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EXHIBIT 10.40
TRI-PARTY CUSTODY AGREEMENT
by and among
LOMAS MORTGAGE USA, INC.,
as "Seller"
FIRST NATIONWIDE MORTGAGE CORPORATION
as "Buyer"
and
BANK ONE, TEXAS, NATIONAL ASSOCIATION,
as "Custodian"
Dated as of September 19, 1995
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This TRI-PARTY CUSTODY AGREEMENT is made and entered into as of
September 19, 1995, by and among Lomas Mortgage USA, Inc. (the "Seller"), First
Nationwide Mortgage Corporation (the "Buyer") and Bank One, Texas, National
Association ("Bank One").
PRELIMINARY MATTERS
A. The Seller and the Buyer have entered into that certain Master
Repurchase Agreement dated as of even date herewith (together with the
Supplemental Terms thereto and any Confirmations from time to time
entered into thereunder, the "Repurchase Agreement").
B. The Repurchase Agreement contemplates the offer and sale by the Seller
to the Buyer from time to time of certain Mortgage Loans, the delivery
to the Buyer or its agent of certain documents which evidence or
relate to such Mortgage Loans, and the release of such Mortgage Loans
by the Buyer to the Seller.
C. The parties wish to provide for the appointment of Bank One by the
Buyer as custodian on behalf of the Buyer (in such capacity, the
Custodian") and to set forth their agreement regarding the delivery of
documents by the Seller to the Custodian and the inspection and
release of such documents by the Custodian.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
have the meanings indicated.
"Agency" shall refer to GNMA, FNMA and/or FHLMC as applicable.
"Agency Security" shall refer to a GNMA Security, a FNMA Security or a
FHLMC Security.
"Agreement" shall refer to this Agreement, as supplemented or amended
from time to time.
"Bank One" shall have the meaning specified in the preamble to this
Agreement.
"Buyer" shall have the meaning specified in the preamble to this
Agreement.
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"Certification" shall refer to Custodian's certification included in
each Document Submission Summary.
"Custodian" shall have the meaning specified in Preliminary Matter C
to this Agreement.
"DDA Account" shall refer to demand deposit account no. 1886481967,
with Bank One, which account is styled "First Nationwide Mortgage Corp., Re:
Bank One, Texas Tri-Party Custody Agreement, dated September 19, 1995."
"Deposited Documents" shall refer to all documents relating to
Mortgage Loans, including without limitation all Required Documents, deposited
with the Custodian pursuant to this Agreement.
"Document Submission Summary" shall mean a Document Submission Summary
in the form attached hereto as Exhibit A, having appended thereto a Mortgage
Loan Schedule.
"FHLMC" shall refer to the Federal Home Loan Mortgage Corporation.
"FHLMC Security" shall refer to a Mortgage Participation Certificate
issued and guaranteed by FHLMC and backed by a pool of Mortgage Loans.
"FNMA" shall refer to the Federal National Mortgage Association.
"FNMA Security" shall refer to a Guaranteed Mortgage PassThrough
Certificate issued and guaranteed by FNMA and backed by a pool of Mortgage
Loans.
"GNMA" shall refer to the Government National Mortgage Association.
"GNMA Security" shall refer to a fully-modified pass-through
mortgage-backed certificate guaranteed by GNMA and backed by a pool of Mortgage
Loans.
"Mortgage" shall refer to the deed of trust or mortgage which secures
a Mortgage Loan.
"Mortgage Loans" shall refer to single family residential mortgage
loans.
"Mortgage Loan Schedule" shall refer to a completed schedule in the
form attached as Schedule I to Exhibit A to this Agreement.
"Note" shall refer to the promissory note which evidences a Mortgage
Loan.
"Required Documents" shall have the meaning specified in Paragraph 4
of this Agreement.
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"Repurchase Agreement" shall have the meaning specified in Preliminary
Matter A to this Agreement.
"Seller" shall have the meaning specified in the preamble to this
Agreement.
