in
the amount of the purchase price for the mortgage loans agreed to be paid by
you, without offset or deduction (the "Commitment Price") sent to CDC in
immediately available funds to: [Name of Bank]; ABA:[__________]; Account #:
[__________]; Account Name: [__________].
You agree only to send payments to CDC, as specified above, and not
to honor a change in the above wire transfer or mailing instructions unless
provided in writing and signed by CDC.
You agree to deliver the Mortgage Loan Documents: (a) Upon your
receipt of CDC's written request therefor (provided that such request is
received by you prior to your
Annex 12-1
payment of the Commitment Price); (b) promptly, in the event that you elect not
to purchase the Mortgage 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 Mortgage Loan
Documents as may be agreed upon in writing between CDC and you. Any delivery by
you to Custodian shall be made by express mail to the address of Custodian set
forth below; provided however, that in no case shall you return such Mortgage
Loan Document to Custodian later than thirty (30) calendar days after receipt of
such Mortgage Loan Document.
Any Mortgage Loan Documents (or portion thereof) being returned in
accordance herewith shall be sent to Custodian by overnight courier to: Deutsche
Bank National Trust Company; ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: OA040C, no later than thirty (30) calendar days after the date
hereof.
Any questions relating to the Mortgage Loan Documents should be
referred to the attention of ▇▇▇ ▇▇▇▇▇▇▇▇ at CDC, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇.
By acknowledging receipt of this Bailee Letter you shall be bound by
the terms hereof. CDC requests that you acknowledge receipt of the Mortgage 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 [Purchaser's] acceptance of the
terms of this Bailee Letter.
Sincerely,
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Acknowledged and Agreed this __ day of
_______, 200_
[PURCHASER]
By:____________________________________
Name:
Title:
Annex ▇▇-▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LETTER
[Custodian Letterhead]
[Custodian/Trustee]
________________________
________________________
Re: Shipment of Mortgage Loans for Pool Formation
Ladies and Gentlemen:
Attached please find those Mortgage Loans listed separately on the
attached schedule, which are owned by CDC Mortgage Capital 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 Mortgage 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, dated as of August 25,
2004 (the "Agreement"), between Oak Street Mortgage LLC ("Seller"), and CDC
Mortgage Capital Inc., as buyer (the "Buyer"). Each of the Mortgage Loans is the
property of Buyer, and upon the issuance and delivery of the MBS to Buyer, 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 Mortgage Loan is
unacceptable for purchase, return the Mortgage Loan directly to Custodian at its
address set forth below. In no event shall any Mortgage Loan be returned to, or
sales proceeds remitted to, Seller. The Mortgage Loan must be so returned or
sales proceeds remitted in full no later than sixty (60) 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 MORTGAGE 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 MORTGAGE 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
[RESERVED].
Annex 14-1
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 Mortgage
Loans held by Custodian on behalf of CDC Mortgage Capital Inc. (the "Buyer"),
_______________ (hereinafter called "Deponent"), being duly sworn, deposes and
says that:
1. Custodian's address is:
2. ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3. Custodian previously delivered to Buyer an 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 [__], 2004;
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 Oak Street
Mortgage LLC or its designee and (ii) the Mortgage which secures the
Mortgage Note, which Mortgage is recorded at _________________
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 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
Annex 15-1
Originals or any interest in such mortgage loan, (iii) any claim of
any borrower with respect to the existence of terms of a Mortgage
Loan evidenced by the Originals, (iv) the issuance of a 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 (iv) above are hereinafter
referred to as the "Losses") and (b) if required by any rating
agency in connection with placing 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 15-2
Annex 16
FORM OF SETTLEMENT REPORT
CDC/OAK STREET REPURCHASE AGREEMENT
Dated: _________
ELIGIBLE ASSETS FOR REPURCHASE
REPURCHASE DATE REPURCHASE PRICE PURCHASE PRICE PRICE DIFFERENTIAL
------------------- ---------- ---------------- -------------- ------------------
___________________ ___________ ________________ ______________ __________________
___________________ ___________ ________________ ______________ __________________
___________________ ___________ ________________ ______________ __________________
___________________ ___________ ________________ ______________ __________________
___________________ ___________ ________________ ______________ __________________
Total Repurchase Price: $__________________
Funds to be released to Buyer: $_________________
Annex 16-1
Annex 17-A
FORM OF SELLER'S RELEASE
[Date]
CDC Mortgage Capital Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Master Repurchase Agreement, dated as of August 25, 2004 (the "Repurchase
Agreement"), by and between Oak Street Mortgage LLC (the "Seller") and CDC
Mortgage Capital Inc. (the "Buyer")
Ladies and Gentlemen:
With respect to the mortgage loans described in the attached
Schedule A (the "Mortgage Loans") (a) we hereby certify to you that the Mortgage
Loans are not subject to a lien of any third party and (b) we hereby release all
right, interest or claim of any kind with respect to such Mortgage Loans, such
release to be effective automatically without further action by any party upon
payment from CDC Mortgage Capital Inc., 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.
