EXHIBIT 10.2
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THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
Among
IXIS REAL ESTATE CAPITAL INC., as Buyer
and
AMERICAN HOME MORTGAGE CORP.,
AMERICAN HOME MORTGAGE INVESTMENT CORP.,
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
AMERICAN HOME MORTGAGE HOLDINGS, INC., and
AMERICAN HOME MORTGAGE SERVICING, INC. f/k/a COLUMBIA NATIONAL, INCORPORATED,
collectively, as Seller
Dated as of July 15, 2005
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TABLE OF CONTENTS
Page
1. APPLICABILITY..........................................................1
2. DEFINITIONS............................................................1
3. INITIATION; TERMINATION...............................................23
4. MARGIN AMOUNT MAINTENANCE.............................................31
5. INCOME PAYMENTS.......................................................32
6. REQUIREMENTS OF LAW...................................................33
7. SECURITY INTEREST.....................................................34
8. PAYMENT, TRANSFER AND CUSTODY.........................................35
9. HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS...........................36
10. SELLER REPRESENTATIONS................................................36
11. COVENANTS OF SELLER...................................................42
12. EVENTS OF DEFAULT.....................................................49
13. REMEDIES..............................................................51
14. INDEMNIFICATION AND EXPENSES..........................................53
15. RECORDING OF COMMUNICATIONS...........................................54
16. SINGLE AGREEMENT......................................................55
17. NOTICES AND OTHER COMMUNICATIONS......................................55
18. ENTIRE AGREEMENT; SEVERABILITY........................................55
19. NON-ASSIGNABILITY.....................................................56
20. TERMINABILITY.........................................................56
21. GOVERNING LAW.........................................................56
22. SUBMISSION TO JURISDICTION; WAIVERS...................................57
23. NO WAIVERS, ETC.......................................................57
24. SERVICING.............................................................58
25. INTENT................................................................59
26. PERIODIC DUE DILIGENCE REVIEW.........................................59
27. BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT...............................60
28. MISCELLANEOUS.........................................................62
29. CONFIDENTIALITY.......................................................62
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30. CONFLICTS.............................................................63
31. SET-OFF...............................................................63
32. OBLIGATIONS JOINT AND SEVERAL.........................................63
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SCHEDULES
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SCHEDULE 1 Representations and Warranties Re: Mortgage Loans
SCHEDULE 2 Jurisdictions of Incorporation and Organizational
Identification Numbers of Seller Entities
SCHEDULE 3 Collateral Schedule
SCHEDULE 4 Jurisdictions of Incorporation and Organizational
Identification Numbers of Seller Entities
SCHEDULE 5 Existing Financing Facilities
EXHIBITS
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EXHIBIT I Transaction Request
EXHIBIT II Underwriting Guidelines
EXHIBIT III Form of Opinion Letter
EXHIBIT IV UCC Filing Jurisdictions
EXHIBIT V Form of Account Agreement
EXHIBIT VI Form of True Sale Certification
EXHIBIT VII Form of Servicer Notice
EXHIBIT VIII Form of Request for Additional Transactions For Excess
Margin
EXHIBIT IX Form of Compliance Report
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THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
This is a THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT,
dated as of July 15, 2005, among AMERICAN HOME MORTGAGE CORP., a New York
corporation ("AHMC"), AMERICAN HOME MORTGAGE INVESTMENT CORP., a Maryland
corporation ("AHMIC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC., a Maryland
corporation ("AHMA"), AMERICAN HOME MORTGAGE HOLDINGS, INC., a Delaware
corporation ("AHMH"), AMERICAN HOME MORTGAGE SERVICING, INC. f/k/a COLUMBIA
NATIONAL, INCORPORATED, a Maryland corporation ("AHMS" and, collectively with
AHMC, AHMIC, AHMA and AHMH, the "Seller" and each a "Seller Entity") and IXIS
REAL ESTATE CAPITAL INC. f/k/a CDC MORTGAGE CAPITAL INC., a New York corporation
("Buyer").
WHEREAS, Seller and Buyer are parties to that certain Second Amended
and Restated Master Repurchase Agreement, dated as of June 1, 2004 (the "Second
Amended and Restated Repurchase Agreement"), between Seller and Buyer; and
WHEREAS, Seller has requested Buyer to agree to amend certain
provisions of the Second Amended and Restated Repurchase Agreement as set forth
in this Third Amended and Restated Master Repurchase Agreement. Buyer is willing
to agree to such amendments, but only on the terms and subject to the conditions
set forth in this Third Amended and Restated Master Repurchase Agreement.
NOW, THEREFORE, in consideration of the premises set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Seller and the Buyer hereby agree as follows:
1. APPLICABILITY
From time to time the parties hereto may enter into transactions
("Committed Transactions") in which Seller agrees to transfer to Buyer
Mortgage Loans against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Mortgage Loans on demand by
Buyer against the transfer of funds by Seller. Additionally, from time to
time the Buyer is prepared to consider entering into additional
transactions ("Uncommitted Transactions") in which Seller agrees to
transfer to Buyer Mortgage Loans against the transfer of funds by Buyer,
with a simultaneous agreement by Buyer to transfer to Seller such Mortgage
Loans on demand by Buyer, against the transfer of funds by Seller. Each
such Committed Transaction and Uncommitted Transaction shall be referred
to herein as a "Transaction" and shall be governed by this Agreement,
unless otherwise agreed in writing.
2. DEFINITIONS
As used herein, the following terms shall have the following meanings (all
terms defined in this Section 2 or in other provisions of this Agreement
in the singular to have the same meanings when used in the plural and vice
versa). Terms otherwise not defined herein shall have the meanings
assigned thereto in the Custodial and Disbursement Agreement.
"Account Agreement" shall mean a letter agreement among each Seller
Entity, Buyer, and the Bank substantially in the form of Exhibit V
attached hereto.
"Act of Insolvency" shall mean, with respect to any Person, (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 which
is consented to, not timely contested or results in entry of an order for
relief; (ii) the seeking or consenting to the appointment of a receiver,
trustee, custodian or similar official for such Person or any substantial
part of the property of such Person; (iii) the appointment of a receiver,
conservator, or manager for such Person by any governmental agency or
authority having the jurisdiction to do so; (iv) the making or offering by
such Person of a composition with its creditors or a general assignment
for the benefit of creditors; (v) the admission by such Person of its
inability to pay its debts or discharge its obligations as they become due
or mature; or (vi) that 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 such Person, or shall have taken any action to displace the
management of such Person or to curtail its authority in the conduct of
the business of such Person.
"Adjusted Consolidated Funded Debt" shall mean, on any date of
determination, the sum of (a) the Consolidated Funded Debt of AHMIC and
any other Person which would be reflected on the consolidated balance
sheet of AHMIC prepared in accordance with GAAP if such balance sheet were
prepared as of such date of determination, less (b) 50% of any
Subordinated Debt, less (c) the mortgage debt associated with the building
and the land located at 538 Broadhollow Road, Melville, New York.
"Affiliate" shall mean with respect to any Person, any "affiliate" of such
Person, as such term is defined in the Bankruptcy Code.
"Aggregate Collateral Value" shall mean an amount equal to the sum of the
products of the book values (as determined in accordance with GAAP) of the
consolidated assets of AHMIC and its Subsidiaries (such assets being
categorized in the classes set forth on the calculation schedule that is
part of Schedule 3 attached to this Agreement) times the percentage
multiplier for each such class set forth on such calculation schedule.
"Agreement" shall mean this Third Amended and Restated Master Repurchase
Agreement, as the same may be further amended, supplemented or otherwise
modified in accordance with the terms hereof.
"AHMA" shall mean American Home Mortgage Acceptance, Inc., a Maryland
corporation, and its successors in interest.
"AHMC" shall mean American Home Mortgage Corp., a New York corporation,
and its successors in interest.
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"AHMH" shall mean American Home Mortgage Holdings, Inc., a Delaware
corporation, and its successors in interest.
"AHMIC" shall mean American Home Mortgage Investment Corp., a Maryland
corporation, and its successors in interest.
"AHMS" shall mean American Home Mortgage Servicing, Inc. f/k/a Columbia
National, Incorporated, a Maryland corporation, and its successors in
interest.
"ALTA" shall mean the American Land Title Association.
"Alt-A Mortgage Loan" shall mean an Eligible Asset which is a Mortgage
Loan made to a Mortgagor of "A" or "A-" credit quality, which is a secured
by a lien on a single-family Residential Dwelling and for which the
related Mortgagor has a FICO score of greater than 600. In no event shall
any Mortgage Loan be an "Alt-A Mortgage Loan" if the related Mortgagor
does not have a FICO score of at least 600 as of the date of origination.
"Alt-A First Mortgage Loan" shall mean an Eligible Asset which is an Alt-A
Mortgage Loan and a First Lien Mortgage Loan.
"Alt-A Second Mortgage Loan" shall mean an Eligible Asset which is an
Alt-A Mortgage Loan and a Second Lien Mortgage Loan.
"Appraised Value" shall mean the value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value
of the Mortgaged Property (or the related residential dwelling unit in the
Underlying Mortgaged Property, in the case of a Co-op Loan).
"Asset Schedule and Exception Report" shall have the meaning assigned
thereto in the Custodial and Disbursement Agreement.
"Asset Value" shall mean as of any date of determination with respect to
(A) each Eligible Asset that is not a Repurchased Mortgage Loan, a HELOC,
an Alt-A Second Mortgage Loan or a Sub-Prime Second Mortgage Loan, the
Purchase Percentage applicable to such Eligible Asset multiplied by the
lesser of (a) the Market Value of such Mortgage Loan as of such date and
(b) the outstanding principal balance of such Eligible Asset as of such
date, (B) each Repurchased Mortgage Loan, 60% of the least of (a) 90% of
the Market Value of such Mortgage Loan as of such date, (b) the
outstanding principal balance of such Eligible Asset as of such date and
(c) the Repurchased Appraised Value of such Mortgage Loan and (C) each
Eligible Asset that is a HELOC, an Alt-A Second Mortgage Loan or a
Sub-Prime Second Mortgage Loan, the Purchase Percentage applicable to such
Eligible Asset multiplied by the lesser of (a) the Market Value of such
Mortgage Loan as of such date and (b) the outstanding principal balance of
such Eligible Asset as of such date; provided, that, the following
additional limitations on Asset Value shall apply:
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(1) after giving effect to any requested Transaction, the aggregate
Asset Value of all Alt-A Mortgage Loans and Sub-Prime Mortgage Loans owned
hereunder by Buyer as of such date of determination may not exceed the
Non-Conforming Sub-Limit;
(2) after giving effect to any requested Transaction, the aggregate
Asset Value of all Sub-Prime Mortgage Loans owned hereunder by Buyer as of
such date of determination may not exceed the Sub-Prime Sub-Limit;
(3) after giving effect to any requested Transaction, the aggregate
Asset Value of all Sub-Prime Second Lien Mortgage Loans owned hereunder by
Buyer as of such date of determination may not exceed the Sub-Prime Second
Lien Sub-Limit;
(4) after giving effect to any requested Transaction, the aggregate
Asset Value of all Sub-Prime Mortgage Loans made to "C" or "D" credit
quality Mortgagors owned hereunder by Buyer as of such date of
determination may not exceed the Credit Sub-Limit;
(5) after giving effect to any requested Transaction, the aggregate
Asset Value of all Mortgage Loans which are Manufactured Housing Mortgage
Loans owned hereunder by Buyer as of such date of determination may not
exceed the Manufactured Housing Sub-Limit;
(6) after giving effect to any requested Transaction, the aggregate
Asset Value of all Mortgage Loans which are not occupied by the related
Mortgagor as its primary residence (as determined on the origination date)
owned hereunder by Buyer as of such date of determination may not exceed
the N/O/O Sub-Limit;
(7) after giving effect to any requested Transaction, the aggregate
Asset Value of all Repurchased Mortgage Loans owned hereunder by Buyer as
of such date of determination may not exceed the Repurchased Mortgage Loan
Sub-Limit;
(8) after giving effect to any requested Transaction, the aggregate
Asset Value of all Co-op Loans owned hereunder by Buyer as of such date of
determination may not exceed the Co-op Sub-Limit;
(9) after giving effect to any requested Transaction, the aggregate
Asset Value of all Super Jumbo Mortgage Loans owned hereunder by Buyer as
of such date of determination may not exceed the Super Jumbo Sub-Limit;
(10) after giving effect to any requested Transaction, the aggregate
Asset Value of all Fannie Mae Flex 100 Mortgage Loans owned hereunder by
Buyer as of such date of determination may not exceed the Fannie Mae Flex
100 Sub-Limit;
(11) after giving effect to any requested Transaction, the aggregate
Asset Value of all Interest-Only Loans owned hereunder by Buyer as of such
date of determination may not exceed the Interest-Only Sub-Limit;
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(12) after giving effect to any requested Transaction, the aggregate
Asset Value of all Wet-Ink Mortgage Loans owned hereunder by Buyer as of
such date is determination may not exceed the Wet-Ink Sub-Limit;
(13) after giving effect to any requested Transaction, the aggregate
Asset Value of all Co-op Loans that are Super Jumbo Mortgage Loans, Jumbo
Mortgage Loans owned hereunder by Buyer as of such date of determination
may not exceed the Co-op Jumbo Sub-Limit;
(14) with respect to each Check Funded Loan, the Asset Value shall
be deemed zero until at least one check set forth on the related Check
Funding Schedule has been presented for payment and paid in accordance
with the procedures set forth in the Custodial and Disbursement Agreement
and the Check Disbursement Agreement; provided that for purposes of
Section 3(n) and Section 4 hereof, the Asset Value shall be equal to no
more than amounts that have previously been paid in respect of checks with
respect to such Check Funded Loan;
(15) with respect to each Official Check Funded Loan, the Asset
Value shall be deemed zero until the official check set forth on the
related Official Check Funding Schedule has been presented for payment and
paid in accordance with the procedures set forth in the Custodial and
Disbursement Agreement and the Official Check Disbursement Agreement;
provided that for purposes of Section 3(n) and Section 4 hereof, the Asset
Value shall be equal to no more than amounts that have previously been
paid in respect of checks with respect to such Official Check Funded Loan;
(16) after giving effect to any requested Transaction, the aggregate
Asset Value of all HELOCs owned hereunder by Buyer as of such date of
determination may not exceed the HELOC Sub-Limit; and
(17) the Asset Value shall be deemed to be zero with respect to each
Mortgage Loan (i) in respect of which there is a breach of a
representation and warranty set forth in Schedule 1 (assuming each
representation and warranty is made as of the date the Asset Value is
determined), (ii) other than with respect to a Repurchased Loan, in
respect of which there is a delinquency in the payment of principal and/or
interest which continues for a period in excess of twenty-nine (29)
calendar days (without regard to any applicable grace periods), (iii)
which has not been repurchased by Seller by the earlier to occur of (A)
the Termination Date and (B) except with respect to Repurchased Mortgage
Loans, the 90th day after the date on which it is first purchased by
Buyer, and with respect to Repurchased Mortgage Loans, the 180th day after
the date on which such Mortgage Loan becomes a Repurchased Mortgage Loan,
(iv) which has been released from the possession of Custodian under the
Custodial and Disbursement Agreement to any Person other than Buyer for a
period in excess of forty-five (45) calendar days with respect to releases
pursuant to Section 5(c), (v) which has been released from the possession
of Custodian under the Custodial and Disbursement Agreement to Seller for
a period in excess of ten (10) calendar days with respect to releases
pursuant to Sections 5(a) and 5(b), (vi) which exceed the Sub-Limit for
the related Class or otherwise or (vii) which is
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a Wet-Ink Mortgage Loan, for which Custodian has failed to receive the
related Mortgage Documents by the tenth 10th Business Day following the
applicable Purchase Date;
"Assignment of Mortgage" shall mean, with respect to any Mortgage, an
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the assignment of the
Mortgage to Buyer.