"Title Company" shall refer to the title company or other entity other
than the Seller or any entity affiliated (within the meaning of such term set
forth in Paragraph 16) with the Seller that is serving as closing agent with
respect to a Mortgage Loan originated by or on behalf of the Seller with funds
provided to the Seller by the Buyer pursuant to the Repurchase Agreement in
connection with the sale of such Mortgage Loan to the Buyer thereunder.
"Warehouse Lender's Release Letter" shall refer to (a) a document
executed by an entity other than the Seller (the "Warehouse Lender") which
states that the Mortgage Loan(s) delivered therewith are delivered in trust and
that a security interest therein has been retained by the Warehouse Lender
pending payment of the Warehouse Release Purchase Price therefor and that upon
payment of such Warehouse Release Purchase Price, such trust will be terminated
and all claim of the Warehouse Lender to such Mortgage Loans and such security
interest will be released or (b) a document executed by the Seller which states
that the Mortgage Loan(s) delivered therewith are not subject to any claim or
security interest in favor of any entity.
"Warehouse Release Purchase Price" shall mean, as to any Mortgage
Loan, the amount stated in the Warehouse Lender's Release Letter, if any,
applicable thereto, as the amount which must be received by the Warehouse
Lender thereunder for the security interest of such Warehouse Lender in such
Mortgage Loan to be released.
2. Appointment of Custodian. The Buyer hereby appoints Bank One
as Custodian and Bank One hereby accepts its appointment as the Custodian, to
act as the bailee and agent of the Buyer and its successors and permitted
assigns, for the purpose of taking custody of all Deposited Documents delivered
hereunder.
3. Deposit of Documents. The Seller shall deposit with the
Custodian, and the Custodian agrees, subject to Paragraph 2 above and the other
terms and conditions hereof, to hold as custodian and bailee on behalf of and
as agent for the Buyer, and its successors and permitted assigns, such
documents as it is required to deliver to the Buyer or its agents under the
Repurchase Agreement. The Custodian shall be responsible for identifying on
its books and records that all such documents are being held for the benefit of
the Buyer and for maintaining all Deposited Documents in separate records and
files.
4. Required Documents. For each Mortgage Loan that is identified
on a Document Submission Summary, the Seller shall deposit with the Custodian
the following required documents (the "Required Documents") relating to such
Mortgage Loan, and all such other documents as the Buyer may require, and which
documents the Buyer notifies the Custodian to accept:
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a. The Note which evidences such Mortgage Loan, endorsed
by a duly authorized representative of the Seller in blank and without
recourse;
b. an assignment of the Mortgage which secures such
Mortgage Loan with assignee in blank but otherwise in recordable form
but not recorded and all interim assignments, if any;
c. a Document Submission Summary; and
d. an executed Warehouse Lender's Release Letter.
