AMENDED AND RESTATED MORTGAGE LOAN CUSTODIAL AGREEMENTMortgage Loan Purchase Agreement |
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Exhibit 10.6
AMENDED AND RESTATED MORTGAGE LOAN CUSTODIAL AGREEMENT
TABLE OF CONTENTS
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AMENDED AND RESTATED MORTGAGE LOAN CUSTODIAL AGREEMENT
THIS AMENDED AND RESTATED MORTGAGE LOAN CUSTODIAL AGREEMENT (“Agreement”), dated as of the date set forth on the cover page hereof, among UBS WARBURG REAL ESTATE SECURITIES INC. (“Purchaser”), JPMORGAN CHASE BANK (“Custodian”) and the SELLER whose name is set forth on the cover page hereof (“Seller”).
RECITALS
WHEREAS, the Purchaser, the Seller and the Custodian are parties to the Mortgage Loan Custodial Agreement, dated as of March 26, 2001 (the “Original Custodial Agreement”);
WHEREAS, in connection with the Original Custodial Agreement, (i) the Purchaser has agreed to purchase, from time to time, at its sole election from Seller, certain residential first mortgage loans pursuant to the terms and conditions of one or more Purchase Agreements (as defined therein) between Purchaser and Seller relating to Dry Transactions, Cash Window Transactions or Conduit Transactions (each as defined therein) and (ii) the Purchaser desired to have Custodian take possession of the Mortgage Notes (as defined therein) evidencing the Mortgage Loans (as defined therein), along with certain other documents specified therein, as the custodian for and bailee of Purchaser or Assignee (as defined therein) in accordance with the terms and conditions thereof;
WHEREAS, the Purchaser, the Seller and the Custodian desire to amend and restate the Original Custodial Agreement as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that the Original Custodial Agreement be amended and restated in its entirety as follows:
PRELIMINARY STATEMENT
Purchaser has agreed to purchase, from time to time, at its sole election from Seller, certain residential first mortgage loans pursuant to the terms and conditions of one or more Purchase Agreements between Purchaser and Seller relating to Dry Transactions, Cash Window Transactions or Conduit Transactions. Seller is obligated to service the Mortgage Loans pursuant to the terms and conditions of the Purchase Agreements. Purchaser desires to have Custodian take possession of the Mortgage Notes evidencing the Mortgage Loans, along with certain other documents specified herein, as the custodian for and bailee of Purchaser or Assignee in accordance with the terms and conditions hereof.
The parties hereto agree as follows:
Section 1. Definitions . As used in this Agreement, the following terms shall have the following meanings:“Agency”: Freddie Mac or Fannie Mae, as applicable.
“Applicable Agency Documents”: The documents listed on Exhibit B-2 or Exhibit B-3, as applicable.
“Applicable Guide”: With respect to each Takeout Investor the applicable guide published by such Takeout Investor setting forth the requirements each Mortgage Loan needs to satisfy in order to be eligible for purchase by such Takeout Investor, as such guide may be amended or supplemented from time to time.
“Assignee”: With respect to this Agreement and any Mortgage Loan, any assignee of the Purchaser pursuant to a pledge or rehypothecation of the Mortgage Loan.
“Assignment of Mortgage”: An assignment of the Mortgage, notice of transfer or equivalent instrument sufficient under the laws of the jurisdiction wherein the related Mortgaged Property (or the Underlying Mortgaged Property, in the case of a Co-op Loan) is located to reflect of record the sale of a Mortgage Loan.
“Bailee Letter”: A Fannie Mae Bailee Letter or a Conduit Bailee Letter, as applicable.
“Business Day”: Any day other than (a) a Saturday, Sunday or other day on which banks located in The City of New York, New York are authorized or obligated by law or executive order to be closed, or (b) any day on which UBS Warburg Real Estate Securities Inc is closed for business, provided that notice thereof shall have been given not less than seven calendar days prior to such day.
