Exhibit 10.1.2
WHOLE LOAN CUSTODIAL AGREEMENT
ASPEN FUNDING CORP.
Purchaser,
60 Wall Street
New York, New York 10005
GEMINI SECURITIZATION CORP., LLC.
Purchaser,
60 Wall Street
New York, New York 10005
NEWPORT FUNDING CORP.
Purchaser,
60 Wall Street
New York, New York 10005
and
AMERICAN HOME MORTGAGE CORP.
Seller,
538 Broadhollow Road
Melville, New York 11747
AMERICAN HOME MORTGAGE INVESTMENT CORP.
Seller,
538 Broadhollow Road
Melville, New York 11747
AMERICAN HOME MORTGAGE SERVICING, INC.,
Servicer,
4600 Regent Blvd., Suite 200
Irving, Texas 75063
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Custodian
1761 East St. Andrew Place
Santa Ana, California 92705
Attn: Mortgage Custody - AH064C
Dated as of June [__], 2006
TABLE OF CONTENTS
Page
Section 1. Definitions.....................................................1
Section 2. Delivery of Documents by Sellers................................6
Section 3. Custodian as Custodian for, and Bailee of, Purchasers, Assignee
and Warehouse Lender...........................................6
Section 4. Certification by Custodian; Delivery of Documents; Disbursement
Account........................................................7
Section 5. [Reserved].....................................................11
Section 6. Default........................................................12
Section 7. Access to Documents............................................12
Section 8. Custodian's Fees and Expenses; Successor Custodian; Standard of
Care..........................................................12
Section 9. Assignment by Purchaser........................................15
Section 10. Insurance......................................................16
Section 11. Representations, Warranties and Covenants......................16
Section 12. No Adverse Interests...........................................18
Section 13. Amendments.....................................................18
Section 14. Execution in Counterparts......................................18
Section 15. Agreement for Exclusive Benefit of Parties; Assignment.........18
Section 16. Effect of Invalidity of Provisions.............................18
Section 17. Governing Law..................................................19
Section 18. Consent to Service.............................................19
Section 19. Notices........................................................19
Section 20. Construction...................................................19
Section 21. Submission to Jurisdiction.....................................19
Section 22. WAIVER OF JURY TRIAL...........................................19
EXHIBITS
Exhibit A-1 [Reserved]
Exhibit A-2 [Reserved]
Exhibit B-1 Conduit Submission Package
Exhibit B-2 Conduit Master Bailee Letter
Exhibit C Request for Certification
Exhibit D-1 Trust Receipt
Exhibit D-2 Wet Mortgage Loan Trust Receipt
Exhibit E- 1 Warehouse Lender's Release
Exhibit E-2 Warehouse Lender's Wire Instructions
Exhibit F-l Seller's Release
Exhibit F-2 Seller's Wire Instructions
Exhibit G-l Purchaser's Wire Instructions to Seller
Exhibit G-2 Purchaser's Wire Instructions to Custodian
Exhibit G-3 Purchaser's Delivery Instructions to Custodian
Exhibit H Notice by Assignee to Custodian of Purchaser's Default
Exhibit I Notice of Assignment
Exhibit J Form of Delivery Instructions
Exhibit K-1 Trade Assignment
Exhibit K-2 Trade Assignment (Blanket)
Exhibit L Officer's Certificate of Seller
Exhibit M Request for Release
Schedule A List of Conduits
Schedule B Loan Identification Data
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT ("Agreement"), dated as of the date set
forth on the cover page hereof (the "Effective Date"), is entered into by and
among ASPEN FUNDING CORP., GEMINI SECURITIZATION CORP., LLC and NEWPORT FUNDING
CORP. (each individually, a "Purchaser" and together, the "Purchasers"),
DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian ("Custodian") and AMERICAN
HOME MORTGAGE CORP., AMERICAN HOME MORTGAGE INVESTMENT CORP., (each
individually, a "Seller" and together, the "Sellers") and AMERICAN HOME MORTGAGE
SERVICING, INC., (the "Servicer").
PRELIMINARY STATEMENT
Purchasers have agreed to purchase from Sellers, from time to time,
at their sole election, certain mortgage loans pursuant to the terms and
conditions of the Whole Loan Purchase and Sale Agreement ("Purchase Agreement")
among Purchasers, Servicer, and Sellers. Servicer is obligated to interim
service the Mortgage Loans pursuant to the terms and conditions of the Purchase
Agreement. Purchasers desire 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 the related Purchaser or
Assignee in accordance with the terms and conditions hereof.
The parties hereto agree as follows:
Section 1. Definitions.
Capitalized terms used, but not defined, herein shall have the
meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"Applicable Guide": With respect to each Takeout Investor the
applicable guide published by such Takeout Investor setting forth the
requirements Mortgage Loans must satisfy in order to be eligible for
purchase by such Takeout Investor as amended or supplemented from time to
time.
"Assignee": The party identified in writing to Sellers and Custodian
by Purchasers from time to time who acts as agent for certain
beneficiaries pursuant to certain custody agreements with Purchasers.
"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 is located to reflect
of record the sale of a Mortgage Loan.
"Bailee Letter": A Conduit Bailee Letter.
"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 or California
are authorized or obligated by law or executive order to be closed or (b)
any day on which the Servicer, Purchasers or Custodian is authorized or
obligated by law or executive order to be closed.
"Commitment": A commitment executed by Takeout Investor and the
related Seller evidencing Takeout Investor's agreement to purchase one or
more Mortgage Loans from such Seller and such Seller's agreement to sell
one or more Mortgage Loans to an investor in a forward trade by the
applicable Expiration Date.
"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 B-2, for use by Custodian in connection with the delivery of a
Conduit Submission Package, for the purpose of delivering the related
Conduit Submission Package, excluding (i) a copy of the Confirmation, (ii)
the Warehouse Lender's Release or the related 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 B-1,
which shall be delivered by the related Seller to Custodian in connection
with each Conduit Transaction.
"Conduit Transaction": A transaction initiated by the related
Seller's delivery of a Request for Certification which identifies a
Conduit as the Takeout Investor.
"Confirmation": A written confirmation as required by the Purchase
Agreement of Purchaser's intent to purchase a pool of Mortgage Loans.
"Custodian": The party identified on the cover page hereto and its
permitted successors hereunder.
"Delivery Instructions": With respect to a Mortgage Loan,
instructions prepared by Sellers and transmitted electronically in an
appropriate data layout no later than 11:00 a.m. New York City time, in
the form of Exhibit J indicating the address for the delivery by Custodian
of the applicable portion of the related Submission Package.
"Disbursement Account": shall have the meaning set forth in Section
4(a)(2) hereof.
"Discount": With respect to a Mortgage Loan sold by the related
Seller to the Purchaser, the amount set forth on the related Confirmation
as the Discount.
"Electronic Agent": Shall have the meaning assigned to such term in
Section 2 of the Electronic Tracking Agreement.
"Electronic Tracking Agreement" The Electronic Tracking Agreement,
dated as of the date hereof, among the Purchasers, the Sellers, the
Servicer, the Electronic Agent and MERS, as the same shall be amended,
supplemented or otherwise modified from time to time.
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"Expiration Date": With respect to any Commitment, the expiration
date thereof.
"Funding Confirmation": With respect to all Mortgage Loans purchased
by the related Purchaser from Sellers via a single wire funds transaction
on a particular Business Day, the trade confirmation from such Purchaser
to Sellers confirming the terms of such Purchaser's purchase of such
Mortgage Loans.
"GNMA": The Government National Mortgage Association and any
successor thereto.
"HUD": United States Department of Housing and Urban Development and
any successor thereto.
"Loan Identification Data": The applicable information regarding a
Mortgage Loan, set forth on a Request for Certification, which shall
include the fields set forth on Schedule B, such schedule may be modified
from time to time by the Purchaser.
"Losses": Any and all losses, claims, damages, liabilities or
expenses (including lost interest and 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": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of
Delaware, or any successor thereto.
"MERS Mortgage Loan": Any Mortgage Loan as to which the related
Mortgage or assignment of Mortgage has been recorded in the name of MERS,
as agent for the holder from time to time of the Mortgage Note and which
is identified as a MERS Mortgage Loan on the related Loan Identification
Data."
"MERS Report": The schedule listing MERS Mortgage Loans and other
information prepared by the Electronic Agent with respect to such Mortgage
Loan.
"MERS System": The system of recording transfers of Mortgages
electronically maintained by MERS.
"MIN": The mortgage identification number of Mortgage Loans
registered with MERS on the MERS System.
"Mortgage": A mortgage, deed of trust or other security instrument
creating a lien on an estate in fee simple in real property securing a
Mortgage Note.
"Mortgage Loan": A mortgage loan that is subject to this Agreement.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
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"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
A-2 or Schedule A to Exhibit B-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.
"Person": 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.
"Pricing Side Letter": The pricing side letter, dated as of the date
hereof, among Sellers and Purchasers, as the same may be amended,
supplemented or modified from time to time.
"Primary Mortgage Insurer": Any one of GE Capital Mortgage Insurance
Co., Republic Mortgage Insurance Co., Mortgage Guaranty Insurance Corp.,
United Guaranty Corporation or PMI Mortgage Insurance Company or any other
entity approved as a primary mortgage insurer by Fannie Mae.
"Purchase Agreement": The Whole Loan Purchase and Sale Agreement,
dated as of the date set forth on the cover page thereof, among Sellers,
Servicer and Purchaser, as each is amended from time to time providing the
terms of Conduit Transactions.
"Purchase Date": With respect to a Mortgage Loan, the date on which
the Purchasers purchases such Mortgage Loan from Sellers.
"Purchasers": Aspen Funding Corp., Gemini Securitization Corp., LLC
and Newport Funding Corp., each a Purchaser and together "Purchasers".
With respect to any Mortgage Loan, the related Purchaser whose name is set
forth on the cover page hereof to whom the Seller sold such Mortgage Loan
pursuant to the terms of the Purchase Agreement, and its permitted
successors hereunder.
"Purchaser's Payment": The amount set forth on the Request for
Certification in the "RELEASE PAYMENT" column.
"Purchase Price": With respect to each Mortgage Loan Pool purchased
by a Purchaser hereunder, the amount specified in the Pricing Side Letter.
"Purchaser's Wire Instructions to Custodian": Wire Instructions
delivered by the related Purchaser to Custodian, in the form of Exhibit
G-2, executed by such Purchaser, receipt of which has been acknowledged by
Custodian specifying the wire address where all funds received in
accordance with such Purchaser's Wire Instructions to the related Seller
shall be transferred by Custodian.
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"Purchaser's Wire Instructions to Seller": The wire instructions,
set forth on Exhibit G-1, specifying the account which shall be used for
the payment of all amounts due and payable by Sellers to the related
Purchaser hereunder.