Very truly yours,
OAK STREET MORTGAGE LLC
By: ____________________________________
Name:
Title:
Annex 17-A-1
Exhibit A to Annex 17-A
[FORM OF SELLER'S WIRE INSTRUCTIONS]
(to be provided)
Exhibit 17-A-1
Annex 17-B
FORM OF WAREHOUSE LENDER'S RELEASE
(Date)
CDC Mortgage Capital Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Certain Mortgage 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 18
FORM OF PAYMENT DATE REPORT
BEGINNING ENDING PERIODIC
CUSTOMER OUTSTANDING OUTSTANDING ADVANCE
LINE EFFECTIVE PURCHASE ADDITIONAL AGGREGATE AGGREGATE LIBOR REPURCHASE
SUBLIMIT DATE PRICE PURCHASES REPURCHASES PURCHASES RATE SPREAD PAYMENT
-------- --------- ----------- ---------- ----------- ----------- ----- ------ ----------
TOTAL / / 0.00 0.00 0.00 0.00 0.00
---- ---- ---- ---- ----
TOTAL 0.00 0.00 0.00 0.00 0.00
SUBTOT: 0.00 0.00 0.00 0.00 0.00
TOTAL: 0.00 0.00 0.00 0.00 0.00
---- ---- ---- ---- ----
TOTAL: 0.00 0.00 0.00 0.00 0.00
Annex 18-1
Annex 19
FORM OF ELECTRONIC TRACKING AGREEMENT
THIS ELECTRONIC TRACKING AGREEMENT, dated as of [____], 2004
("Agreement"), among CDC Mortgage Capital Inc. ("Buyer"), Oak Street Mortgage
LLC (the "Seller"), Deutsche Bank National Trust Company, as custodian (the
"Custodian"), MERSCORP, Inc. ("Electronic Agent") and Mortgage Electronic
Registration Systems, Inc. ("MERS").
WHEREAS, the Buyer has agreed to purchase from the Seller, from time to
time, certain residential first mortgage loans (the "Mortgage Loans") pursuant
to the terms and conditions of a Master Repurchase Agreement, dated as of August
25, 2004, between the Buyer and the Seller, as amended from time to time (the
"Repurchase Agreement"), and a Custodial and Disbursement Agreement, dated as of
August 25, 2004, among the Custodian, the Disbursement Agent, the Buyer and the
Seller, as amended from time to time (the "Custodial Agreement"); and
WHEREAS, the Seller is obligated to cause the Mortgage Loans to be
serviced pursuant to the terms and conditions of the Repurchase Agreement and to
complete all actions necessary to cause the issuance and delivery to the
Custodian of the Notes evidencing the Mortgage Loans (the "Mortgage Notes"); and
WHEREAS, the Buyer, the Custodian and the Seller desire to have certain
Mortgage Loans registered on the MERS(R) System (defined below) such that the
mortgagee of record under each Mortgage (defined below) shall be identified as
MERS;
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Agreement shall have the meanings ascribed
to them below.
"Affected Loans" shall have the meaning assigned to such term in Section
4(b).
"Assignment of Mortgage" shall mean, with respect to any Mortgage, an
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related mortgaged property is located to effect the assignment of the Mortgage
upon recordation.
"Document Custodian" shall mean, with respect to each MERS Designated
Mortgage Loan, the Person named on the MERS(R) System as the document custodian
pursuant to the MERS Procedures Manual.
Annex 19-1
"Event of Default" shall mean an "Event of Default" as defined in the
Repurchase Agreement.
"Incomplete MERS Designated Mortgage Loan" shall have the meaning assigned
to such term in Section 21 below.
"Interim Funder" shall mean, with respect to each MERS Designated Mortgage
Loan, the Person named on the MERS(R) System as the interim funder pursuant to
the MERS Procedures Manual.
"MERS Designated Mortgage Loan" shall have the meaning assigned to such
term in Section 3.
"MERS Member" shall mean a Person that has the status and rights of a
member of MERS with respect to specified mortgage loans in accordance with the
MERS Procedures Manual.
"MERS Procedures Manual" shall mean the MERS Procedures Manual attached as
Exhibit B hereto, as it may be amended from time to time.
"MERS(R) System" shall mean the Electronic Agent's mortgage electronic
registry system, as more particularly described in the MERS Procedures Manual.
"Mortgage" shall mean with respect to a Mortgage Loan that is not a co-op
loan, the mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien on a fee simple residential dwelling securing the
Mortgage Note or a leasehold estate with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely accepted practice and with respect to a co-op loan, the related
co-op security agreement.
"Mortgage Loan" shall mean each mortgage loan which Custodian has been
instructed to hold for Buyer pursuant to the Custodial and Disbursement
Agreement, and which Mortgage Loan includes, without limitation, (i) a Mortgage
Note and related Mortgage, and (ii) all right, title and interest of Seller in
and to the Mortgaged Property covered by such Mortgage.
"Mortgage Loan Documents" shall mean the originals of the Mortgage Notes
and other documents and instruments required to be delivered to the Custodian in
connection with each transaction, all pursuant to the Custodial Agreement.
"Mortgage Note" shall mean a promissory note or other evidence of
indebtedness of the obligor thereunder, representing a Mortgage Loan, and
secured by the related Mortgage.
"Mortgagor" shall mean the obligor on a Mortgage Note.
Annex 19-2
"Notice of Default" shall mean a notice from the Custodian that an Event
of Default has occurred and is continuing.
"Opinion of Counsel" shall mean a written opinion of counsel in form and
substance reasonably acceptable to the Custodian.
"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).
"Servicer" shall mean, with respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the servicer pursuant to the MERS
Procedures Manual.
SECTION 2. APPOINTMENT OF THE ELECTRONIC AGENT.