“Cash Window Submission Package”: The documents listed on Exhibit B-1, which shall be delivered by Seller to Custodian in connection with each Cash Window Transaction.
“Cash Window Transaction”: A transaction initiated by Purchaser’s delivery of a Request for Certification which identifies Fannie Mae or Freddie Mac as the Takeout Investor but does not include a Conversion Code.
“Certification”: With respect to a Mortgage Loan, the full performance by Custodian of the procedures set forth in Sections 4(a) and 4(b).
“Certification Code”: A Mortgage Loan Absentee Code, a Mortgage Loan Approval Code or a Mortgage Loan Suspension Code.
“Certification Report”: A Request for Certification to which Custodian has added its Certification Codes and, when a Certification Code indicates suspension, applicable Exception Codes, and which is transmitted by Custodian to Purchaser in an appropriate data layout provided by Purchaser.
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“Commitment”: A commitment executed by Takeout Investor and Seller on Takeout Investor’s letterhead evidencing Takeout Investor’s agreement to purchase one or more Mortgage Loans from Seller and Seller’s agreement to sell one or more Mortgage Loans to an investor in a forward trade by the applicable Commitment Expiration Date.
“Commitment Expiration Date”: With respect to any Commitment, the expiration date thereof.
“Conduit”: Any of the Entities listed on Schedule A, as amended or supplemented from time to time.
“Conduit Bailee Letter”: The master bailee letter, in the form of Exhibit C-2, for use by Custodian in connection with the delivery of a Conduit Submission Package, provided, however, for the purposes of delivering the related Conduit Submission Package, excluding (i) a copy of the Commitment, (ii) the Warehouse Lender’s Release or Seller’s Release, as applicable, and (iii) the original Assignment of Mortgage, in blank, to a Conduit.
“Conduit Submission Package”: The documents listed on Exhibit C-1, which shall be delivered by Seller to Custodian in connection with each Conduit Transaction.
“Conduit Transaction”: A transaction initiated by Purchaser’s delivery of a Request for Certification which identifies a Conduit as the Takeout Investor but does not include a Conversion Code.
“Confirmation”: A confirmation confirming a trade between Seller and Takeout Investor.
“Conversion Code”: With respect to a Mortgage Loan, the conversion code set forth in Part II of Exhibit F, entered by Purchaser, along with the Program Code, in the “PROG CODE” column of the related Request for Certification indicating that (i) such Mortgage Loan was previously acquired by Purchaser in a Dry Transaction and (ii) a Conversion Submission Package shall be received by Custodian on the applicable Delivery Date.
“Conversion Submission Package”: One of the sets of documents listed on Exhibit D, which shall be delivered by Seller to Custodian in connection with each Conversion Transaction.
“Conversion Transaction”: With respect to a Mortgage Loan, a transaction initiated by Purchaser’s delivery to Custodian of a Request for Certification containing a Conversion Code. A Conversion Transaction shall always be preceded by a Dry Transaction.
“Co-op”: Shall mean a private, cooperative housing corporation, having only one class of stock outstanding, which owns or leases land and all or part of a building or buildings, including apartments, spaces used for commercial purposes and common areas therein and whose board of directors authorizes the sale of stock and the issuance of a Co-op Lease.
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“Co-op Lease”: Shall mean, with respect to a Co-op Loan, the lease with respect to a dwelling unit occupied by the Mortgagor and relating to the stock allocated to the related dwelling unit.
“Co-op Loan”: Shall mean a Mortgage Loan, which is secured by the pledge of stock allocated to a dwelling unit in a Co-op and a collateral assignment of the related Co-op Lease.
“Co-op Security Agreement”: Shall mean the agreement creating a first lien security interest in the stock allocated to a dwelling unit in the residential cooperative housing corporation that was pledged to secure such Co-op Loan and the related Co-op Lease.
“Cumulative Position File”: A list of all Mortgage Loans held by the Custodian on each day which includes all information which would be on the Custodian’s Certification Report and additionally includes the shipping information for each Mortgage Loan which has been released from the Custodian’s possession (i.e. airbill number, federal express tracking code or other identifying information).