"Bank" shall mean Deutsche Bank National Trust Company, a national banking
association, and its successors in interest, or such other depository
institution as may be acceptable to Buyer in its sole discretion, and
their respective successors in interest.
"Bank Charter Event" shall mean the date on which AHMH acquires Valley
Bancorp, Inc. and its wholly owned subsidiary, Valley Bank of Maryland.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978, as
amended from time to time.
"Business Day" shall mean any day other than (i) a Saturday or Sunday or
(ii) a day on which banks in the State of New York (or state in which any
of Custodian, Disbursement Agent, Seller or Buyer is located) is
authorized or obligated by law or executive order to be closed.
"Buyer" shall mean IXIS Real Estate Capital Inc., a New York corporation,
and its successors in interest and assigns.
"Capital Lease Obligations" shall mean, for any Person, 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 purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"Cash" shall mean all cash and Cash Equivalents, as shown on the
consolidated balance sheet of AHMIC prepared in accordance with GAAP.
"Cash Equivalents" shall mean (a) securities with maturities of 90 days or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and eurodollar time deposits with maturities of 90 days or less
from the date of acquisition and overnight bank deposits of any commercial
bank having capital and surplus in excess of $500,000,000, (c) repurchase
obligations of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than seven days with
respect to securities issued or fully guaranteed or insured by the United
States Government, (d) commercial paper of a domestic issuer rated at
least A-1 or the equivalent thereof by Standard and Poor's Ratings Group
("S&P") or P-1 or the equivalent thereof by Moody's Investors Service,
Inc. ("Moody's") and in either case maturing within 90 days after the day
of acquisition, (e) securities with maturities of 90 days or less from the
date of acquisition
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issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody's, (f) securities with maturities of 90 days
or less from the date of acquisition backed by standby letters of credit
issued by any commercial bank satisfying the requirements of clause (b) of
this definition or (g) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"Check Disbursement Account" shall have the meaning specified in the Check
Disbursement Agreement.
"Check Disbursement Agreement" shall mean the amended and restated Letter
Agreement, dated as of the date hereof, among each Seller Entity, Buyer,
Disbursement Agent, Deutsche Bank Trust Company Delaware and Deutsche Bank
Trust Company Americas as may be amended from time to time.
"Check Funded Loan" shall mean an Eligible Asset funded pursuant to the
Check Disbursement Agreement.
"Check Funding Schedule" shall have the meaning specified in the Check
Disbursement Agreement.
"Class" shall mean each group of Mortgage Loans where each Mortgage Loan
within such group qualifies as at least one of the following: "Conforming
Mortgage Loan", "Jumbo Mortgage Loan", "Alt-A First Mortgage Loan", "Alt-A
Second Mortgage Loan", "Sub-Prime First Mortgage Loan", "Sub-Prime Second
Mortgage Loan", "Wet-Ink Mortgage Loan", "HELOC" or "Repurchased Mortgage
Loan"; provided, that a Mortgage Loan may be within more than one Class as
of any date of determination.
"Closed End Loan" shall mean a Mortgage Loan which is not a HELOC.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collection Account" shall mean the account established by the Bank
subject to an Account Agreement, into which all Income shall be deposited.
"Combined Loan-to-Value Ratio or CLTV" shall mean with respect to any
Second Lien Mortgage Loan, the sum of (a) the original principal balance
of such Second Lien Mortgage Loan or, with respect to any HELOC, the
original Credit Limit, and (b) the outstanding principal balance of any
related first lien loan as of the date of origination of such Second Lien
Mortgage Loan, divided by the lesser of (i) the Appraised Value of the
related Mortgage Property as of the date of origination of such Second
Lien Mortgage Loan and (ii) if the related Mortgaged Property was
purchased within twelve (12) months of the origination of such Second Lien
Mortgage Loan, the purchase price of such Mortgaged Property.
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"Committed Transaction" as defined in the recitals hereto.
"Commitment Fee" shall mean the fee payable by Seller to Buyer pursuant to
Section 3(a)(6) as set forth in the Side Letter.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with Seller within the meaning
of Section 4001 of ERISA or is part of a group which includes Seller and
which is treated as a single employer under Section 414 of the Code.
"Confirmation" shall have the meaning specified in Section 3(c).
"Conforming Mortgage Loan" shall mean an Eligible Asset which is insured
by, and meets all criteria of, Fannie Mae, Freddie Mac, the FHA or the VA
which is secured by a first lien on the related Mortgaged Property.
"Consolidated Funded Debt" of any Person shall mean, on any date of
determination, Indebtedness in any of the following categories:
(a) Indebtedness for borrowed money;
(b) Indebtedness constituting an obligation to pay the deferred
purchase price of property;
(c) Indebtedness evidenced by a bond, debenture, note or similar
instrument;
(d) Indebtedness constituting Capital Lease Obligations;
(e) Indebtedness constituting a non-contingent obligation to
reimburse the issuer of any letter of credit or any guarantor or surety
for payments made by such issuer, guarantor or surety; and
(f) Any obligation under any guaranty with respect to Indebtedness
of any other Person of the types described in clauses (a) through (e)
above.
"Co-op" shall mean a private, cooperative housing corporation, having only
one class of stock outstanding, which owns or leases land and all or part
of a building or buildings, including apartments, spaces used for
commercial purposes and common areas therein and whose board of directors
authorizes the sale of stock and the issuance of a Co-op Lease.
"Co-op Lease" shall mean with respect to a Co-op Loan, the lease with
respect to a dwelling unit occupied by the Mortgagor and relating to the
stock allocated to the related dwelling unit.
"Co-op Loan" shall mean an Eligible Asset that is a Conforming Mortgage
Loan, except with respect to the outstanding principal balance at
origination, secured by the pledge of
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stock allocated to a dwelling unit in a Co-op and a collateral assignment
of the related Co-op Lease.
"Co-op Security Agreement" shall mean the agreement creating a first lien
security interest in the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure
such Co-op Loan and the related Co-op Lease.
"Co-op Sub-Limit" shall mean $16,000,000.
"Co-op Jumbo Sub-Limit" shall mean $8,000,000.
"Credit Limit" shall mean, with respect to each HELOC, the maximum amount
permitted under the terms of the related Credit Line Agreement.
"Credit Line Agreement" shall mean, with respect to each HELOC, the
related home equity line of credit agreement, account agreement and
promissory note (if any) executed by the related mortgagor and any
amendment or modification thereof.
"Credit Sub-Limit" shall mean $3,000,000.
"Custodial and Disbursement Agreement" shall mean that amended and
restated custodial and disbursement agreement, dated as of the date
hereof, by and among Buyer, Seller, Disbursement Agent and Custodian, as
the same shall be modified and supplemented and in effect from time to
time.
"Custodial Identification Certificate" shall have the meaning assigned
thereto in the Custodial and Disbursement Agreement.
"Custodian" shall mean Deutsche Bank National Trust Company, a national
banking association, and its successors in interest, as custodian under
the Custodial and Disbursement Agreement, and any successor Custodian
under the Custodial and Disbursement Agreement.
"DDA Account" shall have the meaning specified in the Check Disbursement
Agreement.
"Default" shall mean an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Disbursement Agent" shall mean Deutsche Bank National Trust Company, a
national banking association, and its successors in interest, as
disbursement agent under the Custodial and Disbursement Agreement, and any
successor Disbursement Agent under the Custodial and Disbursement
Agreement.
"Dollars" and "$" shall mean lawful money of the United States of America.
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"Draw" shall mean, with respect to each HELOC, an additional borrowing by
the Mortgagor subsequent to the Cut-off Date in accordance with the
related Credit Line Agreement, which borrowing shall be funded by the
Seller.
"Due Diligence Review" shall mean the performance by Buyer of any or all
of the reviews permitted under Section 26 with respect to any or all of
the Mortgage Loans, as desired by Buyer from time to time.
"Effective Date" shall mean the date upon which the conditions precedent
set forth in Section 3(a) shall have been satisfied.
"Electronic Agent" shall mean MERSCORP, INC., and its successors in
interest.
"Electronic Tracking Agreement" shall mean the Electronic Tracking
Agreement, in a form substantially similar to the form set forth in Annex
19 to the Custodial and Disbursement Agreement, to be entered into among
Buyer, each Seller Entity, Electronic Agent and MERS, if any, as the same
shall be amended, supplemented or otherwise modified from time to time;
provided that if no Mortgage Loans are or will be MERS Designated Mortgage
Loans, all references herein to the Electronic Tracking Agreement shall be
disregarded.
"Electronic Transmission" shall mean the delivery of information in an
electronic format acceptable to the applicable recipient thereof. An
Electronic Transmission shall be considered written notice for all
purposes hereof (except when a request or notice by its terms requires
execution). Any document that requires signature that is delivered by
Electronic Transmission via email that includes the sender's name shall
satisfy such signature requirement.
"Eligible Asset" shall mean a Mortgage Loan, including a Wet-Ink Mortgage
Loan, (i) as to which the representations and warranties in Schedule 1
attached hereto are true and correct, (ii) which is underwritten strictly
in accordance with Seller's Underwriting Guidelines, a copy of which is
attached hereto as Exhibit II or with such exceptions as Buyer shall
approve pursuant to Section 3(b)(9) or meets all underwriting criteria of
Fannie Mae, Freddie Mac, the FHA or the VA, and (iii) which is secured by
a Residential Dwelling.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business that is
a member of any group of organizations (i) described in Section 414(b) or
(c) of the Code of which Seller is a member and (ii) solely for purposes
of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA
and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which Seller is a member.