"Release Payment": The funds referred to in a Warehouse Lender's
Release or the related Seller's Release, as applicable.
"Request for Certification": A report detailing Loan Identification
Data supplied by the related Seller to the related Purchaser and Custodian
in the form of Exhibit C and transmitted electronically in an appropriate
data layout, regarding all Mortgage Loans being offered for sale by such
Seller to such Purchaser on the Purchase Date.
"Sellers": American Home Mortgage Corp. and American Home Mortgage
Investment Corp., each a Seller and together "Sellers". With respect to
any Mortgage Loan, the related Seller whose name is set forth on the cover
page hereof from whom the Purchaser purchased such Mortgage Loan pursuant
to the terms of the Purchase Agreement, and its permitted successors
hereunder.
"Seller's Release": A letter, in the form of Exhibit F-1, delivered
by the related Seller when no Warehouse Lender has an interest in a
Mortgage Loan, conditionally releasing all of such Seller's right, title
and interest in a Mortgage Loan upon receipt of payment by such Seller.
"Seller's Wire Instructions": The wire instructions, set forth in a
letter in the form of Exhibit F-2, to be used for the payment of funds to
the related 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 Conduit
Submission Package.
"Successor Servicer": An entity designated by Purchasers, in
conformity with the Purchase Agreement, to replace Servicer as servicer
for Purchaser.
"Takeout Investor": A Conduit.
"Trade Assignment": The assignment by the related Seller to the
related Purchaser of such Seller's rights under a specific Commitment, in
the form of Exhibit K-1, or of such Seller's rights under all Commitments,
in the form of Exhibit K-2.
"Trade Price": The trade price set forth on a Commitment.
"Trade Principal": With respect to any Mortgage Loan, the
outstanding principal balance of the Mortgage Loan multiplied by a
percentage equal to the Trade Price.
"Trust Receipt": A receipt of Custodian, substantially in the form
of Exhibit D-1, or with respect to Wet Mortgage Loans as defined in the
Purchase Agreement in the form of Exhibit D-2, indicating that with
respect to the Mortgage Loans listed on the attached schedule, the
Custodian has performed the procedures set forth in Sections 4(a) and 4(b)
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hereof, that it has received the entire Conduit Submission Package, as
applicable, and that it is holding such documents as bailee and custodian
of the related Purchaser.
"Warehouse Lender": Any lender providing financing to the related
Seller for the purpose of originating Mortgage Loans, which lender has a
security interest in such Mortgage Loans as collateral for the obligations
of such Seller to such lender.
"Warehouse Lender's Release": A letter, in the form of Exhibit E-1,
from a Warehouse Lender to the related Purchaser, conditionally releasing
all of Warehouse Lender's right, title and interest in certain Mortgage
Loans identified therein upon payment to Warehouse Lender.
"Warehouse Lender's Wire Instructions": The wire instructions, set
forth in a letter in the form of Exhibit E-2, from a Warehouse Lender to
the related Purchaser, setting forth wire instructions for all amounts due
and payable to such Warehouse Lender.
"Wet Mortgage Loan": Mortgage Loans for which the Custodian has not
yet received a completed set of documents required to be delivered to the
Custodian pursuant to this Agreement.
Section 2. [Reserved].
Section 3. Custodian as Custodian for, and Bailee of, Purchaser,
Assignee and Warehouse Lender.
(a) With respect to each Mortgage Note, each Assignment of Mortgage
and all other documents constituting each Submission Package that are delivered
to Custodian or that at any time come into Custodian's possession, Custodian,
subject to the provisions of paragraphs (b) and (c) of this Section 3, shall act
solely and exclusively in the capacity of custodian for, and bailee of, the
related Purchaser after the payment by the related Purchaser to the related
Seller of the Purchase Price therefor. Custodian shall, subject to the
provisions of paragraphs (b) and (c) of this Section 3 and except as otherwise
required by Section 4: (i) hold all documents constituting a Submission Package
received by it for the exclusive use and benefit of the related Purchaser; (ii)
make disposition thereof only in accordance with this Agreement and the
directions of the related Purchaser; and (iii) have no discretion or authority
to act in a manner which is in any respect contrary to its role as custodian
with respect to its obligations under this Agreement. Custodian shall segregate
and maintain continuous custody of all documents constituting a Submission
Package received by it in secure and fire resistant facilities in accordance
with customary standards for such custody and shall mark its books and records
to indicate that the related Purchaser is the owner of the Mortgage Loans and
that the Submission Package is being held for such Purchaser.
(b) With respect to each Mortgage Loan purchased by the related
Purchaser from the related Seller, the related Purchaser shall have the right to
assign to Assignee such Mortgage Loan as described in Section 9. Purchaser shall
provide Custodian with at least 5 Business Days notice of its intention to
assign any Mortgage Loans to an Assignee, except if the Assignee is an Affiliate
of Purchaser or a commercial paper conduit of Purchaser, in which case,
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upon receipt of written notice by Custodian such assignment, upon notice in the
form of Exhibit H hereto by Assignee to Custodian of such Purchaser's default,
Assignee may (i) require Custodian to act with respect to the related Submission
Packages solely in the capacity of custodian for, and bailee of, Assignee, but
nevertheless subject to and only in accordance with the terms of this Agreement,
(ii) require Custodian to hold such Submission Packages for the exclusive use
and benefit of Assignee, and (iii) assume the rights of such Purchaser under
this Agreement to furnish instructions to Custodian as to the disposition of
such Submission Packages and such rights shall be exercisable solely by
Assignee. Custodian shall give Assignee written acknowledgment of the receipt of
such notice by signing such notice and returning a copy thereof to Assignee;
provided that the Custodian shall not be required to provide such
acknowledgement until the date which is three (3) Business Days following the
date that the Custodian has received all information necessary to allow the
Custodian to complete its internal "Know Your Customer" procedures with respect
to such Assignee, except if the Assignee is an Affiliate of Purchaser or a
commercial paper conduit of Purchaser. In the event that, prior to receipt of
such notice from Assignee, Custodian delivered any Submission Package specified
in such notice to the related Purchaser, Takeout Investor or such Purchaser's
designee, Custodian shall so notify Assignee, and Custodian shall not be deemed
to hold such Submission Package for Assignee unless and until such Submission
Package is redelivered to Custodian. The failure of Custodian to give the
written acknowledgment referred to above shall not affect the validity of such
assignment, pledge or grant of a security interest from the related Purchaser to
its Assignee. The effects of Assignee's notice to Custodian set forth above
shall continue until Custodian is otherwise notified in writing by Assignee. The
terms of this Agreement shall not apply to any Submission Package delivered by
Custodian to Assignee.
(c) Sellers and Purchasers acknowledge that Warehouse Lender, if
any, identified from time to time in each Warehouse Lender's Release to be
received by Custodian pursuant to Section 4(b)(i), is a warehouse lender for the
related Seller. The related Seller and Purchasers acknowledge that, in
accordance with the terms of each Warehouse Lender's Release to be received by
the Custodian pursuant to Section 4(b)(i), pursuant to which each such Warehouse
Lender conditionally releases its security interest in the Mortgage Loan
referred to in the related Warehouse Lender's Release, such release shall not be
effective until the Release Payment is remitted to the Warehouse Lender in
accordance with the Warehouse Lender's Wire Instructions. Until remittance of a
Release Payment to Warehouse Lender, the interest of the related Warehouse
Lender in a Mortgage Loan shall continue and remain in full force and effect.
The related Seller agrees that to the extent the Release Payment is greater than
the Purchase Price, the related Seller shall transfer on the Purchase Date the
difference between the Release Payment and the Purchase Price to the Warehouse
Lender in accordance with the Warehouse Lender's Wire Instructions.
(d) If any additional documents relating to the Submission Package
come into the Custodian's possession, the provisions of paragraphs (a), (b) and
(c) of this Section 3 shall apply to such additional documents in the same
manner as such provisions apply to the related Submission Package.
Section 4. Certification by Custodian; Delivery of Documents;
Disbursement Account; Settlement Account.
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(a) (1) With respect to each Mortgage Loan (excluding Wet Mortgage
Loans), being offered by related Seller for sale to the related Purchaser
pursuant to a Conduit Transaction, Sellers shall insure that Custodian and
Purchaser have each received the Loan Identification Data and the related
Seller's Wire Instructions necessary to complete a Request for Certification no
later than 3:00 p.m. New York City time one (1) Business Day preceding the
related Purchase Date (the "Dry Notice Time"). Further for each Mortgage Loan
(excluding Wet Mortgage Loans), Sellers shall insure that Custodian shall be in
possession of a Submission Package for each Mortgage Loan identified on a
Request for Certification no later than the Dry Notice Time and that no more
than 500 loan files are to be delivered to Custodian with respect to any one
Purchase Date. With respect to each Wet Mortgage Loan being offered by related
Seller for sale to the related Purchaser pursuant a Conduit Transaction, Sellers
shall (i) provide Purchaser with an estimate of the Purchase Price of such Wet
Mortgage Loans no later than prior to 3:00 pm New York City time one (1)
Business Day prior to the requested Purchase date and (ii) ensure that Custodian
and Purchaser have each received the Loan Identification Data and the related
Seller's Wire Instructions necessary to complete a Request for Certification no
later than 3:00 p.m. New York City time on the related Purchase Date.
Upon receipt by Custodian of such Request for Certification,
Custodian shall ascertain whether it is in possession of a Submission Package
for each Mortgage Loan (except for Wet Mortgage Loans) identified on a Request
for Certification and shall certify in accordance with Section 20 herein, each
Submission Package and, no later than 12 Noon New York City time on the Business
Day of the related Purchase Date with respect to Mortgage Loans (except for Wet
Mortgage Loans) and 4:00 pm New York City time on the Business Day of the
related Purchase Date with respect to Wet Mortgage Loans, issue to the related
Purchaser by facsimile a Trust Receipt substantially similar to Exhibit D-1 or
Exhibit D-2, as applicable. Separate Trust Receipts shall be delivered with
respect to Wet Mortgage Loans substantially similar to Exhibit D-2. With the
exception of Wet Mortgage Loans as indicated on the Loan Identification Data, if
Custodian is not in possession of a Submission Package relating to a Mortgage
Loan identified on a Request for Certification, Custodian shall notify Sellers
and shall not include such Mortgage Loan in any Trust Receipt. Each Trust
Receipt or Wet Mortgage Loan Trust Receipt issued shall supersede any Trust
Receipt or Wet Mortgage Loan Trust Receipt bearing an earlier date.