“Custodian”: JPMorgan Chase Bank, a New York banking corporation, and its permitted successors hereunder.
“Delivery Date”: With respect to a Mortgage Loan, the date set forth on the related Request for Certification in the “DELIVERY DATE” column, which shall be the Business Day on which Seller desires the applicable portion of the related Submission Package be sent by Custodian to the Takeout Investor, i.e., one Business Day prior to the Business Day on which Seller desires the applicable portion of the Submission Package to be received by the Takeout Investor.
“Delivery Directive”: With respect to each Mortgage Loan being offered by Seller for sale to Purchaser pursuant to a Conduit Transaction or a Cash Window Transaction, the delivery directive, set forth in Part IV of Exhibit F, used by Purchaser in a notice delivered via electronic transmission in the form of Exhibit M, to direct Custodian to deliver the related Submission Package in accordance with the Delivery Instructions.
“Delivery Instructions”: With respect to a Mortgage Loan, instructions prepared by Seller, in the form of Exhibit N indicating the address for the delivery by Custodian of the applicable portion of the related Submission Package.
“Dry Submission Package”: The documents listed on Exhibit A, which shall be delivered by Seller to Custodian in connection with each Dry Transaction.
“Dry Transaction”: A transaction initiated by Purchaser’s delivery to Custodian of a Request for Certification, which does not identify a Takeout Investor, and which does not include a Conversion Code.
“Electronic Agent”: The electronic agent identified in the Electronic Tracking Agreement.
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“Electronic Tracking Agreement”: The Electronic Tracking Agreement, substantially in the form set forth in Exhibit P hereto, dated as of the date hereof, among the Purchaser, the Seller, an electronic agent and MERS, as the same shall be amended, supplemented or otherwise modified from time to time.
“Entity”: Any individual, corporation, partnership, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.
“Exception Code”: Each of the exception codes set forth in Part V of Exhibit F, placed by Custodian on a Certification Report indicating missing documents, incomplete documents and deficiencies in documents reviewed by Custodian.
“Expected Delivery Date”: The date identified on a Request for Certification as the “Expected Delivery Date of Mortgage File”, which shall be the date on which Seller has informed Purchaser that a Submission Package will be received by Custodian from Seller.
“Freddie Mac”: Freddie Mac and any successor thereto.
“Freddie Mac Commitment”: A commitment executed by Freddie Mac and Seller evidencing Freddie Mac’s agreement to purchase one or more Mortgage Loans from Seller and Seller’s agreement to sell one or more Mortgage Loans to Freddie Mac by the applicable Commitment Expiration Date under the Applicable Guide.
“Fannie Mae”: Fannie Mae and any successor thereto.
“Fannie Mae Bailee Letter”: The master bailee letter, in the form of Exhibit B-4, for use by Custodian in connection with the delivery to Fannie Mae of the Cash Window Submission Package, excluding (i) the original Assignment of Mortgage, in blank, (ii) the Warehouse Lender’s Release or Seller’s Release, as applicable, (iii) all modification agreements relating to a Mortgage, (iv) the Delivery Instructions and (v) a copy of the Commitment.
“Fannie Mae Commitment”: A commitment executed by Fannie Mae and Seller, evidencing Fannie Mae’s agreement to purchase one or more Mortgage Loans from Seller and Seller’s agreement to sell one or more Mortgage Loans to Fannie Mae by the applicable Commitment Expiration Date under the Applicable Guide.
“Hold Directive”: With respect to each Mortgage Loan being offered by Seller for sale to Purchaser pursuant to a Conduit Transaction or a Cash Window Transaction, the hold directive, set forth in Part IV of Exhibit F, delivered by Purchaser via electronic transmission in a notice in the form of Exhibit M to direct Custodian to continue to hold the related Submission Package.
“HUD”: United States Department of Housing and Urban Development and any successor thereto.