(a) The Buyer, the Custodian and the Seller, by execution and delivery of
this Agreement, each does hereby appoint MERSCORP, Inc. as the Electronic Agent,
subject to the terms of this Agreement, to perform the obligations set forth
herein.
(b) MERSCORP, Inc., by execution and delivery of this Agreement, does
hereby (i) agree with the Buyer, the Custodian and the Seller subject to the
terms of this Agreement to perform the services set forth herein, and (ii)
accept its appointment as the Electronic Agent.
SECTION 3. DESIGNATION OF MERS AS MORTGAGEE OF RECORD; DESIGNATION OF INVESTOR
AND SERVICER OF RECORD IN MERS.
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 Mortgage Loan registered under the MERS(R) System
and held by the Custodian on behalf of Buyer, and in accordance with the MERS
Procedures Manual, the Seller has designated or shall designate the Seller as
the investor in the MERS(R) System for each such Mortgage Loan (each such
Mortgage Loan, upon such designation by MERS, a "MERS Designated Mortgage Loan")
and has designated or shall designate the Custodian as Document Custodian and
the related servicer (which may be Seller) as Servicer on the MERS(R) System for
each MERS Designated Mortgage Loan.
SECTION 4. OBLIGATIONS OF THE ELECTRONIC AGENT.
(a) The Electronic Agent shall ensure that MERS, as the mortgagee of
record under each MERS Designated Mortgage Loan, shall promptly forward all
properly identified notices MERS receives in such capacity to the person or
persons identified in the MERS(R) System as the servicer or if a subservicer is
identified in the MERS(R) System, the subservicer for such MERS Designated
Mortgage Loan.
Annex 19-3
(b) Upon receipt of a Notice of Default from the Custodian, in which the
Custodian shall identify the MERS Designated Mortgage Loans with respect to
which such Event of Default has occurred (the "Affected Loans"), the Electronic
Agent shall modify the investor fields and/or servicer fields to reflect the
investor and/or servicer on the MERS(R) System as the Buyer or its designee with
respect to such Affected Loans. Following such Notice of Default, the Electronic
Agent (i) shall not permit the Seller to change any MERS fields, (ii) shall
follow the instructions of the Buyer or Custodian with respect to the Affected
Loans without further consent of the Seller, and (iii) shall deliver to the
Custodian any documents and/or information (to the extent such documents or
information are in the possession or control of the Electronic Agent) with
respect to the Affected Loans requested by the Buyer or Custodian (acting at
Buyer's direction).
(c) Upon the Buyer's or Custodian's (acting at Buyer's direction) request
and instructions, and at Seller's sole cost and expense, the Electronic Agent
shall deliver to the Custodian or the Custodian's designee, with respect to each
Affected Loan as to which a request is made, an Assignment of Mortgage from
MERS, in blank, in recordable form but unrecorded, provided, however, that the
Electronic Agent shall not be required to comply with the foregoing unless the
costs and expenses of doing so shall be paid by the Seller or a third party.
(d) The Electronic Agent shall promptly notify the Custodian if it has
actual knowledge that (i) any mortgage, pledge, lien, security interest or other
charge or encumbrance exists with respect to any of the MERS Designated Mortgage
Loans other than in favor of the Buyer or Custodian, or (ii) if any party (other
than the Buyer or Custodian) is listed on the MERS(R) System as Interim Funder
with respect to any of the MERS Designated Mortgage Loans (provided, that the
parties hereto understand and agree that the Custodian is not intended or
required to be listed as Interim Funder with respect to any of the MERS
Designated Mortgage Loans). Upon the reasonable request of the Buyer or
Custodian, the Electronic Agent shall review the field designated "interim
funder" and shall notify the Custodian (acting at Buyer's direction) if any
Person (other than the Buyer or Custodian) is identified in the field designated
"interim funder."
(e) In the event that (i) the Seller, the Electronic Agent or MERS shall
be served by a third party with any type of levy, attachment, writ or court
order with respect to any MERS Designated Mortgage Loan or (ii) a third party
shall institute any court proceeding by which any MERS Designated Mortgage Loan
shall be required to be delivered otherwise than in accordance with the
provisions of this Agreement, the Electronic Agent shall promptly deliver or
cause to be delivered to the other parties to this Agreement copies of all court
papers, orders, documents and other materials concerning such proceedings.
(f) Upon the request of the Buyer or Custodian (acting at Buyer's
direction), the Electronic Agent shall run a query with respect to any and all
specified fields with respect to any or all of the MERS Designated Mortgage
Loans to ensure that they have been registered in accordance with the terms of
this Agreement and, if requested by the Buyer or Custodian (acting at Buyer's
direction), shall change the information in such fields in accordance with the
Buyer's
Annex 19-4
Custodian's (acting at Buyer's direction) instructions. The Seller hereby
expressly authorizes the Electronic Agent to comply with any such instructions
of the Custodian.
(g) At the request of the Servicer, with respect to any MERS Designated
Mortgage Loan, or, in the case of an Event of Default, at the request of the
Buyer or Custodian (acting at Buyer's direction), MERS, as mortgagee of record
for the MERS Designated Mortgage Loans, shall take all such actions as may be
required by a mortgagee in connection with servicing the MERS Designated
Mortgage Loans, including, but not limited to, executing and/or recording, any
modification, waiver, subordination agreement, instrument of satisfaction or
cancellation, partial or full release, discharge or any other comparable
instruments, and only if such costs and expenses are paid by the Seller or a
third party; provided, that whether or not an Event of Default shall exist, MERS
shall not execute or record any such instrument without the prior written
consent of the Buyer or Custodian (acting at Buyer's direction).