"Escrow Instruction Letter" shall have the meaning assigned thereto in the
Custodial and Disbursement Agreement.
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"Eurodollar Rate" shall mean, with respect to each day a Transaction is
outstanding (and reset on each day a Transaction is outstanding), the rate
per annum equal to the rate appearing at page 5 of the Telerate Screen as
one-month LIBOR at or about 9:00 a.m., New York City time, on such date
(and if such date is not a Business Day, the Eurodollar Rate in effect on
the Business Day immediately preceding such date), and if such rate shall
not be so quoted, the average rate per annum at which three mutually
acceptable banks are offered Dollar deposits at or about 8:00 a.m., New
York City time, on such date by prime banks in the interbank eurodollar
market where the eurodollar and foreign currency exchange operations in
respect of its Transactions are then being conducted for delivery on such
day for a period of thirty (30) days and in an amount comparable to the
amount of the Transactions to be outstanding on such day. The Eurodollar
Rate shall be reset by Buyer as described above and Buyer's determination
of Eurodollar Rate shall be conclusive upon the parties absent manifest
error on the part of Buyer.
"Event of Default" has the meaning specified in Section 12.
"Excess Margin" has the meaning specified in Section 3(n).
"Existing Financing Facilities" shall mean the financing facilities of the
Seller listed on Schedule 5 hereto, as may be amended from time to time.
"Fannie Mae" shall mean the Federal National Mortgage Association, and its
successors in interest.
"Fannie Mae Flex 100 Mortgage Loan" shall mean an Eligible Asset which
meets all criteria of the Fannie Mae Flex 100 program.
"Fannie Mae Flex 100 Sub-Limit" shall mean $2,000,000.
"Foreclosed Loan" shall mean a loan the property securing which has been
foreclosed upon by Seller.
"Freddie Mac" shall mean the Federal Home Loan Mortgage Corporation, and
its successors in interest.
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time in the United States.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any court or arbitrator having jurisdiction
over Seller, any of its Subsidiaries or any of their properties.
"Guarantee" shall mean, as to any Person, any obligation of such Person
directly or indirectly guaranteeing any Indebtedness of any other Person
or in any manner providing for the payment of any Indebtedness of any
other Person or otherwise protecting the holder of such Indebtedness
against loss (whether by virtue of partnership arrangements, by agreement
to keep-well another Person, to purchase assets, goods, securities or
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services, or to agree to take-or-pay arrangement or otherwise); provided
that the term "Guarantee" shall not include (i) endorsements for
collection or deposit in the ordinary course of business, or (ii)
obligations to make servicing advances for delinquent taxes and insurance,
or other obligations in respect of a Mortgaged Property, or other
principal and interest advances made in the ordinary course of servicing
the Mortgage Loans. The amount of any Guarantee of a Person shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by such Person in good faith. The terms
"Guarantee" and "Guaranteed" used as verbs shall have correlative
meanings.
"HELOC" shall mean a home equity revolving line of credit secured by a
Mortgage, deed of trust or other instrument creating a second lien on the
related Mortgaged Property, which lien secures the related Credit Line
Agreement and which related first lien is also an Eligible Asset subject
to an outstanding Transaction under this Agreement at any time that such
HELOC is requested to be, or is, subject to an outstanding Transaction
under this Agreement.
"HELOC Sub-Limit" shall mean $30,000,000.
"Income" shall mean, with respect to any Mortgage Loan at any time, all
collections and proceeds on or in respect of the Mortgage Loans,
including, without limitation, any principal thereof then payable and all
interest or other distributions payable thereon less any related servicing
fee(s) charged by Servicer.
"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) obligations of such Person under repurchase agreements,
sale/buy-back agreements or like arrangements; (f) Indebtedness of others
Guaranteed by such Person; (g) all obligations of such Person incurred in
connection with the acquisition or carrying of fixed assets by such
Person; (h) Indebtedness of general partnerships of which such Person is
secondarily or contingently liable (other than by endorsement of
instruments in the course of collection), whether by reason of any
agreement to acquire such indebtedness to supply or advance sums or
otherwise; and (i) Capital Lease Obligations of such Person.
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"Interest-Only Loan" shall mean any Mortgage Loan as to which scheduled
payments only include interest for an initial period of not more than 10
years, after which such Mortgage Loan will fully amortize to maturity.
"Interest-Only Sub-Limit" shall mean $90,000,000.
"Interest Rate Protection Agreement" shall mean, with respect to any or
all of the Mortgage Loans, any short sale of US Treasury securities, or
futures contract, or options related contract, or interest rate swap, cap
or collar agreement or similar arrangement providing for protection
against fluctuations in interest rates or the exchange of nominal interest
obligations, either generally or under specific contingencies and
acceptable to Buyer.
"Interim Funder" shall mean, with respect to each MERS Designated Mortgage
Loan, the Person named on the MERS(R) System as the interim funder
pursuant to the MERS Procedures Manual.
"Investor" shall mean, with respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the investor pursuant to the
MERS Procedures Manual.
"Jumbo Mortgage Loans" shall mean an Eligible Asset which meets all
criteria of Fannie Mae or Freddie Mac except that the outstanding
principal balance thereof at origination was in excess of Fannie Mae or
Freddie Mac's guidelines which is secured by a first lien on the related
Mortgaged Property.
"Late Payment Fee" has the meaning specified in Section 5(b).
"Lien" shall mean any mortgage, lien, pledge, charge, security interest or
similar encumbrance.
"Loan-to-Value Ratio" or "LTV" means with respect to any Mortgage Loan,
the ratio of the original outstanding principal amount (or with respect to
a HELOC, the Credit Limit) of such Mortgage Loan at the time of
origination to the lesser of (a) the Appraised Value of the related
Mortgaged Property at origination of such Mortgage Loan and (b) if the
related Mortgaged Property was purchased within twelve (12) months of the
origination of such Mortgage Loan, the purchase price of the related
Mortgaged Property.
"Manufactured Housing Sub-Limit" shall mean $2,000,000.
"Margin Base" shall mean the aggregate Asset Value of all Purchased Assets
which are Eligible Assets.
"Margin Deficit" has the meaning specified in Section 4.
"Market Value" shall mean, as of any date in respect of any Mortgage Loan,
the price at which such Mortgage Loan could readily be sold as determined
by Buyer, which price
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may be determined to be zero. Buyer's determination of Market Value shall
be conclusive upon the parties absent manifest error on the part of Buyer.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
Property, business, operations or financial condition of any Seller
Entity, (b) the ability of any Seller Entity to perform its respective
obligations under any of the Repurchase Documents to which it is a party,
(c) the validity or enforceability of any of the Repurchase Documents, (d)
the rights and remedies of Buyer under any of the Repurchase Documents,
(e) the timely payment of any amounts payable under the Repurchase
Documents, or (f) the Asset Value of the Purchased Assets.
"Maximum Amount" shall mean $450,000,000.
"Maximum Committed Amount" shall mean $200,000,000.
"Maximum Uncommitted Amount" shall mean $250,000,000.
"MERS" shall mean Mortgage Electronic Registration Systems, Inc., and its
successors in interest.
"MERS Designated Mortgage Loan" shall mean a Mortgage Loan for which the
Seller has designated or will designate MERS as, and has taken or will
take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for the Seller, in accordance with the MERS Procedure
Manual.
"MERS Procedure Manual" shall mean the MERS Procedures Manual attached as
Exhibit B to the Electronic Tracking Agreement, as it may be amended,
supplemented or otherwise modified from time to time.
"MERS Report" shall mean the schedule listing MERS Designated Mortgage
Loans and other information prepared by the Electronic Agent pursuant to
the Electronic Tracking Agreement.
"MERS(R) System" shall mean the Electronic Agent's mortgage electronic
registry system, as more particularly described in the MERS Procedures
Manual.
"Mortgage" shall mean with respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a first lien or second lien on a fee simple
Residential Dwelling securing the Mortgage Note and with respect to a
Co-op Loan, the Co-op Security Agreement.
"Mortgage File" shall have the meaning assigned thereto in the Custodial
and Disbursement Agreement.
"Mortgage Loan" shall mean a mortgage loan or HELOC originated in
accordance with the Underwriting Guidelines which Custodian has been
instructed to hold for Buyer pursuant to the Custodial and Disbursement
Agreement, including any Wet-Ink Mortgage Loan listed on a Transaction
Request, and which Mortgage Loan includes, without
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limitation, (i) a Mortgage Note and related Mortgage or Credit Line
Agreement, and (ii) all right, title and interest of Seller in and to the
Mortgaged Property covered by such Mortgage.
"Mortgage Note" shall mean the original executed promissory note or other
evidence of the indebtedness of a Mortgagor with respect to a Mortgage
Loan.
"Mortgaged Property" shall mean, with respect to a Mortgage Loan that is
not a Co-op Loan, a fee simple interest in the real property (including
all improvements, buildings, fixtures, building equipment and personal
property thereon and all additions, alterations and replacements made at
any time with respect to the foregoing) and all other collateral securing
repayment of the debt evidenced by a Mortgage Note. With respect to a
Co-op Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan
and the related Co-op Lease.
"Mortgagee" shall mean the record holder of a Mortgage Note secured by a
Mortgage.
"Mortgagor" shall mean the obligor or obligors on a Mortgage Note,
including any person who has assumed or guaranteed the obligations of the
obligor thereunder.
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been or are required to
be made by Seller or any ERISA Affiliate and that is covered by Title IV
of ERISA.
"N/O/O Sub-Limit" shall mean $3,000,000.
"Net Income" shall mean, with respect to any Person for any period, the
net income of such Person for such period as determined in accordance with
GAAP.
"Non-Conforming Sub-Limit" shall mean $60,000,000.
"Official Check Disbursement Account" shall have the meaning specified in
the Official Check Disbursement Agreement.
"Official Check Disbursement Agreement" shall mean the amended and
restated Letter Agreement, dated as of the date hereof, among each Seller
Entity, Buyer, Disbursement Agent, Deutsche Bank Trust Company Delaware
and Deutsche Bank Trust Company Americas as may be amended from time to
time relating to "official" or "certified" checks.
"Official Check Funded Loan" shall mean an Eligible Asset funded pursuant
to the Official Check Disbursement Agreement.
"Official Check Funding Schedule" shall have the meaning specified in the
Official Check Disbursement Agreement.
"Other Financial Covenant" shall mean any financial covenant in any
Existing Financing Facility that is substantially similar to any of the
financial covenants in Sections 11(l),
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(m) and (n) with a formula that yields or would yield a similar result,
but for the required ratio or trigger.
"Payment Calculation Date" shall mean the tenth (10th) day of each month.
"Payment Date" shall mean two (2) Business Days after the Payment
Calculation Date.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Periodic Advance Repurchase Payment" has the meaning specified in Section
5(b).
"Person" shall mean 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).
"Plan" shall mean an employee benefit or other plan established or
maintained by any Seller or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any day a Transaction is
outstanding or any other amount under this Agreement or any other
Repurchase Document that is not paid when due to Buyer at the stated
Repurchase Date or otherwise when due (a "Post-Default Day"), a rate per
annum on a 360 day per year basis during the period from and including the
due date to but excluding the date on which such amount is paid in full
equal to 4% per annum plus the Prime Rate on such Post-Default Day.
"Price Differential" means, with respect to any Transaction hereunder as
of any date, the aggregate amount obtained by daily application of the
Pricing Rate for such Transaction to the Purchase Price for such
Transaction on a 360 day per year basis for the actual number of days
during the period commencing on (and including) the Purchase Date for such
Transaction and ending on (but excluding) the Repurchase Date (reduced by
any amount of such Price Differential previously paid by Seller to Buyer
with respect to such Transaction).
"Pricing Rate" shall mean with respect to any Class of Mortgage Loans and
any date of determination a rate per annum equal to the sum of (a) the
Eurodollar Rate applicable on such date plus (b) the Pricing Spread for
such Class applicable on such date.
"Pricing Spread" shall mean (a) with respect to each Committed Transaction
with respect to any Class of Mortgage Loan, the rate per annum
corresponding to such Class as set forth in the Side Letter.
"Prime Rate" shall mean the prime rate announced to be in effect from time
to time, as published as the average rate in The Wall Street Journal.
"Property" shall mean any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible.
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"Purchase Agreement" shall mean any purchase agreement by and between
Seller and any third party, including without limitation, any Affiliate of
Seller, pursuant to which Seller has purchased assets subsequently sold to
Buyer hereunder.