5. Certification of Documentation. Upon receipt of each Document
Submission Summary, the Custodian shall review the Deposited Documents
delivered therewith to determine whether such Deposited Documents comprise the
Required Documents for the Mortgage Loans identified on the Mortgage Loan
Schedule attached to such Document Submission Summary and to determine whether
all such Required Documents are complete and appear regular on their face,
whether each such document purporting to be an original appears on its face to
be so, and whether each such document purporting to be a certified photocopy or
conformed copy appears on its face to be a complete copy of its original. The
Custodian shall confirm that:
a. The Note bears an original signature or signatures
purporting to be the signature or signatures of the person or persons
named as the maker;
b. except for the endorsement in blank, neither the Note
nor any assignment of the Mortgage contain any notations on their face
which evidence any claims, liens, security interests, encumbrances or
restrictions on transfer;
c. the original principal amount of the Note is greater
than or equal to the current outstanding principal amount of the Note
as reported to the Custodian by the Seller on the relevant Mortgage
Loan Schedule;
d. the rate of interest borne by the Mortgage Loan as
set forth on the Note is equal to the rate of interest for such
Mortgage Loan as reported to the Custodian by the Seller on the
relevant Mortgage Loan Schedule;
e. the Note has been endorsed in blank and bears
original endorsements which complete the chain of ownership from the
original holder or payee to the Seller;
f. the original assignment of the Mortgage in blank
bears the original signature purporting to be the signature of the
named mortgagee or beneficiary (and any other necessary party,
including subsequent assignors); a photocopy of each interim
assignment bears the signature purporting to be the signature of the
named mortgagee or beneficiary (and any other necessary party,
including subsequent assignors) and bears a
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certification of an officer of the Seller, the entity selling the
Mortgage Loan to the Seller, or a title company to the effect that
such interim assignment has been recorded or sent for recording in the
appropriate real estate recording office; and such assignment and such
interim assignments complete the chain of title from the originator to
the Seller;
g. the information set forth on the Mortgage Loan
Schedule attached to the Document Submission Summary respecting each
Mortgage Loan appears to reflect accurately the information contained
in the related Required Documents; and
h. the Warehouse Lender's Release Letter, as applicable,
has been duly executed by either the Warehouse Lender or the Seller
and is addressed to either the Seller (if executed by the Warehouse
Lender) or the Buyer (if executed by the Seller).
The Custodian shall notify the Seller and the Buyer of any documents
that are missing, incomplete on their face or patently inconsistent and of any
Mortgage Loans that do not satisfy the criteria listed above. The Seller shall
promptly deposit such missing documents with the Custodian or complete or
correct the documents. When the Required Documents have been received and
reviewed by the Custodian and the Custodian has determined that they are in
correct and complete form as provided herein and that they satisfy the
aforementioned conditions, the Custodian shall deliver to the Buyer a signed
Certification.
6. Further Obligations of Custodian. The Custodian shall
promptly notify the Buyer if (i) the Seller fails to pay any amount due to the
Custodian in connection with this Agreement or (ii) the Custodian's direct
employees responsible for performing the duties outlined in this Agreement have
received written notification that any mortgage, pledge, lien, encumbrance or
security interest (other than for the benefit of the Buyer) has been placed on
the Required Documents, the Deposited Documents or the Mortgage Loans relating
thereto.
The Custodian shall use reasonable care and due diligence in the
performance of its duties hereunder and shall, subject to the other provisions
of this Agreement, hold the Deposited Documents under its exclusive custody and
control and in accordance with Custodian's customary custodial standards that
it applies when it is acting as document custodian for GNMA, FNMA and FHLMC.
7. Copies of Required Documents. The Custodian shall furnish the
Buyer and its auditors, upon the written request of the Buyer, with copies of
the Deposited Documents. Any documents furnished to the Buyer pursuant to this
Agreement, including without limitation documents furnished pursuant to this
Paragraph 7, shall be at the expense of the Seller.
8. Right to Inspect. The Buyer (and its attorneys, auditors and
agents when requested by the Buyer) shall have the right, upon reasonable prior
written notice to the Custodian, to visit the office of the Custodian, to
review the custody and administrative procedures and to discuss the Delivered
Documents and the records of the Custodian relating
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to this Agreement with officers of the Custodian and to examine the books of
account and records of the Custodian pertaining to the same, and to make or be
provided with copies and extracts therefrom, and, upon reasonable notice, to
discuss the same with, and to be advised as to the same by, the independent
accountants of the Custodian (and by this provision the Custodian authorizes
such accountants to discuss the same, whether or not a representative of the
Custodian is present), all at such reasonable times and intervals and to such
reasonable extent as the Buyer may desire.
9. Delivery of Delivered Documents to the Buyer. The Custodian
shall promptly deliver to the Buyer or its designee any or all Required
Documents and other Deposited Documents in the Custodian's custody upon the
Buyer's written request.
