Exhibit 10.5
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
SEDONA CAPITAL FUNDING CORP., LLC
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 - AH069C
Dated as of September 22, 2006
TABLE OF CONTENTS
Page
Section 1. Definitions......................................................1
Section 2. [Reserved].......................................................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; Settlement Account......................................7
Section 5. [Reserved]......................................................12
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 Purchasers........................................16
Section 10. Insurance.......................................................16
Section 11. Representations, Warranties and Covenants.......................17
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..............................19
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
Section 23. Joint and Several Liability.....................................20
Section 24. Authorized Representatives......................................20
EXHIBITS
Exhibit A-1 Trust Receipt
Exhibit A-2 Wet Mortgage Loan Trust Receipt
Exhibit B-1 Conduit Submission Package
Exhibit B-2 Master Bailee Letter
Exhibit C [Reserved]
Exhibit D-1 [Reserved]
Exhibit D-2 [Reserved]
Exhibit E- Warehouse Lender's Release
Exhibit F-l Seller's Release
Exhibit F-2 Seller's Wire Instructions
Exhibit G-l [Reserved]
Exhibit G-2 Purchaser's Wire 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 [Reserved]
Exhibit K-2 [Reserved]
Exhibit L [Reserved]
Exhibit M Request for Release
Schedule A Loan Identification Data
Schedule B Authorized Representatives of Purchaser
Schedule C Authorized Representatives of Servicer
Schedule D Authorized Representatives of Seller
Schedule E Authorized Representatives of Custodian
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, NEWPORT FUNDING
CORP. and SEDONA CAPITAL FUNDING CORP., LLC (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": The master bailee letter, in the form of Exhibit
B-2, for use by Custodian in connection with the delivery of a Submission
Package, for the purpose of delivering the related 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 Takeout Investor.
"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, Sellers, 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.
"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.
"Expiration Date": With respect to any Commitment, the expiration
date thereof.
"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 Schedule A, such schedule may be modified from
time to time upon the consent of the Purchasers, Seller, and Custodian
regarding all Mortgage Loans being offered for sale by such Seller to such
Purchaser on the Purchase Date.
-2-
"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.
"Mortgaged Property": The property subject to the lien of the
Mortgage securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"Notice of Bailment": A notice, in the form of Schedule A to Exhibit
B-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, Servicer and Purchasers, as the same may be
amended, supplemented or modified from time to time.
-3-
"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 Purchasers, as each is amended from time to time providing
the terms of Transactions.
"Purchase Date": With respect to any Mortgage Loan Pool purchased by
a Purchaser pursuant to the Purchase Agreement, the date of payment
thereof by such Purchaser to the related Seller and/or any warehouse
lenders, as applicable, of the Purchase Price.
"Purchasers": Aspen Funding Corp., Gemini Securitization Corp., LLC,
Newport Funding Corp. and Sedona Capital Funding Corp., LLC, 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.
"Purchase Price": With respect to each Mortgage Loan Pool purchased
by a Purchaser hereunder, the amount specified in the related
Confirmation.
"Purchaser's Wire Instructions to Custodian": The 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 from the related Seller
shall be transferred by Custodian.
"Release Payment": The funds referred to in a Warehouse Lender's
Release or the related Seller's Release, as applicable.
"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.
-4-
"Submission Package": The documents listed on Exhibit B-1, which
shall be delivered by the related Seller to Custodian in connection with
each Transaction.
"Successor Servicer": An entity designated by Purchasers, in
conformity with the Purchase Agreement, to replace Servicer as servicer
for Purchaser.
"Takeout Investor": A takeout investor approved by the Purchasers.
"Trade Assignment": The assignment by the related Seller to the
related Purchaser (as communicated by the related Purchaser to the
Sellers) of such Seller's rights under a specific Commitment, in the form
of Exhibit A-1 of the Purchase Agreement , or of such Seller's rights
under all Commitments, in the form of Exhibit A-2 of the Purchase
Agreement.
"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.
"Transaction": A transaction initiated by the related Seller's
delivery of Loan Identification Data which identifies the Takeout
Investor.
"Trust Receipt": A receipt of Custodian, substantially in the form
of Exhibit A-1, or with respect to Wet Mortgage Loans in the form of
Exhibit A-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) hereof, that it has received the entire
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,
from a Warehouse Lender to the related Purchaser (as communicated by the
related Purchaser to the Sellers) conditionally releasing all of Warehouse
Lender's right, title and interest in certain Mortgage Loans identified
therein upon payment to Warehouse Lender and containing the Warehouse
Lender's Wire Instructions.