"Purchase Date" shall mean the date on which Purchased Assets are
transferred by Seller to Buyer or its designee (including Custodian).
"Purchase Percentage" shall mean, with respect to each Committed
Transaction with respect to any Class of Mortgage Loan, the applicable
percentage corresponding to such Class as set forth in the Side Letter.
"Purchase Price" shall mean on each Purchase Date, the price at which
Purchased Assets are transferred by Seller to Buyer or its designee
(including Custodian) which shall equal the Asset Value for such Purchased
Assets on the Purchase Date.
"Purchased Assets" shall mean the Mortgage Loans sold by Seller to Buyer
in a Transaction.
"Purchased Items" has the meaning specified in Section 7.
"Regulations T, U and X" shall mean Regulations T, U and X of the Board of
Governors of the Federal Reserve System (or any successor), as the same
may be modified and supplemented and in effect from time to time.
"REIT" shall mean a real estate investment trust, as defined in Section
856(a) of the Code.
"REIT Distribution Requirement" shall mean distributions reasonably
necessary for AHMIC to maintain its REIT Status and not be subject to
corporate level tax based on income or to excise tax under Section 4981 of
the Code.
"REIT Status" shall mean, with respect to any Person, such Person's status
as a real estate investment trust, as defined in Section 856(a) of the
Code, that satisfies the conditions and limitations set forth in Section
856(b) and 856(c) of the Code.
"REO Property" shall mean real property acquired by Seller, including a
Mortgaged Property acquired through foreclosure of a Mortgage Loan or by
deed in lieu of such foreclosure.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA or a successor provision thereof, other than those events
as to which the thirty day notice period is waived under subsections .13,
.14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615 or one or more successor
provision thereof.
"Repurchase Date" shall mean the date on which Seller is to repurchase the
Purchased Assets from Buyer as specified in the related Confirmation
including any date determined by application of the provisions of Sections
3 or 13 which date shall be specified as "open" unless otherwise requested
by Seller and agreed by Buyer; provided that in no
-17-
event shall the Repurchase Date be in excess of 364 days after the
Purchase Date. If the Transaction is "open", the Repurchase Date shall be
one (1) Business Day after the date upon which either Buyer (in its sole
discretion) or the Seller (in its sole discretion) provides to the other
written notice of its intention to sell or repurchase, as applicable, the
applicable Mortgage Loans; provided that the Repurchase Date (with respect
to any Committed Transaction) for a repurchase arising due to the failure
of the Seller to satisfy the condition set forth in Section 3(b)(20) shall
be no later than 30 days after the date upon which the Buyer provides
notice of its intention to terminate this facility; and provided further
that the Repurchase Date shall not, in any event, exceed 364 days from the
date hereof.
"Repurchase Documents" shall mean this Agreement, the Custodial and
Disbursement Agreement, the Account Agreement, the Check Disbursement
Agreement and the Official Check Disbursement Agreement and all other
documents or agreements executed connection therewith.
"Repurchase Obligations" shall have the meaning specified in Section 7(b).
"Repurchase Price" means the price at which Purchased Assets are to be
transferred from Buyer or its designee (including Custodian) to Seller
upon termination of a Transaction, which will be determined in each case
(including Transactions terminable upon demand) as the sum of the Purchase
Price and the Price Differential as of the date of such determination
decreased by all cash, Income and Periodic Advance Repurchase Payments
(including Late Payment Fees, if any) actually received by Buyer pursuant
to Sections 5(a) or 5(b), respectively.
"Repurchased Appraised Value" shall mean the value set forth in an
appraisal made no earlier than 30 days prior to the Purchase Date of a
Repurchased Mortgage Loan by an appraiser satisfactory to Buyer in its
sole discretion, as the value of the Mortgaged Property.
"Repurchased Mortgage Loan" shall mean an Eligible Asset with a current
outstanding principal balance not in excess of $750,000 which is a
Conforming Mortgage Loan, a Jumbo Mortgage Loan, an Alt-A First Lien
Mortgage Loan or a Sub-Prime First Mortgage Loan but in each case is not a
Wet-Ink Mortgage Loan or a Second Lien Mortgage Loan, which has previously
been sold to a warehouse lender under a gestation or similar facility and
is required to be repurchased thereunder by the Seller for which Seller
has obtained an appraisal by an appraiser satisfactory to Buyer in its
sole discretion not earlier than 30 days prior to the requested Purchase
Date for such Mortgage Loan. In no event shall Buyer be required to
purchase a "Repurchased Mortgage Loan" (a) unless Seller has delivered to
Buyer an appraisal meeting the criteria in the preceding sentence, (b) if
such Mortgage Loan is the subject of a contested foreclosure, (c) if such
Mortgage Loan has an obligor that has filed for bankruptcy relief, or (d)
if such Mortgage Loan is the subject of any fraud or suspected fraud on
the part of the obligor thereunder.
"Repurchased Mortgage Loan Sub-Limit" shall mean $4,000,000; provided
however, that if the aggregate Purchase Price of all Transactions
outstanding hereunder on such date of
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determination is less than $75,000,000 after giving effect to any
requested Transactions, then the Repurchased Mortgage Loan Sub-Limit shall
mean 2% of the aggregate Purchase Price of all Transactions outstanding
hereunder on such date of determination.
"Request for Additional Transactions for Excess Margin" shall have the
meaning specified in Section 3(n)(1).
"Requirement of Law" shall mean as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Residential Dwelling" shall mean any one of the following: (i) a detached
single family dwelling, (ii) a two-to-four family dwelling, (iii) a
co-operative unit, (iv) a unit in a condominium project, or (v) a detached
single family dwelling in a planned unit development. Mortgaged Properties
that consist of the following property types are not Residential
Dwellings: (a) log homes, (b) earthen homes, (c) underground homes, (d)
mobile homes, (e) any dwelling situated on more than ten acres of property
and (f) any dwelling situated on a leasehold estate.
"Responsible Officer" shall mean, as to any Person, the chief executive
officer, the chief financial officer, the treasurer or the chief operating
officer of such Person.
"Second Lien Mortgage Loan" shall mean an Eligible Asset secured by a lien
on the Mortgaged Property, which is subject to one prior lien on such
Mortgaged Property.
"Security Agreement" shall mean with respect to any Mortgage Loan, any
contract, instrument or other document related to security for repayment
thereof (other than the related Mortgage and Mortgage Note), executed by
the Mortgagor and/or others in connection with such Mortgage Loan,
including without limitation, any security agreement, guaranty, title
insurance policy, hazard insurance policy, chattel mortgage, letter of
credit or certificate of deposit or other pledged accounts, and any other
documents and records relating to any of the foregoing.
"Seller" shall mean, collectively, AHMC, AHMIC, AHMA, AHMH and AHMS, and
their respective successors in interest.
"Seller Asset Schedule" shall have the meaning assigned thereto in the
Custodial and Disbursement Agreement.
"Seller-Related Obligations" shall mean any obligations, representations,
warranties and covenants of Seller hereunder and under any other
arrangement between Seller or an Affiliate of Seller on the one hand and
Buyer or an Affiliate of Buyer on the other hand.
"Servicer" shall have the meaning specified in Section 24.
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"Servicer Account" shall mean any account established by Servicer in
connection with the servicing of the Mortgage Loans.
"Servicer Notice" shall mean the notice from each Seller Entity to
Servicer, substantially in the form of Exhibit VII attached hereto.
"Servicing Agreement" has the meaning specified in Section 24.
"Servicing File" means with respect to each Mortgage Loan, the file
retained by Seller consisting of originals of all documents in the
Mortgage File which are not delivered to a Custodian and copies of all
documents in the Mortgage File set forth in Section 2 of the Custodial and
Disbursement Agreement.
"Servicing Records" has the meaning specified in Section 24.
"Settlement Agent" shall mean, with respect to any Transaction, the entity
approved by Buyer, in its sole discretion, which may be a title company,
escrow company or attorney in accordance with local law and practice in
the jurisdiction where the related Wet-Ink Mortgage Loan is being
originated, to which the proceeds of such Transaction are to be wired
pursuant to Section 3.
"Side Letter" shall mean that certain letter agreement, dated as of the
date hereof, by and between Buyer and Seller, as amended from time to
time.
"Sub-Limit" shall mean each of the Non-Conforming Sub-Limit, the Sub-Prime
Sub-Limit, the Sub-Prime Second Lien Sub-Limit, the Credit Sub-Limit, the
Manufactured Housing Sub-Limit, the N/O/O Sub-Limit, the Co-op Sub-Limit,
the Fannie Mae Flex 100 Sub-Limit, the Super Jumbo Sub-Limit, the HELOC
Sub-Limit and the Repurchased Mortgage Loan Sub-Limit. For purpose of
determining a violation of a Sub-Limit hereunder, (1) at no time shall the
aggregate of the Asset Value of all Mortgage Loans subject to outstanding
transactions hereunder violate any single Sub-Limit and (2) to the extent
that there are both Committed Transactions and Uncommitted Transactions
outstanding hereunder, at no time shall the aggregate Asset Value of
Mortgage Loans subject to (a) a Committed Transaction be in excess of the
applicable Sub-Limit Percentage or (b) an Uncommitted Transaction be in
excess of the applicable Sub-Limit Percentage.
"Sub-Limit Percentage" shall mean the aggregate Asset Value multiplied by
a percentage equal to the percentage of all outstanding Transactions which
are Committed Transactions or Uncommitted Transactions, as applicable.
"Sub-Prime First Mortgage Loan" shall mean an Eligible Asset which is a
Sub-Prime Mortgage Loan and a First Lien Mortgage Loan.
"Sub-Prime Mortgage Loan" shall mean an Eligible Asset which is a Mortgage
Loan made to a Mortgagor of less than "A-" credit quality secured by a
lien on a single-family Residential Dwelling.
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"Sub-Prime Second Lien Sub-Limit" shall mean $5,000,000.
"Sub-Prime Second Mortgage Loan" shall mean an Eligible Asset which is a
Sub-Prime Mortgage Loan and a Second Lien Mortgage Loan.
"Sub-Prime Sub-Limit" shall mean $30,000,000.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such
corporation, partnership, limited liability company or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership
or other entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries of such Person.
"Super Jumbo Mortgage Loan" shall mean an Eligible Asset which is a Jumbo
Mortgage Loan with an outstanding principal balance at origination of
greater than or equal to $1,000,000 but less than or equal to $5,000,000.
"Super Jumbo Sub-Limit" shall mean $30,000,000.
"Tangible Net Worth" shall mean as to any Person, as of a particular date,
(a) all amounts which would be included under capital on a balance
sheet of such Person at such date, determined in accordance with GAAP,
less
(b) (i) amounts owing to such Person from Affiliates, or from
officers, employees, partners, members, directors, shareholders or other
Persons similarly affiliated with such Person or its respective
Affiliates, (ii) intangible assets, and (iii) the value of REO Property
and Foreclosed Loans.
"Termination Date" shall mean the date which is 364 days from the date
hereof, which date shall be July 14, 2006 or such earlier date on which
this Agreement shall terminate in accordance with the provisions hereof or
by operation of law, as may be extended pursuant to Section 3(o).
"Termination Fee" shall mean a fee payable by Seller to Buyer in
accordance with Section 20 hereof as set forth in the Side Letter.
"Test Period" shall have the meaning specified in Section 11(m).
"Total Indebtedness" shall mean with respect to any Person, for any
period, the aggregate Indebtedness of such Person during such period less
the amount of any nonspecific balance sheet reserves maintained in
accordance with GAAP.
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"Transaction" has the meaning specified in Section 1.
"Transaction Request" means a request from Seller to Buyer, in the form
attached as Exhibit I hereto, to enter into a Transaction, which may be
delivered via Electronic Transmission.
"True Sale Certification" shall mean a true sale certification in the form
of Exhibit VI attached hereto.
"Trust Receipt" shall mean a trust receipt issued by Custodian to Buyer
confirming Custodian's possession of certain Mortgage Files which are held
by Custodian for the benefit of Buyer or the registered holder of such
trust receipt.
"Uncommitted Transaction" as defined in the recitals hereto.
"Underlying Mortgaged Property" shall mean with respect to each Co-op
Loan, the underlying real property owned by the related residential
cooperative housing corporation.
