Exhibit 10.1
WHOLE LOAN PURCHASE AND SALE AGREEMENT
among
AMERICAN HOME MORTGAGE CORP.
Seller
AMERICAN HOME MORTGAGE INVESTMENT CORP.
Seller
and
AMERICAN HOME MORTGAGE SERVICING, INC.
Servicer
and
ASPEN FUNDING CORP.
Purchaser
GEMINI SECURITIZATION CORP., LLC
Purchaser
NEWPORT FUNDING CORP.
Purchaser
DATED: June 26, 2006
TABLE OF CONTENTS
Page
Section 1. Definitions................................................1
Section 2. Procedures for Purchases of Mortgage Loans.................9
Section 3. Sale of Mortgage Loans to Takeout Investor................11
Section 4. Holdback..................................................14
Section 5. Servicing of the Mortgage Loans...........................14
Section 6. Trade Assignments.........................................16
Section 7. Transfers of Beneficial Interest in Mortgage Loans by
Purchasers................................................16
Section 8. Record Title to Mortgage Loans; Intent of Parties;
Security Interest.........................................16
Section 9. Representations and Warranties............................17
Section 10. Covenants of Sellers......................................27
Section 11. Term......................................................31
Section 12. Exclusive Benefit of Parties; Assignment..................31
Section 13. Amendments; Waivers; Cumulative Rights....................31
Section 14. Execution in Counterparts.................................31
Section 15. Effect of Invalidity of Provisions........................31
Section 16. Governing Law.............................................32
Section 17. Notices...................................................32
Section 18. Entire Agreement..........................................32
Section 19. Costs of Enforcement......................................32
Section 20. Consent to Service........................................32
Section 21. Submission to Jurisdiction................................32
Section 22. Jurisdiction Not Exclusive................................32
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Section 23. WAIVER OF JURY TRIAL......................................33
Section 24. Construction..............................................33
Section 25. Further Assurances........................................33
Section 26. Joint and Several Liability...............................33
Section 27. Expenses..................................................33
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EXHIBITS
Exhibit ▇-▇.▇▇▇▇▇ Receipt
Exhibit B-1.Wet Loan Trust Receipt
Exhibit B-1.Warehouse Lender's Release
Exhibit B-2.Warehouse Lender's Wire Instructions
Exhibit C-1.Seller's Release
Exhibit C-2.Seller's Wire Instructions
Exhibit ▇-▇.▇▇▇▇▇ Assignment
Exhibit ▇-▇.▇▇▇▇▇ Assignment (Blanket)
Exhibit E...Purchaser's Wire Instructions
Exhibit F...Form of Confirmation
Exhibit G...Notice of Rejection of Trade Assignment
Exhibit H...Settlement Modification Letter
Exhibit I...Seller's Officer's Certificate
Exhibit J...Seller's Officer's Certificate
Exhibit K...List of Conduits
Exhibit L...Mortgage Loan Schedule
Exhibit M...Form of Transaction Notice
Exhibit N...Mortgage Loan Pool
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WHOLE LOAN PURCHASE AND SALE AGREEMENT
This Whole Loan Purchase and Sale Agreement ("Agreement"), dated as
of the date set forth on the cover page hereof, is by and among Aspen Funding
Corp., Gemini Securitization Corp., LLC and Newport Funding Corp., each having
an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (each individually, a
"Purchaser" and together, the "Purchasers"), American Home Mortgage Corp.,
having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("AHMC") and
American Home Mortgage Investment Corp., having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("AHMI" and together with AHMC, each
individually, a "Seller" and together, the "Sellers"), and American Home
Mortgage Servicing, Inc., having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Servicer").
PRELIMINARY STATEMENT
Sellers may offer to sell to Purchasers from time to time a 100%
undivided ownership interest in certain Mortgage Loans, and Purchasers, in their
sole discretion, may agree to purchase such Mortgage Loans from Sellers on a
servicing-released basis in accordance with the terms and conditions set forth
in this Agreement. The related Seller, subject to the terms hereof, will cause
each Mortgage Loan purchased by a Purchaser hereunder to be purchased by Takeout
Investor. During the period from the purchase of a Mortgage Loan by a Purchaser
to the sale of the Mortgage Loan to Takeout Investor, the Servicer shall interim
service such Mortgage Loan for the benefit of Purchasers pursuant to the terms
of this Agreement.
The parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the
meanings set forth in the Custodial Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"Act of Insolvency": With respect to either Seller, (i) the filing
of a petition, commencing, or authorizing the commencement of any case or
proceeding under any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar law relating to the protection of creditors, or suffering
any such petition or proceeding to be commenced by another against a Seller,
American Home Mortgage Acceptance, Inc. ("AHMA"), American Home Mortgage
Holdings, Inc. ("AHMH") and American Home Mortgage Servicing, Inc. ("AHMS" and
collectively with AHMA and AHMH, the "American Home Affiliates"); (ii) seeking
the appointment of a receiver, trustee, custodian or similar official for either
Seller or the American Home Affiliates or any substantial part of the property
of either, (iii) the appointment of a receiver, conservator, or manager for
either Seller or the American Home Affiliates by any governmental agency or
authority having the jurisdiction to do so; (iv) the making or offering by
either Seller or the American Home Affiliates of a concession with its creditors
or a general assignment for the benefit of creditors, (v) the admission by
either Seller or the American
Home Affiliates of Seller's or any of the American Home Affiliates' inability to
pay its debts or discharge its obligations as they become due or mature; or (vi)
any governmental authority or agency or any person, agency or entity acting or
purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the property of either Seller or the American Home
Affiliates, provided, however, that with respect to any involuntary filing, the
Seller or the American Home Affiliates, as applicable, shall have sixty (60)
days to dismiss such filing.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, through the
ownership of voting equity.
"Appraised Value": With respect to any Mortgaged Property, the value
thereof set forth in an appraisal made for the originator of the Mortgage Loan
at the time of origination of the Mortgage Loan by an appraiser who met the
minimum requirements of FNMA and FHLMC. Each appraisal has been made in
accordance with and satisfies the provisions of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989.
"Assignee": As defined in Section 7.
"Business Day": Any day other than (a) a Saturday, Sunday or other
day on which banks located in The City of New York, New York are authorized or
obligated by law or executive order to be closed or (b) any day on which a
Seller, Servicer, Purchaser or Custodian is authorized or obligated by law or
executive order to be closed.
"Collateral": As defined in Section 8(c).
"Commitment Amount": The aggregate outstanding principal amount of
Mortgage Loans to be purchased pursuant to a Takeout Commitment. If the
Commitment Amount is expressed as a fixed amount plus or minus a percentage in
the related Takeout Confirmation, then the amount required to be delivered by
the related Seller shall be the minimum amount of such range.
"Commitment Date": The date set forth in a Takeout Confirmation as
the commitment date.
"Commitment Guidelines": The guidelines, if any, issued by Takeout
Investor regarding the issuance of Takeout Commitments, as amended from time to
time by Takeout Investor.
"Commitment Number": With respect to a Takeout Commitment, the
number identified on the Takeout Confirmation as the commitment number, if
applicable.
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"Conduit": The list of investors attached hereto as Exhibit K, which
may be modified from time to time by Sellers with the consent of Purchasers in
their reasonable discretion.
"Conduit Transactions": 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 of a Purchaser's intent to
purchase a Mortgage Loan Pool, which written confirmation shall be substantially
in the form attached hereto as Exhibit F.
"Credit File": All Mortgage Loan papers and documents required to be
maintained pursuant to the Sale Agreement, and all other papers and records of
whatever kind or description in Seller's possession whether developed or
originated by the related Seller or others, required to document or service the
Mortgage Loan; provided, however, that such Mortgage Loan papers, documents and
records shall not include any Mortgage Loan papers, documents or records which
are contained in the Custodial File.
"Custodial Account": As defined in Section 5(b).
"Custodial Agreement": The Custodial Agreement, dated as of the date
set forth on the cover page thereof, among Sellers, Servicer, Purchasers and
Custodian.
"Custodial File": With respect to each Mortgage Loan, the documents
that are required to be delivered to the Custodian pursuant to the Custodial
Agreement.
"Custodian": The Custodian whose name is set forth on the cover page
of the Custodial Agreement and its permitted successors thereunder.
"Cut-off Date": With respect to a Mortgage Loan, the last day of a
month on which the Settlement Date can occur if accrued interest for such month
is to be collected by Takeout Investor.
"Defective Mortgage Loan": With respect to any Mortgage Loan, either
(i) the Document File does not contain a document required to be contained
therein, (ii) a document within a Document File is, in the judgment of any
Purchaser or Takeout Investor, defective or inaccurate in any material respect,
as determined upon evaluation of the Document File against the requirements of
the Sale Agreement, (iii) a document in the Document File is not legal, valid
and binding, or (iv) as to such Mortgage Loan, one of the representations and
warranties in Section 9 hereof has been breached and such breach materially and
adversely affects the value of such Mortgage Loan or the related Purchaser's
interest in such Mortgage Loan and, with respect to any Wet Mortgage Loan, if a
Custodial File is not received by Custodian within seven Business Days of the
related Purchase Date
"Document File": The Credit File and the Custodial File.
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"Due Date": The day of the month on which the Monthly Payment is due
on a Mortgage Loan.
"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.
"Exhibit B-1 Letter": As defined in Section 2(a).
"Exhibit C-1 Letter": As defined in Section 2(a).
"Expiration Date": With respect to any Takeout Commitment, the
expiration date thereof.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": ▇▇▇▇▇▇▇ Mac or any successor thereto.
"FNMA": ▇▇▇▇▇▇ Mae or any successor thereto.
"GAAP": Generally accepted accounting principles as in effect from
time to time in the United States of America.
"Holdback": The definition set forth in the Pricing Side Letter.
"HUD": United States Department of Housing and Urban Development or
any successor thereto.
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations
(contingent or otherwise) of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial institutions
for account of such Person; (e) all obligations of such Person to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
property to the extent such obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person under GAAP,
and, for
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purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP; (f) obligations
of such Person under repurchase agreements or like arrangements; (g)
Indebtedness of others guaranteed by such Person; (h) all obligations of such
Person incurred in connection with the acquisition or carrying of fixed assets
by such Person; (i) Indebtedness of general partnerships of which such Person is
a general partner; and (j) any other indebtedness of such Person by a note,
bond, debenture or similar instrument excluding any non-recourse debt.
"Loan to Value Ratio" or "LTV" means with respect to any Mortgage
Loan, the ratio of the original outstanding principal amount of the Mortgage
Loan, with respect to a Mortgage Loan plus, with respect to any Second Lien
Mortgage Loan, the outstanding principal amount of any related first lien as of
the date of origination of such second lien Mortgage Loan, to the lesser of (a)
the Appraised Value of the related Mortgaged Property at origination or (b) if
the Mortgaged Property was purchased within 12 months of the origination of such
Mortgage Loan, the purchase price of the related Mortgaged Property.
"Losses": Any and all losses, claims, damages, liabilities or
expenses (including reasonable attorney's fees) incurred by any Person
specified.
"LIBOR": With respect to each day (or if such day is not a Business
Day, the next succeeding Business Day), the rate per annum equal to the rate
published by Bloomberg or if such rate is not available, the rate appearing at
page 3750 of the Telerate Screen, as one-month LIBOR on such date, and if such
rate shall not be so quoted, the rate per annum at which the Purchasers are
offered Dollar deposits at or about 11:00 A.M., New York City time, on such date
by prime banks in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its transactions are then
being conducted for delivery on such day for a period of one month and in an
amount comparable to the amount of the transactions hereunder to be outstanding
on such day.
"Maximum Aggregate Purchase Price": The aggregate Purchase Price of
all Mortgage Loans acquired by Purchasers from Sellers under this Agreement and
not yet delivered to and funded by a Takeout Investor, which amount shall be
$1,000,000,000.
"MERS": Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest 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 Mortgage Loan Schedule.
"MERS System": The system of recording transfers of Mortgages
electronically maintained by MERS.