(2) With respect to Wet Mortgage Loans, Custodian shall establish
and maintain an account (the "Disbursement Account"), entitled "Disbursement
Account, Deutsche Bank National Trust Company, as Custodian for Aspen Funding,
Gemini Securitization Corp., LLC and Newport Funding Corp., Account No. 53079,"
into which Purchasers shall deposit the Purchase Price for Wet Mortgage Loans
with Custodian. With respect to any Wet Mortgage Loan, Purchasers shall remit
the Purchase Price to either (i) the Custodian for deposit into the Disbursement
Account no later than Noon New York City time on the related Purchase Date or
(ii) the applicable Warehouse Lender. Any funds in the Disbursement Account
shall remain uninvested.
Provided that Custodian has received (i) the related wire transfer
as provided in the prior sentence and (ii) written notification from the
Purchaser to release such funds, on any
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related Purchase Date, the Custodian shall be permitted to disburse funds from
the Disbursement Account pursuant to the related Seller's Wire Instructions
provided by the related Seller. In no event shall Custodian be obligated to
disburse funds if Custodian has not received sufficient funds pursuant to
Section 4(a)(2) above. Custodian shall have no obligation to review or verify
Seller's Wire Instructions.
In connection with the funding of any Wet Mortgage Loans or the
release of any other Mortgage Loan from the warehouse facility of the related
Seller simultaneously with the purchase of such Mortgage Loan by the related
Buyer, the Sellers shall deposit into the Disbursement Account (or provide to
Custodian for deposit into the Disbursement Account on such Business Day) an
amount (the "Seller Funded Wire Amount") equal to the difference between the
amount required to originate or release such Mortgage Loan from warehouse
lender's interest and the amount to be funded by such Buyer from the
Disbursement Account in accordance herewith. Custodian shall not be authorized
to disburse funds from the Disbursement Account unless and until Sellers cover
any shortfalls related to the Disbursement Account.
(b) With respect to each Request for Certification, prior to the
delivery of the a Trust Receipt by Custodian:
(i) Custodian shall review each applicable set of documents
comprising the Submission Package and shall ascertain whether (A) each
document required by this Agreement to be in such Submission Package is in
the Custodian's possession, (B) each document in the Custodian's
possession conforms to the loan number, property address, property city,
property state, property zip code, original rate and original balances as
set forth in the Loan Identification Data attached as Schedule B, (C) each
document appears regular on its face, (D) each document appears on its
face to conform to the requirements of Exhibit A-1 or Exhibit B-1, as
applicable and (E) each Mortgage Loan is listed on a schedule attached to
a Warehouse Lender's Release or a Seller's Release, as the case may be.
(ii) If Custodian determines that the documents in the Submission
Package and the Mortgage Loan to which they relate conform in all respects
with Section 4(b)(i), Custodian shall include such Mortgage Loan in the
Trust Receipt and, assuming the related Purchaser does not notify
Custodian that it will not purchase a particular Mortgage Loan, in the
Trust Receipt issued that day to Purchasers. With the exception of Wet
Mortgage Loans as indicated on the Loan Identification Data attached as
Schedule B, if documents in the Submission Package do not conform in all
respects with Section 4(b)(i) or are missing and/or do not conform (except
as specified in Section 4(b)(i)), Custodian shall not include such
Mortgage Loan in any Trust Receipt.
(c) As outlined in Section 4(a), Custodian shall deliver to
Purchasers, no later than 6:00 p.m. Pacific Time on the Business Day of the
related Purchase Date, by facsimile transmission followed by overnight courier a
cumulative Trust Receipt. Each cumulative Trust Receipt should include: (i) all
Mortgage Loans that Custodian has certified on all prior Purchase Dates that
Purchasers have not communicated to Custodian their release of interest in and
(ii) the collateral location pursuant to the Mortgage Loan Schedule of each
Mortgage Loan appearing on this report. Each Trust Receipt shall be deemed a
certification by the Custodian that the
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Custodian has completed the procedures set forth in Sections 4(a) and 4(b)(i)
hereof and a certification that it is holding each related Submission Package
for the benefit of Purchaser in accordance with the terms hereof.
(d) With respect to Wet Mortgage Loans, the delivery of the Loan
Identification Data to the Custodian by the related Seller shall be deemed to
constitute required documents with respect to the related Wet Mortgage Loan (and
shall be deemed to be a certification by such Seller that such Mortgage Loan is
a Wet Mortgage Loan) and the documents specified in Section 4(b)(i) above shall
not be required to be delivered with respect to such Wet Mortgage Loan on the
related Purchase Date. Notwithstanding the foregoing, the related Seller shall
deposit with the Custodian the documents described in Section 4(b)(i) above for
such Wet Mortgage Loan as soon as possible and, in any event, within seven (7)
Business Days of the related Purchase Date. The Custodian shall notify the
related Purchaser within one (1) Business Day of the failure by the related
Seller to deliver any document by the time provided in the previous sentence.
Upon deposit of such documents with Custodian, Custodian shall review such
documents, shall promptly notify the related Purchaser if such documents do not
comply with the requirements contained in Section 4(b)(i) and shall indicate on
its records that Custodian maintains possession of such documents for the
related Purchaser hereunder. Each Seller hereby represents, warrants and
covenants to each Purchaser and Custodian that each Seller and any person or
entity acting on behalf of such Seller that has possession of any of the
documents described in Section 4(b)(i) above for such Wet Loan prior to the
deposit thereof with Custodian will hold such documents in trust for the related
Purchaser.
(e) All documents comprising a Submission Package relating to
Mortgage Loans included in a Trust Receipt shall be delivered by Custodian to
the Takeout Investor specified by Seller via overnight courier in accordance
with the Delivery Instructions and under cover of a fully completed Notice of
Bailment prepared by Custodian in accordance with the terms of the applicable
Bailee Letter. Custodian shall not deliver any Submission Package to any
potential Takeout Investor unless such Takeout Investor was identified by
Sellers to the related Purchaser on the Purchase Date in the Loan Identification
Data or as agreed to in writing (which may be an electronic writing) by such
Purchaser. Custodian shall confirm prior to delivery of any documents to any
Takeout Investor that such Takeout Investor has executed a Bailee Letter. In
those cases where a copy of any intervening mortgage assignment, or an
unrecorded original of any intervening mortgage assignment are delivered to the
Custodian, Sellers shall promptly cause the original of such instrument to be
recorded. Upon receipt of one written approval from a Purchaser, such written
approval shall, unless Custodian receives written or electronic notice from a
Purchaser to the contrary, be deemed to apply to all Delivery Instructions
delivered in the future by Sellers that list such location. Unless required to
be held by applicable law, following delivery by Custodian of the Submission
Package to Takeout Investor, all remaining documents, if any, not included in
such Submission Package shall be delivered to the Seller.
(f) At any time following the delivery of a Trust Receipt, in the
event Custodian becomes aware of any noncompliance in any respect with Section
4(b)(i) with respect to a related Submission Package or the related forms,
including the return of documents to the Custodian from Takeout Investor due to
a defect in such documents or if Takeout Investor fails to purchase any Mortgage
Loan by the related Cure Date, the Custodian shall give prompt electronic notice
of such defect to the related Purchaser, followed by a written specification
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thereof to the related Purchaser within one Business Day. In addition, Custodian
shall provide written notice to the related Purchaser and the related Seller in
the event that any documents remain in the possession of a Takeout Investor for
ten days and the related Mortgage Loans have not been purchased by Takeout
Investor prior to such date.
(g) (i) Upon release of a Mortgage Loan, the Custodian shall amend
the Trust Receipt to reflect such release, and shall deliver to the related
Purchaser such amended Trust Receipt.
(ii) The Custodian has established and shall maintain that certain
non interest bearing segregated trust account, Acct No. 53135 (the "Settlement
Account"), in the name of the Sellers. The Purchasers shall possess all right,
title, and interest in all funds from time to time on deposit in, and assets
credited to, the Settlement Account and in all proceeds thereof. The Custodian
and Sellers hereby acknowledge and agree that the Settlement Account is subject
to the exclusive dominion and control of the Purchasers, and the Custodian shall
transfer funds from the Settlement Account solely in accordance with
instructions from a Purchaser. Funds held in the Settlement Account shall not be
invested.
(iii) The Custodian shall pay to Purchasers all amounts on deposit
in the Settlement Account by 4:00 p.m. (New York City time) on each Business
Day. All amounts deposited in the Settlement Account after 4:00 pm. (New York
City time) on each Business Day shall be paid by the Custodian to the Purchasers
on the following Business Day. The sellers shall provide the Purchasers and
Custodian with a daily reconciliation of amounts received in the Settlement
Account
(h) The Custodian is hereby authorized upon receipt of written
request of Servicer to release Mortgage Files relating to Mortgage Loans in the
possession of the Custodian, for the purpose of liquidation, servicing or
correcting documentary deficiencies relating thereto against a request for
release of the Mortgage Files and receipt (a "Request for Release and Receipt")
executed by Servicer in the form of Exhibit M hereto, which Request for Release
and Receipt must also be executed by the related Purchaser(s) in the event that
more than one hundred (100) Mortgage Files would be released following such
requested release. The Custodian shall promptly notify the related Purchaser(s)
of the occurrence of each such release of Mortgage Files and shall keep track of
each such release of Mortgage Files. The related Purchaser(s) hereby agrees to
respond to a Request for Release and Receipt, via facsimile, no later than one
(1) Business Day after such Purchaser's receipt thereof. The Servicer shall
return to the Custodian each Mortgage File previously released by the Custodian
within ten (10) Business Days after receipt thereof, unless Servicer has marked
the related Request for Release "Mortgage Loan Paid in Full". Each Seller and
Servicer hereby further represent and warrant, jointly and severally, to the
Purchasers that any such request by the Servicer for release of Collateral shall
be solely for the purposes set forth in the Request for Release and Receipt.
Section 5. [Reserved].
Section 6. Default. If Sellers fail to fulfill any of their
obligations under the Purchase Agreement or hereunder or in connection with the
exercise by Purchaser of any remedy pursuant to Section 3 of the Purchase
Agreement then, subject to the provisions of Section 3(b)
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hereof, a Purchaser may, by written or electronic notice to Custodian, (a)
appoint Custodian as its delegate to complete the endorsements on behalf of such
Purchaser on the Mortgage Notes held by Custodian and to complete and record at
Purchasers' expense the related blank Assignments of Mortgages relating to the
affected Mortgage Loans in accordance with such Purchaser's instructions and,
when applicable, (b) require Custodian to deliver to Purchaser, Takeout Investor
or Successor Servicer the Submission Packages (or any portion thereof specified
by Purchaser) in Custodian's possession or under Custodian's control to which
the failure relates. If Purchasers fail to purchase Mortgage Loans as provided
for under the Purchase Agreement or hereunder, Custodian shall hold the Mortgage
Loans for the benefit of the related Seller and shall act under instructions
from the related Seller.