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“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.
“Limited Power of Attorney”: A limited power of attorney, in the form of Exhibit K, executed by Seller and delivered to Custodian, authorizing Custodian to prepare Mortgage Note endorsements in the form indicated thereon.
“Loan Identification Data”: The applicable information regarding a Mortgage Loan, set forth on a Request for Certification, which shall include Purchaser’s reference number, the name of Purchaser’s applicable program, the Mortgage Loan number, the MERS Identification Number, the last name of the Mortgagor, the address of the Mortgaged Property, the face amount of the Mortgage Note, the number of months to maturity of the Mortgage Loan, and the interest rate borne by the Mortgage Note and, solely with respect to Cash Window Transactions, Conduit Transactions and Conversion Transactions, the name of the Takeout Investor, the sale price of the Mortgage Loan to the Takeout Investor, the commitment number, the Commitment Expiration Date, the Delivery Date, the Release Payment, and the name of the Warehouse Lender.
“Losses”: Any and all losses, claims, damages, liabilities or expenses (including reasonable attorney’s fees) incurred by any person specified; provided however that “Losses” shall not include losses, claims, damages, liabilities or expenses which would have been avoided had such person taken reasonable actions to mitigate such losses, claims, damages, liabilities or expenses.
“MERS Designated Mortgage Loan” shall have the meaning assigned to such term in Section 3 of the Electronic Tracking Agreement; provided that no Mortgage Loan shall be considered a MERS Designated Mortgage Loan unless an Electronic Tracking Agreement shall have been entered into.
“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 the Electronic Agent pursuant to the Electronic Tracking Agreement.
“MERS® System” shall mean the Electronic Agent’s mortgage electronic registry system, as more particularly described in the MERS Procedures Manual.
“Mortgage”: With respect to a Mortgage Loan that is not a Co-op Loan, a mortgage, deed of trust or other security instrument creating a first lien on an estate in fee simple in real property securing a Mortgage Note, and with respect to a Co-op Loan, the Co-op Security Agreement.
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“Mortgage Loan”: A one-to-four family residential mortgage loan that is subject to this Agreement.
“Mortgage Loan Absentee Code”: The mortgage loan absentee code, set forth in Part III of Exhibit F, placed by Custodian on a Certification Report to notify Purchaser that a Submission Package related to a Mortgage Loan listed on a Request for Certification is not in Custodian’s possession.
“Mortgage Loan Approval Code”: The mortgage loan approval code, set forth in Part III of Exhibit F, placed by Custodian on a Certification Report to notify Purchaser that Custodian’s review of the applicable items in a Submission Package is complete and that such items satisfy all the applicable requirements set forth in Section 4(a) and Section 4(b).
“Mortgage Loan Suspension Code”: The mortgage loan suspension code, set forth in Part III of Exhibit F, placed by Custodian on a Certification Report to notify Purchaser that Custodian’s review of the Submission Package has determined that one or more of the documents in the Submission Package are missing, incomplete or incorrect and/or do not satisfy one or more of the requirements set forth in Section 4(a) or Section 4(b).
“Mortgage Note”: The note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage.
“Mortgaged Property”: The property subject to the lien of the Mortgage securing a Mortgage Note.
“Mortgagor”: The obligor on a Mortgage Note.
“Notice of Bailment”: A notice, in the form of Schedule A to Exhibit B-4 or C-2, as applicable, delivered by Custodian to Takeout Investor in connection with each delivery to Takeout Investor of the applicable portion of each Submission Package.
Officer’s Certificate: A certificate signed by the Chairman of the Board or the Vice Chairman of the Board or a President or a Vice President and by the Treasurer or the Secretary or one of the Assistant Treasurers or Assistant Secretaries of the Seller, and delivered to the Purchaser as required by this Agreement.
“Original Custodial Agreement”: Shall have the meaning assigned to such term in the recitals hereof.