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"MIN": The mortgage identification number of Mortgage Loans
registered with MERS on the MERS System.
"Monthly Payment": The scheduled monthly payment of principal and/or
interest on a Mortgage Loan.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first or second lien on an estate in fee simple in real property securing a
Mortgage Note.
"Mortgage Interest Rate": The annual rate of interest borne on a
Mortgage Note.
"Mortgage Loan": Each first or second lien, one- to four-family
residential mortgage loan sold, assigned and transferred pursuant to this
Agreement and which satisfies the requirements of the related Sale Agreement as
the same may be modified from time to time, subject to the consent of the
Purchasers and if modified so as to adversely affect the rights or obligations
of the Sellers, the consent of the Sellers.
"Mortgage Loan Pool": The groups of Mortgage Loans purchased by the
Purchaser hereunder as described on Exhibit N.
"Mortgage Loan Schedule": The schedule of Mortgage Loans, attached
hereto as Exhibit L, delivered to the related Purchaser by the related Seller on
each Purchase Date in a form, and containing information, acceptable to such
Purchaser and the related Seller.
"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.
"NCUA": National Credit Union Administration, or any successor
thereto.
"Net Worth" shall mean, with respect to any Person, the excess of
total assets of such Person, over total liabilities of such Person, determined
in accordance with GAAP.
"Notice of Rejection of Trade Assignment": With respect to any
Mortgage Loan that a Purchaser elects not to purchase, a notification by such
Purchaser to Takeout Investor and the related Seller in the form of Exhibit G.
"Option-ARM Mortgage Loan": An adjustable rate Mortgage Loan which
(i) provides the Mortgagor with multiple payment options and (ii) may result in
negative amortization.
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"OTS": Office of Thrift Supervision or any successor thereto.
"Parent Company": A corporation or other entity owning at least 50%
of the outstanding shares of voting stock of a Seller.
"Pass-Through Rate": As defined in the Pricing Side Letter as the
Pass-Through Rate.
"Person": Any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated association or government (or any agency, instrumentality or
political subdivision thereof).
"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.
"Purchase Date": With respect to any Mortgage Loan Pool purchased by
a Purchaser hereunder, the date of payment thereof by Purchaser to the related
Seller of the Purchase Price less the Holdback.
"Purchase Price": With respect to each Mortgage Loan Pool purchased
by a Purchaser hereunder, the amount specified in the related Pricing Side
Letter.
"Purchaser": Any of Aspen Funding Corp., Gemini Securitization
Corp., LLC and Newport Funding Corp. and its respective successors in interest,
including, but not limited to, a party to whom a Trust Receipt is assigned as
provided hereunder and in the Custodial Agreement.
"Purchaser's Wire Instructions": The wire instructions set forth in
a letter in the form of Exhibit E.
"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 to the Custodial Agreement 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.
"Sale Agreement": The agreement providing for the purchase by
Takeout Investor of Mortgage Loans from the related Seller.
"SEC": The Securities Exchange Commission or any successor thereto.
"Seller": Each Seller whose name is set forth on the cover page
hereof and its permitted successors hereunder.
"Seller's Wire Instructions": The wire instructions set forth in a
letter in the form of Exhibit C-2.
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"Settlement Date": With respect to any Mortgage Loan, the date of
payment thereof by Takeout Investor to the related Purchaser of the Takeout
Proceeds.
"Settlement Modification Letter": A letter in the form of Exhibit H.
"Security": A GNMA Security, a FNMA Security or a FHLMC Security.
"Servicer": American Home Mortgage Servicing, Inc, its successors
and permitted assigns.
"Successor Servicer": An entity designated by the Purchasers, with
notice provided in conformity with Section 17, to replace the Servicer as
servicer of the Mortgage Loans evidenced by a Trust Receipt.
"Takeout Commitment": A commitment of the related Seller to sell one
or more Mortgage Loans to Takeout Investor and of Takeout Investor to purchase
one or more Mortgage Loans from such Seller. Each Takeout Commitment must be
acceptable to the related Purchaser in its sole discretion.
"Takeout Confirmation": The written notification to the related
Seller from Takeout Investor containing all of the relevant details of the
Takeout Commitment, which notification may take the form of a trade
confirmation.
"Takeout Investor": A Conduit.
"Takeout Proceeds": With respect to any Mortgage Loan Pool, the
related Trade Principal plus accrued interest as calculated in accordance with
Section 4, as amended by any related Settlement Modification Letter accepted by
the related Purchaser.
"Tangible Net Worth" shall mean, with respect to any Person, as of
any date of determination, the consolidated Net Worth of such Person and its
subsidiaries, less the consolidated net book value of all assets of such Person
and its subsidiaries (to the extent reflected as an asset in the balance sheet
of such Person or any subsidiary at such date) which will be treated as
intangibles under GAAP, including, without limitation, such items as deferred
financing expenses, net leasehold improvements, good will, trademarks, trade
names, service marks, copyrights, patents, licenses and unamortized debt
discount and expense.
"Third Party Underwriter": Any third party, including but not
limited to a mortgage loan pool insurer, who underwrites the Mortgage Loan(s)
prior to the purchase by the related Purchaser of the related Mortgage Loan
Pool.
"Third Party Underwriter's Certificate": A certificate issued by a
Third Party Underwriter with respect to a Mortgage Loan, certifying that such
Mortgage Loan complies with the third party underwriting requirements.
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"Trade Assignment": The assignment by the related Seller to the
related Purchaser of such Seller's rights under a specific Takeout Commitment,
in the form of Exhibit D-1, or of such Seller's rights under all Takeout
Commitments, in the form of Exhibit D-2.
"Trade Price": The trade price set forth on a Takeout Commitment as
modified pursuant to any Settlement Modification Letter consented to by the
related Purchaser.
"Trade Principal": With respect to any Mortgage Loan Pool, the
aggregate outstanding principal balance of such Mortgage Loan multiplied by a
percentage equal to the Trade Price.
"Trust Receipt": A trust receipt issued by the Custodian evidencing
the Mortgage Loan Pool it holds for a Purchaser, in the form attached hereto as
Exhibit A-1 (or A-2 with respect to Wet Mortgage Loans), and delivered to the
related Purchaser by the Custodian in accordance with Section 2 hereof.
"Warehouse Lender": Any lender providing financing to the related
Seller for the purpose of originating or purchasing Mortgage Loans which prior
to the Purchase Date has a security interest in such Mortgage Loans as
collateral for the obligations of such Seller to such lender.
"Warehouse Lender's Wire Instructions": The wire instructions set
forth in a letter in the form of Exhibit B-2.
"Wet Mortgage Loan": Mortgage Loans for which the Custodian has not
yet received a completed Custodial File.
Section 2. Procedures for Purchases of Mortgage Loans.
(a) Any Purchaser may, in its sole discretion, from time to time,
purchase one or more Mortgage Loan Pools from either or both Sellers. Any
request by Seller that a Purchaser purchase any Mortgage Loans hereunder shall
be provided by delivery of a Transaction Notice in the form attached hereto as
Exhibit M, no later than 3:00 p.m. (New York City time) one Business Day prior
to the requested Purchase Date with respect to any Mortgage Loans other that Wet
Mortgage Loans. With respect to Wet Mortgage Loans, the related Seller shall
notify the related Purchaser of an estimate of the Purchase Price of such Wet
Mortgage Loans no later than 3:00 p.m. (New York City time) one (1) Business Day
prior to the requested Purchase Date. Prior to any Purchaser's actual purchase
of any Mortgage Loan Pool, such Purchaser shall have received (a) from Custodian
(i) by facsimile, a Notice of Intent to Issue Trust Receipt, and (ii) by
facsimile, the Trust Receipt covering all Mortgage Loans (including the Mortgage
Loan Pool being purchased) relating to Conduit Transactions fully completed and
authenticated by Custodian, with the original Trust Receipt sent by overnight
mail to arrive on the Business Day after the day it is sent by facsimile, and
(b) from the Seller (i) a copy of the Takeout Confirmation related to the
Mortgage Loan(s) in such Mortgage Loan Pool, together with a Trade Assignment in
the form of Exhibit D-1 or Exhibit D-2,
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executed by the related Seller and Takeout Investor or such other notification
acceptable to the Purchaser in its sole discretion and (ii) an original letter
in the form of Exhibit B-1 (an "Exhibit B-1 Letter") from the applicable
Warehouse Lender (if any), or an original letter in the form of Exhibit C-1 (an
"Exhibit C-1 Letter") in the event that there is no Warehouse Lender. This
Agreement is not a commitment by any Purchaser to enter into transactions with
either Seller but rather sets forth the procedures to be used in connection with
periodic requests for a Purchaser to enter into transactions with a Seller.
Sellers hereby acknowledge that Purchasers are under no obligation to agree to
enter into, or to enter into, any transaction pursuant to this Agreement.
(b) If any Purchaser elects to purchase any Mortgage Loan Pool, such
Purchaser shall pay the amount of the Purchase Price less the Holdback for such
Mortgage Loan Pool by wire transfer of immediately available funds in accordance
with the Warehouse Lender's Wire Instructions or if there is no Warehouse
Lender, the related Seller's Wire Instructions. Upon such payment and not
otherwise, Purchaser shall be deemed to have accepted the related Trade
Assignment. Sellers shall not offer for sale to any Purchaser any Mortgage Loan
as to which the Expiration Date of the related Takeout Commitment is two (2)
Business Days or less following the Purchase Date.
(c) Simultaneously with the payment by a Purchaser of the Purchase
Price less the Holdback, in accordance with the Warehouse Lender's Wire
Instructions or the related Seller's Wire Instructions, as applicable, with
respect to a Mortgage Loan Pool, such Seller hereby conveys to the related
Purchaser all of such Seller's right, title and interest in and to the related
Mortgage Loan(s) free and clear of any lien, claim or encumbrance.
Notwithstanding the satisfaction by the related Seller of the conditions
specified in this Section 2, no Purchaser is obligated to purchase any Mortgage
Loans offered to it hereunder.
(d) In the event that a Purchaser rejects a Mortgage Loan for
purchase for any reason and/or does not transmit the applicable Purchase Price
less the Holdback, (i) the Trust Receipt, if any, delivered by Custodian to such
Purchaser in anticipation of such purchase shall automatically be null and void
and the previously existing Trust Receipt for that type of transaction shall be
in full force and effect, (ii) such Purchaser shall not consummate the
transactions contemplated in the applicable Takeout Confirmation and shall
deliver to Takeout Investor (with a copy to the related Seller and Custodian) a
Notice of Rejection of Trade Assignment, provided, however, that failure of such
Purchaser to give such notice shall not affect the rejection by such Purchaser
of the Trade Assignment, and (iii) if such Purchaser shall nevertheless receive
any portion of the related Takeout Proceeds, such Purchaser shall within one
Business Day pay such Takeout Proceeds to the related Seller in accordance with
such Seller's Wire Instructions.
(e) The terms and conditions of the purchase of each Mortgage Loan
Pool shall be as set forth in this Agreement.
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Section 3. Sale of Mortgage Loans to Takeout Investor.
(a) With respect to Mortgage Loan(s) that a Purchaser has elected to
purchase, such Purchaser may, at its option, either (i) instruct Custodian to
deliver to Takeout Investor, in accordance with Takeout Investor's instructions,
the Custodial File in respect of such Mortgage Loans, in the manner and at the
time set forth in the Custodial Agreement, or (ii) provide for the delivery of
the Custodial File through an escrow arrangement satisfactory to such Purchaser
and Takeout Investor. The related Seller shall in accordance with the related
Sale Agreement but in no event later than two (2) Business Days prior to the
related Expiration Date, deliver to Takeout Investor any and all documents
required to be delivered pursuant to the Sale Agreement to enable Takeout
Investor to purchase such Mortgage Loan(s) on or before the related Expiration
Date.