Section 7. Access to Documents. Upon 48 hours prior written notice
to Custodian, each Purchaser (and if the Mortgage Loans have been assigned,
Assignee) and its agents, accountants, attorneys and auditors will be permitted
during normal business hours at its office to examine and copy at their expense
the Submission Packages, documents, records and other papers in possession of or
under the control of Custodian relating to any or all of the Mortgage Loans in
which a Purchaser has an interest. Upon the written or electronic request of
Purchaser (or, if applicable, Assignee) and at the cost and expense of
Purchasers (or, if applicable, Assignee), Custodian shall provide Purchasers
(or, if applicable, Assignee) with copies of the Mortgage Notes, Assignments of
Mortgage and other documents in Custodian's possession relating to any of the
Mortgage Loans in which a Purchaser (or, if applicable, Assignee) has an
interest. In addition, upon the written or electronic request of a Purchaser,
Custodian shall provide such Purchaser with an electronic transmission
containing a list of all the Mortgage Loans for which the Custodian holds
documents pursuant to this Custodial Agreement and a list of the documents held
by Custodian with respect to each such Mortgage Loan.
Section 8. Custodian's Fees and Expenses; Successor Custodian;
Standard of Care.
(a) The Sellers agree to pay the Custodian such fees and expenses
for its services under this Agreement as are set forth in a separate agreement
among Custodian and Sellers, and shall further pay or reimburse the Custodian
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Custodian in accordance with this Agreement or any other
documents executed in connection herewith (including, without limitation,
attorney's fees and expenses). The payment of the Custodian's fees and expenses
in connection herewith, shall be the joint and several obligation of Sellers.
Custodian has no lien on, and shall not attempt to place a lien on, or assert an
interest in, any of the Submission Package, Mortgage Loans or proceeds thereof
to secure the payment of its fees and expenses. The obligations of the Sellers
under this Section 8 shall survive the termination of this Agreement and the
resignation or removal of Custodian.
(b) Custodian or any successor Custodian may resign at any time by
giving sixty (60) days' prior written notice to Sellers and Purchasers. Such
resignation shall take effect upon the earlier of (i) the appointment of a
successor Custodian by Purchasers with the prior written consent of the Sellers
and delivery of all the Submission Packages and
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any related documents in Custodian's possession to the successor Custodian in
accordance with the written or electronic direction of the Purchasers, and (ii)
the delivery of all the Submission Packages and any related documents in
Custodian's possession to the Purchasers or their designee pursuant to (c) below
after expiration of said sixty (60) days. Sellers shall be responsible for
reimbursing Custodian for its expenses associated with delivery of the
Submission Packages and related documents to Purchasers.
(c) In the event of any such resignation, Custodian shall promptly
transfer to the successor Custodian all Submission Packages and related
documents in Custodian's possession and the successor Custodian shall hold such
Submission Packages and related documents in accordance with this Agreement. If
Purchasers direct the removal of Custodian, Purchasers shall be responsible for
all expenses associated with the transfer of the Submission Packages and any
related documents in Custodian's possession and for any fee of the successor
Custodian in excess of the fees of the initial Custodian hereunder. In any case,
Custodian shall not be responsible for payment of fees to any successor
Custodian. The Purchasers shall have sixty (60) days in which to appoint and
designate an acceptable successor Custodian with the prior written consent of
the Sellers. If the Purchasers fail to appoint a successor Custodian within such
60-day period, then Custodian shall deliver possession and custody of the
Submission Packages and any related Submission Packages in Custodian's
possession to Purchasers at the address specified on the cover page hereof, or
if a timely written designation is received by Custodian, to any designee of
Purchasers.
(d) Custodian shall have responsibility only for the Submission
Packages and their contents which have been actually delivered to it and which
have not been released to Sellers, Purchasers, the Takeout Investor or Assignee
or their respective agent or designee in accordance with this Agreement. The
standard of care to be exercised by Custodian in the performance of its duties
under this Agreement shall be to exercise the same degree of care as Custodian
exercises when it holds similar mortgage loan documents as security for similar
loans or warehouse loans. Custodian is an agent, bailee and custodian only and
is not intended to be, nor shall it be construed to be (except only as agent,
bailee and custodian), a representative, trustee or fiduciary of or for either
Sellers, Purchasers or Assignee. The Custodian shall not be bound in any way by
any agreement or contract other than this Agreement and the exhibits and
schedules hereto and any other agreement to which it is a party. The Custodian
shall not be required to ascertain or inquire as to the performance or
observance of any of the conditions or agreements to be performed or observed by
any other party, except as specifically provided in this Agreement and the
exhibits and schedules hereto. The Custodian disclaims any responsibility for
the validity or accuracy of the recitals to this Agreement and any
representations and warranties contained herein, unless specifically identified
as recitals, representations or warranties of the Custodian.
(i) Throughout the term of this Agreement, the Custodian shall have
no responsibility for ascertaining the value, collectability,
insurability, recordability, enforceability, priority, perfection,
effectiveness or suitability of any Collateral, the title of any party
therein, the validity or adequacy of the security afforded thereby, or the
validity of this Agreement (except as to Custodian's authority to enter
into this Agreement and to perform its obligations hereunder).
(ii) The Custodian shall not be under any duty to determine or pass
upon the genuineness, validity or legal sufficiency of any of the
documents constituting part of any
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Submission Package, and shall be entitled to assume that all documents
constituting part of such files are genuine and valid and that they are
what they purport to be, and that any endorsements or assignments thereof
are genuine and valid.
(iii) No provision of this Agreement shall require the Custodian to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any
of its rights and powers, if, in its sole judgment, it shall believe that
repayment of such funds or indemnity satisfactory to it against such risk
or liability is not assured to it.
(iv) The Custodian is not responsible for preparing or filing any
reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Custodian's compensation or
for reimbursement of expenses.
(v) In the absence of bad faith on the part of Custodian, Custodian
may conclusively rely, as to the truth of the statements expressed
therein, upon any certificates furnished to Custodian which conform to the
requirements of this Agreement.
(vi) Neither the Custodian nor any of its officers, directors,
employees and agents shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with any
direction of the Purchasers given under this Agreement.
(vii) Custodian may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
(viii) Custodian may consult with counsel and any written opinion of
counsel shall be full and complete authorization and protection in respect
of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or opinion of counsel.
(ix) Custodian shall not invest or reinvest any cash held in the
Disbursement Account in the absence of timely and specific written
investment direction from the Purchasers. In no event shall Custodian be
liable for the selection of investments or for investment losses incurred
thereon. Custodian shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated
maturity or as a result of the failure of the Purchaser to provide timely
written investment direction.
(x) Each Seller, jointly and severally, hereby indemnifies, defends
and holds Custodian and its officers, directors, employees and agents
harmless from and against any claim, legal action, liability or loss that
is initiated against or incurred by Custodian and its officers, directors,
employees and agents, including court costs and reasonable attorney's fees
and disbursements, in connection with Custodian's performance of its
duties under this Agreement, including those involving ordinary
negligence, but excluding only those involving gross negligence or willful
misconduct of Custodian. Notwithstanding anything to the contrary
contained herein, this provision shall survive
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the termination of this Agreement. The Custodian shall have the power to
employ such agents as it may reasonably deem necessary or appropriate in
the performance of its duties and the exercise of its powers under this
Agreement.
(e) Neither the Custodian nor any of its officers, directors,
employees and agents shall incur any liability to any Person for its acts or
omissions hereunder, except as may result from its negligence or willful
misconduct. The parties each (for itself and any person or entity claiming
though it) hereby releases, waives, discharges, exculpates and covenants not to
sue the Custodian for any action taken or omitted under this Agreement except to
the extent caused by the Custodian's gross negligence or willful misconduct.
Notwithstanding anything contained herein to the contrary, the parties agree
that no party hereunder nor any of its directors, officers or employees shall be
liable to any other party hereunder for any special, consequential or punitive
damages whatsoever.
(f) Custodian undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement, it being expressly understood
that there are no implied duties hereunder. Whenever in the administration of
the provisions of this Agreement the Custodian shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Custodian, be deemed to be conclusively proved and
established by a certificate signed by one of the Purchaser's officers and
delivered to the Custodian and such certificate, in the absence of negligence or
bad faith on the part of the Custodian, shall be full warrant to the Custodian
for any action taken, suffered or omitted by it under the provisions of this
Agreement upon the faith thereof.
In order to comply with laws, rules, regulations and executive orders in
effect from time to time applicable to banking institutions, including those
relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Custodian is required to obtain, verify and record
certain information relating to individuals and entities which maintain a
business relationship with the Custodian. Accordingly, each of the parties
agrees to provide to the Custodian upon its request from time to time such
identifying information and documentation as may be available for such party in
order to enable the Custodian to comply with Applicable Law.
Section 9. Assignment by Purchasers. Each Purchaser shall have free
and unrestricted use of the Mortgage Loans and may assign all of its right,
title and interest in and to some or all of the Mortgage Loans purchased by such
Purchaser pursuant to the Purchase Agreement and all rights of such Purchaser
under the Purchase Agreement (and this Agreement) in respect of such Mortgage
Loans represented thereby to any Assignee. The Sellers hereby irrevocably
consent to any such assignment subject to the rights of any Takeout Investor.
Upon receipt of written notice to the Custodian of any such assignment in the
form attached hereto as Exhibit I, the Custodian shall mark its records to
reflect the pledge or assignment of the Mortgage Loans by the related Purchaser
to the Assignee. The Custodian's records shall reflect the pledge or assignment
of the Mortgage Loans by the related Purchaser to the Assignee until such time
as the Custodian receives written instructions from such Purchaser with consent
from the Assignee that the Mortgage Loans are no longer pledged or assigned by
such Purchaser to the Assignee, at which time the Custodian shall change its
records to reflect the release of the pledge
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or assignment of the Mortgage Loans, and that the Custodian is holding the
Mortgage Loans, as custodian for, and for the benefit of, such Purchaser.