(h) MERS shall cause certain officers of the Custodian to be appointed
officers of MERS with respect to the MERS Designated Mortgage Loans, with the
power to wield all of the powers specified in the form of corporate resolution
used to appoint such officer attached hereto as Exhibit D.
SECTION 5. SELLER'S AUTHORIZATION.
(a) The Seller expressly agrees that, upon the occurrence of an Event of
Default, the Custodian is authorized to submit a Notice of Default to the
Electronic Agent accompanied by a list of Affected Loans. The Seller authorizes
the Electronic Agent, upon receipt of a Notice of Default, to terminate the
Seller's access to the MERS(R) System with respect to the Affected Loans and to
replace the Seller with the Buyer or its designee in the "investor," "servicer"
and/or "subservicer" fields. Upon Seller curing any such Event of Default,
Seller shall be allowed access to the MERS(R) System with respect to the
Affected Loans and Seller or its designee will replace the Buyer in the
"investor," "servicer" and/or "subservicer" fields.
(b) The Seller authorizes the Electronic Agent to appoint certain officers
of the Custodian as officers of MERS with respect to the MERS Designated
Mortgage Loans and further authorizes such appointed officers to take any of the
actions authorized under the corporate resolution attached hereto as Exhibit D.
SECTION 6. ACCESS TO INFORMATION; REPORTS.
Upon the request of the Buyer or Custodian (acting at Buyer's direction),
the Electronic Agent and MERS will promptly (and in any event no later than two
business days after request) furnish the Custodian or its respective auditors
and regulators information in their possession with respect to the MERS
Designated Mortgage Loans and shall permit them to inspect the Electronic
Agent's and MERS' records relating to the MERS Designated Mortgage Loans at all
reasonable times during regular business hours.
Annex 19-5
SECTION 7. REPRESENTATIONS OF THE ELECTRONIC AGENT AND MERS.
The Electronic Agent and MERS hereby represent and warrant as of the date
hereof that:
(a) each of the Electronic Agent and MERS has the corporate power and
authority and the legal right to execute and deliver, and to perform its
obligations under this Agreement, and has taken all necessary corporate action
to authorize its execution, delivery and performance of this Agreement;
(b) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent of any other
Person is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement;
(c) this Agreement has been duly executed and delivered on behalf of the
Electronic Agent and MERS and constitutes a legal, valid and binding obligation
of the Electronic Agent and MERS 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 proceedings in equity or at law); and
(d) the Electronic Agent and MERS will maintain at all times insurance
policies for fidelity and errors and omissions in amounts of at least three
million dollars ($3,000,000) and five million dollars ($5,000,000) respectively,
and a certificate and policy of the insurer shall be furnished to the Custodian
upon request and shall contain a statement of the insurer that such insurance
will not be terminated prior to 30 days' written notice to the Custodian.
SECTION 8. REPRESENTATIONS OF THE SELLER.
The Seller represents and warrants as of the date of this Agreement that:
(a) the Seller has the corporate power and authority and the legal right
to execute and deliver, and to perform its obligations under this Agreement, and
has taken all necessary corporate action to authorize its execution, delivery
and performance of this Agreement;
(b) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent of any other
Person is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement; and
(c) this Agreement has been duly executed and delivered on behalf of the
Seller and constitutes a legal, valid and binding obligation of each of the
Seller enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency,
Annex 19-6
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought in proceedings in equity or at law).
SECTION 9. REPRESENTATIONS OF THE CUSTODIAN.
The Custodian represents and warrants as of the date of this Agreement
that:
(a) the Custodian has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under this
Agreement, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement;
(b) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent of any other
Person is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement; and
(c) this Agreement has been duly executed and delivered on behalf of the
Custodian and constitutes a legal, valid and binding obligation of each of the
Custodian and assuming the valid authority of each other party with respect to
the execution, delivery and performance of this Agreement, is 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 proceedings in equity or at law).
SECTION 10. COVENANTS OF MERS.
(a) MERS shall (a) not incur any indebtedness other than in the ordinary
course of its business, (b) not engage in any dissolution, liquidation,
consolidation, merger or sale of assets, (c) not engage in any business activity
in which it is not currently engaged, (d) not take any action that might cause
MERS to become insolvent, (e) not form, or cause to be formed, any subsidiaries,
(f) maintain books and records separate from any other person or entity, (g)
maintain its bank accounts separate from any other person or entity, (h) not
commingle its assets with those of any other person or entity and hold all of
its assets in its own name, (i) conduct its own business in its own name, (j)
pay its own liabilities and expenses only out of its own funds, (k) observe all
corporate formalities, (l) enter into transactions with affiliates only on each
such transaction is intrinsically fair, commercially reasonable, and on the same
terms as would be available in an arm's length transaction with a person or
entity that is not an affiliate, (m) pay the salaries of its own employees from
its own funds, (n) maintain a sufficient number of employees in light of its
contemplated business operations, (o) not guarantee or become obligated for the
debts of any other entity or person, (p) not hold out its credit as being
available to satisfy the obligation of any other person or entity, (q) not
acquire the obligations or securities of its affiliates or owners, including
partners, members or shareholders, as appropriate, (r) not make loans to any
other person or entity or buy or hold evidence of indebtedness issued by any
Annex 19-7
other person or entity (except for cash and investment-grade securities), (s)
allocate fairly and reasonably any overhead expenses that are shared with an
affiliate, including paying for office space and services performed by any
employee of any affiliate, (t) use separate stationery, invoices, and checks
bearing its own name, (u) not pledge its assets for the benefit of any other
person or entity, (v) hold itself out as a separate identity, (w) correct any
known misunderstanding regarding its separate identity, (x) not identify itself
as a division of any other person or entity, and (y) maintain adequate capital
in light of its contemplated business operations.