"Underwriting Guidelines" shall mean (i) with respect to each Mortgage
Loan other than a Conforming Mortgage Loan or a Jumbo Mortgage Loan, the
underwriting guidelines delivered by Seller to Buyer on or prior to the
Effective Date and as may be modified or supplemented from time to time
thereafter as approved by Buyer in its sole discretion attached hereto as
Exhibit II and (ii) with respect to each Conforming Mortgage Loan and
Jumbo Mortgage Loan, the guidelines set forth in the applicable guide
published by Fannie Mae, Freddie Mac, the FHA or the VA setting forth the
requirements each Mortgage Loan needs to satisfy in order to be eligible
for purchase or insurance by Fannie Mae, Freddie Mac, the FHA or the VA,
as applicable, or any other set of criteria established by Fannie Mae,
Freddie Mac, the FHA or the VA, as applicable, that a Mortgage Loan must
satisfy in order to be eligible for purchase or insurance by Fannie Mae,
Freddie Mac, the FHA or the VA, as applicable, in each case, except with
respect to the outstanding principal balance of a Jumbo Mortgage Loan.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial Code
as in effect on the date hereof in the State of New York; provided that if
by reason of mandatory provisions of law, the perfection or the effect of
perfection or non-perfection of the security interest in any Purchased
Items is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than New York, "Uniform Commercial Code" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
"VA" shall mean the Veterans Administration, an agency of the United
States of America, or any successor thereto including the Administrator of
Veterans Affairs.
"Wet-Ink Mortgage Loan" shall mean an Eligible Asset which is sold to
Buyer simultaneously with or one day prior to the origination thereof by
Seller, which origination is in accordance with the Underwriting
Guidelines and is funded in part or in
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whole with proceeds of the sale of the Eligible Asset to Buyer advanced
directly to a Settlement Agent or with respect to a Check Funded Loan,
pursuant to the Custodial and Disbursement Agreement and Check
Disbursement Agreement or Official Check Disbursement Agreement, as
applicable.
"Wet-Ink Sub-Limit" shall mean with respect to (i) all Committed
Transactions on any of the first five (5) Business Days and the last three
(3) Business Days of each calendar month $100,000,000 and at all other
times, $80,000,000 and (ii) Uncommitted Transactions on any of the first
five (5) Business Days and the last three (3) Business Days of each
calendar month $175,000,000 and at all other times $150,000,000.
3. INITIATION; TERMINATION
(a) Conditions Precedent to Effective Date. It is a condition precedent to the
Effective Date hereof, and Buyer's obligations hereunder are subject to
the satisfaction of the condition precedent that Buyer shall have received
from Seller any fees and expenses payable hereunder, and all of the
following documents, each of which shall be satisfactory in form and
substance to Buyer and its counsel:
(1) The following Repurchase Documents delivered to Buyer:
(A) Master Repurchase Agreement. This Third Amended and
Restated Master Repurchase Agreement duly completed and
executed by the parties thereto. In addition, Seller shall
have taken such other action as Buyer shall have requested in
order to perfect the security interests created pursuant to
this Agreement, including filing of UCC financing statements
in form and substance satisfactory to Buyer; and
(B) Consents and Waivers. Any and all consents and
waivers required under the Existing Financing Facilities.
(2) Opinions of Counsel. An opinion or opinions of counsel to each
Seller Entity, which may be an employee of such Seller Entity,
substantially in the form of Exhibit III;
(3) Organizational Documents. A good standing certificate and certified
copies of the charter and by-laws (or equivalent documents) of each
Seller Entity and of all corporate or other authority for each
Seller Entity with respect to the execution, delivery and
performance of the Repurchase Documents and each other document to
be delivered by each Seller Entity from time to time in connection
herewith (and Buyer may conclusively rely on such certificate until
it receives notice in writing from such Seller Entity, as
applicable, to the contrary);
(4) Underwriting Guidelines. A copy of Seller's current Underwriting
Guidelines, and any material changes to the Underwriting Guidelines
made since the Underwriting Guidelines were last delivered to Buyer;
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(5) Other Documents. Such other documents as Buyer may reasonably
request, in form and substance reasonably acceptable to Buyer; and
(6) Commitment Fee. Seller shall have paid to Buyer the Commitment Fee.
(b) Conditions Precedent to all Transactions. Buyer's obligation to enter into
each Committed Transaction (including the initial Transaction) and, in the
event Buyer chooses, in its sole discretion, to enter into an Uncommitted
Transaction pursuant to Section 3(c) below, Buyer's obligation to enter
into each Uncommitted Transaction, is subject to the satisfaction of the
following further conditions precedent, both immediately prior to entering
into such Transaction and also after giving effect to the consummation
thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic
Transmission in accordance with the procedures set forth in Section
3(c).
(2) no Default or Event of Default shall have occurred and be continuing
under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate
outstanding Purchase Price of the Transactions outstanding shall not
exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after
giving effect thereto and to the intended use thereof, the
representations and warranties made by Seller in Section 10 shall be
true, correct and complete on and as of such Purchase Date in all
material respects with the same force and effect as if made on and
as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date);
(5) after giving effect to the requested Transaction, the aggregate
outstanding Purchase Price of the Transactions outstanding shall not
exceed the Asset Value of all the Purchased Assets subject to
outstanding Transactions;
(6) subject to Buyer's right to perform one or more Due Diligence
Reviews pursuant to Section 26, Buyer shall have completed its due
diligence review of the Mortgage File for each Purchased Asset, and
such other documents, records, agreements, instruments, mortgaged
properties or information relating to such Purchased Asset as Buyer
in its sole discretion deems appropriate to review and such review
shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the
related Purchase Date which is not serviced by the Seller, Seller
shall have provided to Buyer a copy of the related Servicing
Agreement, certified as a true, correct and complete copy of the
original, together with a Servicer Notice, fully executed by Seller
and the Servicer;
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(8) Buyer shall have received all fees and expenses of counsel to Buyer
as contemplated by Section 14(b) and, to the extent Seller is
required hereunder to reimburse Buyer for such amounts, Buyer shall
have received the reasonable costs and expenses incurred by it in
connection with the entering into of any Transaction hereunder,
including, without limitation, costs associated with due diligence
recording or other administrative expenses necessary or incidental
to the execution of any Transaction hereunder, which amounts, at
Buyer's option, may be withheld from the sale proceeds of any
Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to
the Underwriting Guidelines;
(10) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good
faith determination of Buyer resulting in the effective
absence of a "repo market" or comparable "lending market" for
financing debt obligations secured by mortgage loans or
securities or an event or events shall have occurred resulting
in Buyer not being able to finance Purchased Assets through
the "repo market" or "lending market" with traditional
counterparties at rates which would have been reasonable prior
to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in
the effective absence of a "securities market" for securities
backed by mortgage loans or an event or events shall have
occurred resulting in Buyer not being able to sell securities
backed by mortgage loans at prices which would have been
reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change
in the financial condition of Buyer which affects (or can
reasonably be expected to affect) materially and adversely the
ability of Buyer to fund its obligations under this Agreement;
(11) with respect to each Eligible Asset that is not a Wet-Ink Mortgage
Loan, Buyer shall have received from Custodian on each Purchase Date
an Asset Schedule and Exception Report, dated the Purchase Date,
duly completed and with exceptions acceptable to Buyer in its sole
discretion in respect of Eligible Assets to be purchased hereunder
on such Business Day;
(12) Buyer shall have received from Seller a Warehouse Lender's Release
Letter substantially in the form attached to the Custodial and
Disbursement Agreement (or such other form acceptable to Buyer) or a
Seller's Release Letter substantially in the form attached to the
Custodial and Disbursement Agreement (or such other form acceptable
to Buyer) covering each Eligible Asset to be sold to Buyer;
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(13) prior to the purchase of any Mortgage Loan acquired (by purchase or
otherwise) by Seller from any third party, including without
limitation, any Affiliate of Seller, Buyer shall have received a
True Sale Certification;
(14) Buyer shall not have determined that the introduction of, or a
change in, any Requirement of Law or in the interpretation or
administration of any Requirement of Law applicable to Buyer has
made it unlawful, and no Governmental Authority shall have asserted
that it is unlawful, for Buyer to enter into Transactions;
(15) the Repurchase Date for such Transaction is not later than the
Termination Date;
(16) after giving effect to the requested Committed Transaction, the
aggregate amount of outstanding Committed Transactions shall not
have Purchase Prices in excess of the Maximum Committed Amount;
(17) after giving effect to the requested Uncommitted Transaction, the
aggregate amount of outstanding Uncommitted Transactions shall not
have Purchase Prices in excess of the Maximum Uncommitted Amount;
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(18) to the extent there are any MERS Designated Mortgage Loans, Buyer
shall have received from Seller a copy of a fully executed
Electronic Tracking Agreement;
(19) Buyer shall have received from Seller, with respect to MERS
Designated Mortgage Loans, a MERS Report reflecting Seller as
Investor and no Person named in the Interim Funder field for each
such MERS Designated Mortgage Loan;
(20) immediately prior to the requested Transaction and also after giving
effect thereto and to the intended use of the proceeds thereof, the
Tangible Net Worth of AHMIC and its consolidated Subsidiaries shall
be at least $500,000,000; provided, however, that in no event shall
the Seller's failure to meet such Tangible Net Worth test result in
any Non-Use Fee or Termination Fee to the Seller hereunder;
(21) immediately prior to the requested Transaction and also after giving
effect thereto and to the intended use of the proceeds thereof,
Seller shall not permit, for any period of three (3) consecutive
calendar months, Net Income of AHMIC and its consolidated
Subsidiaries for such period determined on a monthly basis, before
income taxes for such period and distributions made during such
period, to be less than $1.00; and
(22) immediately prior to the requested Transaction and also after giving
effect thereto and to the intended use of the proceeds thereof,
Seller shall not permit the ratio of Total Indebtedness to Tangible
Net Worth of AHMIC and its consolidated Subsidiaries at any time to
be greater than 18:1.
With respect to any failure of condition precedent to any Transaction
resulting from the failure of Buyer to approve any replacement facility to
the Existing Facilities, in no event shall such failure result in any
Non-Use Fee or Termination Fee to the Seller hereunder.
Each Transaction Request delivered by Seller hereunder shall constitute a
certification by Seller that all the conditions set forth in this Section
3(b) have been satisfied (both as of the date of such notice or request
and as of the date of such purchase) and shall be deemed to be a request
for a Committed Transaction; provided that after giving effect to the
requested Committed Transaction, the aggregate amount of outstanding
Committed Transactions shall not have Purchase Prices in excess of the
Maximum Committed Amount, in which case such request shall be deemed a
request for an Uncommitted Transaction.
(c) This Agreement is not a commitment by Buyer to enter into Uncommitted
Transactions with Seller but rather sets forth the procedures to be used
in connection with periodic requests for Buyer to enter into Uncommitted
Transactions with Seller. Seller hereby acknowledges that Buyer is under
no obligation to agree to enter into, or to enter into, any Uncommitted
Transaction pursuant to this Agreement. Seller shall request a Transaction
by delivering to Custodian, Disbursement Agent and Buyer via Electronic
Transmission a request in the form of Exhibit I attached hereto (a
"Transaction Request") in accordance
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with the timeframe set forth in Section 3(a) of the Custodial and
Disbursement Agreement. Such Transaction Request shall describe the
Purchased Assets in a Seller Asset Schedule and set forth (i) the Purchase
Date, (ii) the Purchase Price, (iii) the Repurchase Date, (iv) the Pricing
Rate applicable to the Transaction, (v) the applicable Purchase
Percentages, (vi) the applicable Class or Classes for each Mortgage Loan
for which Seller is requesting the Transaction and (vii) additional terms
or conditions not inconsistent with this Agreement.
With respect to any request for an Uncommitted Transaction, unless
otherwise agreed in writing, upon receipt of the Transaction Request,
Buyer may, in its sole discretion, agree to enter into that portion of the
requested Transaction representing a request for an Uncommitted
Transaction, and such agreement shall be evidenced by a Confirmation to be
delivered to Seller on the Purchase Date as described below.
On each Purchase Date, Buyer shall forward to Seller a confirmation (a
"Confirmation") by Electronic Transmission setting forth with respect to
each Transaction funded on such date, (1) the mortgage loan number, (2)
the Purchase Price for such Purchased Assets, (3) the Market Value of the
related Mortgage Loans as of the date of such Confirmation, (4) the
outstanding principal amount of the related Mortgage Loans, (5) the
Repurchase Date, (6) the Pricing Rate and (7) the Class designations of
such Purchased Assets. Buyer shall forward to Seller a revised
Confirmation by Electronic Transmission notifying Seller as to any changes
made by Buyer in the Pricing Spread, Purchase Percentage or Reduction
Amount pursuant to the terms hereof.