10. Custodian Fees. It is understood that the Custodian will
charge such fees for its services under this Agreement as are set forth in a
separate agreement (the "Fee Letter," a true and correct copy of which has been
provided to the Buyer) between the Custodian and the Seller and subject in any
case to Paragraph 11 below. The payment of such fees, together with the
Custodian's expenses in connection herewith, shall be solely the obligation of
the Seller; provided, that to the extent the Seller does not pay such fees and
expenses, the Buyer shall pay same and shall be subrogated to the rights of the
Custodian with respect thereto to the extent of such payment. In consideration
of the undertakings of the Buyer in the preceding sentence, the Custodian
agrees not to amend or modify the Fee Letter without the consent of the Buyer.
11. Termination. The Custodian may terminate its obligations
under this Agreement upon 30 days' prior written notice to the Seller and the
Buyer; provided however, that the Custodian shall remain obligated pursuant to
the terms hereof with respect to any liability arising prior to the date of
such termination. In the event of such termination, the Buyer shall appoint a
successor custodian and the Custodian shall promptly transfer to the successor
custodian, as directed, all Required Documents and other Deposited Documents
being held by the Custodian under this Agreement. If no successor custodian is
designated, the Custodian shall deliver all Required Documents and Deposited
Documents to the Buyer. This Agreement may be terminated at any time by the
Buyer.
12. DDA Account; Wire Transfers. The DDA Account has been
established by the Buyer at Bank One. All fees and expenses related to the DDA
Account shall be for the account of the Seller; provided, that to the extent
the Seller does not pay such fees and expenses, the Buyer shall pay same and
shall be subrogated to the rights of the Custodian with respect thereto to the
extent of such payment. From time to time the Seller may wish to finance the
acquisition or origination of a Mortgage Loan that is to be sold by the Seller
to the Buyer with funds provided by the Buyer, which funds shall be wired by
the Buyer to the DDA Account and supplemented, to the extent necessary, by
deposits by the Seller into the DDA Account. The Seller (Lomas Mortgage USA,
Inc.) shall enter disbursement instructions with respect to sums on deposit in
the DDA Account through Bank One's ECDA Wire System and Bank One shall release
such wire instructions and disburse such funds upon receipt of such
instructions provided
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that (a) sufficient funds are on deposit in the DDA Account, (b) such
instructions do not include the Seller as payee, (c) such instructions conform
to the instructions set forth in the applicable Warehouse Lender's Release
Letter, or are to a Title Company, as applicable, and (d) if the Buyer issues
conflicting instructions Bank One shall follow the Buyer's instructions. Upon
request, Bank One shall provide the Warehouse Lender or Title Company, as
applicable, the Seller or the Buyer with the federal wire reference number for
a particular wire transfer.
13. Seller's Representations and Warranties. The Seller hereby
represents and warrants to the Buyer and the Custodian that:
a. The payee named in any wire instructions from the DDA
Account shall be either (i) the Warehouse Lender from whom Mortgage
Loans sold to the Buyer are being acquired with the proceeds of such
wire or (ii) the Title Company through whom Mortgage Loans sold to the
Buyer are being originated with the proceeds of such wire;
b. the wire transfer to or other deposit in the DDA
Account of funds by the Buyer shall constitute the payment by the
Buyer of the Purchase Price (as defined in the Repurchase Agreement)
for Mortgage Loans under the Repurchase Agreement;
c. only funds intended to be used to finance the
acquisition or origination of Mortgage Loans sold to the Buyer under
the Repurchase Agreement shall be deposited in the DDA Account; and
d. except as the Buyer may otherwise agree in writing,
funds from time to time on deposit in the DDA Account shall only be
used for the purpose of financing the acquisition or origination of
Mortgage Loans sold to the Buyer under the Repurchase Agreement.
14. Notices. All written communications hereunder shall be
mailed, telecopied or delivered, to each party at its address as indicated on
Schedule I or at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall
be effective when delivered to the party to which such notice is to be given.