(b) MERS agrees that in no event shall MERS' status as mortgagee of record
with respect to any MERS Designated Mortgage Loan confer upon MERS any rights or
obligations as an owner of any MERS Designated Mortgage Loan or the servicing
rights related thereto, and MERS will not exercise such rights unless directed
to do so by the Custodian.
(c) MERS and the Electronic Agent agree that upon the receipt of a Notice
of Default from the Custodian accompanied by a list of Affected Loans, the
Electronic Agent will (at the sole cost and expense of the Seller and only if
such costs and expenses are paid by the Seller or a third party) deliver to the
Custodian, or its designee, an Assignment of Mortgage for each of the Affected
Loans, executed by MERS in blank and in recordable form, and any documents
and/or information with respect to the Affected Loans (to the extent such
documents or information are in the possession or control of the Electronic
Agent or MERS) requested by the Buyer or Custodian (acting at Buyer's
direction), and the Electronic Agent will (and will cause MERS to) at the
request of the Buyer or Custodian (acting at Buyer's direction), modify the
investor, servicer and/or subservicer fields to reflect the Buyer, a "non-MERS
member" or such other MERS member as the Buyer or Custodian (acting at Buyer's
direction) designates as the "investor," "servicer," and/or "subservicer" on the
MERS(R) System.
(d) MERS agrees that each officer of the Custodian who has been appointed
an officer of MERS in accordance with Section 4(h) above has the right, by
Assignments of Mortgage, to assign and transfer all of MERS' right, title and
interest in the MERS Designated Mortgage Loans subject to such Assignments of
Mortgage. At the request of the Buyer or Custodian (acting at Buyer's
direction), MERS will enter into and/or acknowledge or confirm any such
Assignment of Mortgage.
SECTION 11. COVENANTS OF SELLER.
The Seller covenants and agrees with the Buyer and the Custodian that:
(a) with respect to each MERS Designated Mortgage Loan, the Seller will
not identify any party as Interim Funder on the MERS(R) System;
(b) the Seller will provide the Custodian with MERS Identification Numbers
for each MERS Designated Mortgage Loan;
Annex 19-8
(c) upon the receipt of a Notice of Default from the Custodian accompanied
by a list of Affected Loans, the Seller will (at the sole cost and expense of
the Seller) execute and deliver to the Custodian or its designee, Assignments of
Mortgage for the Affected Loans, in blank, in recordable form but unrecorded;
(d) each officer of the Custodian, who has been appointed an officer of
MERS in accordance with Section 4(h) above, has the right to assign and transfer
all of MERS' right, title and interest in each MERS Designated Mortgage Loan
subject to an Assignment of Mortgage. At the request of the Buyer or Custodian
(acting at Buyer's direction), the Seller will enter into and/or acknowledge or
confirm any such Assignment of Mortgage; and
(e) the Seller will cooperate with any request from the Buyer, Custodian
or the Electronic Agent regarding access to information contained in the MERS(R)
System and agrees to assist the Buyer or Custodian if the Seller can act to
expedite or enhance any such request.
SECTION 12. NO ADVERSE INTEREST OF THE ELECTRONIC AGENT OR MERS.
By execution of this Agreement, the Electronic Agent and MERS each
represents and warrants that it currently holds, and during the existence of
this Agreement shall hold, no adverse interest, by way of security or otherwise,
in any MERS Designated Mortgage Loan. The MERS Designated Mortgage Loans shall
not be subject to any security interest, lien or right to set-off by the
Electronic Agent, MERS, or any third party claiming through the Electronic Agent
or MERS, and neither the Electronic Agent nor MERS shall pledge, encumber,
hypothecate, transfer, dispose of, or otherwise grant any third party interest
in, the MERS Designated Mortgage Loans.
SECTION 13. INDEMNIFICATION OF THE BUYER AND CUSTODIAN.
The Electronic Agent agrees to indemnify and hold the Buyer, the Seller
and the Custodian and their respective designees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements, including reasonable attorneys' fees, that the
Buyer, the Seller or the Custodian, as applicable, may sustain arising out of
any breach by the Electronic Agent of this Agreement, the Electronic Agent's
negligence, bad faith or willful misconduct, its failure to comply with the
Buyer's or Custodian's instructions hereunder or to the extent caused by delays
or failures arising out of the inability of the Buyer, the Seller, the Custodian
or the Electronic Agent to access information on the MERS(R) System. The
foregoing indemnification shall survive any termination or assignment of this
Agreement.
SECTION 14. RELIANCE OF THE ELECTRONIC AGENT.