On each date that all the documents set forth in Section 2(a)(i) of the
Custodial and Disbursement Agreement are received by the Custodian with
respect to any Wet-Ink Mortgage Loan, and Custodian delivers to Buyer a
Trust Receipt attaching an Asset Schedule and Exception Report with
respect to such Eligible Assets, Buyer shall forward to Seller a new
Confirmation by Electronic Transmission setting forth the following
information, updated to reflect the revised Pricing Rate, and, if
applicable, Market Value as a result of the conversion of such Mortgage
Loan, (1) the mortgage loan number, (2) the Purchase Price for such
Purchased Assets, (3) the Market Value of the related Mortgage Loans, (4)
the outstanding principal amount of the related Mortgage Loans, (5) the
Repurchase Date, (6) the Pricing Rate and (7) the Class designations of
such Purchased Assets.
In the event Seller disagrees with any terms of the Confirmation, Seller
shall notify Buyer in writing of such disagreement within one (1) Business
Day after receipt of such Confirmation unless a corrected Confirmation is
sent by Buyer. An objection sent by Seller must state specifically that it
is an objection, must specify the provision(s) being objected to by
Seller, must set forth such provision(s) in the manner that Seller
believes they should be stated, and must be received by Buyer no more than
one (1) Business Day after the Confirmation was received by Seller.
(d) Any Confirmation by Buyer shall be deemed to have been received by Seller
on the date actually received by Seller.
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(e) Except as set forth in Section 3(c), each Confirmation, together with this
Agreement, shall constitute conclusive evidence of the terms agreed
between Buyer and Seller with respect to the Transaction to which the
Confirmation relates, and Seller's acceptance of the related proceeds
shall constitute Seller's agreement to the terms of such Confirmation. It
is the intention of the parties that each Confirmation shall not be
separate from this Agreement but shall be made a part of this Agreement.
(f) On the Repurchase Date, termination of a Transaction will be effected by
transfer to Seller or its designee of the Purchased Assets (and any Income
in respect thereof received by Buyer not previously credited or
transferred to, or applied to the obligations of, Seller pursuant to
Section 5) which amount shall be netted against the simultaneous receipt
of the Repurchase Price by Buyer. To the extent a net amount is owed to
one party, the other party shall pay such amount to such party. Seller is
obligated to obtain the Mortgage Files from Buyer or its designee
(including Custodian) at Seller's expense on the Repurchase Date. Any
payment made by Seller to repurchase Purchased Assets shall be first
applied to repurchase Purchased Assets under Uncommitted Transactions
until all outstanding Uncommitted Transactions have been terminated; it
being understood that it is the intention of the parties hereto that at no
time shall there be any outstanding Uncommitted Transactions when the
aggregate amount of the Purchase Price with respect to all outstanding
Committed Transactions is less than the Maximum Committed Amount.
(g) Subject to the terms and conditions of this Agreement, during the term of
this Agreement Seller may sell to Buyer, repurchase from Buyer Eligible
Assets hereunder and resell to Buyer Repurchased Mortgage Loans that are
Eligible Assets hereunder.
(h) In no event shall a Transaction be entered into when any Default or Event
of Default has occurred and is continuing or when the Repurchase Date for
such Transaction would be later than the Termination Date.
(i) With respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan,
Seller shall deliver to Custodian the Mortgage File pertaining to each
Eligible Asset to be purchased by Buyer no later than the time set forth
in the Custodial and Disbursement Agreement.
(j) With respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan,
pursuant to the Custodial and Disbursement Agreement, Custodian shall
deliver to Buyer and Seller an Asset Schedule and Exception Report with
respect to the Eligible Assets which Seller has requested Buyer purchase
on such Purchase Date, and no later than 5 p.m., New York City time, on
each Purchase Date, Custodian shall deliver to Buyer a Trust Receipt in
respect of all such Eligible Assets purchased by Buyer on such Purchase
Date. Subject to the provisions of this Section 3 and Section 11 of the
Custodial and Disbursement Agreement, the Purchase Price for each Eligible
Asset that is not a Wet-Ink Mortgage Loan will be made available to Seller
by Disbursement Agent transferring, the aggregate amount of such Purchase
Price in accordance with the Custodial and Disbursement Agreement.
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(k) With respect to each Eligible Asset that is a Wet-Ink Mortgage Loan,
Seller shall cause the Settlement Agent to send the Custodian a facsimile
of the associated Escrow Instruction Letter on each Purchase Date. Subject
to the provisions of this Section 3 and Section 11 of the Custodial and
Disbursement Agreement, the Purchase Price for each Eligible Asset which
is a Wet-Ink Mortgage Loan will then be made available to Seller by
Disbursement Agent transferring the aggregate amount of such Purchase
Price in accordance with the Custodial and Disbursement Agreement. Seller
shall deliver the Mortgage File related thereto and the original Escrow
Instruction Letter to Custodian, for receipt by Custodian no later than
ten (10) Business Days following the Purchase Date
(l) Seller may repurchase Purchased Assets without penalty or premium, but
subject to the last sentence of this Section 3(l), on any date. The
Repurchase Price payable for the repurchase of any such Purchased Asset
shall be reduced as provided in Section 5(d). If Seller intends to make
such a repurchase, Seller shall give one (1) Business Day's prior written
notice thereof to Buyer, designating the Purchased Assets to be
repurchased. If such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, and, on receipt,
such amount shall be applied to the Repurchase Price for the designated
Purchased Assets. The amount of the original Purchase Price of the
Purchased Assets thus repurchased shall be available for subsequent
Transactions subject to the terms of this Agreement. If any Purchased
Asset is repurchased on any date other than the Repurchase Date for such
Transaction, Seller shall pay to Buyer any amount determined by Buyer, in
its sole discretion, as necessary to compensate Buyer for any additional
losses, costs or expenses which it may reasonably incur as a result of
such repurchase, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by Buyer to fund or maintain such Transaction.
(m) Seller agrees to pay to Buyer a non-use fee (the "Non-Use Fee") as set
forth in the Side Letter.
(n) On any day on which the Margin Base exceeds the aggregate outstanding
Purchase Price of all Transactions, so long as no Default or Event of
Default has occurred and is continuing:
(1) Seller may prepare a Request for Additional Transactions for Excess
Margin in the form of Exhibit VIII attached hereto ("Request for
Additional Transactions for Excess Margin"), (A) specifying (i) the
increase in Purchase Price for all outstanding Transactions and the
requested Purchase Date, (ii) the Excess Margin with respect to all
outstanding Transactions before giving effect to the requested
Transaction, (iii) the remaining Excess Margin after giving effect
to the requested Transaction, and (iv) the aggregate outstanding
Purchase Price of the Transactions after giving effect to the
requested Transaction, and (B) including a certification that, upon
the consummation of the additional Transactions, the Margin Base
will be equal to or greater than the aggregate outstanding Purchase
Price of all Transactions, and the excess of the Margin Base over
the aggregate outstanding Purchase Price, after giving effect to the
Transaction, shall be the "Excess Margin".
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(2) Seller shall transmit via Electronic Transmission the Request for
Additional Transactions for Excess Margin to Disbursement Agent and
Buyer prior to 12:00 noon, New York City time, on the requested
Purchase Date. Upon confirming that the Request for Additional
Transactions for Excess Margin correctly reflects the information
set forth in Section 3(n)(1) and that, after giving effect to the
requested Transaction, the amount of the Margin Base would be equal
to or greater than the aggregate outstanding Purchase Prices of all
Transactions, Buyer shall cause Disbursement Agent to remit the
additional Purchase Price in the amount set forth in such Request
for Additional Transactions for Excess Margin and send a revised
Confirmation with respect to such Purchased Assets. In the event
that Buyer's assessment of the Margin Base would alter the
information set forth in any Request for Additional Transactions for
Excess Margin, Buyer shall promptly notify Seller in writing of such
assessment.
(3) Buyer shall not be obligated to remit or cause Disbursement Agent to
remit the additional Purchase Price requested pursuant to a Request
for Additional Transactions for Excess Margin which (i) Buyer
reasonably determines is based on erroneous information or would
result in a Transaction other than in accordance with the terms of
this Agreement, or (ii) does not reflect Buyer's current
determination of Market Value as provided in the definition thereof.
(o) At the request of Seller made at least 90 days, but in no event earlier
than 360 days, prior to the then current Termination Date, Buyer may in
its sole discretion extend the Termination Date for a period of 364
additional days or such other period to be determined by Buyer in its sole
discretion by giving written notice of such extension to Seller no later
than sixty (60) days after Buyer's receipt of Seller's request. Any
failure by Buyer to deliver such notice of extension shall be deemed to be
Buyer's determination not to extend the then current Termination Date.
4. MARGIN AMOUNT MAINTENANCE
(a) If at any time the Margin Base is less than the aggregate Purchase Price
for all outstanding Transactions (a "Margin Deficit"), then Buyer may by
notice to Seller (as such notice is more particularly set forth below, a
"Margin Deficit Notice") require Seller to transfer to Buyer or its
designee (including Custodian) cash to be applied to reduce the Purchase
Price with respect to all outstanding Transactions such that the aggregate
Asset Value of the Purchased Assets will thereupon equal or exceed the
aggregate Purchase Price for all outstanding Transactions. If Buyer
delivers a Margin Deficit Notice to Seller on or prior to 10 a.m., New
York City time, on any Business Day, then Seller shall transfer such cash
to Buyer no later than 5 p.m. New York City time, on such Business Day. In
the event Buyer delivers a Margin Deficit Notice to Seller after 10 a.m.,
New York City time, on any Business Day, Seller shall be required to
transfer such cash no later than 5 p.m., New York City time, on the
subsequent Business Day. All cash transferred to Buyer pursuant to this
Section 4(a) shall be deposited in the account set forth in Section 8(a)
hereof and shall be deemed to reduce the aggregate Purchase Price with
respect to all outstanding Transactions.
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(b) Buyer's election, in its sole and absolute discretion, not to deliver a
Margin Deficit Notice at any time there is a Margin Deficit shall not in
any way limit or impair its right to deliver a Margin Deficit Notice at
any time a Margin Deficit exists.
5. INCOME PAYMENTS
(a) Where a particular Transaction's term extends over an Income payment date
on the Purchased Assets subject to that Transaction, such Income shall be
the property of Buyer. Buyer agrees that until a Default or an Event of
Default has occurred and Buyer otherwise directs as contemplated in each
Servicer Notice, each Servicer that is not a Seller Entity shall be
permitted to continue to remit Income in accordance with the respective
Servicing Agreement. In the event that a Seller Entity is the Servicer of
any Mortgage Loans, Buyer agrees that until a Default or an Event of
Default has occurred, such Seller Entity shall be permitted to continue to
remit or retain Income with respect to such Mortgage Loans in accordance
with its current existing business practice. Upon notice of a Default or
an Event of Default to Seller hereunder or to Servicer pursuant to a
Servicer Notice, Seller shall, and pursuant to the Servicer Notice,
Servicer shall be required to, deposit promptly all Income in a deposit
account (the title of which shall indicate that the funds therein are
being held in trust for Buyer) (the "Collection Account") with the Bank
and which is subject to the Account Agreement. All funds in the Collection
Account may be withdrawn by Buyer and applied as determined by Buyer.
Seller may not give any instruction with respect to the Collection Account
after a Default or an Event of Default.
(b) Notwithstanding that Buyer and Seller intend that the Transactions
hereunder be sales to Buyer of the Purchased Assets, Seller shall pay to
Buyer the accreted value of the Price Differential (less any amount of
such Price Differential previously paid by Seller to Buyer) of each
Transaction through but not including the Payment Calculation Date (each
such payment, a "Periodic Advance Repurchase Payment") on each Payment
Date. Buyer shall deliver to Seller, via Electronic Transmission, notice
of the required Periodic Advance Repurchase Payment on or prior to the
second Business Day preceding each Payment Date. If Seller fails to make
all or part of the Periodic Advance Repurchase Payment by 5:00 p.m., New
York City time, on the Payment Date, Seller shall be obligated to pay to
Buyer (in addition to, and together with, the Periodic Advance Repurchase
Payment) interest on the unpaid amount of the Periodic Advance Repurchase
Payment at a rate per annum equal to the Post-Default Rate (the "Late
Payment Fee") until the overdue Periodic Advance Repurchase Payment is
received in full by Buyer.
(c) Seller shall hold or cause to be held for the benefit of, and in trust
for, Buyer all income, including without limitation all Income received by
or on behalf of Seller with respect to such Purchased Assets. All such
Income shall be held in trust for Buyer, shall constitute the property of
Buyer and shall not be commingled with other property of Seller, any
affiliate of Seller or the applicable Servicer except as expressly
permitted above in this Section 5. Funds deposited in the Collection
Account during any month shall be held therein, in trust for Buyer.