If the related Purchaser has notified the Custodian in writing of
such assignment or pledge by delivery to the Custodian of a written notice in
the form of Exhibit I hereto, then, upon delivery of notice in the form of
Exhibit H by Assignee to the Custodian of the such Purchaser's default, Assignee
may, subject to any limitations in any agreement between Assignee and such
Purchaser, (i) require Custodian to act with respect to the related Mortgage
Loans solely in the capacity of custodian for, and bailee of, Assignee, but
nevertheless subject to and only in accordance with the terms of this Custodial
Agreement, (ii) require Custodian to hold such Mortgage Loans for the exclusive
use and benefit of Assignee, and (iii) assume the rights of such Purchaser under
this Agreement to furnish instructions to the Custodian as to the disposition of
such Mortgage Loans and such rights shall be exercisable solely by Assignee. In
addition, within three (3) Business Days of receipt of such notice to the
Custodian in the form of Exhibit H and receipt by the Custodian of the Trust
Receipt from the Assignee, the Custodian shall deliver, in accordance with the
written instructions of the Assignee, a Trust Receipt issued in the name of the
Assignee and to the place indicated in any such written direction from the
Assignee. The Custodian shall assume that any assignment from a Purchaser to
Assignee is subject to no limitations that are not expressly set forth in this
Custodial Agreement; provided that the Custodian shall not be required to issue
a Trust Receipt to such Assignee until the date which is three (3) Business Days
following the date that the Custodian has received all information necessary to
allow the Custodian to complete its internal "Know Your Customer" procedures
with respect to such Assignee, except if the Assignee is an Affiliate of
Purchaser or a commercial paper conduit of Purchaser. Until such time as the
Custodian receives notice in the form of Exhibit H from the Assignee that there
exists an event of default with respect to a pledge or assignment of its
interest in the Mortgage Loans and Mortgage Files, the Custodian shall take
directions solely from the related Purchaser.
Section 10. Insurance. Custodian shall, at its own expense, maintain
at all times during the existence of this Agreement such (a) fidelity insurance,
(b) theft of documents insurance, (c) forgery insurance and (d) errors and
omissions insurance as Custodian deems appropriate, prudent and customary.
Section 11. Representations, Warranties and Covenants.
(a) By Custodian. Custodian hereby represents and warrants to, and
covenants with, Sellers and Purchasers that, as of the date hereof and at all
times while Custodian is performing services under this Agreement:
(i) Custodian is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and fully
satisfies the requirements for acting as a GNMA custodian, a Fannie Mae
custodian and a Freddie Mac custodian;
(ii) Custodian has the full power and authority to hold each
Mortgage Loan and to enter into and perform its duties and obligations as
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and
delivered this Agreement, and this Agreement
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constitutes a legal, valid and binding obligation of Custodian,
enforceable against it in accordance with its terms, except as the
enforcement thereof may be limited by applicable receivership,
conservatorship or similar debtor relief laws and except that certain
equitable remedies may not be available regardless of whether enforcement
is sought in equity or law; and
(iii) Custodian is not an affiliate of any Seller.
(b) By Sellers. Each Seller, jointly and serverally, hereby
represent and warrant to, and covenants with, Custodian and Purchasers that, as
of the date hereof and throughout the term of this Agreement:
(i) Each Seller is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(ii) Each Seller has the full power and authority to hold each
Mortgage Loan and to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and
delivered this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of each Seller, enforceable against it in
accordance with its terms, except as the enforcement thereof may be
limited by applicable receivership, conservatorship or similar debtor
relief laws and except that certain equitable remedies may not be
available regardless of whether enforcement is sought in equity or law;
and
(iii) Sellers will provide, as a condition of closing, an executed
Officer's Certificate regarding title insurance in the form of Exhibit L.
(iv) No Seller is an Affiliate of the Custodian.
(c) By Purchasers. Each Purchaser hereby represents and warrants to,
and covenants with, Custodian and Sellers that, as of the date hereof and
throughout the term of this Agreement:
(i) Each Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
(ii) Each Purchaser has the full power and authority to hold each
Mortgage Loan and to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and
delivered this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of each Purchaser, enforceable against it in
accordance with its terms, except as the enforcement thereof may be
limited by applicable receivership, conservatorship or similar debtor
relief laws and except that certain equitable remedies may not be
available regardless of whether enforcement is sought in equity or law.
Section 12. No Adverse Interests. By its acceptance of each
Submission Package, Custodian covenants and warrants to the related Purchaser
that: (a) as of the date of payment by such Purchaser of the Purchase Price,
Custodian, solely in its capacity as Custodian, (i) holds no
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adverse interests, by way of security or otherwise, in the related Mortgage
Loan, and (ii) has no interest in or lien upon the Submission Packages which it
holds as custodian for Purchasers; and (b) Custodian hereby waives and releases
any such interest in such Mortgage Loan which it, acting solely in its capacity
as Custodian, has or which it may thereafter acquire prior to the time of
release of such Mortgage Loan from the terms of this Agreement.
Section 13. Amendments. This Agreement may be amended only by
written agreement of Sellers, Purchasers and Custodian except that, if this
Agreement shall have been assigned by a Purchaser with written notice of such
assignment given to Sellers and Custodian, no amendment shall be effective
unless the amendment is also signed by Assignee. Purchasers shall give at least
five (5) days' prior written notice to Assignee of any proposed amendment to
this Agreement and shall furnish Assignee with a copy of each such amendment
within five (5) days after it is executed and delivered. This Agreement,
together with the Exhibits, Schedules and other writings referred to herein or
delivered pursuant hereto, constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
Section 14. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
Section 15. Agreement for Exclusive Benefit of Parties; Assignment.
This Agreement is for the exclusive benefit of the parties hereto and their
respective successors and permitted assigns hereunder and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever. This Agreement shall bind the parties hereto and their respective
successors, but, except for the assignments provided in Sections 3(b) and 9,
shall not be assigned or pledged by any party without the prior written consent
of the other parties. Written notice from Assignee to Custodian (with a copy to
the related Purchaser) that the related Purchaser has defaulted in any material
respect under any funding or loan agreement relating to the financing of a such
Purchaser's purchase of Mortgage Loans shall be conclusive for all purposes of
this Agreement.
Section 16. Effect of Invalidity of Provisions. In case any one or
more of the provisions contained in this Agreement should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws rules.
Section 18. Consent to Service. Each party irrevocably consents to
the service of process by registered or certified mail, postage prepaid, to it
at its address given in or pursuant to Section 19.
Section 19. Notices. Any notices, consents, directions and other
communications given under this Agreement shall be in writing and shall be
deemed to have been duly given
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when delivered by facsimile or electronic transmission, or personally delivered
at, or sent by overnight courier to the addresses of the parties hereto set
forth on the cover page hereof or such other address as any party shall give in
a notice to the other parties pursuant to this Section 19.
Section 20. Construction. The headings in this Agreement are for
convenience only and are not intended to influence its construction. References
to Sections and Exhibits in this Agreement are to the Sections of and Exhibits
to this Agreement. The Exhibits are part of this Agreement. In this Agreement,
the singular includes the plural, the plural the singular, and the words "and"
and "or" are used in the conjunctive or disjunctive as the sense and
circumstances may require.
Section 21. Submission to Jurisdiction. With respect to any claim
arising out of this Agreement each party (a) irrevocably submits to the
nonexclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York City, and
(b) irrevocably waives (i) any objection which it may have at any time to the
laying of venue of any suit, action or proceeding arising out of or relating
hereto brought in any such court, (ii) any claim that any such suit, action or
proceeding brought in any such court has been brought in any inconvenient forum
and (iii) the right to object, with respect to such claim, suit, action or
proceeding brought in any such court, that such court does not have jurisdiction
over such party. Nothing herein will be deemed to preclude any party hereto from
bringing an action or proceeding in respect of this Agreement in any
jurisdiction other than as set forth in this Section 21.
Section 22. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 23. Joint and Several Liability. The liability of the
Sellers hereunder is joint and several. The Sellers hereby: (a) acknowledge and
agree that the Purchasers shall have no obligation to proceed against one Seller
before proceeding against the other Seller, (b) waive any defense to their
obligations under this Agreement, based upon or arising our of the disability or
other defense or cessation of liability of one Seller versus the other or of any
other Seller, (c) waive any right or subrogation or ability to proceed against
any Person until all amounts owed to Purchasers by Sellers pursuant to this
Agreement are paid in full and (d) any Purchase may proceed against any Seller.
[signature page follows]
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IN WITNESS WHEREOF, Sellers, Purchasers and Custodian have caused this
Agreement to be duly executed as of the date and year first above written.
AMERICAN HOME MORTGAGE CORP.,
as a Seller
By: /s/ Alan B. Horn
------------------------------------
Name: Alan B. Horn
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE INVESTMENT
CORP.,
as a Seller
By: /s/ Alan B. Horn
------------------------------------
Name: Alan B. Horn
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE SERVICING
INC.,
as Servicer
By: /s/ Alan B. Horn
------------------------------------
Name: Alan B. Horn
Title: Executive Vice President,
General Counsel and Secretary
ASPEN FUNDING CORP.,
as a Purchaser
By: /s/ Doris J. Hearn
------------------------------------
Name: Doris J. Hearn
Title: Vice President
GEMINI SECURITIZATION CORP. LLC,
as a Purchaser
By: /s/ R. Douglas Donaldson
------------------------------------
Name: R. Douglas Donaldson
Title: Treasurer
NEWPORT FUNDING CORP.,
as a Purchaser
By: /s/ Doris J. Hearn
------------------------------------
Name: Doris J. Hearn
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Custodian
By: /s/ Angel Sanchez
------------------------------------
Name: Angel Sanchez
Title: Authorized Signer
EXHIBITA-1
[RESERVED]
-22-
EXHIBIT A-2
[RESERVED]
-23-
SCHEDULE A
TO EXHIBIT A-2
[RESERVED]
-24-
SCHEDULE B
TO EXHIBIT A-2
[RESERVED]
-25-
EXHIBIT B-1
CONDUIT SUBMISSION PACKAGE
With respect to each Mortgage Loan being offered by the related Seller for
sale to the related Purchaser, pursuant to a Conduit Transaction, such Seller
shall deliver and release to Custodian the following documents:
(i) The original Mortgage Note bearing all intervening endorsements
from the originator to the last endorsee endorsed, "Pay to the order of
_______, without recourse" and signed in the name of such Seller by an
authorized officer of such Seller; (if applicable), the original
assumption agreement, together with the original of any surety agreement
or guaranty agreement relating to the Mortgage Note or any such assumption
agreement, and if the Mortgage Note has been signed by a third party on
behalf of the Mortgagor, a copy of the power of attorney or other
instrument that authorized and empowered such Person to sign;
(ii) A Mortgage meeting one of the following requirements:
(A) The original Mortgage bearing evidence that the Mortgage
has been duly recorded in the records of the jurisdiction in which
the Mortgaged Property is located; or
(B) A copy of the Mortgage certified by the originator or the
related title company or escrowed closing agent or a certificate
from the county recorders office;
(iii) If the related Seller did not originate the Mortgage Loan, all
original intervening assignments duly executed and acknowledged and in
recordable form, evidencing the chain of mortgage assignments from the
originator of the Mortgage Loan to the holder or record and/or a copy of
each such intervening mortgage assignment or a certificate from the county
recorder's office or a certificate from the related escrow closing agent
the original of which has been duly recorded or delivered for recordation
in the appropriate records of the jurisdiction where the Mortgage Property
is located;
(iv) Except with respect to any MERS Mortgage Loan, an original
Assignment of Mortgage, in blank, in recordable form but unrecorded signed
in the name of the related holder of record by an authorized officer;
(v) If applicable, a Warehouse Lender's Release, from any Warehouse
Lender having a security interest in the Mortgage Loans or, or if there is
no Warehouse Lender with respect to such Mortgage Loans, a Seller's
Release, from the related Seller, addressed to the related Purchaser,
releasing any and all right, title and interest in such Mortgage Loans;
(vi) Delivery Instructions; and
(vii) A copy of the Commitment.