(a) In the absence of bad faith on the part of the Electronic Agent, the
Electronic Agent may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any request,
instruction, certificate or other document
Annex 19-9
furnished to the Electronic Agent, reasonably believed by the Electronic Agent
to be genuine and to have been signed or presented by the proper party or
parties and conforming to the requirements of this Agreement.
(b) Notwithstanding any contrary information which may be delivered to the
Electronic Agent by the Seller, the Electronic Agent may conclusively rely on
any information or Notice of Default delivered by the Custodian, and the Seller
shall indemnify and hold the Electronic Agent harmless for any and all claims
asserted against it for any actions taken in good faith by the Electronic Agent
in connection with the delivery of such information or Notice of Default.
SECTION 15. FEES.
It is understood that the Electronic Agent or its successor will charge
such fees and expenses for its services hereunder as set forth in a separate
agreement between the Electronic Agent and the Seller. The Electronic Agent
shall give prompt written notice of any disciplinary action instituted with
respect to the Seller's failure to pay any fees required in connection with its
use of the MERS(R) System, and will give written notice to the Custodian at
least thirty (30) days prior to any revocation of the Seller's membership in the
MERS(R) System.
SECTION 16. RESIGNATION OF THE ELECTRONIC AGENT; TERMINATION.
(a) The Buyer and the Custodian have entered into this Agreement with the
Electronic Agent and MERS in reliance upon the independent status of the
Electronic Agent and MERS, and the representations as to the adequacy of their
facilities, personnel, records and procedures, its integrity, reputation and
financial standing, and the continuance thereof. Neither the Electronic Agent
nor MERS shall assign this Agreement or the responsibilities hereunder or
delegate their rights or duties hereunder (except as expressly disclosed in
writing to, and approved by, Buyer) or any portion hereof or sell or otherwise
dispose of all or substantially all of its property or assets without providing
the Custodian with at least 60 days' prior written notice thereof.
(b) Neither the Electronic Agent nor MERS shall resign from the
obligations and duties hereby imposed on them except by mutual consent of the
Electronic Agent, MERS and Buyer, or upon the determination that the duties of
the Electronic Agent and MERS hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Electronic Agent and
MERS. Any such determination permitting the resignation of the Electronic Agent
and MERS shall be evidenced by an Opinion of Counsel to such effect delivered to
the Custodian which Opinion of Counsel shall be in form and substance acceptable
to the Custodian. No such resignation shall become effective until the
Electronic Agent and MERS have delivered to the Custodian all of the Assignments
of Mortgage, in blank, in recordable form but unrecorded for each MERS
Designated Mortgage Loan identified by the Custodian as owned by Buyer.
Annex 19-10
SECTION 17. REMOVAL OF THE ELECTRONIC AGENT.
(a) The Buyer or Custodian, with or without cause, may remove and
discharge the Electronic Agent and MERS from the performance of its duties under
this Agreement with respect to some or all of the MERS Designated Mortgage Loans
by written notice from the Custodian to the Electronic Agent and the Seller.
(b) In the event of termination of this Agreement, at the Seller's sole
cost and expense, the Electronic Agent shall follow the instructions of the
Buyer or Custodian (acting at Buyer's direction) for the disposition of the
documents in its possession pursuant to this Agreement, and deliver to the
Custodian an Assignment of Mortgage, in blank, in recordable form but unrecorded
for each MERS Designated Mortgage Loan identified by the Custodian as owned by
the Buyer. Notwithstanding the foregoing, in the event that the Buyer terminates
this Agreement with respect to some, but not all, of the MERS Designated
Mortgage Loans, this Agreement shall remain in full force and effect with
respect to any MERS Designated Mortgage Loans for which this Agreement is not
terminated hereunder. Notwithstanding any termination of this Agreement, the
provisions of Section 13 shall survive any termination.
SECTION 18. NOTICES.
All written communications hereunder shall be delivered, via facsimile or
by overnight courier, to the Electronic Agent and/or the Buyer and/or the Seller
and/or the Custodian as indicated on the signature page hereto, or at such other
address as designated by such party in a written notice to the other parties.
All such communications shall be deemed to have been duly given when transmitted
by facsimile, or in the case of a mailed notice, upon receipt, in each case
given or addressed as aforesaid.
SECTION 19. TERM OF AGREEMENT.
(a) This Agreement shall terminate: (i) upon termination by the Buyer
pursuant to Section 17(a) hereof; (ii) upon termination by the Electronic Agent
pursuant to Section 16(b) hereof; or (iii) upon the mutual written agreement by
the parties hereto.
(b) Upon the termination of this Agreement by the Electronic Agent
pursuant to Section 16 hereof, or by Buyer pursuant to Section 17 hereof, or
otherwise under Section 19(a), the Electronic Agent shall, at the Electronic
Agent's sole cost and expense, execute and deliver to the Custodian or its
designee an Assignment of Mortgage with respect to each MERS Designated Mortgage
Loan identified by the Custodian, in blank, in recordable form but unrecorded.
In the event that this Agreement is terminated by the Buyer or the Custodian
without cause, the duties of the Electronic Agent in the preceding sentence
shall be at the sole cost and expense of the Seller. In addition, the Buyer, the
Custodian and the Electronic Agent may, at the sole option of the Buyer, enter
into a separate agreement which shall be mutually acceptable to the parties with
respect to any or all of the MERS Designated Mortgage Loans with respect to
which this Agreement is terminated.
Annex 19-11
SECTION 20. AUTHORIZATIONS.