"Warehouse Lender's Wire Instructions": The wire instructions, set
forth in Exhibit E, 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
(i) yet received a completed set of documents required to be delivered to
the Custodian pursuant to this Agreement, (ii) reviewed the related
Submission Package pursuant to Section 4(2)(b)(i), or (iii) issued a Trust
Receipt in the form of Exhibit A-1.
-5-
Section 2. [Reserved].
Section 3. Custodian as Custodian for, and Bailee of, Purchasers,
Assignee and Warehouse Lender.
(a) (i) 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. The related
Purchaser shall, except if the Assignee is an Affiliate of such Purchaser or a
commercial paper conduit of such Purchaser, provide Custodian with at least five
(5) Business Days notice of its intention to assign any Mortgage Loans to an
Assignee. Following an assignment to an Assignee, upon receipt of written notice
by Custodian of such assignment or upon notice in the form of Exhibit H hereto
by Assignee to Custodian of the related 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,
-6-
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.
(c) Sellers and Purchasers acknowledge that the 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 Settlement
Account.
(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.
(a) (i) With respect to each Mortgage Loan (excluding Wet Mortgage
Loans), being offered by the related Seller for sale to the related Purchaser
pursuant to a Transaction, Sellers shall insure that Custodian and Purchaser
have each received the Loan Identification Data and the related Seller's Wire
Instructions 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 in the Loan Identification Data no later than the Dry Notice Time and
that no more than five hundred (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
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 no later than
3:00 p.m. New York City time on the related Purchase Date.
Upon receipt by Custodian of such Mortgage Loan Identification Data,
the related Seller's Wire Instructions and the related Confirmation, Custodian
shall ascertain whether it is in possession of a Submission Package for each
Mortgage Loan (except for Wet Mortgage Loans) identified in the Loan
Identification Data and shall certify in accordance with Section 4(b)(i) herein,
each Submission Package and, no later than 12 Noon New York City time on the
-7-
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
A-1 or Exhibit A-2, as applicable. Separate Trust Receipts shall be delivered
with respect to Wet Mortgage Loans substantially similar to Exhibit A-2. With
the exception of Wet Mortgage Loans as indicated in the Loan Identification
Data, if Custodian is not in possession of a Submission Package relating to a
Mortgage Loan identified in the Loan Identification Data, 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
Corp., Gemini Securitization Corp., LLC, Newport Funding Corp. and Sedona
Capital Funding Corp., LLC, Account No. 54790," 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. Any funds in the Disbursement
Account shall remain uninvested.
Provided that Custodian has received (i) the related wire transfer
as provided in the prior paragraph and (ii) written notification from the
Purchaser to release such funds, on any related Purchase Date, the Custodian
shall be permitted to disburse funds from the Disbursement Account pursuant to
related closing agent's wire instructions as set forth in the Loan
Identification Data 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
Purchaser, 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 disbursed to the related closing agent as set forth in the Loan
Identification Data and the amount to be funded by such Purchaser 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 Loan Identification Data, prior to the delivery
of 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
-8-
and original balances as set forth in the Loan Identification Data
attached as Schedule A, (C) each document appears regular on its face, (D)
each document appears on its face to conform to the requirements of
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 A, 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 a cumulative Trust Receipt,
with an original of the same to be sent via overnight courier. Each cumulative
Trust Receipt should include: (i) all Mortgage Loans that Custodian has
certified on all prior Purchase Dates as well as the current Purchase Date 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 such report. Each Trust Receipt shall be deemed a
certification by the Custodian that the 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 in
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.
-9-
(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 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 upon notice from the related Seller, the Custodian
shall give prompt electronic notice of such defect to the related Purchaser and
the Sellers, followed by a written specification 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 fifteen (15) 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 provided that a payoff schedule has
been provided by the related Purchaser and related Seller, and shall deliver to
the related Purchaser such amended Trust Receipt.