“Payee Number”: The code used by Fannie Mae to indicate the wire transfer instructions that will be used by Fannie Mae to purchase a Mortgage Loan.
“Program Code”: Each of the codes, set forth in Part I of Exhibit F, placed by the Purchaser in the “PROG CODE” column of a Request for Certification indicating that the Mortgage Loan is being offered by Seller to Purchaser in a Dry Transaction, Cash Window Transaction or a Conduit Transaction, as applicable.
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“Purchase Agreement”: Each Amended and Restated Mortgage Loan Purchase Agreement, dated as of the date set forth on the cover page thereof, between Seller and Purchaser, as each is amended from time to time providing the terms of Dry Transactions, Cash Window Transactions, Conduit Transactions or Conversion Transactions.
“Purchase Date”: With respect to a Mortgage Loan, the date on which Purchaser purchases such Mortgage Loan from Seller.
“Purchaser”: UBS Warburg Real Estate Securities Inc. and its successors.
“Purchaser’s Wire Instructions to Seller”: The wire instructions, set forth on Exhibit I-1, specifying the account which shall be used for the payment of all amounts due and payable by Seller to Purchaser hereunder.
“Purchaser’s Payment”: The amount set forth on the Request for Certification in the “RELEASE PAYMENT” column.
“Purchaser’s Wire Instructions to Custodian”: Wire Instructions delivered by Purchaser to Custodian, in the form of Exhibit I-2, executed by Purchaser, receipt of which has been acknowledged by Custodian specifying the wire address where all funds received in accordance with Purchaser’s Wire Instructions to Seller shall be transferred by Custodian.
“Release Payment”: The funds referred to in a Warehouse Lender’s Release or Seller’s Release, as applicable.
“Request for Certification”: A report detailing Loan Identification Data supplied by Seller to Purchaser, transmitted by Purchaser to Custodian either via facsimile in the form of Exhibit E or transmitted electronically in an appropriate data layout, regarding all Mortgage Loans being offered for sale by Seller to Purchaser on the Submission Package Delivery Date.
“Seller”: The Seller whose name is set forth on the cover page hereof, and its permitted successors hereunder.
“Seller’s Release”: A letter, in the form of Exhibit H-1, delivered by Seller when no Warehouse Lender has an interest in a Mortgage Loan, conditionally releasing all of Seller’s right, title and interest in such Mortgage Loan upon receipt of payment by Seller.
“Seller’s Wire Instructions”: The wire instructions, set forth in a letter in the form of Exhibit H-2, to be used for the payment of funds to Seller when no Warehouse Lender has an interest in the Mortgage Loans to which such payment relates.
“Submission Package”: With respect to each Mortgage Loan, a Dry Submission Package, a Cash Window Submission Package, a Conduit Submission Package or a Conversion Submission Package, as applicable.
“Successor Servicer”: An entity designated by Purchaser, in conformity with the Purchase Agreement, to replace Seller as servicer for Purchaser, and, with respect to Cash Window Transactions, as seller/servicer of the Mortgage Loans for the Agency.
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“Takeout Investor”: An Agency or a Conduit, as applicable.
“Underlying Mortgaged Property”: Shall mean with respect to each Co-op Loan, the underlying real property owned by the related residential cooperative housing corporation.
“Underwriter”: Any party, including but not limited to a mortgage loan pool insurer, who underwrites a Mortgage Loan prior to its purchase by Purchaser.
“Underwriter’s Form”: A Fannie Mae / Freddie Mac Form 1008/1077, HUD 92900WS, HUD92900.4, VA Form 26-6393, VA Form 26-1866, or a mortgage loan pool insurance certificate, as applicable, completed by an Underwriter with respect to a Mortgage Loan, indicating that such Mortgage Loan complies with its underwriting requirements.
“Unidentified/Suspension Mortgage Loan Directive”: A Delivery Directive or a Hold Directive, as applicable.
“Unidentified Mortgage Loans List”: A list of Mortgage Loans for which Custodian has received the rela |
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