EXHIBIT B-2
[LETTERHEAD OF CUSTODIAN]
CONDUIT MASTER BAILEE LETTER
___________, _____
[ADDRESS]
[_________]
Attention:
Ladies and Gentlemen:
The undersigned Deutsche Bank National Trust Company ("Custodian"), as
custodian for [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport
Funding Corp.] ("Purchaser") shall from time to time deliver to ________
("Takeout Investor") original promissory notes ("Mortgage Notes") evidencing
certain mortgage loans ("Mortgage Loans"), along with certain other documents
comprising the related files ("Custodial Files") and, in each case, a Notice of
Bailment in the form of Schedule A hereto with respect to each Mortgage Loan
("Notice of Bailment"), for inspection by Takeout Investor prior to the possible
purchase by Takeout Investor of such Mortgage Loans pursuant to commitments
("Commitments") from certain sellers of Mortgage Loans ("Sellers"). Prior to its
delivery to Takeout Investor, all of Seller's right, title and interest in each
Mortgage Loan and proceeds thereof shall have been conveyed to Purchaser in
accordance with each Seller's agreement with Purchaser.
Except as otherwise provided herein, each Custodial File so delivered to
Takeout Investor is to be held by Takeout Investor, as agent for Custodian, and
subject to only Purchaser's direction and control until released as provided
herein. The proceeds of the sale of each Mortgage Loan accepted for purchase by
Takeout Investor must be remitted immediately upon settlement by Takeout
Investor, by wire transfer in immediately available funds, in accordance with
the following wire instructions:
________________________
________________________
ABA #___________
A/C #____________
________________________
Attn: _________________
Takeout Investor shall be responsible for making certain that all of the
proceeds from the sale of each Mortgage Loan are received in accordance with the
wire transfer instructions set forth on each Notice of Bailment and Purchaser's
interest in the Mortgage Loans shall not be released until such funds are
received by Purchaser.
Upon Purchaser's receipt of all of the proceeds from the sale of a
Mortgage Loan in accordance with the wiring instructions in the applicable
Notice of Bailment, all of Purchaser's legal or equitable interest in the
Mortgage Loan shall terminate.
All Mortgage Loan documents held by Takeout Investor which are received by
Takeout Investor from Custodian with respect to a Mortgage Loan that is not
purchased must be returned immediately to Custodian at the address for delivery
of documents set forth on the Notice of Bailment. Purchaser reserves the right
at any time, until a Mortgage Loan has been purchased by Takeout Investor, to
demand the return of the related Mortgage Documents to Custodian, and Takeout
Investor agrees to return to Custodian the Mortgage Documents pertaining to a
Mortgage Loan not purchased by Takeout Investor immediately upon such demand by
Purchaser.
The persons listed on the attached Schedule B are the authorized
representatives ("Authorized Representatives") of Purchaser. Takeout Investor
shall not honor any communication from Sellers or any third party relating to a
Mortgage Loan, which is not confirmed by the written or telephonic consent of an
Authorized Representative of Purchaser, or until Purchaser has received the
required amount of proceeds of the sale of such Mortgage Loan.
In the event Takeout Investor is not able for any reason to comply with
the terms of this Bailee Letter, Takeout Investor shall immediately return the
Submission Package to Custodian at the above address.
Takeout Investor acknowledges that the Custodial File is being delivered
in accordance with its instructions. Takeout Investor shall not deliver a
Custodial File to any third party without the prior written consent of Purchaser
unless such third party is a wholly owned subsidiary of Takeout Investor or a
custodian and bailee of Takeout Investor who is receiving such Custodial File
with written notice of the bailment created by this Master Bailee Letter.
In the event Takeout Investor is not able for any reason to comply with
the terms of this Master Bailee Letter, Takeout Investor shall immediately
return each Custodial File in Takeout Investor's possession to Custodian at the
address for delivery of documents set forth in the related Notice of Bailment.
No deviation in performance of the terms of any previous bailment
agreement will alter any of Takeout Investor's duties or responsibilities as
provided herein.
By accepting delivery of a Custodial File containing a Notice of Bailment,
Takeout Investor shall be bound by the terms hereof. Please execute and return
the enclosed copy of this Master Bailee Letter in the enclosed self-addressed
envelope.
Sincerely,
Deutsche Bank National Trust
Company,
as Custodian
By:
------------------------------------
Name:
Title:
Dated: As of the date first set forth
above
Agreed to:
[CONDUIT]
(Takeout Investor)
By:
-----------------------------
Name:
Title:
Dated: As of the date first set forth above
SCHEDULE A
TO EXHIBIT B-2
NOTICE OF BAILMENT
[Conduit Address]
Re: [Insert Description of Loan, including
Borrower's Name, Loan Amount and
Fannie Mae's Loan Number]
Ladies and Gentlemen:
Pursuant to the Master Bailee Letter, dated , ____ (the "Master Bailee
Letter"), between you and Deutsche Bank National Trust Company (the
"Custodian"), you are hereby notified that the enclosed original promissory note
with respect to the referenced loan together with certain other documents
comprising the related file with respect to that loan (the "Mortgage Documents")
being hereby delivered to you herewith are to be held by you as agent of
Custodian (which holds the Mortgage Documents as custodian and bailee for the
benefit of [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding
Corp.] ("Purchaser")).
Any Mortgage Documents (or portion thereof) not purchased by you in
accordance with the provisions of the Applicable Guide shall be sent to the
Custodian by overnight courier to: [insert address for return of documents].
In the event you elect to purchase the Mortgages subject to the Master
Bailee Letter, you shall pay the Trade Price to the Purchaser by wire transfer
based upon the following instructions:
______________________
______________________
ABA #____________
A/C #____________
______________________
Attn:_________________
Any questions relating to the Mortgage Documents should be referred to the
Purchaser at (203) 625-2700.
Sincerely,
By: _________________________________
Name:
Title:
SCHEDULE B
TO EXHIBIT B-2
AUTHORIZED REPRESENTATIVES OF PURCHASER
Name Title Authorized Signature
- ---- ----- --------------------
- ------------------- ------------------- ---------------------
- ------------------- ------------------- ---------------------
- ------------------- ------------------- ---------------------
- ------------------- ------------------- ---------------------
EXHIBIT C
REQUEST FOR CERTIFICATION
- --------------------------------------------------------------------------------------------------------------------
Conduit Transaction
- --------------------------------------------------------------------------------------------------------------------
Loan # Original Mortgagor Property Address Original Note ARM data (margin, Maturity Loan
Loan Amount First and (street, city, Loan Term Rate index,cap,floor,1st Date Type
Last Name state, zip) rate adj, max rate, (fixed
1st pay date) or
adjustable
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
EXHIBIT D-1
TRUST RECEIPT
MORTGAGE LOANS
Date:
Deutsche Bank National Trust Company, as custodian (the "Custodian"),
hereby acknowledges that on the date of this Trust Receipt, [Aspen Funding
Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.] ("Purchaser") has
been identified as the registered owner of this Trust Receipt evidencing
ownership of certain mortgage loans (the "Mortgage Loans") listed by identifying
number on the schedule attached to this Trust Receipt and further identified in
the books and records of the Custodian, interim serviced by American Home
Mortgage Servicing, Inc. ("Servicer"). The Mortgage Note and copy of the
recorded Mortgage (or deed of trust) for each Mortgage Loan are held by
Custodian, pursuant to the terms and conditions of that certain Custodial
Agreement dated as of June [__], 2006 (the "Agreement") among Purchaser, Seller,
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.],
American Home Mortgage Corp., American Home Mortgage Investment Corp. and
Custodian. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Trust Receipt is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the holder of this Trust Receipt by virtue of the acceptance
hereof assents and by which such holder is bound.
Any transfer of this Trust Receipt may be registered upon presentation of
this Trust Receipt by the transferee hereof, duly assigned to the transferee, at
the office of the Custodian.
This Trust Receipt supersedes any Trust Receipt or Wet Mortgage Loan Trust
Receipt bearing an earlier date.
This Trust Receipt shall not be valid or become obligatory for any purpose
unless and until the Certificate of Authentication appearing below has been duly
executed by the Custodian.
IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly
executed.
Deutsche Bank National Trust Company,
as Custodian
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is one of
the Trust Receipts issued under
the above-described Agreement.
Dated:
By:
--------------------------
Authorized Officer
EXHIBIT D-2
WET LOAN TRUST RECEIPT
Date:
Deutsche Bank National Trust Company, as custodian (the "Custodian"),
hereby acknowledges that on the date of this Wet Loan Trust Receipt, [Aspen
Funding Corp./Gemini Securitization Corp., LLC/Newport Funding
Corp.]("Purchaser") has been identified to it as the registered owner of this
Wet Loan Trust Receipt evidencing ownership of certain mortgage loans (the
"Mortgage Loans") listed by identifying number on the schedule attached to this
Wet Loan Trust Receipt and further identified in Loan Identification Data, to be
interim serviced by American Home Mortgage Servicing, Inc.("Servicer"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Wet Mortgage Loan Trust Receipt is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the holder of this Wet Mortgage Loan Trust Receipt by virtue of
the acceptance hereof assents and by which such holder is bound.
Any transfer of this Wet Mortgage Loan Trust Receipt may be registered
upon presentation of this Wet Mortgage Trust Receipt by the transferee hereof,
duly assigned to the transferee, at the office of the Custodian.
This Wet Mortgage Trust Receipt supersedes any Wet Mortgage Trust Receipt
bearing an earlier date.
This Wet Mortgage Loan Trust Receipt shall not be valid or become
obligatory for any purpose unless and until the Certificate of Authentication
appearing below has been duly executed by the Custodian.
IN WITNESS WHEREOF, the Custodian has caused this Wet Mortgage Loan Trust
Receipt to be duly executed.
Deutsche Bank National Trust Company,
as Custodian
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is one of
the Trust Receipts issued under
the above-described Agreement.
Dated:
By:
------------------------------
Authorized Officer
TRUST RECEIPT NO.