15. Concerning the Custodian. Notwithstanding anything to the
contrary in this Agreement, the Custodian shall not be liable for any action or
omission to act hereunder except for its own gross negligence or wilful
misconduct. The Custodian may act or refrain from acting in reliance upon any
written communication of the Buyer concerning the delivery of the Deposited
Documents. Notwithstanding any provision hereof to the contrary, the Custodian
shall have no duty to service the Mortgage Loans.
16. Representations by and Covenants of the Custodian. The
Custodian hereby represents and warrants to the Buyer and the Seller as of the
date of this Agreement as follows:
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a. The Custodian has been duly organized and is validly
existing as a national banking association and is duly qualified to do
business and in good standing as a foreign corporation (or is exempt
from such requirement) in each jurisdiction in which failure to so
qualify would have a material adverse effect on the Buyer or the
Seller, and has full corporate power and authority to own its
properties and conduct its business as currently conducted;
b. the Custodian has all requisite corporate power and
authority to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby; the
execution and delivery by the Custodian of this Agreement and the
consummation by the Custodian of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate
action on the part of the Custodian; this Agreement has been duly and
validly executed and delivered by the Custodian and constitutes a
legal, valid and binding obligation of the Custodian, enforceable
against the Custodian, in accordance with its terms, subject to
bankruptcy, reorganization, insolvency, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general principles of equity; neither the execution and delivery by
the Custodian of this Agreement, nor the consummation by the Custodian
of any of the transactions contemplated hereby, nor the fulfillment by
the Custodian of the terms hereof, will conflict with, or violate,
result in a material breach of or constitute a material default (with
or without notice or lapse of time, or both) under (i) any term or
provision of the Certificate of Incorporation or By-laws of Custodian
or any governmental rule applicable to the Custodian or (ii) any term
or provision of any indenture or other agreement or instrument, to
which the Custodian is a party or by which the Custodian or any
material portion of its properties are bound; no governmental action
is required by or with respect to the Custodian in connection with the
execution and delivery of this Agreement by the Custodian or the
consummation by the Custodian of the transactions contemplated hereby;
c. the Custodian does not have and will not assert or
permit to be asserted any security interest or other adverse interest,
lien or encumbrance against the Required Documents, the Deposited
Documents, or the Mortgage Loans;
d. the Custodian covenants to maintain, at its own
expense, at all times during the existence of this Agreement and keep
in full force and effect, such (1) fidelity insurance, (2) theft of
documents insurance, (3) forgery insurance, (4) fire insurance and (5)
errors and omissions insurance, as the Custodian deems appropriate;
e. the Custodian shall perform its obligations under
this Agreement in accordance with prudent standards and procedures
generally accepted in the mortgage banking industry and in accordance
with the standards of the Agencies; provided, however, that the
Custodian shall at all times comply with applicable law and FHA
regulations and VA regulations so that the FHA insurance, VA guarantee
or any other
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applicable insurance or guarantee in respect of any Mortgage Loan is
not impaired, voided or reduced; the Custodian shall at all times
maintain accurate and complete records in connection with the
performance of its obligations under this Agreement; and
f. the Custodian hereby represents and warrants to the
Buyer that the Custodian is not controlling, controlled by, under
common control with or otherwise affiliated with, the Seller or any
other person controlling, controlled by, under common control with or
otherwise affiliated with, the Seller, and covenants and agrees with
the Buyer that in the event any such affiliation occurs, the Custodian
shall give the Buyer prior written notice thereof (the term
"affiliate," as used herein, means all persons or entities directly or
indirectly controlling, controlled by, or under common control with
the Seller and the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management policies of any person or entity, whether through ownership
of securities, by contract [except as may be provided under, or
ancillary to, any credit or security agreements with the Seller to
which the Custodian is or may hereafter be a party] or otherwise).
17. Duties of the Custodian. The Custodian shall have no duties
or responsibilities except those that are specifically set forth herein. If
the Custodian shall request instructions from the Buyer with respect to any
act, action or failure to act in connection with this Agreement, the Custodian
shall be entitled to take or refrain from taking such action and continue to
act or refrain from acting unless and until the Custodian shall have received
written instructions from the Buyer.