(b) (1) The Holdback relating to such Mortgage Pool shall be paid by
Purchaser to the Seller upon the completion by Seller of all obligations
relating to the Takeout Investor's due diligence of the Mortgage Pool by the
Settlement Date and the making of the representations and warranties to the
Takeout Investor as required under the Takeout Agreement by the Seller, it being
acknowledged and agreed that the Seller is not required to make any
representations and warranties there were true as of the Purchase Date but are
no longer true as of the Settlement Date in order to receive the Holdback. If
such due diligence obligations have not been completed by Seller by the related
Settlement Date, the Holdback shall not be paid by the Purchaser to the Seller
and shall be retained by the Purchaser. Upon receipt by such Purchaser, prior to
the Settlement Date, of a Settlement Modification Letter, duly executed by
Takeout Investor and the related Seller, such Purchaser may, at its election,
agree to the postponement of the Settlement Date and such other matters as are
set forth in the Settlement Modification Letter. If such Purchaser elects to
accept a Settlement Modification Letter, such Purchaser shall, not later than
two (2) Business Days or earlier if reasonably required by Takeout Investor
after receipt of such Settlement Modification Letter execute the Settlement
Modification Letter and send, via facsimile, copies of such fully executed
Settlement Modification Letter to the related Seller and Takeout Investor.
(b) (2) The Seller is required to provide certain representations
and warranties to the Takeout Investor pursuant to the Sale Agreement as of the
Settlement Date. To the extent that the Seller has knowledge that any such
representations and warranties are not true, Seller shall have no obligation to
provide any such representation and warranty.
(c) (1) If a breach by Sellers of this Agreement results in any
Mortgage Loan being a Defective Mortgage Loan at the time of the delivery of the
related Trust Receipt to the related Purchaser and in such Purchaser's sole
judgment the defects in such Mortgage Loan are not capable of being cured (or in
fact are not cured) by the related Seller prior to the Settlement Date, or in
the event that the first Monthly Payment due on the Mortgage Loan following the
date of origination of such Mortgage Loan is not made within 30 days of its Due
Date, such Purchaser, at its election, may require that such Seller, upon
receipt of notice from such Purchaser of its exercise of such right,
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immediately repurchase such Purchaser's ownership interest in such Mortgage Loan
by remitting to such Purchaser (in immediately available funds in accordance
with Purchaser's Wire Instructions) the amount paid by such Purchaser for such
Mortgage Loan plus all accrued and unpaid interest thereon.
(c) (2) The Servicer's rights and obligations to interim service
each Mortgage Loan as provided in this Agreement, shall terminate on the later
of the related Settlement Date or the date which is thirty days following the
related Purchase Date; provided that, the related Purchaser may in its sole
discretion extend such 30 day interim servicing period by one or more additional
30 day periods by providing written notice to the Servicer prior to the
termination of such interim servicing period. If an Act of Insolvency or any
other material default hereunder by the Servicer occurs at any time, the
Servicer's rights and obligations to service the Mortgage Loan(s), as provided
in this Agreement, shall terminate immediately, without any notice or action by
Purchaser subject to the rights of any Takeout Investor. Upon any such
termination, Purchaser is hereby authorized and empowered to sell and transfer
such rights to service the Mortgage Loan(s) for such price and on such terms and
conditions as Purchaser shall reasonably determine subject to the rights of any
Takeout Investor, and neither the Servicer nor the Sellers shall have any right
to attempt to sell or transfer such rights to service. The Servicer shall
perform all acts and take all actions so that the Mortgage Loan(s) and all files
and documents relating to such Mortgage Loan(s) held by the Servicer, together
with all escrow amounts relating to such Mortgage Loan(s), are delivered to
Successor Servicer. To the extent that the approval of any Takeout Investor,
Third Party Underwriter or any other insurer or guarantor is required for any
such sale or transfer, the Sellers and the Servicer shall fully cooperate with
Purchaser to obtain such approval. All amounts paid by any purchaser of such
rights to service the Mortgage Loan(s) shall be the property of the Purchasers.
Upon exercise by Purchasers of the remedies under this Section 3(c)(2),
Purchasers' obligation to pay and Sellers' and Servicer's right to receive any
portion of the Holdback relating to such Mortgage Loan(s) shall automatically be
canceled and become null and void, provided that such cancellation shall in no
way relieve such Seller or otherwise affect the obligation of such Seller to
indemnify and hold the Purchasers harmless as specified in Section 3(e).
(d) Subject to the rights of a Takeout Investor, each Mortgage Loan
delivered to any Purchaser hereunder shall be delivered on a servicing released
basis free of any servicing rights in favor of the related Seller and free of
any title, interest, lien, encumbrance or claim of any kind of such Seller and
such Seller hereby waives its right to assert any interest, lien, encumbrance or
claim of any kind. Subject to the rights of a Takeout Investor, upon transfer of
such servicing rights to any Successor Servicer, the Servicer and the related
Seller shall deliver or cause to be delivered all files and documents relating
to each Mortgage Loan held by the Servicer or such Seller to Successor Servicer.
The related Seller and the Servicer shall promptly take such actions and furnish
to the related Purchaser such documents that such Purchaser reasonably deems
necessary or appropriate to enable such Purchaser to cure any defect in each
such Mortgage Loan or to enforce such Mortgage Loans, as appropriate.
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(e) Sellers agree to indemnify and hold each Purchaser and its
assigns harmless from and against all Losses resulting from any breach or
failure to perform by Sellers of any representation, warranty, covenant, term or
condition made or to be performed by Sellers under this Agreement.
(f) Reserved
(g) Reserved
(h) No exercise by a Purchaser of its rights under this Section 3
shall relieve Sellers of responsibility or liability for any breach of this
Agreement.
(i) In addition to any rights and remedies of Purchasers provided by
this Agreement and by law, each Purchaser shall have the right, without prior
notice to Sellers, any such notice being expressly waived by Sellers to the
extent permitted by applicable law, upon any amount becoming due and payable by
Sellers hereunder to set-off and appropriate and apply against such amount any
and all Mortgaged Property and deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Purchaser to
or for the credit or the account of Sellers (including, without limitation, the
amount of any accrued and unpaid Holdback). Each Purchaser may also set-off cash
and all other sums or obligations owed by such Purchaser to Sellers under this
Agreement against all of such Seller's obligations to such Purchaser, whether or
not such obligations are then due. The exercise of any such right of set-off
shall be without prejudice to any Purchaser's right to recover any deficiency.
(j) Sellers agree that, with respect to any Mortgage Loan Pool
purchased by a Purchaser, the related Takeout Commitment shall have an
Expiration Date which is not later than 60 calendar days after the related
Purchase Date. Sellers further agree that any additional Takeout Commitment that
they obtain with respect to such Mortgage Loan Pool if the initial Takeout
Investor does not perform under such Takeout Commitment shall have an Expiration
Date which is not later than 75 calendar days after the related Purchase Date.
Sellers have not and will not take any action, or fail to act where action is
required, the result of which would be to impair any Trade Assignment.
(k) Sellers shall notify and provide the related Purchaser with
copies of any changes made to the Sale Agreement or any other correspondent
agreements between Sellers and any Takeout Investor within 2 Business Days of
such change.
(l) In no event shall the Purchasers be liable to the Takeout
Investor for any pair-off, breakage or other similar fees in the event that a
Takeout Investor asserts any such right under any Takeout Commitment.
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Section 4. Holdback.
(a) With respect to each Mortgage Loan Pool that a Purchaser elects
to purchase hereunder, such Purchaser shall pay to the related Seller the
Holdback with respect to all Mortgage Loans in such Mortgage Loan Pool subject
to the terms of this Agreement. The Holdback shall be payable by such Purchaser
as provided in Section 3(b)(i).
(b) Reserved.
(c) If a Mortgage Loan Pool is purchased by a Purchaser in the month
prior to the month in which the related Settlement Date occurs, (A) all interest
which accrues on the related Mortgage Loans, on and after the Purchase Date,
through the last day of any month prior to the month in which such Settlement
Date occurs, and all other collections thereon, shall be paid to such Purchaser
by the Servicer, as interim servicer, on a monthly basis on the earlier of (i)
the second Business Day of the month following the month such interest accrued
or (ii) related Settlement Date and (B) all interest which accrues on the
Mortgage Loans in such Mortgage Loan Pool on and after the first day of the
month in which such Settlement Date occurs, through the day immediately prior to
such Settlement Date, and all other collections thereon, will be paid to such
Purchaser by Takeout Investor on such Settlement Date unless such Settlement
Date occurs after the Cut-off Date of such month in which event Servicer, as
interim servicer, shall pay such amount to such Purchaser on such Settlement
Date. If a Mortgage Loan Pool is purchased by such Purchaser in the same month
in which the related Settlement Date occurs, (A) all interest, if any, which
accrues on such Mortgage Loan(s) from the first day of such month to but not
including the related Purchase Date shall be paid by such Purchaser to the
related Seller on such Settlement Date, and (B) all interest which accrues on
such Mortgage Loan(s), on and after the Purchase Date to but not including the
Settlement Date will be paid to such Purchaser by Takeout Investor on the
Settlement Date unless such Settlement Date occurs after the Cut-off Date or in
a month in which interest has been prepaid by the Mortgagor in either of which
events the Servicer, as interim servicer, shall pay such amount to such
Purchaser on such Settlement Date. For purposes of this paragraph all interest
payments shall be deemed to accrue at the applicable rate set forth in the
related Takeout Commitment.
(d) Reserved.
Section 5. Servicing of the Mortgage Loans.
(a) Upon payment of the Purchase Price, the related Purchaser shall
own all source files, documents, agreements and papers related to servicing the
Mortgage Loans and shall own all derivative information created by the Servicer
or the related Seller or other third party used or useful in servicing the
Mortgage Loans. The Servicer shall interim service and administer the Mortgage
Loan(s) on behalf of the related Purchaser in accordance with customary and
reasonable mortgage loan servicing standards and procedures generally accepted
by lenders in the mortgage banking industry and in accordance with the
requirements of Takeout Investor, provided that the Servicer
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shall at all times comply with applicable law and the terms of the related
Mortgage Loan Documents, and the requirements of any applicable insurer or
guarantor including, without limitation, any Third Party Underwriter, so that
the insurance in respect of any Mortgage Loan is not voided or reduced. The
Servicer shall at all times maintain accurate and complete records of its
interim servicing of each Mortgage Loan, and any Purchaser may, at any time
during the Servicer's business hours on two (2) Business Days (or immediately in
the event of a default hereunder by the Servicer), examine and make copies of
such records. At the request and in accordance with the directions of such
Purchaser, the Servicer shall deliver to such Purchaser copies of any Credit
Files within 3 Business Days of such request by such Purchaser. In addition,
upon not less than 2 Business Days notice to the related Seller or the Servicer,
any Purchaser shall have the right to perform a due diligence review of such
Seller or the Servicer, including the Servicer's servicing capabilities.
The Servicer shall at any Purchaser's request deliver to such
Purchaser monthly reports regarding the status of such Mortgage Loan, which
reports shall include, but shall not be limited to, a description of each
Mortgage Loan in default for more than thirty (30) days, and such other
circumstances with respect to any Mortgage Loan (whether or not such Mortgage
Loan is included in the foregoing list) that could materially adversely affect
any such Mortgage Loan, the related Purchaser's ownership of any such Mortgage
Loan or the collateral securing any such Mortgage Loan. The Servicer shall
deliver such a report to each Purchaser every thirty (30) days until (i) the
purchase by Takeout Investor of such Mortgage Loan pursuant to the related
Takeout Commitment or (ii) the exercise by Purchasers of any remedial election
pursuant to Section 3.
(b) The Servicer shall establish and maintain a separate custodial
account (the "Custodial Account") entitled "[Name of Servicer], in trust for
Aspen Funding Corp., Gemini Securitization Corp., LLC and Newport Funding Corp.
and each of their assignees under the Whole Loan Purchase and Sale Agreement
dated June 26, 2006" and shall deposit into such account any amounts received
within 2 Business Days of receipt. All collections received in respect of each
Mortgage Loan that are payable to any Purchaser as the owner of each such
Mortgage Loan.