Any of the persons whose signatures and titles appear on Exhibit A hereto
are authorized, acting singly, to act for the Buyer, the Custodian, the Seller
or the Electronic Agent, as the case may be, under this Agreement. The parties
may change the information on Exhibit A hereto from time to time but each of the
parties shall be entitled to rely conclusively on the then current exhibit until
receipt of a superseding exhibit. In connection with the execution and delivery
of this Agreement, the Seller, the Electronic Agent and MERS shall each deliver
to the Buyer an opinion of counsel as to organization, due authorization and
enforceability with respect to this Agreement.
SECTION 21. MERS DESIGNATED MORTGAGE LOANS NOT YET REGISTERED ON MERS(R) SYSTEM.
The parties hereto acknowledge that there may elapse a period of time
between the pledge of any MERS Designated Mortgage Loan by the Seller to the
Custodian, and the completion of the registration of such Mortgage Loan on the
MERS(R) System in accordance with the terms of the MERS Procedures Manual. The
parties hereto agree that, upon the occurrence of an Event of Default under the
Repurchase Agreement, and the delivery of a Notice of Default by the Custodian
to the Electronic Agent, the Electronic Agent shall (i) take all actions
requested by the Buyer or Custodian (acting at Buyer's direction) to register,
on the MERS(R) System, all MERS Designated Mortgage Loans which, at the time of
such Event of Default, have not yet been fully registered on the MERS(R) System
by the Seller (each such Mortgage Loan, an "Incomplete MERS Designated Mortgage
Loan") in accordance with the terms of the Agreement (including, without
limitation, any actions set forth in Paragraph 10(a) above), and (ii) complete
the investor, servicer and/or subservicer fields with respect to each such
Incomplete MERS Designated Mortgage Loan in accordance with the directions of
the Buyer or Custodian (acting at Buyer's direction). Provided, however, that
the Electronic Agent shall not be required to comply with the foregoing
registration requirement unless the costs and expenses associated with
registering a Mortgage Loan on the MERS(R) System and, if a separate registrar
is used, the reasonable cost of such registrar, shall be paid by the Seller. If
a separate registrar registers the loans on the MERS(R) System on behalf of the
Buyer and/or Custodian, such registrar shall not be deemed an agent of MERS. The
registrar shall be solely an agent for the Buyer and/or the Custodian, and MERS
is only giving consent to the Buyer and/or Custodian to use a registrar to enter
information on the MERS(R) System on behalf of the Buyer and/or the Custodian.
SECTION 22. AMENDMENTS.
This Agreement may be amended from time to time only by written agreement
of the Buyer, the Custodian, the Seller and the Electronic Agent.
Annex 19-12
SECTION 23. SEVERABILITY.
If any provision of this Agreement is declared invalid by any court of
competent jurisdiction, such invalidity shall not affect any other provision,
and this Agreement shall be enforced to the fullest extent required by law.
SECTION 24. BINDING EFFECT.
This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective successors and assigns.
SECTION 25. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
THE BUYER, THE CUSTODIAN, THE SELLER, THE ELECTRONIC AGENT AND MERS EACH
IRREVOCABLY AGREES THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR IN ANY MANNER
RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY COURT OF THE STATE OF NEW YORK,
OR IN THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT EXPRESSLY AND IRREVOCABLY ASSENT AND
SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF ANY SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING.
SECTION 26. WAIVER OF JURY TRIAL.
THE BUYER, THE CUSTODIAN, THE SELLER, THE ELECTRONIC AGENT AND MERS EACH
IRREVOCABLY AGREES TO WAIVE ITS RIGHT TO A JURY TRIAL IN ANY ACTION OR
PROCEEDING AGAINST IT ARISING OUT OF, OR RELATED IN ANY MANNER TO, THIS
AGREEMENT OR ANY RELATED AGREEMENT.
SECTION 27. EXECUTION.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement.
SECTION 28. CUMULATIVE RIGHTS.
The rights, powers and remedies of the Electronic Agent, MERS, the Seller,
the Custodian and the Buyer under this Agreement shall be in addition to all
rights, powers and
Annex 19-13
remedies given to the Electronic Agent, MERS, the Seller, the Custodian and the
Buyer by virtue of any statute or rule of law, or any other agreement, all of
which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing the Buyer's rights in the
Mortgage Loans.
SECTION 29. STATUS OF ELECTRONIC AGENT.
Nothing herein contained shall be deemed or construed to create a
partnership, joint venture between the parties hereto and the services of the
Electronic Agent and MERS shall be rendered as independent contractors for the
Buyer and the Seller. Other than the obligations of the Electronic Agent and
MERS expressly set forth herein, the Electronic Agent and MERS shall have no
power or authority to act as agent for the Buyer, the Custodian or the Seller
pursuant to any grant of authority made under or pursuant to this Agreement.
SECTION 30. MOST FAVORED STATUS.
The Electronic Agent and MERS each agree that should the Seller enter into
an agreement similar to this Agreement which by its terms is more favorable to
such other Person, the terms of this Agreement shall be deemed automatically
amended to include each additional more favorable provision contained in such
agreement. The Electronic Agent, MERS and the Seller further agree to execute
and deliver an amendment to this Agreement evidencing such provisions, provided
that the execution of such amendment shall not be a precondition to the
effectiveness of such amendment, but shall merely be for the convenience of the
parties hereto.