(ii) In connection with (x) the purchase of Mortgage Loans by a
Purchaser that are subject to a security interest in favor of a Warehouse
Lender, and (y) the takeout of Mortgage Loan Pools by a Takeout Investor,
Custodian shall establish and maintain that certain non-interest bearing
segregated trust account (the "Settlement Account") for and on behalf of
Purchasers entitled "Settlement Account, Deutsche Bank National Trust
Company for Aspen Funding Corp., Gemini Securitization Corp., LLC, Newport
Funding Corp. and Sedona Capital Funding Corp., LLC and each of their
assignees under the Whole Loan Purchase and Sale Agreement dated September
22, 2006, Reference Number 54791". Sellers hereby acknowledges that
Purchasers shall have, and Sellers hereby grant Purchasers a first
priority security interest in and to, 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. Custodian and Sellers
hereby
-10-
acknowledge and agree that the Settlement Account is subject to the
exclusive dominion and control of Purchasers. None of Custodian, Sellers
nor any other Person claiming on behalf of or through Seller or Custodian
shall have any right or authority, whether express or implied, to close or
make use of or withdraw any funds from, the Settlement Account, except as
expressly provided herein or otherwise directed by Purchaser. Custodian
shall be under no obligation to review or verify wire instructions. The
parties hereto agree that the Settlement Account shall be funded solely by
immediately available funds and that the Custodian shall not be required
to accept any other items for deposit in the Settlement Account. Funds
held in the Settlement Account shall not be invested. Sellers shall
provide Purchasers and Custodian with a daily reconciliation of amounts
received in the Settlement Account.
(iii) With respect to any Mortgage Loan that is subject to a
security interest in favor of a Warehouse Lender, the related Purchaser
shall deposit the Purchase Price for such Mortgage Loan into the
Settlement Account prior to 4:00 p.m. (New York City time) on the related
Purchase Date. Sellers agree that to the extent the amount owed to the
Warehouse Lender is greater than the Purchase Price, Sellers shall deposit
the difference between such amount and the Purchase Price into the
Settlement Account prior to 4:00 p.m. (New York City time) on the related
Purchase Date. Custodian shall notify the Purchasers and Sellers if there
are not enough funds in the Settlement Account to pay the amount owed to
the Warehouse Lender in full. Custodian shall disburse the amount owed to
the Warehouse Lender by 4:00 p.m. (New York City time) on the related
Purchase Date to the Warehouse Lender in accordance with the Warehouse
Lender's Wire Instructions to the extent that it has received sufficient
funds from the related Purchaser.
(iv) With respect to any Mortgage Loan Pool to be purchased by a
Takeout Investor, Sellers shall direct such Takeout Investor to deposit
the related Takeout Proceeds into the Settlement Account prior to 4:00
p.m. (New York City time) on the related Settlement Date. Custodian shall
disburse to Purchasers all amounts on deposit in the Settlement Account in
respect of Takeout Proceeds 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) in respect of Takeout Proceeds on each Business
Day shall be disbursed by Custodian to the related Purchaser on the
following Business Day. All such disbursements shall be made in accordance
with Purchaser's Wire Instructions to the Custodian, or as otherwise
directed by the related Purchaser in writing.
(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
-11-
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) 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), Sellers or Servicer and their respective agents, accountants,
attorneys and auditors will be permitted during normal business hours at their
respective 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), Sellers or Servicer 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,
Sellers or Servicer, Custodian shall provide such party 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
-12-
limitation, reasonable 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 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 standard of care as is
customary for custodians serving the secondary mortgage market with respect to
facilities of similar complexity and dollar size as the arrangement provided for
in this Agreement. 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
-13-
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 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 good faith 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.
-14-
(ix) Custodian shall not invest or reinvest any cash held in the
Disbursement Account or the Settlement 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, lack of
good faith or willful misconduct of Custodian. Notwithstanding anything to
the contrary contained herein, this provision shall survive 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 gross negligence, lack of
good faith 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
-15-
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 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.
-16-
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 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 severally, 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) 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:
-17-
(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 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, Servicer, Purchasers and Custodian except that, if
this Agreement shall have been assigned by a Purchaser with written notice of
such assignment given to Sellers, Servicer 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
-18-
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 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.
-19-
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 out 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 Purchaser may proceed against any Seller.
Section 24. Authorized Representatives. Each individual designated
as an authorized representative of the Purchasers, Servicer, Sellers and
Custodian (each, an "Authorized Representative"), is authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Agreement on behalf of the Purchasers,
Servicer, Sellers and Custodian respectively, and the specimen signature for
each such Authorized Representative of the Purchasers, Servicer, Sellers and
Custodian initially authorized hereunder is set forth on Schedule B, C, D and E,
respectively. From time to time, Purchasers, Sellers, Servicer and Custodian
may, by delivering to the others a revised exhibit, change the information
previously given pursuant to this Section, but each of the parties hereto shall
be entitled to rely conclusively on the then current exhibit until receipt of a
superseding exhibit.
[signature page follows]
-20-
IN WITNESS WHEREOF, Sellers, Servicer, 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
SEDONA CAPITAL FUNDING CORP., LLC,
as a Purchaser
By: /s/ Doris J. Hearn
-----------------------------------------
Name: Doris J. Hearn
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Norma L. Catone
-----------------------------------------
Name: Norma L. Catone
Title: Vice President