(c) Amounts deposited in the Custodial Account with respect to any
Mortgage Loan shall be held in trust for the related Purchaser as the owner of
such Mortgage Loan and shall be released only as follows:
(1) Except as otherwise provided in Section 5(c)(2), following
receipt by the related Purchaser or its designee of the Takeout
Proceeds for such Mortgage Loan from Takeout Investor, amounts
deposited in the Custodial Account related to such Mortgage Loan not
otherwise subject to setoff as provided hereunder shall be released
to the Servicer. The amounts paid to the Servicer (if any) pursuant
to this Section 5(c)(1) shall constitute the Servicer's sole
compensation for interim servicing the Mortgage Loans as provided in
this Section 5.
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(2) If Successor Servicer takes delivery of such Mortgage Loan
(either under the circumstances set forth in Section 3 or
otherwise), all amounts deposited in the Custodial Account shall be
paid to the related Purchasers promptly upon such delivery.
(3) If a Mortgage Loan is not purchased by Takeout Investor on
or before the Settlement Date, during the period thereafter that the
related Seller remains as interim servicer, all amounts deposited in
the Custodial Account shall be released only in accordance with the
related Purchaser's written instructions.
(d) Reserved.
Section 6. Trade Assignments. Each related Seller hereby assigns to
each related Purchaser, free of any security interest, lien, claim or
encumbrance of any kind, such Seller's rights, under each Takeout Commitment as
to which Takeout Investor has consented to assignment, to deliver the Mortgage
Loan(s) specified therein to the related Takeout Investor and to receive the
Takeout Proceeds therefor from such Takeout Investor. No Purchaser shall be
deemed to have accepted any Trade Assignment unless and until it purchases the
related Mortgage Loans, and nothing set forth herein shall be deemed to impair
such Purchaser's right to reject any Mortgage Loan for any reason, in its sole
discretion.
Section 7. Transfers of Beneficial Interest in Mortgage Loans by
Purchasers. Each Purchaser may, in its sole discretion, assign all of its right,
title and interest in or grant a security interest in any Mortgage Loan sold by
Seller hereunder and all rights of such Purchaser under this Agreement and the
Custodial Agreement, in respect of such Mortgage Loan solely to one of
Purchaser's commercial paper conduits (each, an "Assignee") but in no event to
any Seller or any Affiliate of any Seller. It is anticipated that such
assignment to an Assignee will be made by Purchasers, and Sellers hereby
irrevocably consent to such assignment. No notice of such assignment shall be
given by any Purchaser to Sellers or Takeout Investor. Assignment by a Purchaser
of the Mortgage Loans as provided in this Section 7 shall not release Purchaser
from any obligations otherwise under this Agreement. Without limitation of the
foregoing, an assignment of the Mortgage Loans to an Assignee, as described in
this Section 7, shall be effective upon delivery to the Assignee of a duly
executed and authenticated Trust Receipt.
Section 8. Record Title to Mortgage Loans; Intent of Parties;
Security Interest.
(a) From and after the issuance and delivery of the related Trust
Receipt, and subject to the remedies of Purchasers in Section 3, the related
Seller may remain the last named payee or endorsee of each Mortgage Note and
(except with respect to any MERS Mortgage Loan) the mortgagee or assignee of
record of each Mortgage in trust for the benefit of the related Purchaser, for
the sole purpose of facilitating the servicing of such Mortgage Loan.
Notwithstanding the foregoing, beneficial ownership of
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each Mortgage and the related Mortgage Note shall be vested solely in the
related Purchaser or the appropriate designee of such Purchaser, as the case may
be. All rights arising out of the Mortgage Loans including, but not limited to,
all funds received by the related Seller after the related Purchase Date on or
in connection with a Mortgage Loan shall be vested in the related Purchaser or
one or more designees of such Purchaser.
(b) Each Seller shall maintain a complete set of books and records
for each Mortgage Loan which shall be clearly marked to reflect the ownership
interest in each Mortgage Loan of the related Purchaser. Upon the request of the
related Purchaser, the related Seller shall prepare and deliver to MERS an
assignment of Mortgage from MERS to blank. The related Seller shall cause such
assignment of Mortgage to be recorded in the public land records upon request of
such Purchaser. At any time during the term of this Agreement, the related
Purchaser or the Takeout Investor, as the case may be, may direct the related
Seller to cause any MERS Mortgage Loan to be deactivated from the MERS system.
In connection with such deactivation, the related Seller shall notify MERS and
prepare an assignment of Mortgage from MERS to the related Purchaser or in
blank. In the event that the related Purchaser specifies that any such
assignment be made to Seller, such assignment shall be for the sole purpose of
facilitating the servicing of such Mortgage Loan and such Seller shall also
prepare an assignment of Mortgage in recordable form from such Seller to the
related Purchaser or its designee and deliver such unrecorded assignment of
Mortgage to the Custodian pursuant to the terms and conditions of the Custodial
Agreement.
(c) Purchasers and Sellers confirm that the transactions
contemplated herein are intended to be sales of the Mortgage Loans by Sellers to
Purchasers rather than borrowings secured by the Mortgage Loans and will be
treated and accounted for as such on their books and records. In the event, for
any reason, any transaction is construed by any court or regulatory authority as
a borrowing rather than as a sale, Sellers and Purchasers intend that the
related Purchaser or its Assignee, as the case may be, shall have a perfected
first priority security interest in the Mortgage Loans, the servicing rights
appurtenant to the Mortgage Loans, the Custodial Account, and all proceeds
thereof, the Takeout Commitments and the proceeds of any and all of the
foregoing (collectively, the "Collateral"), free and clear of adverse claims. In
such case, the related Seller shall be deemed to have hereby granted to the
related Purchaser or Assignee, as the case may be, a first priority security
interest in and lien upon the Collateral, free and clear of adverse claims. In
such event, this Agreement shall constitute a security agreement, the Custodian
shall be deemed to be an independent custodian for purposes of perfection of the
security interest granted to the related Purchaser or Assignee, as the case may
be, and the related Purchaser or Assignee, as the case may be, shall have all of
the rights of a secured party under applicable law.
Section 9. Representations and Warranties.
(a) Each Seller, jointly and severally, hereby represents and
warrants to each Purchaser as of the date hereof and as of the date of each
issuance and delivery of a Trust Receipt that:
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(i) Each Seller is duly organized, validly existing and in
good standing under the laws of the state of its organization and
has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in the
state where the Mortgaged Property is located if the laws of such
state require licensing or qualification in order to conduct
business of the type conducted by each Seller, except where the
failure to be so licensed or qualified would not result in a
material adverse effect on the Sellers or their ability to perform
under this Agreement. Each Seller has all requisite corporate power
and authority to execute and deliver this Agreement and to perform
in accordance herewith; the execution, delivery and performance of
this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by each Seller and the
consummation of the transactions contemplated hereby have been duly
and validly authorized; this Agreement evidences the valid, binding
and enforceable obligation of Seller except as the enforceability
may be limited by bankruptcy, insolvency, reorganization, or similar
laws, and by equitable principles affecting the enforceability of
the rights of creditors; and all requisite corporate action has been
taken by each Seller to make this Agreement valid and binding upon
each Seller in accordance with its terms;
(ii) No approval of the transactions contemplated by this
Agreement from the OTS, the NCUA, the FDIC or any similar federal or
state regulatory authority having jurisdiction over each Seller is
required, or if required, such approval has been obtained. There are
no actions or proceedings pending or against Sellers which would
materially and adversely affect each Seller's ability to perform
hereunder. The transfers, assignments and conveyances provided for
herein are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(iii) The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of each Seller
and will not (i) result in the breach of any term or provision of
the charter or by-laws of each Seller or (ii) result in the breach
of any term or provision of, or conflict with or constitute a
default under or result in the acceleration of any obligation under,
any material agreement, indenture or loan or credit agreement or
other instrument to which each Seller or its property is subject, or
(iii) result in the violation of any law, rule, regulation, order,
judgment or decree to which each Seller or its property is subject
except, in the case of clauses (ii) and (iii), for such conflicts,
breaches, defaults or violations of law which would not,
individually or in the aggregate, result in a material adverse
effect on the Sellers or their ability to perform under this
Agreement;
(iv) The Custodial Agreement and every document to be executed
by Seller each pursuant to this Agreement is and will be valid,
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binding and subsisting obligations of each Seller, enforceable in
accordance with their respective terms, except as the enforceability
may be limited by bankruptcy, insolvency, reorganization, or similar
laws, and by equitable principles affecting the enforceability of
the rights of creditors. No consents or approvals are required to be
obtained by Seller or its Parent Company, if any, for the execution,
delivery and performance of this Agreement or the Custodial
Agreement by each Seller;
(v) Upon purchase by the Purchaser, each Seller has not sold,
assigned, transferred, pledged or hypothecated any interest in any
Mortgage Loan sold hereunder to any person other than the related
Purchaser and the Takeout Investor, and upon delivery of a related
Trust Receipt to such Purchaser, such Purchaser will be the sole
owner thereof, free and clear of any lien, claim or encumbrance
subject to the rights of the Takeout Investor;
(vi) Neither this Agreement nor any information relating to
Sellers that Sellers have delivered to any Purchaser, including, but
not limited to, all documents related to this Agreement, the
Custodial Agreement or Seller's financial statements, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements made therein or herein in
light of the circumstances under which they were made, not
misleading. Since the furnishing of such documents or information,
there has been no change, nor any development or event involving a
prospective change that would render any of such documents or
information untrue or misleading in any material respect;
(vii) There is no pending or threatened action, suit,
proceeding, inquiry or investigation, at law or in equity or before
or by any court, administrative body or other tribunal (A) that
would prohibit each Seller entering into this Agreement, (B) seeking
to prevent the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement or (C) that would
prohibit or materially and adversely affect the performance by each
Seller of its obligations under, or validity or enforceability of,
this Agreement;
(viii) AHMI's Aggregate Tangible Net Worth is not less than
$700,000,000; and
(ix) Sellers and their Affiliates maintains in the aggregate
committed warehouse facilities in an amount equal to not less than
$4 billion which is in full force and effect, with one or more third
party lenders which are not Affiliates of Sellers.
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(b) The related Seller hereby represents and warrants to the related
Purchaser as of the date hereof, as of the date of delivery of each Mortgage
Pool and as of each Purchase Date that the Custodian is an eligible custodian as
determined by FNMA, FHLMC and GNMA, and is not an Affiliate of Seller.
(c) Seller hereby represents and warrants to the related Purchaser
with respect to each Mortgage Loan as of each Purchase Date of the related
Mortgage Loan that:
(i) The Mortgage Loan conforms in all respects to the
requirements of this Agreement, the Sale Agreement, the Commitment
Guidelines, the Takeout Investor and the requirements of the related
Third Party Underwriter's Certificate, if any. The Mortgage Loan was
originated not more than 60 days prior to the related Purchase Date.
(ii) The related Seller is the sole owner and holder of the
Mortgage Loan free and clear of any and all liens, pledges, charges
or security interests of any nature other than, prior to the
purchase by the Purchaser, the rights of any warehouse lender and
has full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and
assign the same pursuant to this Agreement other than the rights of
the Takeout Investor;
(iii) No servicing agreement has been entered into with
respect to the Mortgage Loan, or any such servicing agreement has
been terminated and there are no restrictions, contractual or
governmental, which would impair the ability of the related
Purchaser or such Purchaser's designees from servicing the Mortgage
Loan other than the rights of any Takeout Investor;
(iv) The Mortgage is a valid and subsisting first or second
lien on the property therein described, as specified on the Mortgage
Loan Schedule and the Mortgaged Property is free and clear of all
encumbrances and liens having priority over the lien of the Mortgage
except for liens for real estate taxes and special assessments not
yet due and payable and with respect to each Mortgage Loan which is
a second lien Mortgage Loan, a first lien on the Mortgaged Property.