18. Representations by the Parties as to this Agreement. The
Custodian, the Seller and the Buyer each separately represent and warrant to
each other that this Agreement has been duly authorized, executed and delivered
by it and constitutes the legal, valid and binding obligation of such party
enforceable in accordance with its terms.
19. Indemnification. The Seller agrees to indemnify the Custodian
against, and to hold it harmless from, any liabilities, and any related
out-of-pocket expenses, which it may incur in connection with this Agreement,
other than any liabilities and expenses arising out of the Custodian's gross
negligence or willful misconduct. To the extent that the Seller fails so to
indemnify the Custodian, the Buyer shall so indemnify the Custodian and shall
be subrogated to the rights of the Custodian with respect to any payment made
by the Buyer in respect thereof. The Custodian agrees to indemnify the Buyer
and the Seller against liabilities and out-of-pocket expenses which such party
may incur, including legal fees and expenses as incurred, in connection with
this Agreement which are directly and proximately caused by the Custodian's
gross negligence or willful misconduct.
20. Authorizations. Any of the persons whose signatures and
titles appear on Schedule I are authorized, acting singly, to act for the
Seller, the Buyer, or the Custodian, as the case may be, under this Agreement.
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21. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure herefrom shall in any event be
effective unless the same shall be in writing and signed by all the parties
hereto (provided that the Buyer may modify the Required Documents set forth in
Paragraph 4 hereof by giving written notice of such modification to the Seller
and the Custodian), and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
22. Responsibility of Custodian. Notwithstanding anything to the
contrary contained herein, the Custodian shall only be responsible to the
Buyer, the Seller and any assignee from the Buyer of its interests hereunder
with respect to the obligations and responsibilities of the Custodian assumed
by it hereunder. The parties hereto agree that the Buyer shall be entitled to
assign its rights hereunder without the consent of any party hereto to any
entity selected by the Buyer. The Buyer shall advise the Custodian in writing
of any such assignment and prior to receiving such advice the Custodian shall
be fully protected in dealing with the Buyer to the exclusion of any such
assignee.
23. Incorporation of Preliminary Matters, Schedules and Exhibits.
The Preliminary Matters set forth in this Agreement preceding Paragraph 1 and
all schedules and exhibits referred to herein are incorporated and made a part
hereof as though fully set forth herein.
24. 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.
25. Binding Effect. This Agreement shall be binding and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns provided, however, that neither the Seller nor the Custodian may assign
this Agreement or any of its rights or obligations hereunder except with the
prior written consent of the Buyer.
26. Counterparts. This Agreement may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
27. Governing Law; Jurisdictional Matters. The Agreement shall be
governed by and interpreted in accordance with the laws of the State of Texas.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE AGREEMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF STATE OF TEXAS, OR THE UNITED STATES OF AMERICA FOR
THE NORTHERN DISTRICT OF TEXAS, AND, BY EXECUTION AND DELIVERY OF THE
AGREEMENT, THE PARTIES HEREBY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH JURISDICTIONS. THIS
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SUBMISSION TO JURISDICTION IS NONEXCLUSIVE AND DOES NOT PRECLUDE THE BUYER FROM
OBTAINING JURISDICTION OVER THE SELLER OR THE CUSTODIAN IN ANY COURT OTHERWISE
HAVING JURISDICTION.
28. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY (A)
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN, (B) CERTIFY THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (C) ACKNOWLEDGE THAT IT ENTERED INTO
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY BASED UPON AMONG OTHER
THINGS THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS PARAGRAPH.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Seller, the Buyer and the Custodian have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the date and year first above written.