MORTGAGE LOANS
Following are the identifying numbers of the Mortgage Loans subject to this
Trust Receipt:
EXHIBIT E-1
[WAREHOUSE LENDER'S RELEASE]
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.]
Ladies and Gentlemen:
We hereby release all right, interest or claim of any kind with respect to
the mortgage loan(s) referenced below, such release to be effective
automatically without any further action by any party, upon payment in full, in
one or more installments, from [Aspen Funding Corp./Gemini Securitization Corp.,
LLC/Newport Funding Corp.], in accordance with the wire instructions which we
delivered to you in a letter dated _______ __, 200__ ,in immediately available
funds, of an aggregate amount equal to the [______________________]
Loan * Mortgagor Address City State Zip
- ------------- -------------- --------- -------- --------- --------
Very truly yours,
[WAREHOUSE LENDER]
By:
------------------------------
Name:
Title:
EXHIBIT E-2
Date:
[WAREHOUSE LENDER'S WIRE INSTRUCTIONS]
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.].
Re: Aspen Funding Corp., Gemini Securitization Corp., LLC and
Newport Funding Corp. Whole Loan Purchase Program with American
Home Mortgage Corp. and American Home Mortgage Investment Corp.
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions applicable
to the above-referenced Whole Loan Purchase Program.
Wire Instructions:
Bank Name:
City, State:
ABA#:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below.
This letter supersedes and replaces (i) any prior notice specifying the name of
[Warehouse Lender] and setting forth wire instructions and (ii) any contrary
wire instructions contained in any form of release delivered by [Warehouse
Lender] to [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding
Corp.] shall remain in effect until superseded and replaced by a letter, in the
form of this letter, executed by each of us and acknowledged by you.
Very truly yours,
[AMERICAN HOME MORTGAGE CORP./ [AMERICAN
HOME MORTGAGE INVESTMENT CORP.]
By: ________________________
Name:
Title:
[WAREHOUSE LENDER(S)](1)
By: ________________________
Name:
Title:
Receipt Acknowledged By:
[ASPEN FUNDING CORP./GEMINI SECURITIZATION CORP., LLC/NEWPORT FUNDING CORP.]
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
- ----------------------------
(1) The authorized officer of each Warehouse Lender executing this letter
must be the same authorized officer as signs the Warehouse Lender's Release.
Not applicable if there is no Warehouse Lender.
EXHIBIT F-1
[SELLER'S RELEASE]
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.]
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we hereby
certify to you that the mortgage loan(s) is not subject to a lien of any
warehouse lender and (b) we hereby release all right, interest or claim of any
kind with respect to such mortgage loan, such release to be effective
automatically without any further action by any party upon payment from
Purchasers to the related Seller of an aggregate amount equal
[_____________________________________].
Loan Mortgagor Street Address City State Zip
- -------- ----------- -------------------- --------------- ------ --------
Very truly yours,
[AMERICAN HOME MORTGAGE CORP.] [AMERICAN
HOME MORTGAGE INVESTMENT CORP.]
By: __________________________________
Name:
Title:
EXHIBIT F-2
Date:
[SELLER'S WIRE INSTRUCTIONS]
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.]
Re: Custodial Agreement dated as of June [__], 2006,
by and among Aspen Funding Corp., Gemini Securitization Corp.,
LLC, Newport Funding Corp., American Home Mortgage Corp.,
American Home Mortgage Investment Corp. and Deutsche Bank
National Trust Company
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the above-referenced Custodial Agreement.
Set forth below are the related Seller's Wire Instructions applicable to
the above-referenced Custodial Agreement.
Wire Instructions:
Bank Name:
City, State:
ABA#:
Account #:
A/C Name:
Please acknowledge receipt of this letter in the space provided below and
return it to the related Seller. This letter supersedes and replaces any prior
notice specifying the name of the related Seller and such Seller's Wire
Instructions and shall remain in effect until superseded and replaced by a
letter, in the form of this letter, executed by us and acknowledged by you.
Very truly yours,
[AMERICAN HOME MORTGAGE CORP./AMERICAN
HOME MORTGAGE INVESTMENT CORP.](2)
By:
------------------------------------
Name:
Title:
Receipt acknowledged by:
[ASPEN FUNDING CORP./GEMINI SECURITIZATION CORP., LLC/NEWPORT FUNDING CORP.]
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
(2) The authorized officer executing this letter must be the same authorized
officer as signs the Seller's Release. Applicable only if there is no
Warehouse Lender.
Exhibit G-1
[PURCHASER'S WIRE INSTRUCTIONS TO SELLER]
Wire Instructions:
Bank Name:
City, State:
ABA#:
Account #:
A/C Name:
EXHIBIT G-2
[PURCHASER'S WIRE INSTRUCTIONS TO CUSTODIAN]
Date:
Deutsche Bank National Trust Company
1761 St. Andrew Place
Santa Ana, CA 92705
Re: Whole Loan Purchase Program
Ladies and Gentlemen:
Set forth below are the Purchaser's Wire Instructions to Custodian (as
defined in all Conforming Custodial Agreements used in the above-referenced
program).
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided below and
return it to [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport
Funding Corp.] ("Purchaser"). This letter supersedes and replaces any prior
notice specifying the name of Purchaser and the Purchaser's Wire Instructions to
Custodian and shall remain in effect until superseded and replaced by a letter,
in the form of this letter, executed by us and acknowledged by you.
Very truly yours,
[ASPEN FUNDING CORP./GEMINI
SECURITIZATION CORP., LLC/NEWPORT FUNDING
CORP.]
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Receipt acknowledged by:
Deutsche Bank National Trust Company,
as Custodian
DEUTSCHE BANK NATIONAL TRUST
COMPANY
By: ____________________________
Name:
Title:
EXHIBIT G-3
[PURCHASER'S DELIVERY INSTRUCTIONS TO CUSTODIAN]
Deutsche Bank National Trust Company
1761 St. Andrew Place
Santa Ana, CA 92705
Attention:
Re: Delivery of Submission Package
Dear ______:
Please deliver, via overnight courier, each of the Submission Packages
relating to the Mortgage Loans listed below to:
Very truly yours,
[ASPEN FUNDING CORP./GEMINI
SECURITIZATION CORP., LLC/NEWPORT FUNDING
CORP.]
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Initially capitalized terms are defined in the Custodial Agreement, dated
as of June [__], 2006 by and among Aspen Funding Corp., Gemini Securitization
Corp., LLC, Newport Funding Corp., American Home Mortgage Corp., American Home
Mortgage Investment Corp. and Deutsche Bank National Trust Company.
Very truly yours,
[ASPEN FUNDING CORP./GEMINI
SECURITIZATION CORP., LLC/NEWPORT FUNDING
CORP.]
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
EXHIBIT H
[NOTICE BY ASSIGNEE TO CUSTODIAN OF PURCHASER'S DEFAULT]
Deutsche Bank National Trust Company
1761 St. Andrew Place
Santa Ana, CA 92705
Re: Whole Loan Purchase Program
Ladies and Gentlemen:
Notice is hereby given that the related Purchaser has materially defaulted
in its obligations under an agreement between Assignee and such Purchaser
relating to the financing by Assignee of such Purchaser's purchase of Mortgage
Loans described on Schedule 1 hereto. Assignee hereby (i) directs that Custodian
act with respect to the related mortgage files solely in the capacity of
custodian for, and bailee of, Assignee, (ii) directs that Custodian hold such
mortgage files for the exclusive use and benefit of Assignee and (iii) assumes
the rights of the related Purchaser to furnish instructions to Custodian as to
the disposition of such mortgage files and such rights shall be exercisable
solely by Assignee.
Please acknowledge the foregoing by signing below and returning a copy of
this notice to us at [address]
Very truly yours,
[ASSIGNEE]
By: __________________________________
Name:
Title:
RECEIPT ACKNOWLEDGED:
Deutsche Bank National Trust Company,
as Custodian
By:
Name:
Title:
cc: [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport Funding
Corp.]
EXHIBIT I
[NOTICE OF ASSIGNMENT]
To: Deutsche Bank National Trust Company
1761 East St. Andrew Place
Santa Ana, CA 92705
From: _________________________________________
Date: _________________________________________
You are hereby notified that as of [date] the undersigned has
[assigned/pledged] all of its right, title and interest in and to the Mortgage
Loans identified in the schedule attached hereto to [Assignee's name and
address]. You are hereby instructed to hold such Mortgage Loans pursuant to the
terms of the Custodial Agreement, dated as of June [__], 2006 (the "Custodial
Agreement"), by and among Aspen Funding Corp., Gemini Securitization Corp., LLC,
Newport Funding Corp. (each individually, a "Purchaser"), American Home Mortgage
Corp., American Home Mortgage Investment Corp. (each a "Seller"), Deutsche Bank
National Trust Company (the "Custodian"), for the sole and exclusive benefit of
[name of Assignee] subject to the terms of the Custodial Agreement by which
[name of Assignee] hereby agrees to be bound.
When you have received written instructions from the related Purchaser
with the Assignee's consent thereon that the Mortgage Loans are no longer
[assigned/pledged] by the Purchaser to the Assigness, you shall change your
records to reflect the release of the [pledge/assignment] of the Mortgage Loans
and that you are holding the Mortgage Loans as custodian for, and for the
benefit of, the Purchaser.
[ASPEN FUNDING CORP./GEMINI
SECURITIZATION CORP., LLC/NEWPORT FUNDING
CORP.]
By: ________________________________________
Name:
Title:
Date:
By: ________________________________________
Name:
Title:
Date:
[NAME OF ASSIGNEE]
By: ________________________________________
Name:
Title:
Date:
EXHIBIT J
[LETTERHEAD OF SELLER]
[DATE]
To: [____________]
Please deliver the Submission Package(s) as indicated on the attached list,
in accordance with the terms of the agreement, to the following:
Company Name:
Address:
City, State, Zip:
Attn:
[LETTERHEAD OF SELLER]
[DATE]
LOANS TO BE DELIVERED BY CUSTODIAN FOR [AMERICAN HOME MORTGAGE CORP./AMERICAN
HOME LOAN MORTGAGE INVESTMENT CORP.]