Any pledge account, security agreement, chattel mortgage or
equivalent document related to, and delivered to (or required to be
delivered for Wet Mortgage Loans) the Custodian with the Mortgage,
establishes in the related Seller a valid and subsisting lien on the
property described and the priority provided therein, and such
Seller has full right to sell and assign the same to such Purchaser
subject to the rights of any Takeout Investor;
(v) Neither the related Seller nor any prior holder of the
Mortgage has modified the Mortgage in any material respect;
satisfied, canceled or subordinated the Mortgage in whole or in
part; released the
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Mortgaged Property in whole or in part from the lien of the
Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction unless such release, cancellation,
modification or satisfaction does not adversely affect the value of
the Mortgage Loan and is contained in the related Document File;
(vi) The Mortgage Loan is not in default, and all Monthly
Payments due prior to the Purchase Date and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents due and owing have been paid.
Sellers have not advanced funds, or induced or solicited any advance
of funds by a party other than the Mortgagor directly or indirectly,
for the payment of any amount required by the Mortgage Loan. The
collection practices used by each entity which has serviced the
Mortgage Loan have been in all respects legal and customary in the
mortgage servicing business. With respect to escrow deposits and
payments in those instances where such were required, there exist no
deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made and no escrow
deposits or payments or other charges or payments have been
capitalized under any Mortgage or the related Mortgage Note except
for deferred interest payments on Option-ARM Mortgage Loan;
(vii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage
Note and no event which, with the passage of time or with notice and
the expiration of any grace of cure period, would constitute a
default, breach, violation or event of acceleration; and Sellers
have not waived any default, breach, violation or event of
acceleration;
(viii) The Mortgage Loan is not subject to any valid right of
rescission, set-off, counterclaim or defense, including the defense
of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in
whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense, including the defense of usury, and no such
right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(ix) The Mortgage Note and the related Mortgage are genuine
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms. All parties to
the Mortgage Note and the Mortgage had legal capacity to execute the
Mortgage Note and the Mortgage and each Mortgage Note and Mortgage
have been duly and properly executed by the Mortgagor;
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(x) The Mortgage Loan meets, or is exempt from, applicable
state or federal laws, regulations and other requirements pertaining
to usury, and the Mortgage Loan is not usurious;
(xi) Any and all requirements of any federal, state or local
law including, without limitation, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with, and Sellers shall deliver to the related
Purchaser upon demand, evidence of compliance with all such
requirements;
(xii) Either: (A) the related Seller and every other holder of
the Mortgage, if any, were authorized to transact and do business in
the jurisdiction in which the Mortgaged Property is located at all
times when such party held the Mortgage; or (B) the loan of mortgage
funds, the acquisition of the Mortgage (if to the extent required by
applicable law such Seller was not the original lender), the holding
of the Mortgage and the transfer of the Mortgage did not constitute
the transaction of business or the doing of business in such
jurisdiction;
(xiii) The proceeds of the Mortgage Loan have been fully
disbursed, there is no requirement for future advances thereunder
and any and all requirements as to completion of any on site or
off-site improvements and as to disbursements of any escrow funds,
therefore, have been complied with. All costs, fees and expenses
incurred in making, closing or recording the Mortgage Loans were
paid;
(xiv) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property
of the benefits of the security, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. There is no homestead or other
exemption available to the Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the
right to foreclose the Mortgage;
(xv) The Mortgage Loan was originated free of any "original
issue discount" with respect to which the owner of the Mortgage Loan
could be deemed to have income pursuant to Sections 1271 et seq. of
the Internal Revenue Code;
(xvi) Each Mortgage Loan was originated by an institution
described in Section 3(a)(41)(A)(ii) of the Securities Exchange Act
of 1934, as amended;
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(xvii) At origination, the Mortgaged Property was free and
clear of all mechanics' and materialmen's liens or liens in the
nature thereof which are or could be prior to the Mortgage lien;
(xviii) All of the improvements which are included for the
purpose of determining the Appraised Value of the Mortgaged Property
lie wholly within the boundaries and building restriction lines of
such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property;
(xix) No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation
and all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged
Property, and with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, had been made or obtained from the
appropriate authorities and the Mortgaged Property was lawfully
occupied under applicable law;
(xx) There is no proceeding pending for the total or partial
condemnation of the Mortgaged Property and said property is
undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty;
(xxi) The Custodial File contains, and the Credit File
contains or shall contain prior to the Expiration Date, each of the
documents and instruments specified to be included therein duly
executed and in due and proper form and each such document or
instrument is either in form acceptable to the Applicable Agency or
is a uniform instrument. Each Mortgage Note and Mortgage are on
forms approved by the Applicable Agency with such riders as have
been approved by the Applicable Agency; the Custodian is currently
in possession of the Custodial File for each Mortgage Loan (except
for Wet Mortgage Loans) and the related Seller is in possession or
shall be prior to the Expiration Date of the Credit File for each
Mortgage Loan and there are no custodial agreements in effect
adversely affecting the rights of such Seller to make the deliveries
required within the required time. The related Seller shall not
deliver a Credit File to Takeout Investor prior to the related
Commitment Date;
(xxii) The lien of each Mortgage Loan securing the
consolidated principal amount thereof is expressly insured as having
first or second (as indicated on the Mortgage Loan Schedule) lien
priority or is covered by an attorney's opinion of title acceptable
to GNMA, FNMA or FHLMC, as applicable, if customarily provided in
the jurisdiction in which the related Mortgaged Property is located,
or a mortgage title insurance policy acceptable to FNMA, issued by,
and the valid and binding obligation of, a
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title insurer acceptable to FNMA and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the
related Seller, its successors and assigns, as to the validity and
appropriate priority of the lien created by the Mortgage subject to
customary permitted exceptions in the original principal amount of
the Mortgage Loan. The related Seller is the named insured and the
sole insured of such mortgage title insurance policy, and the
assignment to the related Purchaser of such Seller's interest in
such mortgage title insurance policy does not require the consent of
or notification to the insurer, such mortgage title insurance policy
is in full force and effect and will be in full force and effect and
inure to the benefit of the related Purchaser upon the consummation
of the transactions contemplated by this Agreement and no claims
have been made under such mortgage title insurance policy and no
prior holder of the related Mortgage, including such Seller, has
done, by act or omission, anything which would impair the coverage
of such mortgage title insurance policy;
(xxiii) All buildings upon the Mortgaged Property are insured
against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is
located, pursuant to fire and hazard insurance policies with
extended coverage or other insurance required by the Sale Agreement
by insurance companies reasonably acceptable to the related
Purchaser, in an amount at least equal to the lesser of (i) the
outstanding principal balance of the Mortgage Loan or (ii) the
maximum insurable value (replacement cost without deduction for
depreciation) of the improvements constituting the Mortgaged
Property. If applicable laws limit the amount of such insurance to
the replacement cost of the improvements constituting the Mortgaged
Property or to some other amount, then such insurance is in an
amount equal to the maximum allowed by such laws. Such insurance
amount is sufficient to prevent the Mortgagor or the loss payee
under the policy from becoming a co-insurer. The insurer issuing
such insurance is acceptable pursuant to the Sale Agreement. All
individual insurance policies contain a standard mortgagee clause
naming the related Seller, its successors and assigns, as mortgagee
and all premiums thereon have been paid and providing that such
policy may not be canceled without prior notice to such Seller. Each
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at Mortgagor's cost and expense, and upon the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at Mortgagor's cost and expense and to
seek reimbursement therefor from the Mortgagor. Any flood insurance
required by applicable law has been obtained;
(xxiv) The combined LTV of each Mortgage Loan was not more
than 100% as of the date of origination of the Mortgage Loan and as
of the Purchase Date. Each prime credit First Lien Mortgage Loan
which is not insured by the FHA or guaranteed by the VA and which
has an LTV
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over 80% is and will be insured as to payment defaults by a policy
of primary mortgage guaranty insurance in accordance with the Sale
Agreement and all provisions of such primary mortgage guaranty
insurance policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder have
been paid. Any Mortgage Loan subject to any such policy of primary
mortgage guaranty insurance obligates the Mortgagor thereunder to
maintain such insurance and pay all premiums and charges in
connection therewith. No action, event or state of facts exists or
has existed which, because of its involving or arising from any
dishonest, fraudulent, criminal, negligent or knowingly wrongful
act, error or omission by the Mortgagor or the originator or
servicer of the Mortgage Loan, would result in the exclusion from,
denial of, or defense to coverage which otherwise would be provided
by such insurance;
(xxv) [Reserved];
(xxvi) [Reserved]
(xxvii) The Mortgaged Property consists of a single parcel of
real property;
(xxviii) There are no circumstances or conditions with respect
to the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that can be reasonably expected to cause
private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become
delinquent or adversely affect the value or marketability of the
Mortgage Loan;
(xxix) Such Mortgage Loan was, immediately prior to the sale
to the related Purchaser of the related Mortgage Loan Pool, owned
solely by the related Seller subject to the rights of any warehouse
lender (which will be released simultaneous with the purchase) and
any Takeout Investor, is not subject to any lien, claim or
encumbrance, including, without limitation, any such interest
pursuant to a loan or credit agreement for warehousing mortgage
loans, and was originated and serviced in accordance with all
applicable law and regulations, including without limitation the
Federal Truth-in-Lending Act, the Real Estate Settlement Procedures
Act, regulations issued pursuant to any of the aforesaid, and any
and all rules, requirements, guidelines and announcements of the
Applicable Agency, and, as applicable, the FHA and VA, as the same
may be amended from time to time;
(xxx) To the extent applicable, such Mortgage Loan is either
insured by the FHA under the National Housing Act, guaranteed by the
VA under the Servicemen's Readjustment Act of 1944 or is otherwise
insured or guaranteed in accordance with the requirements of the
GNMA,
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FNMA or FHLMC Program, as applicable, and is not subject to any
defect that would prevent recovery in full or in part against the
FHA, VA or other insurer or guarantor, as the case may be;
(xxxi) Such Mortgage Loan is in material compliance with the
requirements and specifications (including, without limitation, all
representations and warranties required in respect thereof) set
forth in the GNMA Guide, FNMA Guide or FHLMC Guide, or the guide or
agreements entered into with any Conduit, as applicable;
(xxxii) The Servicer and any sub-servicer have all Approvals
necessary to make such Mortgage Loan eligible to back a GNMA, FNMA
or FHLMC Security, if applicable;
(xxxiii) The Mortgage Note, the Mortgage, an assignment of
Mortgage from the related Seller in blank (except with respect to
MERS Mortgage Loans), and any other documents required to be
delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, have been delivered to the Custodian all in
compliance with the specific requirements of the Custodial
Agreement;
(xxxiv) With respect to each MERS Mortgage Loan, a Mortgage
Identification Number has been assigned by MERS and such Mortgage
Identification Number is accurately provided on the Mortgage Loan
Schedule. The related Assignment of Mortgage to MERS has been duly
and properly recorded or sent for recording;
(xxxv) With respect to each MERS Mortgage Loan, Sellers have
not received any notice of liens or legal actions with respect to
such Mortgage Loan and no such notices have been electronically
posted by MERS;
(xxxvi) With respect to any MERS Mortgage Loan, the related
Takeout Investor has been notified that the mortgagee of record is
MERS and has consented to such assignment of such MERS Mortgage
Loan;
(xxxvii) No Mortgage Loan is (a)(1) subject to the provisions
of the Homeownership and Equity Protection Act of 1994 as amended
("HOEPA") or (2) has an "annual percentage rate" or "total points
and fees" (as each such term is defined under HOEPA) payable by the
Mortgagor that equal or exceed the applicable thresholds defined
under HOEPA (as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b) a
"high cost" mortgage loan, "covered" mortgage loan, "high risk home"
mortgage loan, or "predatory" mortgage loan or any other comparable
term, no matter how defined under any federal, state or local law,
(c) subject to any comparable federal, state or local statutes or
regulations, or any other statute or regulation providing for
heightened regulatory scrutiny or
-26-
assignee liability to holders of such mortgage loans, or (d) a High
Cost Loan or Covered Loan, as applicable (as such terms are defined
in the current Standard & Poor's LEVELS(R) Glossary Revised,
Appendix E);
(xxxviii) No predatory or deceptive lending practices,
including but not limited to, the extension of credit to a mortgagor
without regard for the mortgagor's ability to repay the Mortgage
Loan and the extension of credit to a mortgagor which has no
apparent benefit to the mortgagor, were employed in connection with
the origination of the Mortgage Loan. Each Mortgage Loan is in
compliance with the anti-predatory lending eligibility for purchase
requirements of GNMA, ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac;
(xxxix) Each Mortgage Loan is eligible for sale in the
secondary market without being priced at an unreasonable discount
and for inclusion in a publicly issued or privately placed
mortgage-backed securities transaction that can be rated by each
nationally recognized rating agency without unreasonable credit
enhancement;
(xl) Each Mortgage Loan is subject to a mandatory Takeout
Commitment at the locked-in Trade Price, and of a Takeout Investor
to purchase such Mortgage Loans at such Trade Price on the related
Settlement Date. The existence of such Takeout Commitment is
confirmed in writing in the form of a Takeout Confirmation by
Takeout Investor to Seller and contains all of the relevant details
of the Takeout Commitment. Such Takeout Commitment and Takeout
Confirmation have been assigned by the related Seller to the related
Purchaser in writing and acknowledged and agreed to by the Takeout
Investor in the form of a Trade Assignment or such other
notification acceptable to the Purchaser in its sole discretion. The
Settlement Date of the Takeout Commitment must be no more than 60
days after the Purchase Date; and
(xli) With respect to each Wet Mortgage Loan, the Custodial
File shall be delivered within seven Business Days of the related
Purchase Date.