[SIGNATURE PAGE FOLLOWS]
Annex 19-14
IN WITNESS WHEREOF, the Buyer, the Custodian, the Disbursement Agent, the
Seller, the Electronic Agent and MERS have duly executed this Agreement as of
the date first above written.
OAK STREET MORTGAGE LLC
By ______________________________
Name:
Title:
Address for Notices:
[Seller's Address]
Attention:
CDC MORTGAGE CAPITAL INC., as Buyer
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Address for Notices:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇, Esq.,
General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇
And with a copy to:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇.▇▇▇
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian
By ________________________________
Name:
Title:
Address for Notices:
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▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage Custody- OA040C
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
MERSCORP, INC., as Electronic Agent
By: _______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary/Treasurer
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A TO ANNEX 19
LIST OF AUTHORIZED PERSONS
CUSTODIAN AUTHORIZATIONS:
Any of the persons whose signatures and titles appear below, or attached hereto,
are authorized, acting singly, to act for the Custodian under this Agreement:
(See Annex 8 to Custodial Agreement)
BUYER AUTHORIZATIONS:
Any of the persons whose signatures and titles appear below, or attached hereto,
are authorized, acting singly, to act for the Buyer under this Agreement:
(See Annex 6 to Custodial Agreement)
ELECTRONIC AGENT AUTHORIZATIONS:
Any of the persons whose signatures and titles appear below, or attached hereto,
are authorized, acting singly, to act for the Electronic Agent under this
Agreement:
By: ___________________ By: ____________________
Name: _________________ Name: ______________
Title: ________________ Title: ______________
MERS AUTHORIZATIONS:
Any of the persons whose signatures and titles appear below, or attached hereto,
are authorized, acting singly, to act for the Seller under this Agreement:
By: ___________________
Name: _________________
Title: ________________
Annex 20-1
SELLER AUTHORIZATIONS:
Any of the persons whose signatures and titles appear below, or attached hereto,
are authorized, acting singly, to act for MERS under this Agreement:
By:__________________ By:____________________ By:_____________________
Name: Name: Name:
Title:_______________ Title:_________________ Title:__________________
By:__________________ By:____________________ By:_____________________
Name: Name: Name:
Title:_______________ Title:_________________ Title:__________________
By:__________________ By:____________________ By:_____________________
Name: Name: Name:
Title:_______________ Title:_________________ Title:__________________
By:__________________ By:____________________ By:_____________________
Name: Name: Name:
Title:_______________ Title:_________________ Title:__________________
By:__________________ By:____________________ By:_____________________
Name: Name: Name:
Title:_______________ Title:_________________ Title:__________________
By:__________________ By:____________________ By:_____________________
Name: Name: Name:
Title:_______________ Title:_________________ Title:__________________
Annex 20-2
EXHIBIT B TO ANNEX 19
MERS PROCEDURES MANUAL
As Appears on the MERS web-site: ▇▇▇.▇▇▇▇▇▇▇.▇▇▇
Annex 20-3
EXHIBIT C TO ANNEX 19
[DEUTSCHE BANK NATIONAL TRUST COMPANY LETTERHEAD]
NOTICE OF DEFAULT
Dated: _____________ ___, _____
MERSCORP, Inc.
[Address]
Ladies and Gentlemen:
Please be advised that this Notice of Default is being issued pursuant to
Section 4(b) of that certain Electronic Tracking Agreement (the "Electronic
Tracking Agreement"), dated as of July [__], 2004, by and among CDC Mortgage
Capital Inc. (the "Buyer"), Deutsche Bank National Trust Company, as custodian
(the "Custodian"), Oak Street Mortgage LLC (the "Seller"), MERSCORP, Inc. (the
"Electronic Agent") and Mortgage Electronic Registration Systems, Inc. ("MERS").
An Event of Default has occurred with respect to the Mortgage Loans listed on
the attached Schedule 1 (including the mortgage identification numbers).
Accordingly, the Electronic Agent shall not accept instructions from the Seller,
the Servicer, any subservicer and from no party other than the Buyer or the
Custodian with respect to such Mortgage Loans, until otherwise notified by the
Buyer or the Custodian.
Any terms used herein and not otherwise defined shall have such meaning
specified in the Electronic Tracking Agreement.
Deutsche Bank National Trust Company, as
Custodian
By: ____________________________________
Name:
Title:
Annex 20-4
EXHIBIT D TO ANNEX 19
FORM OF CORPORATE RESOLUTION
Annex 20-5
Annex 20
FORM OF AGREEMENT AND RELEASE
(Date)
CDC Mortgage Capital Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Certain Mortgage Loans Identified on Exhibit A hereto (the "Mortgage
Loans") and owned by Oak Street Mortgage LLC
The undersigned hereby releases all right, interest, lien or claim of any
kind with respect to the Mortgage Loans, such release to be effective
automatically without any further action by any party upon payment, in
immediately available funds of $__________________, in accordance with the
following wire instructions:
________________________________________
________________________________________
In addition, the undersigned shall remove its name from the "interim
funder" field on the mortgage electronic registry system maintained by MERSCORP,
Inc. with respect to the Mortgage Loans within one business day following
receipt of payment as set forth above.
Very truly yours,
[WAREHOUSE LENDER]
By ____________________________________
Name:
Title:
Annex 20-1
Exhibit A to Annex 20
MORTGAGE LOANS
Annex 20-2