Loan #: Borrower's Name: Loan Amount:
------- ---------------- ------------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
EXHIBIT K-1
[TRADE ASSIGNMENT]
("Takeout Investor")
[Address]
Attention:
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of your confirmation
of commitment (the "Commitment"), trade-dated _, ____, to purchase $ of mortgage
loans (the "Mortgage Loans") at a purchase price of . This is to confirm that
(i) the Commitment is in full force and effect, (ii) the Commitment is hereby
assigned to [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport
Funding Corp.](["AFC"/ "GSC"/"NFC"]), (iii) you will accept delivery of such
Mortgage Loans directly from Purchase, (iv) you will pay [AFC/GSC/NFC] for such
Mortgage Loans, (v) upon["AFC"/ "GSC"/"NFC"]'s acceptance of this assignment,
[AFC/GSC/NFC] is obligated to make delivery of such Mortgage Loans to you in
accordance with the attached Commitment and (vi) upon [AFC/GSC/NFC] acceptance
of this assignment, you will release the related Seller from its obligation to
deliver the Mortgage Loans to you under the Commitment. Upon [AFC/GSC/NFC]
determination not to accept an assignment, [AFC/GSC/NFC] will notify you that
this assignment is rejected. Not later than 2:00 P.M. New York City time one
business day prior to your satisfaction of the Commitment, you shall fax a
purchase confirmation to [AFC/GSC/NFC] at (___) ___-____, Attention:
___________. Payment will be made to [AFC/GSC/NFC] in immediately available
funds.
Very truly yours,
[AMERICAN HOME MORTGAGE
CORP./AMERICAN HOME MORTGAGE
INVESTMENT CORP.]
By: ____________________________
Name: __________________________
Title: _________________________
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By: ____________________________
Name: __________________________
Title: _________________________
EXHIBIT K-2
[TRADE ASSIGNMENT]
(Blanket)
_______("Takeout Investor")
[Address]
Attention:
Ladies and Gentlemen:
This is to confirm that (i) your commitments ("Commitment"), made
from time to time, to purchase mortgage loans (the "Mortgage Loans") from the
related Seller may be assigned to [Aspen Funding Corp./Gemini Securitization
Corp., LLC/Newport Funding Corp.](["AFC"/ "GSC"/"NFC"]), (ii) you will accept
delivery of such Mortgage Loans directly from [AFC/GSC/NFC], (iii) you will pay
[AFC/GSC/NFC] for such Mortgage Loans, (iv) upon [AFC/GSC/NFC]'s acceptance of
this assignment with respect to any Commitment, [AFC/GSC/NFC] will be obligated
to make delivery of such Mortgage Loans to you in accordance with such
Commitment and (v) upon [AFC/GSC/NFC] acceptance of such assignment with respect
to any Commitment, you will release the related Seller from its obligation to
deliver the related Mortgage Loans to you under such Commitment but the related
Seller will not be released from any of its other obligations under the Loan
Purchase and Sale Agreement. Your agreement to the foregoing shall remain in
effect until terminated by your giving notice of such termination to the related
Seller in the form attached hereto as Exhibit 1. Upon [AFC/GSC/NFC]
determination not to accept an assignment, [AFC/GSC/NFC] will notify you that
this assignment is rejected with respect to the related Commitment. Not later
than 9:00 A.M. New York City time on the business day that you purchase the
Mortgage Loans, you shall fax a purchase list containing the information
required by the Mortgage Loan Settlement Summary to [AFC/GSC/NFC] at (___)
___-____, Attention: _________. You may also transmit such information
electronically by 10:00 A.M. on such business day. Payment will be made to
[AFC/GSC/NFC] in immediately available funds.
Very truly yours,
[AMERICAN HOME MORTGAGE
CORP./ AMERICAN HOME MORTGAGE
INVESTMENT CORP.]
By: ____________________________
Name: __________________________
Title: _________________________
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By: ____________________________
Name: __________________________ By:
Title: _________________________
EXHIBIT 1 to EXHIBIT K-2
[WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT]
[American Home Mortgage Corp./American Home Mortgage Investment Corp.]
538 Broadhollow Road, Suite 155
Melville, New York 11747
Ladies and Gentlemen:
The undersigned hereby terminates its agreement to the related
Seller's assignment of Commitments to [AFC/GSC/NFC], which approval was given
pursuant to the Trade Assignment dated _______ __, 200_. This termination shall
be effective as of but shall not affect the assignment of any Commitment which
assignment was made prior to the date hereof. Capitalized terms not defined
herein shall have the meanings set forth in the Trade Assignment.
Very truly yours,
[TAKEOUT INVESTOR]
By: ____________________________
Name: __________________________
Title: _________________________
Copy to: [Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport
Funding Corp.]
EXHIBIT L
OFFICER'S CERTIFICATE
OF
SELLERS
The undersigned, [Vice] President of American Home Mortgage Corp.,
("AHMC") and the [Vice] President of American Home Mortgage Investment Corp.
(together, the "Sellers") hereby represent, warrant, covenant and certify, as of
the date of this certificate, to each of Aspen Funding Corp., Gemini
Securitization Corp., LLC and Newport Funding Corp. (collectively, the
"Purchasers") as follows:
1. Each Mortgage Loan purchased under that certain Whole Loan Purchase and
Sale Agreement ("Purchase Agreement"), dated as of June 23, 2006, by and among
Purchasers, Sellers and American Home Mortgage Servicing, Inc. ("AMHSI") is
covered or will be covered as of the related Purchase Date by an ALTA lender's
title insurance policy or other generally acceptable form of policy of insurance
acceptable to Fannie Mae or Freddie Mac that:
(A) is issued by a title insurer acceptable to Fannie Mae or Freddie
Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located,
(B) insures the mortgagee, its successors and assigns, as to the
first or second priority lien, as applicable, of the Mortgage in the
original principal amount of the Mortgage Loan, and against any loss by
reason of the invalidity or unenforceability of the lien resulting from
the provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment,
(C) affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein,
(D) does not contain any special exceptions (other than the standard
exclusions) for zoning and uses and has been marked to delete the standard
survey exception or to replace the standard survey exception with a
specific survey reading,
(E) sets forth the mortgagee and its successors and assigns as the
sole insured thereof, and
(F) is in full force and effect as of the date hereof.
2. The Sellers are or will be in possession of an original policy of title
insurance (or a commitment for title insurance, if the policy is being held by
the title insurance company pending recordation of the Mortgage) or attorney's
opinion of title for each of the Mortgage Loans purchased under the Purchase
Agreement.
Capitalized terms not defined herein have the meanings assigned to them in
the Purchase Agreement.
[signature page to follow]
Each of the undersigned has executed this Certificate as of this 23rd day of
June, 2006.
AMERICAN HOME MORTGAGE CORP.
By: _____________________________
Name:
Title:
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: _____________________________
Name:
Title:
EXHIBIT M
REQUEST FOR RELEASE
Date: __________, ____
AMERICAN HOME MORTGAGE SERVICING, INC. (the "Servicer") acting as bailee of, and
custodian for the exclusive benefit of [ASPEN FUNDING CORP./GEMINI
SECURITIZATION CORP., LLC/NEWPORT FUNDING CORP.] (the "Purchaser(s)")
(capitalized terms not otherwise defined herein are defined in that certain
Custodial Agreement, dated as of June __, 2006 (the "Custodial Agreement") by
and among the Purchasers, Deutsche Bank National Trust Company (the "Custodian")
and American Home Mortgage Corp., and American Home Mortgage Investment Corp.
(together, the "Sellers"), Servicer and Custodian, or if not defined in the
Custodial Agreement, then in that certain Whole Loan and Purchase and Sale
Agreement dated as of June __, 2006 by and among Servicer, Sellers, and
Purchasers (the "Purchase Agreement")), hereby acknowledges receipt of the
following described documentation for the identified Mortgage Loan, possession
of which is entrusted to the Servicer solely for the purpose referenced below.
Mortgagor Name Loan Number Note Amount Mtg. Loan Document
Reason for Requesting File (check one)
_____ 1. Mortgage Loan Paid in Full.
_____ 2. Correction of Document Deficiencies.
_____ 3. Mortgage Required for Servicing.
_____ 4. Foreclosure.
_____ 5. Other [Describe].
If item 2, 3, 4 or 5 is checked, it is hereby acknowledged that the related
Purchaser maintains a 100% undivided ownership interest the Mortgage Loan
pursuant to the Purchase Agreement.
If item 2, 3, 4 or 5 is checked, in consideration of the aforesaid delivery by
the Custodian, the Servicer hereby agrees to hold said Mortgage Loan in trust
for the related Purchaser as provided under and in accordance with all
provisions of the Custodial Agreement and to return said Mortgage Loan to the
Custodian no later than the close of business on the tenth day following the
date hereof or, if such day is not a Business Day, on the immediately succeeding
Business Day.
Please deliver the requested file to [ADDRESS], Attention: _____________, via
overnight courier.
[signature page follows]
AMERICAN HOME MORTGAGE SERVICING, INC.
By:___________________________
Name:
Title:
Acknowledged and Consented to:
[ASPEN FUNDING CORP./GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.]
By: _______________________________
Name:
Title:
Date:_______________________________
Documents returned to :
DEUTSCHE BANK NATIONAL TRUST COMPANY
By: _______________________________
Name:
Title:
Date:_______________________________
SCHEDULE A
LIST OF CONDUITS
SCHEDULE B
LOAN IDENTIFICATION DATA
loan_no
alt_loan_no
svc_loan_no
originator
custodian
mortgagor_name
prop_addr
prop_addr2
prop_city
prop_state
prop_zip
prop_county
product
product_code
loan_type
note_type
note_date
orig_rate
orig_term
amort_term
orig_balance
first_pay_date
mature_date
pmi_coverage
pmi_insurer_code
margin
balloon_flag
adjustable
first_pymt_adj_freq
pymt_adj_freq
first_rate_chg_date
pymt_chg_date
first_rate_adj_freq
rate_adj_freq
first_rate_cap
period_rate_cap
min_int_rate
max_int_rate
io_flag
io_term
prepay_flag
prepay_type
prepay_term
neg_amort_flag
neg_amort_limit
payment_type
period_pymt_cap
pi_constant
orig_pi_pymt
purpose_code
appraisal_value
purchase_price
silent_2nd
manuf_housing_flag
prop_type
units
occupied_flag
doc_type
fico_score
tape_ltv
tape_cltv
front_ratio
debt_ratio
jumbo_flag
self_employ_flag
highcost_flag
lien_position
other_lien_balance
fund_date
grade
channel_code
corresp_broker_code
corresp_broker
mers_flag
mers_id
net_margin
prop_value
net_rate
service_fee
ltv_ratio
loan_ltv
cltv_ratio
reo_flag
heloc_flag
orig_draw
draw_term
orig_date
pledge_amt
arm_index
as_of_date
act_balance
curr_balance
paid_to_date
next_due_date
curr_note_rate
fpd_flag
pi_pymt
foreclosure
bankruptcy
rate_chg_date
commit_exp_date
inv_code
investor
takeout_amt
takeout_inv_code
takeout_inv_name
takeout_price
takeout_wire_amt
trust_receipt
wet_status
title_co
title_co_code
wire_amt