The representations and warranties of Sellers in this Section 9 are
unaffected by and supersede any provision in any endorsement of any Mortgage
Loan or in any assignment with respect to such Mortgage Loan to the effect that
such endorsement or assignment is without recourse or without representation or
warranty.
Section 10. Covenants of Sellers. Sellers hereby covenant and agree
with Purchasers as follows:
(a) Sellers shall deliver to Purchasers:
(i) Within ninety (90) days after the end of each fiscal year
of AHMI, the consolidated
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balance sheets of each Seller and its consolidated subsidiaries,
which will be in conformity with GAAP, and the related consolidated
statements of income showing the financial condition of each Seller
and its consolidated subsidiaries as of the close of such fiscal
year, and the results of operations during such year, and a
consolidated statement of cash flows, as of the close of such fiscal
year, setting forth, in each case, in comparative form the
corresponding figures for the preceding year. The foregoing
consolidated financial statements are to be reported on by, and to
carry the report (acceptable in form and content to Purchasers) of
an independent public accountant of national standing acceptable to
Purchasers and are to be accompanied by a letter of management in
form and substance acceptable to Purchasers;
(ii) Within forty-five (45) days after the end of each of the
first three fiscal quarters of each fiscal year of each Seller,
unaudited consolidated balance sheets and consolidated statements of
income, all to be in a form acceptable to Purchasers, showing the
financial condition and results of operations of each Seller and its
consolidated subsidiaries on a consolidated basis as of the end of
each such quarter and for the then elapsed portion of the fiscal
year, setting forth, in each case, in comparative form the
corresponding figures for the corresponding periods of the preceding
fiscal year, certified by a financial officer of each Seller
(acceptable to Purchasers) as presenting fairly the financial
position and results of operations of each Seller and its
consolidated subsidiaries and as having been prepared in accordance
with GAAP consistently applied, in each case, subject to normal
year-end audit adjustments;
(iii) Reserved;
(iv) Promptly upon becoming aware thereof, notice of (1) the
commencement of, or any determination in, any legal, judicial or
regulatory proceedings that if adversely determined would have a
material adverse effect on the related Seller, (2) any material
dispute between each Seller or its Parent Company and any
governmental or regulatory body, (3) any event or condition, which,
in any case of (1) or (2) is likely to be adversely determined, and
would have a material adverse effect on (A) the validity or
enforceability of this Agreement, (B) the financial condition or
business operations of each Seller, or (C) the ability of Seller to
fulfill its obligations under this Agreement or (4) any material
adverse change in the business, operations, prospects or financial
condition of Seller, including, without limitation, the insolvency
of each Seller or its Parent Company;
(v) [Reserved]
(vi) [Reserved]
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(vii) Prior to the first Purchase Date hereunder and at the
request of any Purchaser at any time thereafter, a copy of an
Officer's Certificate in the form attached hereto as Exhibit I
together with (1) the articles of incorporation of the related
Seller and any amendments thereto, certified by the Secretary of
State of such Seller's state of incorporation, (2) a copy of such
Seller's by-laws, together with any amendments thereto, and (3) a
copy of the resolutions adopted by such Seller's Board of Directors
authorizing such Seller to enter into this Agreement and the
Custodial Agreement and authorizing one or more of such Seller's
officers to execute the documents related to this Agreement and the
Custodial Agreement;
(viii) Evidence that all other actions necessary or, in the
opinion of the related Purchaser, desirable to perfect and protect
Purchaser's interest in the Mortgage Loans and other Collateral have
been taken, including, without limitation, duly filed Uniform
Commercial Code financing statements on Form UCC-1;
(ix) Reserved; and
(x) Such supplements to the aforementioned documents and such
other information regarding the operations, business, affairs and
financial condition of its Parent Company, each Seller or any of
each Seller's consolidated subsidiaries as Purchasers may reasonably
request in the possession of a Seller.
(b) After the related Purchase Date, neither each Seller nor any
affiliate thereof will acquire at any time any economic interest in or
obligation with respect to any Mortgage Loan, except (i) in the case of
Defective Mortgage Loans and (ii) to the extent that the Seller retains the
servicing rights with respect to any Mortgage Loans purchased by the Purchaser
hereunder;
(c) Under GAAP and for federal income tax purposes, each Seller will
report each sale of a Mortgage Loan to the related Purchaser hereunder as a sale
of the ownership interest in the Mortgage Loan. Each Seller has been advised by
or has confirmed with its independent public accountants that the foregoing
transactions will be so classified under GAAP;
(d) The consideration received by the related Seller upon the sale
of each Mortgage Loan Pool will constitute reasonably equivalent value and fair
consideration for the ownership interest in the Mortgage Loans included therein;
(e) Each Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, any sale of a Mortgage Loan to any Purchaser;
(f) Each Seller will not sell any Mortgage Loan to any Purchaser
with any intent to hinder, delay or defraud any of each Seller's creditors;
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(g) Each Seller shall comply, in all material respects, with all
laws, rules and regulations to which it is subject;
(h) Each Seller shall, upon request of any Purchaser, promptly
execute and deliver to such Purchaser all such other and further documents and
instruments of transfer, conveyance and assignment, and shall take such other
action as such Purchaser may reasonably require more effectively to transfer,
convey, assign to and vest in such Purchaser and to put such Purchaser in
possession of the property to be transferred, conveyed, assigned and delivered
hereunder and otherwise to carry out more effectively the intent of the
provisions under this Agreement;
(i) Each Seller is a member of MERS in good standing and current in
the payment of all fees and assessments imposed by MERS, and has complied with
all rules and procedures of MERS. Each Seller has entered into the Electronic
Tracking Agreement. In accordance with the provisions of the Electronic Tracking
Agreement, each Seller shall (1) cause each Mortgage Loan that is to be sold to
the related Purchaser on a Purchase Date the Mortgage for which is recorded in
the name of MERS to be designated a MERS Mortgage Loan and (2) cause the related
Purchaser to be designated an Associated Member (as defined in the Electronic
Tracking Agreement) with respect to each such MERS Mortgage Loan. In connection
with the assignment of any Mortgage Loan registered on the MERS System, each
Seller agrees that at the request of the related Purchaser it will, at each
Seller's own cost and expense, cause the MERS System to indicate that such
Mortgage Loan has been transferred to the related Purchaser in accordance with
the terms of this Agreement by including in MERS' computer files (a) the code in
the field which identifies the specific owner of the Mortgage Loans and (b) the
code in the field "Pool Field" which identifies the series in which such
Mortgage Loans were sold. Each Seller further agrees that it will not alter
codes referenced in this paragraph with respect to any Mortgage Loan at any time
that such Mortgage Loan is subject to this Agreement, and each Seller shall
retain its membership in MERS at all times during the term of this Agreement;
(j) The Seller shall not offer for sale to any Purchaser any second
lien Mortgage Loans if the sale of such Mortgage Loans would cause the aggregate
Purchase Price of all second lien Mortgage Loans which are then owned by the
Purchasers pursuant to this Agreement to exceed of 15% of the Maximum Aggregate
Purchase Price;
(k) [Reserved]
(l) The Seller shall not offer for sale to any Purchaser any
Option-ARM Mortgage Loans if the sale of such Mortgage Loans would cause the
aggregate Purchase Price of all Option-ARM Mortgage Loans which are then owned
by the Purchasers pursuant to this Agreement to exceed $250,000,000; and
(m) The Seller shall not offer for sale to any Purchaser any Wet
Mortgage Loans either (a) during any day during any calendar month other than
the last five (5) Business Days of the month or (b) if the sale of such Mortgage
Loans would cause the aggregate Purchase Price of all Wet Mortgage Loans which
are then owned by
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the Purchasers pursuant to this Agreement to exceed 25% of the Maximum Aggregate
Purchase Price.
(n) Proceeds of any insurance on a Mortgaged Property that is paid
to the related Seller shall be held in trust for the benefit of the related
Purchaser.
Section 11. Term. This Agreement shall continue in effect until
terminated as to future transactions by written instruction signed by the
Sellers or Purchasers and delivered to the other, provided that no termination
will affect the obligations hereunder as to any of the Mortgage Loans purchased
hereunder.
Section 12. Exclusive Benefit of Parties; Assignment. This Agreement
is for the exclusive benefit of the parties hereto and their respective
successors and assigns and shall not be deemed to give any legal or equitable
right to any other person, including the Custodian. Except as provided in
Section 7, no rights or obligations created by this Agreement may be assigned by
any party hereto without the prior written consent of the other parties.
Any Person into which either Seller may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which such Seller shall be a party, or any Person succeeding to the business of
such Seller, shall be the successor of such Seller hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 13. Amendments; Waivers; Cumulative Rights. This Agreement
may be amended from time to time only by written agreement of Sellers and
Purchasers. Any forbearance, failure or delay by either party in exercising any
right, power or remedy hereunder shall not be deemed to be a waiver thereof, and
any single or partial exercise by a Purchaser of any right, power or remedy
hereunder shall not preclude the further exercise thereof. Every right, power
and remedy of Purchasers shall continue in full force and effect until
specifically waived by Purchasers in writing. No right, power or remedy shall be
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred hereby or
hereafter available at law or in equity or by statute or otherwise.
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. 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.
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Section 16. 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 17. Notices. Any notices, consents, elections, directions
and other communications given under this Agreement shall be in writing and
shall be deemed to have been duly given when telecopied or delivered by
overnight courier, personally delivered, or on the third day following the
placing thereof in the mail, first class postage prepaid, to the respective
addresses set forth in the first paragraph hereof for Sellers, Servicer and
Purchasers, or to such other address as either party shall give notice to the
other party pursuant to this Section 17. Copies of all notices to Sellers shall
be delivered to the attention of ▇▇▇▇▇ ▇▇▇▇ and copies of all notices to
Servicer shall be delivered to the attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in each case
with a copy of all legal notices delivered to the attention of ▇▇▇▇ ▇. ▇▇▇▇,
General Counsel. Copies of all notices to Purchasers shall be delivered to the
attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Section 18. Entire Agreement. This Agreement and the Custodial
Agreement contain the entire agreement between the parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements between them, oral or written, of any nature whatsoever with respect
to the subject matter hereof.
Section 19. Costs of Enforcement. In addition to any other indemnity
specified in this Agreement, Sellers agree to reimburse Purchasers as and when
billed by Purchasers for all Purchasers' reasonable out-of-pocket costs and
expenses, including reasonable attorneys' fees and expenses of Purchasers and/or
Assignees, incurred in connection with the enforcement or the preservation of
Purchasers' rights under this Agreement, including any costs incurred in the
event of a breach by Seller of this Agreement, the Custodial Agreement or a
Takeout Commitment.