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(d) Buyer shall offset against the Repurchase Price of each such Transaction
all Income and Periodic Advance Repurchase Payments actually received by
Buyer for such Transaction pursuant to Sections 5(a) and 5(b) as of the
applicable Repurchase Date, respectively, excluding any Late Payment Fees
paid pursuant to Section 5(b); it being understood that the Late Payment
Fees are properties of Buyer that are not subject to offset against the
Repurchase Price.
6. REQUIREMENTS OF LAW
(a) If any Requirement of Law (other than with respect to any amendment made
to Buyer's certificate of incorporation and by-laws or other
organizational or governing documents) or any change in the interpretation
or application thereof or compliance by Buyer with any request or
directive (whether or not having the force of law) from any central bank
or other Governmental Authority made subsequent to the date hereof:
(1) shall subject Buyer to any tax of any kind whatsoever with respect
to this Agreement or any Transaction (excluding net income taxes) or
change the basis of taxation of payments to Buyer in respect
thereof;
(2) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of,
advances, or other extensions of credit by, or any other acquisition
of funds by, any office of Buyer which is not otherwise included in
the determination of the Eurodollar Rate hereunder;
(3) shall impose on Buyer any other condition;
and the result of any of the foregoing is to increase the cost to
Buyer, by an amount which Buyer in good faith deems to be material,
of entering, continuing or maintaining any Transaction or to reduce
any amount due or owing hereunder in respect thereof, then, in any
such case, Seller shall promptly pay Buyer, upon Seller's receipt of
the certificate described in, and in accordance with the terms of,
Section 6(d) below, such additional amount or amounts as calculated
by Buyer in good faith as will compensate Buyer for such increased
cost or reduced amount receivable.
(b) If Buyer shall have determined that the adoption of or any change in any
Requirement of Law (other than with respect to any amendment made to
Buyer's certificate of incorporation and by-laws or other organizational
or governing documents) regarding capital adequacy or in the
interpretation or application thereof or compliance by Buyer or any
corporation controlling Buyer with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on Buyer's or such corporation's
capital as a consequence of its obligations hereunder to a level below
that which Buyer or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration Buyer's or such
corporation's policies with respect to capital adequacy) by an amount in
good faith deemed by Buyer to
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be material, then from time to time, Seller shall promptly pay to Buyer
such additional amount or amounts as will compensate Buyer for such
reduction.
(c) Any payments made by Seller to Buyer shall be free and clear of, and
without deduction or withholding for, any taxes; provided, however, that
if Seller shall be required by law to deduct or withhold any taxes from
any sums payable to Buyer, then Seller shall (A) make such deductions or
withholdings and pay such amounts to the relevant authority in accordance
with applicable law, (B) pay to Buyer the sum that would have been payable
had such deduction or withholding not been made, and (C) at the time the
Price Differential is paid, pay to Buyer, subject to clause (d), all
additional amounts as specified by Buyer to preserve the after-tax yield
Buyer would have been received had such tax not been imposed.
(d) If Buyer becomes entitled to claim any additional amounts pursuant to this
Section 6, it shall promptly notify Seller in writing of the event by
reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this Section 6(d) containing the
calculation thereof and explanation therefor in reasonable detail,
submitted by Buyer to Seller shall be conclusive in the absence of
manifest error. Should any event take place that subjects Buyer to any
payments, expenses or other obligations described in this Section 6,
Seller shall have the right in its sole discretion to terminate this
Agreement upon 30 days' notice to Buyer, and termination of this Agreement
by Seller under such circumstances shall in no event result in any
Non-Use-Fee or Termination Fee to Seller hereunder.
7. SECURITY INTEREST
(a) Each of the following items or types of property, whether now owned or
hereafter acquired, now existing or hereafter created and wherever
located, is hereinafter referred to as the "Purchased Items": all Mortgage
Loans, all rights under each Purchase Agreement (but not the obligations
thereunder), all Interest Rate Protection Agreements, all Mortgage Files,
including without limitation all promissory notes, all Servicing Records
relating to the Mortgage Loans, all Servicing Agreements relating to the
Mortgage Loans and any other collateral pledged hereunder or otherwise
relating to such Mortgage Loans, together with all files, documents,
instruments, surveys, certificates, correspondence, appraisals, computer
programs, computer storage media, accounting records and other books and
records relating thereto, all mortgage guaranties and insurance (issued by
governmental agencies or otherwise) and any mortgage insurance certificate
or other document evidencing such mortgage guaranties or insurance
relating to any Mortgage Loan, all servicing fees to which such Seller is
entitled and servicing and other rights relating to the Mortgage Loans,
all Servicer Accounts established pursuant to any Servicing Agreement and
all amounts on deposit therein, from time to time, all Purchase Agreements
or other agreements or contracts relating to, constituting, or otherwise
governing, any or all of the foregoing to the extent they relate to the
Purchased Assets including the right to receive principal and interest
payments with respect to the Purchased Assets and the right to enforce
such payments, the Collection Account and all monies from time to time on
deposit in the Collection Account, the DDA Account and all monies from
time to time on deposit in the DDA Account, the Check
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Disbursement Account and all monies from time to time on deposit in the
Check Disbursement Account, all "general intangibles", "accounts",
"chattel paper", "deposit accounts" and "investment property" as defined
in the Uniform Commercial Code as in effect from time to time relating to
or constituting any and all of the foregoing, and any and all
replacements, substitutions, distributions on or proceeds of any and all
of the foregoing.
(b) Buyer and Seller intend that the Transactions hereunder be sales to Buyer
of the Purchased Assets and not loans from Buyer to Seller secured by the
Purchased Assets. However, in order to preserve Buyer's rights under this
Agreement in the event that a court or other forum recharacterizes the
Transactions hereunder as loans and as security for the performance by
Seller of all of Seller's obligations to Buyer hereunder and the
Transactions entered into hereunder ("Repurchase Obligations") and the
Seller-Related Obligations, each Seller Entity hereby assigns, pledges and
grants a security interest in all of its right, title and interest in, to
and under the Purchased Items and the Purchased Assets to Buyer to secure
the Repurchase Obligations and the Seller-Related Obligations, including
without limitation the repayment of all amounts owing to Buyer hereunder.
The assignment, pledge and grant of security interest contained herein
shall be, and each Seller Entity hereby represents and warrants to Buyer
that it is, a first priority perfected security interest. Each Seller
Entity agrees to mark its computer records and tapes to evidence the
interests granted to Buyer hereunder. All Purchased Items shall secure the
payment of all obligations of Seller now or hereafter existing under this
Agreement, including, without limitation, Seller's obligation to
repurchase Purchased Assets, or if such obligation is so recharacterized
as a loan, to repay such loan, for the Repurchase Price and to pay any and
all other amounts owing to Buyer hereunder.
(c) Pursuant to the Custodial and Disbursement Agreement, Custodian shall hold
the Mortgage Files as exclusive bailee and agent for Buyer pursuant to the
terms of the Custodial and Disbursement Agreement and shall deliver to
Buyer Trust Receipts each to the effect that Custodian has reviewed such
Mortgage Files in the manner and to the extent required by the Custodial
and Disbursement Agreement and identifying any deficiencies in such
Mortgage Files as so reviewed.
8. PAYMENT, TRANSFER AND CUSTODY
(a) Unless otherwise mutually agreed in writing, all transfers of funds to be
made by Seller hereunder shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to Buyer at
the following account maintained by Buyer; Account No. GLA 111569, account
name SER, Bank of New York, ABA No. 021000018, Attn: Eric Seyffer, not
later than 3 p.m., New York City time, on the date on which such payment
shall become due (and each such payment made after such time shall be
deemed to have been made on the next succeeding Business Day). Seller
acknowledges that it has no rights of withdrawal from the foregoing
account.
(b) On the Purchase Date for each Transaction, ownership of the Purchased
Assets shall be transferred to Buyer or its designee (including Custodian)
against the simultaneous transfer of the Purchase Price as set forth in
Section 11 of the Custodial and
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Disbursement Agreement not later than 6 p.m., New York City time,
simultaneously with the delivery to Custodian of the Purchased Assets
relating to each Transaction. Seller hereby sells, transfers, conveys and
assigns to Buyer or its designee (including Custodian) without recourse,
but subject to the terms of this Agreement, all the right, title and
interest of Seller in and to the Purchased Assets together with all right,
title and interest in and to the proceeds of any related Purchased Items.
(c) In connection with such sale, transfer, conveyance and assignment, on or
prior to each Purchase Date, Seller shall deliver or cause to be delivered
and released to Buyer or its designee (including Custodian) (i) the
Custodial Identification Certificate and (ii) the documents identified in
the Custodial and Disbursement Agreement.
(d) Any Mortgage Files not delivered to Buyer or its designee (including
Custodian) are and shall be held in trust by Seller or its designee for
the benefit of Buyer as the owner thereof. Seller or its designee shall
maintain a copy of the Mortgage File and the originals of the Mortgage
File not delivered to Buyer or its designee (including Custodian). The
possession of the Mortgage File by Seller or its designee is at the will
of Buyer for the sole purpose of servicing the related Purchased Asset,
and such retention and possession by Seller or its designee is in a
custodial capacity only. Each Mortgage File retained or held by Seller or
its designee shall be segregated on Seller's books and records from the
other assets of Seller or its designee and the books and records of Seller
or its designee shall be marked appropriately to reflect clearly the sale
of the related Purchased Asset to Buyer. Seller or its designee shall
release its custody of the Mortgage File only in accordance with written
instructions from Buyer, unless such release is required as incidental to
the servicing of the Purchased Assets or is in connection with a
repurchase of any Purchased Asset by Seller.
9. HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS
Title to all Purchased Assets and Purchased Items shall pass to Buyer and
Buyer shall have free and unrestricted use of all Purchased Assets and
Purchased Items. Nothing in this Agreement shall preclude Buyer from
engaging in repurchase transactions with the Purchased Assets and
Purchased Items or otherwise pledging, repledging, transferring,
hypothecating, or rehypothecating the Purchased Assets and Purchased
Items, all on terms that Buyer may determine in its sole discretion.
Nothing contained in this Agreement shall obligate Buyer to segregate any
Purchased Assets and Purchased Items delivered to Buyer by Seller.
10. SELLER REPRESENTATIONS
Each of the Seller Entities, jointly and severally, represents and
warrants to Buyer that as of the Purchase Date for the purchase of any
Purchased Assets by Buyer from Seller and as of the date of this Agreement
and any Transaction hereunder and at all times while the Repurchase
Documents and any Transaction hereunder is in full force and effect:
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(a) Acting as Principal. Seller will engage in such Transactions as principal
(or, if agreed in writing in advance of any Transaction by the other party
hereto, as agent for a disclosed principal).
(b) Solvency. Neither the Repurchase Documents nor any Transaction thereunder
are entered into in contemplation of insolvency or with intent to hinder,
delay or defraud any of Seller's creditors. The transfer of the Mortgage
Loans subject hereto and the obligation to repurchase such Mortgage Loans
is not undertaken with the intent to hinder, delay or defraud any of
Seller's creditors. None of the Seller Entities is insolvent within the
meaning of 11 U.S.C. Section 101(32) or any successor provision thereof
and the transfer and sale of the Mortgage Loans pursuant hereto and the
obligation to repurchase such Mortgage Loan (i) will not cause any Seller
Entity to become insolvent, (ii) will not result in any Seller Entity
having unreasonably small capital, and (iii) will not result in debts that
would be beyond Seller's ability to pay as the same mature. Seller
received reasonably equivalent value in exchange for the transfer and sale
of the Purchased Assets and Purchased Items subject hereto.
(c) No Broker. Seller has not dealt with any broker, investment banker, agent,
or other person, except for Buyer and Milestone Merchant Partners, who may
be entitled to any commission or compensation in connection with the sale
of Purchased Assets pursuant to this Agreement.
(d) Ability to Perform. Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in the Repurchase Documents.
(e) No Defaults. No Default or Event of Default has occurred and is continuing
hereunder.
(f) Legal Name; Existence; Organizational Identification Number. Each Seller
Entity's exact legal name is, and for the immediately preceding four
months has been, American Home Mortgage Corp., American Home Mortgage
Investment Corp., American Home Mortgage Acceptance, Inc., American Home
Mortgage Holdings, Inc. or American Home Mortgage Servicing, Inc., as
applicable, or such other legal name with respect to a Seller Entity or
Entities as may be provided to Buyer by such Seller Entity or Entities
from time to time by not less than ten (10) days prior written notice to
Buyer. Seller shall cooperate with Buyer in filing amendments to financing
statements in connection with any such name changes. Each Seller Entity
(i) is, and for the immediately preceding twelve months (or, if such
Seller Entity was formed within the preceding twelve months, since the
date of its formation) has been, a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; (ii) has all requisite corporate or other power, and has
all governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted, except where the lack of such licenses,
authorizations, consents and approvals would not be reasonably likely to
have a Material Adverse Effect; and (iii) is qualified to do business and
is in good standing in all other jurisdictions in which the nature of the
business conducted by it makes such qualification necessary, except where
failure so to qualify could not be reasonably likely (either individually
or in
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the aggregate) to have a Material Adverse Effect. The jurisdiction of
incorporation and the corresponding organizational identification number
for each Seller Entity are as set forth on Schedule 4 attached hereto.