LOMAS MORTGAGE USA, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
---------------------------------
Title: Senior Vice President
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BANK ONE, TEXAS, N.A.,
as Custodian and, solely for
purposes of Paragraph 12, in
its individual capacity
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
FIRST NATIONWIDE MORTGAGE
CORPORATION
By: /s/ J. XXXXX XXXXX
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Name: J. Xxxxx Xxxxx
---------------------------------
Title: President
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SCHEDULE I
SELLER NOTICES
Name: Xxxxx X. Xxxxxxx Address: 0000 Xxxxxxx Xxxxx
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Title: General Counsel Xxxxxx, Xxxxx 00000-0000
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Telephone: 000-000-0000
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Facsimile: 000-000-0000
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SELLER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized,
acting singly, to act for Seller under this Agreement:
Name Title Signature
---- ----- ---------
Xxxxxxx Xxxxxxxxx SVP /s/ XXXXXXX XXXXXXXXX
Xxxxx Xxxxxxx EVP /s/ XXXXX XXXXXXX
Xxxxx Xxxxxx VP /s/ XXXXX XXXXXX
Xxxx Xxxxxxxx SVP /s/ XXXX XXXXXXXX
CUSTODIAN NOTICES
Name: Xxxxxx Xxxxxx Address: Banc One, Texas
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Title: Vice President 0000 Xxxxxxx Xxxxxx
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Telephone: 000-000-0000 6th floor
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Facsimile: 000-000-0000 Xxxxxx, Xxxxx 00000
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CUSTODIAN AUTHORIZATIONS
Any person whose signatures and titles appear below is authorized, acting
singly, to act for Custodian under this Agreement:
Name Title Signature
---- ----- ---------
Xxxxxx Xxxxxx Vice President
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BUYER NOTICES
Name: Xxxxxxxx X. Xxxxxxxx Address: 000 Xxxxxxxx Xxxxx
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Title: General Counsel Suite 1350
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Telephone: 000-000-0000 Xxxxxx, Xxxxx 00000
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Facsimile: 000-000-0000
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BUYER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below, including
any other authorized officers, are authorized, acting singly, to act for the
Buyer under this Agreement:
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxxxxx EVP
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Xxxxx Xxxxxxx FVP
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Xxxxx Xxxxxx AVP /s/ XXXXX XXXXXX
----------------------------------
Xxxxxxxxx Xxxxxxx SVP
----------------------------------
Xxxxx Xxxxxxxxx EVP
----------------------------------
Xxxxxxx Xxxxx SVP
----------------------------------
Xxxxxxxx Xxxxxxxxx SVP /s/ XXXXXXXX XXXXXXXXX
----------------------------------
I-2
16
EXHIBIT A
DOCUMENT SUBMISSION SUMMARY NO.______
BUYER: CUSTODIAN:
First Nationwide Mortgage Corp. Bank One, Texas, National Association
___________________________________ ______________________________________
___________________________________ ______________________________________
Attn: Attn:
Facsimile: Facsimile
RE: Tri-Party Custody Agreement dated as of September 19, 1995
among Lomas Mortgage USA, Inc. ("Seller"), Buyer and Custodian
(the "Custody Agreement")
Reference is made to the Agreement. Capitalized terms not defined herein have
the meanings specified in the Custody Agreement. Contemporaneous herewith
Seller has submitted each of the Mortgage Loans identified on the attached
schedule to the Buyer for purchase by the Buyer under the Repurchase Agreement.
REPRESENTATION AND WARRANTY OF SELLER
Seller hereby represents and warrants that:
(a) the Required Documents with respect to such Mortgage Loans
have been, or are hereby, submitted to Custodian pursuant to the Custody
Agreement; and
(b) all other documents necessary for such Mortgage Loans (other
than such Mortgage Loans as are "Housing Authority Mortgage Loans") to satisfy
the terms of the "Takeout Commitments" and "Agency Commitments" by which such
Mortgage Loans are "Covered" (each term in quotation marks having the meaning
specified in the Repurchase Agreement), including but not limited to mortgages,
insurance policies, loan applications and appraisals, are held by Seller as
bailee and custodian in trust for the Buyer.
LOMAS MORTGAGE USA, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
A-1