Section 20. 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 17.
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.
Section 22. Jurisdiction Not Exclusive. Nothing herein will be
deemed to preclude either party hereto from bringing an action or proceeding in
respect of this Agreement in any jurisdiction other than as set forth in Section
21.
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Section 23. 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 24. Construction. The headings in this Agreement are for
convenience only and are not intended to influence its construction. References
to Sections, Exhibits and Annexes in this Agreement are to the Sections of and
Exhibits to this Agreement. The Exhibits are part of this Agreement, and are
incorporated herein by reference. 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 25. Further Assurances. Sellers and Purchasers each agree to
execute and deliver to the other such reasonable and appropriate additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Agreement.
Section 26. 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, and (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.
Section 27. Expenses. Seller shall pay to Purchasers and their
affiliates: (i) all of its reasonable fees and out-of-pocket expenses incurred
in connection with the preparation, negotiation and execution of this Agreement
and related documentation (including all reasonable fees and out-of-pocket
expenses of its legal counsel incurred in connection with any amendments to this
Agreement or any take-out); (ii) its due diligence expenses (including the
diligence undertaken in connection with the execution of this Agreement and any
on-going due diligence undertaken in connection with this Agreement or any
take-out); provided that, the Sellers shall not be required to reimburse the
Purchasers for due diligence costs in excess of $50,000 in any twelve month
period unless the Purchasers require additional due diligence due to
non-compliance, in which case the Sellers will reimburse the Purchasers directly
for all reasonable out of pocket costs incurred in connection with such due
diligence; and (iii) up front and ongoing custodial fees and expenses. Sellers
shall reimburse Purchasers for any other fees and out-of-pocket expenses
reasonably incurred in connection with this Agreement. All of the foregoing
amounts shall be due and payable from time to time promptly after demand of
Purchasers irrespective of the execution of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, Purchasers, Sellers and Servicer have duly
executed this Agreement as of the date and year set forth on the cover page
hereof.
ASPEN FUNDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GEMINI SECURITIZATION CORP., LLC
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
NEWPORT FUNDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
AMERICAN HOME MORTGAGE CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE SERVICING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
General Counsel and Secretary
EXHIBIT A-1
TRUST RECEIPT
RESIDENTIAL MORTGAGE LOANS
No.________ Date:________
[Deutsche Bank National Trust Company], as custodian (the
"Custodian"), certifies that [Aspen Funding Corp./Gemini Securitization Corp.,
LLC/Newport Funding Corp.] ("Purchaser") is 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, owned of record by
American Home Mortgage Corp. and American Home Mortgage Investment Corp., as
applicable (the "Sellers") and interim serviced by American Home Mortgage
Servicing, Inc. The Mortgage Note and Mortgage for each Mortgage Loan are held
by Custodian, pursuant to the terms and conditions of that certain Custodial
Agreement dated as of June 26, 2006 (the "Agreement") among Sellers, Purchaser,
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.
This Trust Receipt supersedes any 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 under its official seal.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:
-----------------------------------------
Authorized Officer
(Seal)
Attest:
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is the Trust Receipt
issued under the above-described Agreement.
Dated:__________
By:________________________
Authorized Officer
TRUST RECEIPT NO. ________
RESIDENTIAL MORTGAGE LOANS
Following are the identifying numbers of the Mortgage Loans subject to this
Trust Receipt:
EXHIBIT A-2
WET LOAN TRUST RECEIPT
Overnight Courier Tracking No.______
# of Loans:_______
Original Quantity $____
Product Type ______
[Aspen Funding Corp.
Gemini Securitization Corp., LLC
Newport Funding Corp.]
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: _________________
Re: Custodial Agreement, dated as of June 26, 2006 (the "Custodial
Agreement"), among American Home Mortgage Corp. and American Home
Mortgage Investment Corp., as Sellers, Deutsche Bank National Trust
Company as Custodian, and Aspen Funding Corp., Gemini Securitization
Corp., LLC and Newport Funding Corp. as Purchasers
Ladies and Gentlemen:
In accordance with the provisions of Section [__]of the
above-referenced Custodial Agreement (capitalized terms not otherwise defined
herein having the meanings ascribed to them in the Custodial Agreement, or if
not defined in the Custodial Agreement, then in that certain Whole Loan Purchase
and Sale Agreement, dated as of June 26, 2006 between the Sellers and Purchaser
(the "Purchase Agreement")), the undersigned, as the Custodian, hereby certifies
as to each Mortgage Loan described in the attached Custodian Loan Transmission
all matters (subject to the Exceptions listed therein) set forth in Section 3 of
the Custodial Agreement, subject to the limitation set forth in Section 3(b) of
the Custodial Agreement.
The delivery of this Trust Receipt evidences that (i) the Custodian
has reviewed all documents required to be delivered in respect of each Mortgage
Loan listed herein pursuant to Section 2(a)(i), (ii), and (iii) of this
Custodial Agreement and the documents listed in Sections (i), (ii), (iii), (iv)
and (v) of Annex 16 (and if actually delivered to the Custodian the documents
listed in Sections (vi) - (ix) of Annex 16) and such documents other than the
Exceptions listed herein are in the possession of the Custodian as part of the
Mortgage File for such Mortgage Loan, (ii) the Custodian is holding each
Mortgage Loan identified on the Custodian Loan Transmission, pursuant to the
Custodial Agreement, as the bailee of and custodian for the Purchaser and (iii)
such
documents have been reviewed by the Custodian and appear on their face to be
regular and to relate to such Mortgage Loan and satisfy the requirements set
forth in Section 3(a) of the Custodial Agreement and the Review Procedures.
On each date the Custodian delivers to the Purchaser a Trust
Receipt, it shall supersede the Trust Receipt, previously delivered by the
Custodian to the Purchaser hereunder. The most recently delivered Trust Receipt,
shall control and be binding upon the parties hereto.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Custodian
By:
Name:
Title:
EXHIBIT B-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,
including any security interest or lien, 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 one or more installments, by either Aspen
Funding Corp., Gemini Securitization Corp., LLC or Newport Funding Corp., in
accordance with the wire instructions which we delivered to you in a letter
dated _________, ____, in immediately available funds, of an aggregate amount
equal to __________.
-----------------------------------------------------------------
Street
Loan # Mortgagor Address City State Zip
-----------------------------------------------------------------
Very truly yours,
[WAREHOUSE LENDER]
By: _____________________
Name: _____________________
Title: _____________________
EXHIBIT B-2
[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. Mortgage Loan Purchase Program
with American Home Mortgage Corp. and American Home
Mortgage Investment Corp. and American Home Mortgage
Servicing, Inc.
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions
applicable to the above-referenced 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 any prior notice specifying the name
of [Warehouse Lender] and setting forth wire instructions and 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)]*
By: : ___________________________
Name: ___________________________
Title: ___________________________
[ASPEN FUNDING CORP.
GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.]
By: ________________________
Name: ________________________
Title: ________________________
------------------------
* The authorized officer of each warehouse lender executing this letter must be
the same authorized officer as signs the Exhibit B-1 Letter. Not applicable if
there is no warehouse lender.
EXHIBIT C-1
[SELLER'S RELEASE]
[Aspen Funding Corp.
Gemini Securitization Corp., LLC
Newport Funding Corp.]
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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
Purchaser to Seller of an aggregate amount equal to ______________.
-----------------------------------------------------------------
Street
Loan # Mortgagor Address City State Zip
-----------------------------------------------------------------
Very truly yours,
[AMERICAN HOME MORTGAGE CORP.][AMERICAN
HOME MORTGAGE INVESTMENT CORP.]
By: ________________________
Name: ________________________
Title: ________________________
EXHIBIT C-2
[SELLER'S WIRE INSTRUCTIONS]
Aspen Funding Corp.
Gemini Securitization Corp., LLC
Newport Funding Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Custodial Agreement dated as of June 26, 2006, 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 Seller's Wire Instructions applicable to the
above-referenced Custodial Agreement.
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 any prior notice specifying the name
of Seller and Seller's Wire Instructions and 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: _________________________________
Receipt acknowledged by:
[ASPEN FUNDING CORP.
GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.]
By: ________________________
Name: ________________________
Title: ________________________
EXHIBIT D-1
[TRADE ASSIGNMENT]
_______________ ("Takeout Investor")
[Address]
Attention: ____________________
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of your confirmation
of commitment [or a portion thereof] (the "Commitment"), trade-dated
_______________ _, ____, to purchase $_______________ of mortgage loans of which
$__________ of mortgage loans (the "Mortgage Loans") is assigned to [Aspen
Funding Corp./Gemini Securitization Corp., LLC/Newport Funding Corp.} 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.] (the
"Assignee"), (iii) you will accept delivery of such Mortgage Loans directly from
THE ASSIGNEE, (iv) you will pay the Assignee for such Mortgage Loans, (v) upon
the Assignee's acceptance of this assignment, the Assignee is obligated to make
delivery of such Mortgage Loans to you in accordance with the attached
Commitment and (vi) upon the Assignee's acceptance of this assignment, you will
release Seller from its obligation to deliver the Mortgage Loans to you under
the Commitment. Upon the Assignee's determination not to accept an assignment,
the Assignee will notify you that this assignment is rejected. Not later than
2:00 P.M. Eastern Standard Time one business day prior to your satisfaction of
the Commitment, you shall fax a purchase confirmation to the Assignee at
____________, Attention: _______________. Payment will be made to the Assignee
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 D-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 Seller
may be assigned to [Aspen Funding Corp./Gemini Securitization Corp. LLC/Newport
Funding Corp.] (the "Assignee"), (ii) you will accept delivery of such Mortgage
Loans directly from the Assignee, (iii) you will pay the Assignee for such
Mortgage Loans, (iv) upon the Assignee's acceptance of this assignment with
respect to any Commitment, the Assignee will be obligated to make delivery of
such Mortgage Loans to you in accordance with such Commitment and (v) upon the
Assignee's acceptance of such assignment with respect to any Commitment, you
will release Seller from its obligation to deliver the related Mortgage Loans to
you under such Commitment but Seller will not be released from any of its other
obligations under the Whole Loan Purchase and Sale Agreement. Your agreement to
the foregoing shall remain in effect until terminated by your giving notice of
such termination to Seller in the form attached hereto as Exhibit 1. Upon the
Assignee's determination not to accept an assignment, the Assignee will notify
you that this assignment is rejected with respect to the related Commitment. Not
later than 9:00 A.M. Eastern Standard 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 the Assignee at
____________, Attention: _______________. You may also transmit such information
electronically by 10:00 A.M. on such business day. Payment will be made to the
Assignee 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 1 to EXHIBIT D-2
[WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT]
American Home Mortgage Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
American Home Mortgage Investment Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby terminates its agreement to [American Home
Mortgage Corp.][American Home Mortgage Investment Corp.]'s assignment of
Commitments to the Assignee, which approval was given pursuant to the Trade
Assignment dated ____________. 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 E
[PURCHASER'S WIRE INSTRUCTIONS]
[Takeout Investor]
[Address]
Re:Custodial Agreement dated as of June 26, 2006, 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 Purchaser's Wire Instructions applicable to
the above-referenced Custodial Agreement.
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 any prior notice specifying the name
of Purchaser and the Purchaser's Wire Instructions and 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,
[ASPEN FUNDING CORP.
GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Receipt acknowledged by:
[TAKEOUT INVESTOR]
By: _________________________
Name: _________________________
Title: _________________________
cc: [American Home Mortgage Corp.]
[American Home Mortgage Investment Corp.]
[Deutsche Bank National Trust Company]
EXHIBIT F
[FORM OF CONFIRMATION]
TO: American Home Mortgage Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
American Home Mortgage Investment Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DATE:
RE: Confirmation of Purchase of Mortgage Loans
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport
Funding Corp.] ("Purchaser") is pleased to confirm its agreement to purchase and
your agreement to sell the Mortgage Loans relating to the pool number referred
to herein, pursuant to the Whole Loan Purchase and Sale Agreement, dated as of
June 26, 2006 (the "Whole Loan Purchase and Sale Agreement"), among Aspen
Funding Corp., Gemini Securitization Corp., LLC, Newport Funding Corp., American
Home Mortgage Corp., American Home Mortgage Investment Corp. and American Home
Mortgage Servicing, Inc. under the following terms and conditions:
Pool No. ________________
Check as appropriate:
Cash Window Transaction__Conduit Transaction (Conduit):
Purchase Date ___________
Settlement Date _________
Discount ________________
Purchase Price __________
Pass-Through Rate _______
Total Principal Amount of the Pool ________________
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed in the Whole Loan Purchase and Sale Agreement.
Very truly yours,
[ASPEN FUNDING CORP.
GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
EXHIBIT G
[NOTICE OF REJECTION OF TRADE ASSIGNMENT]
("Takeout Investor")
[Address]
Attention: ____________
Ladies and Gentlemen:
[Aspen Funding Corp./Gemini Securitization Corp., LLC/Newport
Funding Corp.] (the "Assignee") hereby notifies you that it does not intend to
purchase a 100% ownership interest in $_____________ in mortgage loans (the
"Mortgage Loans") that you committed to purchase from [American Home Mortgage
Corp.][American Home Mortgage Investment Corp.] pursuant to your confirmation of
commitment (the "Commitment") trade-dated _______, ____ a copy of which is
attached hereto. Accordingly, the assignment of the Commitment by Seller to the
Assignee is hereby rejected, and the Assignee shall have no obligations
thereunder.
Very truly yours,
[ASPEN FUNDING CORP.
GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
cc: [American Home Mortgage Corp.]
[American Home Mortgage Investment Corp.]
[Deutsche Bank National Trust Company]
EXHIBIT H
[SETTLEMENT MODIFICATION LETTER]
[DATE]
[Aspen Funding Corp.
Gemini Securitization Corp., LLC
Newport Funding Corp.]
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ________________
[American Home Mortgage Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
[American Home Mortgage Investment Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
Re: The Attached Confirmation of Commitment
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of our confirmation
of commitment ("Commitment"). We hereby confirm that we have irrevocably
approved the Mortgage Loans subject to the Commitment for purchase by us and we
hereby agree to purchase such Mortgage Loan(s) from [Aspen Funding Corp./Gemini
Securitization Corp., LLC/Newport Funding Corp.] (the "Assignee") in accordance
with the terms of the Commitment or, if this letter is executed by the Assignee
and [American Home Mortgage Corp.][American Home Mortgage Investment Corp.], in
accordance with the terms of the Commitment as amended hereby.
We hereby request that the Commitment be amended as follows:
(i) the Settlement Date set forth in the Commitment shall be;
(ii) the aggregate outstanding principal balance of the Mortgage
Loans shall be $_______________ ;
(iii) the aggregate amount of accrued interest on the Mortgage
Loans shall be $ ;
(iv) the trade price shall be %; and
(v) the total amount payable to the Assignee shall be $
If we fail to pay you the amount set forth in clause (v) above on
the amended Settlement Date, interest shall accrue on such amount at a rate
equal to the weighted average of the Pass-Through Rates related to such Mortgage
Loans.
If the amendments to the Commitment set forth above are acceptable to you,
please so indicate by executing this letter in the appropriate space provided
below and return it to us via facsimile at
[TAKEOUT INVESTOR]
By:______________________
Title:
Agreed to:
[AMERICAN HOME MORTGAGE CORP.]
[AMERICAN HOME MORTGAGE INVESTMENT CORP.]
By:
Title:
Facsimile #:._____________
Agreed to:
ASPEN FUNDING CORP.
GEMINI SECURITIZATION CORP., LLC
NEWPORT FUNDING CORP.
By:________________________
EXHIBIT I
SELLER'S OFFICER'S CERTIFICATE
I, ________________, hereby certify that I am the duly elected
________________ of [American Home Mortgage Corp.][American Home Mortgage
Investment Corp.], a [New York][Maryland] corporation (the "Seller"), and
further certify, on behalf of the Seller as follows:
1. Attached hereto as Attachment I is a true and correct copy of the
articles of incorporation and by-laws of the Seller as are in full force and
effect on the date hereof.
2. Attached hereto as Attachment II is a Certificate of Good Standing of
the Seller, issued by the Secretary of the State of ________ dated _____, ____.
No event has occurred since _______, ____ which has affected the good standing
of the Seller under the laws of the State of [New York][Maryland].
3. Each person who, as an officer or attorney-in-fact of the Seller,
signed (a) the Whole Loan Purchase and Sale Agreement (the "Purchase
Agreement"), dated as of _________ __, ____, among the Seller, [American Home
Mortgage Corp.][American Home Mortgage Investment Corp.], American Home Mortgage
Servicing, Inc. and Aspen Funding Corp., Gemini Securitization Corp., LLC and
Newport Funding Corp. (the "Purchasers"); (b) the Custodial Agreement (the
"Custodial Agreement"), dated as of ___________ __, ____, by and among the
Seller, the Purchaser and _______________; and (c) any other document delivered
prior hereto or on the date hereof in connection with transactions contemplated
in the Purchase Agreement was, at the respective times of such signing and
delivery, and is as of the date hereof, duly elected or appointed, qualified and
acting as such officer or attorney-in-fact, and the signatures of such persons
appearing on such documents are their genuine signatures.
4. Attached hereto as Attachment III is a true and correct copy of the
resolutions duly adopted by the board of directors of the Seller on __________,
____ (the "Resolutions") with respect to the authorization and approval of the
transactions contemplated in the Purchase Agreement; said Resolutions have not
been amended, modified, annulled or revoked and are in full force and effect on
the date hereof.
5. All of the representations and warranties of the Seller contained in
the Purchase Agreement were true and correct in all material respects as of the
date of the Purchase Agreement and are true and correct in all material respects
as of the date hereof and the Seller has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied at or
prior to the date hereof..
6. The Seller has performed all of its duties and has satisfied all the
material conditions on its part to be performed or satisfied pursuant to the
Purchase Agreement on or prior to the date hereof.
7. There are no actions, suits or proceedings pending or, to my knowledge,
threatened, against or affecting the Seller which, if adversely determined
either
individually or in the aggregate, would adversely affect the Seller's
obligations under the Purchase Agreement or the Custodial Agreement.
8. No proceedings that could result in the liquidation or dissolution of
the Seller are pending or contemplated.
9. Incumbency of Officers. The below named persons have been duly elected
or appointed, and have been duly qualified as officers of the Seller holding the
respective office below set opposite his or her name, and the signature below
set opposite his or her name is his or her genuine signature.
---------------------------------------------------------------------------
Name Office Signature
-------------------- --------------------- ------------------------
-------------------- --------------------- ------------------------
-------------------- --------------------- ------------------------
All capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Seller.
Dated: _________ __, ____
[Seal]
---------------------
By: ______________________________
Name
Title:
I, ___________________, _________ of ______________, hereby certify
that ________________ is the duly elected, qualified and acting _______________
of __________ and that the signature appearing above is the genuine signature of
such person.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ____________ __, ____
[Seal]
----------------------
By: ________________________________
Name:
Title:
EXHIBIT J
SELLER'S OFFICER'S CERTIFICATE
I, ________________, hereby certify that I am the duly elected
________________ of [American Home Mortgage Corp.][American Home Mortgage
Investment Corp.], a [New York][Maryland] corporation (the "Seller"), and
further certify, on behalf of the Seller as follows:
1. There has been no change in the articles of incorporation and by-laws
of the Seller since the date such documents were provided to the Purchaser and
such documents are in full force and effect on the date hereof.
2. No event has occurred since the date of the last good standing
certificate of the Seller provided to the Purchaser which has affected the good
standing of the Seller under the laws of the State of [New York][Maryland].
3. All of the representations and warranties of the Seller contained in
the Purchase Agreement, including but not limited to the representations and
warranties as to the Mortgage Loans being sold to the Purchaser on the date
hereof, are true and correct in all material respects as of the date hereof and
the Seller has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied at or prior to the date
hereof..
4. The Seller has performed all of its duties and has satisfied all the
material conditions on its part to be performed or satisfied pursuant to the
Purchase Agreement on or prior to the date hereof.
5. There are no actions, suits or proceedings pending or, to my knowledge,
threatened, against or affecting the Seller which, if adversely determined
either individually or in the aggregate, would adversely affect the Seller's
obligations under the Purchase Agreement or the Custodial Agreement.
6. No proceedings that could result in the liquidation or dissolution of
the Seller are pending or contemplated.
7. To the best of my knowledge after due inquiry and investigation, no
Event of Default has occurred prior to the date hereof or is occurring on the
date hereof.
8. Under generally accepted and regulatory accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans by the Seller to the Purchaser as a sale of the Mortgage Loans.
The Seller has been advised by, or has confirmed with, its independent public
accountants that the foregoing transactions will be so classified.
9. Each Mortgage Loan to be sold to the Purchaser on the date hereof was
originated by the Seller or purchased from an approved originator previously
approved by
the Purchaser not later than 60 days prior to the date hereof. No Mortgage Loan
was rejected for purchase or financing by any third party.
All capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Seller.
Dated: _________ __, ____
[Seal]
---------------------
By: _____________________________
Name
Title:
I, ___________________, _________ of ______________, hereby certify
that ________________ is the duly elected, qualified and acting _______________
of __________ and that the signature appearing above is the genuine signature of
such person.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ____________ __, _____
[Seal]
----------------------
By:________________________________
Name:
Title:
EXHIBIT K
LIST OF CONDUITS
EXHIBIT L
MORTGAGE LOAN SCHEDULE
EXHIBIT M
FORM OF TRANSACTION NOTICE
____________, 200_
Aspen Funding Corp.
Newport Funding Corp.
Gemini Securitization Corp., LLC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Transaction No._____________
Ladies and Gentlemen:
The undersigned executes and delivers this notice (the "Notice")
pursuant to the requirements of the Whole Loan Purchase and Sale Agreement,
dated as of [______], 2006 (the "Agreement"), among Aspen Funding Corp.
("Aspen"), Newport Funding Corp. ("Newport"), Gemini Securitization Corp., LLC
("Gemini" and collectively with Aspen and Newport, the "Purchasers" and
individually a "Purchaser"), and American Home Mortgage Corp. ("AHMC") and
American Home Investment Corp. ("AHMI" and together with AHMC, each
individually, a "Seller" and together, the "Sellers") in connection with the
submission for sale thereunder on _________ __, 200__ (the "Purchase Date") of
the Purchased Loans identified on the Schedule attached hereto. All capitalized
terms used in this Notice without definition shall have the same meanings herein
as they have in the Whole Loan Purchase and Sale Agreement.
[AHMC/AHMI] hereby represents and certifies to [Aspen] [Newport]
[Gemini] (the "Purchaser") as follows:
1. As of this date, the Seller is in compliance with all of the
terms and conditions of the Agreement and all other related agreements (the
"Program Documents").
2. The Seller's representations and warranties set forth in the
Program Documents are true and accurate as of the date of this Notice.
3. All of the conditions to the proposed purchase to which this
Notice relates have been satisfied.
4. Upon payment of the Purchase, all of the right (including the
power to convey title thereto), title and interest in and to each Mortgage Loan
shall be transferred, assigned, set over and otherwise conveyed to the
Purchaser.
5. The general terms of the sale are:
A. Aggregate original principal balance of the Mortgage
Loans as of the Purchase Date: _________
B. Aggregate outstanding principal balance of the Mortgage
Loans as of the Purchase Date: _________
C. Number of loans: _________
D. Purchase Price: _________
E. Purchase Date: ___________
Wire Instructions For Seller:
[Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Attention: ]
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Notice as of the date first above written.
AMERICAN HOME MORTGAGE CORP./AMERICAN
HOME MORTGAGE INVESTMENT CORP as Seller
By: _______________________________
Name: _______________________________
Title: _______________________________
EXHIBIT N
Mortgage Loan Pool