(g) Financial Condition. Seller has heretofore furnished to Buyer a copy of
(a) AHMIC's consolidated balance sheet and the consolidated balance sheets
of AHMIC's consolidated Subsidiaries for the fiscal year ended December
31, 2004, and the related AHMIC consolidated statements of income and
retained earnings and of cash flows for AHMIC and AHMIC's consolidated
Subsidiaries for such fiscal year, each audited by and with the
unqualified opinion thereon of Deloitte and Touche LLP and (b) AHMIC's
consolidated balance sheet and the consolidated balance sheets of AHMIC's
consolidated Subsidiaries for the quarterly fiscal periods of AHMIC ended
March 31, 2005 and the related consolidated statements of income and
retained earnings and of cash flows for AHMIC and AHMIC's consolidated
Subsidiaries for each such quarterly fiscal period, setting forth in each
case in comparative form the figures for the previous year. All such
financial statements are complete and correct and fairly present, in all
material respects, the consolidated financial position of AHMIC and
AHMIC's Subsidiaries and the consolidated results of their operations as
at such dates and for such fiscal periods, all in accordance with GAAP
applied on a consistent basis. Since March 31, 2005, there has been no
material adverse change in the consolidated business, operations or
financial condition of AHMIC and AHMIC's consolidated Subsidiaries taken
as a whole from that set forth in said financial statements.
(h) Litigation. There are no actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are pending or
threatened) or other legal or arbitrable proceedings affecting any Seller
Entity or any of its respective Subsidiaries or affecting any of the
Property of any of them before any Governmental Authority which (i)
questions or challenges the validity or enforceability of the Repurchase
Documents or any action to be taken in connection with the transactions
contemplated hereby, (ii) makes a claim or claims in an aggregate amount
greater than $2,000,000, or (iii) individually or in the aggregate, if
adversely determined, could reasonably be likely to have a Material
Adverse Effect.
(i) No Breach. Neither (a) the execution and delivery of the Repurchase
Documents nor (b) the consummation of the transactions therein
contemplated to be entered into by Seller, in compliance with the terms
and provisions thereof, will conflict with or result in a breach of the
organizational documents of any Seller Entity or any applicable law, rule
or regulation, or any order, writ, injunction or decree of any
Governmental Authority, or any Servicing Agreement or other material
agreement or instrument to which any Seller Entity or any of its
respective Subsidiaries is a party or by which any of them or any of their
Property is bound or to which any of them is subject, or constitute a
default under any such material agreement or instrument or result in the
creation or imposition of any Lien (except for the Liens created pursuant
to the Repurchase Documents) upon any Property of any Seller Entity or any
of its respective Subsidiaries pursuant to the terms of any such agreement
or instrument.
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(j) Action. Each Seller Entity has all necessary corporate or other power,
authority and legal right to execute, deliver and perform its obligations
under each of the Repurchase Documents to which it is a party; the
execution, delivery and performance by it of each of the Repurchase
Documents to which it is a party has been duly authorized by all necessary
corporate or other action on its part; and each Repurchase Document to
which it is a party has been duly and validly executed and delivered by
it, and constitutes a legal, valid and binding obligation of it
enforceable against it in accordance with its terms.
(k) Approvals. No authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority or any securities exchange
are necessary for the execution, delivery or performance by any Seller
Entity of the Repurchase Documents to which it is a party or for the
legality, validity or enforceability thereof, except for filings and
recordings in respect of the Liens created pursuant to the Repurchase
Documents.
(l) Margin Regulations. Neither any Transaction hereunder, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation T, U or X.
(m) Taxes. Each Seller Entity and its respective Subsidiaries have timely
filed all Federal income tax returns and all other material tax returns
that are required to be filed by them and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by it or any of its
Subsidiaries, except for any such taxes as are being appropriately
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves have been provided. The
charges, accruals and reserves on the books of each Seller Entity and its
respective Subsidiaries in respect of taxes and other governmental charges
are, in the opinion of Seller, adequate.
(n) Real Estate Investment Trust. AHMIC has not engaged in any material
"prohibited transactions" as defined in Section 857(b)(6)(B)(iii) and (C)
of the Code. AHMIC for its current "tax year" (as defined in the Code) is
and for all prior tax years subsequent to its election to be a real estate
investment trust has been entitled to a dividends paid deduction in
accordance with the provisions of Section 857 of the Code with respect to
any dividends paid by it with respect to each such year for which it has
claimed or will claim a deduction in its Form 1120-REIT filed or to be
filed with the United States Internal Revenue Service for such year.
(o) Investment Company Act. None of the Seller Entities nor any of their
respective Subsidiaries is an "investment company", or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
(p) Purchased Assets.
(1) No Seller Entity has assigned, pledged, or otherwise conveyed or
encumbered any Mortgage Loan to any other Person, and immediately
prior to the sale of such Mortgage Loan to Buyer, the respective
Seller Entity was the sole owner of such Mortgage Loan and had good
and marketable title thereto, free and clear of all Liens, in each
case except for Liens to be released simultaneously with the sale to
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Buyer hereunder. No Mortgage Loan sold to Buyer hereunder was
acquired (by purchase or otherwise) by a Seller Entity from an
Affiliate of such Seller Entity unless a True Sale Certification has
been delivered to Buyer or such Affiliate is a Seller Entity.
(2) The provisions of this Agreement are effective to either constitute
a sale of Purchased Items to Buyer or to create in favor of Buyer a
valid and fully perfected first priority security interest in all
right, title and interest of Seller in, to and under the Purchased
Items.
(3) Upon receipt by Custodian of each Mortgage Note, endorsed in blank
by a duly authorized officer of Seller, either a purchase shall have
been completed by Buyer of each Mortgage Note or Buyer shall have a
valid and fully perfected first priority security interest in the
applicable Mortgage Note and in such Seller Entity's interest in the
related Mortgaged Property.
(4) Upon the filing of financing statements on Form UCC-1 naming Buyer
as "Secured Party", Seller as "Debtor" and describing the Purchased
Items, in the jurisdictions and recording offices listed on Exhibit
IV attached hereto, the security interests granted hereunder in the
Purchased Items will constitute fully perfected security interests
under the Uniform Commercial Code in all right, title and interest
of each Seller Entity in, to and under such Purchased Items, which
can be perfected by filing under the Uniform Commercial Code.
(5) Upon execution and delivery of the Account Agreement, Buyer shall
either be the owner of, or have a valid and fully perfected first
priority security interest in, the investment property and all
deposit accounts comprising Purchased Items.
(6) With respect to each Purchased Asset, each of the representations
and warranties on Schedule 1 is true and correct.
(q) Location of Books and Records. The location where Seller keeps its books
and records, including all computer tapes and records related to the
Purchased Items is its chief executive office.
(r) [Reserved].
(s) Existing Financing Facilities. All credit facilities of each Seller Entity
listed on Schedule 5 hereto as may be amended from time to time are
presently in effect. No defaults or events of default exist under any of
the Existing Financing Facilities. The financial covenants hereunder are
at least equal to each Seller Entity's Other Financial Covenants. Seller
shall give Buyer prior notification if any amendment to any Other
Financial Covenant in any Existing Financing Facility increases the
obligations or requirements of Seller thereunder, and such changed Other
Financial Covenant shall, with no further action of Seller or Buyer,
automatically become a part hereof and be incorporated herein upon the
effectiveness of such amendment in the other Existing Financing Facility.
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(t) True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of
Seller to Buyer in connection with the negotiation, preparation or
delivery of this Agreement and the other Repurchase Documents or included
herein or therein or delivered pursuant hereto or thereto (other than with
respect to the Mortgage Loans), when taken as a whole, do not contain any
untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by or on behalf of Seller to
Buyer in connection with this Agreement and the other Repurchase Documents
and the transactions contemplated hereby (other than with respect to the
Mortgage Loans) and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or
certified. There is no fact known to a Responsible Officer of Seller,
after due inquiry, that could reasonably be expected to have a Material
Adverse Effect that has not been disclosed herein, in the other Repurchase
Documents or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to Buyer for use in
connection with the transactions contemplated hereby or thereby.
(u) ERISA. Each Plan to which each Seller Entity or any of its respective
Subsidiaries makes direct contributions, and, to the knowledge of Seller,
each other Plan and each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material respects
in compliance with, the applicable provisions of ERISA, the Code and any
other Federal or State law. No event or condition has occurred and is
continuing as to which Seller would be under an obligation to furnish a
report to Buyer under Section 11(a)(4).
(v) Servicing. AHMS is the servicer of each Mortgage Loan.
(w) No Reliance. Each Seller Entity has made its own independent decisions to
enter into the Repurchase Documents and each Transaction and as to whether
such Transaction is appropriate and proper for it based upon its own
judgment and upon advice from such advisors (including without limitation,
legal counsel and accountants) as it has deemed necessary. Seller is not
relying upon any advice from Buyer as to any aspect of the Transactions,
including without limitation, the legal, accounting or tax treatment of
such Transactions.
(x) Compliance with Anti-Money Laundering Laws. Seller has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money
Laundering Laws"); Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination
of each Mortgage Loan for purposes of the Anti-Money Laundering Laws,
including with respect to the legitimacy of the applicable Mortgagor and
the origin of the assets used by the said Mortgagor to purchase the
property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the
Anti-Money Laundering Laws.
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(y) Other Security Agreements. Seller has not become bound under Section
9-203(d) of the UCC by a Security Agreement previously entered into by
another Person.
11. COVENANTS OF SELLER
On and as of the date of this Agreement and each Purchase Date and until
this Agreement is no longer in force with respect to any Transaction, each
of the Seller Entities, jointly and severally, covenants that it will:
(a) Financial Statements. Seller shall deliver to Buyer:
(1) as soon as available and in any event within forty-five (45)
calendar days after the end of each calendar month, the unaudited
consolidated balance sheets of AHMIC and its consolidated
Subsidiaries as at the end of such period and the related unaudited
consolidated statements of income and retained earnings and of cash
flows for AHMIC and its consolidated Subsidiaries for such period
and the portion of the fiscal year through the end of such period,
accompanied by a certificate of a Responsible Officer of AHMIC,
which certificate shall state that said consolidated financial
statements fairly present in all material respects the consolidated
financial condition and results of operations of AHMIC and its
consolidated Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal
year-end adjustments);
(2) as soon as available and in any event within ninety (90) days after
the end of each fiscal year of AHMIC, the consolidated balance
sheets of AHMIC and its consolidated Subsidiaries as at the end of
such fiscal year and the related consolidated statements of income
and retained earnings and of cash flows for AHMIC and its
consolidated Subsidiaries for such year, setting forth in each case
in comparative form the figures for the previous year, accompanied
by an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall not be qualified
as to scope of audit or going concern and shall state that said
consolidated financial statements fairly present the consolidated
financial condition and results of operations of AHMIC and its
respective consolidated Subsidiaries as at the end of, and for, such
fiscal year in accordance with GAAP, and a certificate of such
accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default or Event of Default;
(3) from time to time such other information regarding the financial
condition, operations, or business of Seller as Buyer may reasonably
request; and
(4) as soon as reasonably possible, and in any event within thirty (30)
days after a Responsible Officer of Seller knows, or with respect to
any Plan or Multiemployer Plan to which AHMIC or any of its
Subsidiaries makes direct contributions, has reason to believe, that
any of the events or conditions specified below with respect to any
Plan or Multiemployer Plan has occurred or exists, a statement
signed by a senior financial officer of AHMIC setting forth details
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respecting such event or condition and the action, if any, that
AHMIC or its ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or
given to PBGC by AHMIC or an ERISA Affiliate with respect to such
event or condition):
(A) any reportable event, as defined in Section 4043(c)
of ERISA or any successor provision thereof and the
regulations issued thereunder, with respect to a Plan, as to
which PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of
the Code or Section 302 of ERISA or any successor provision
thereof, including without limitation the failure to make on
or before its due date a required installment under Section
412(m) of the Code or Section 302(e) of ERISA or any successor
provision thereof, shall be a reportable event regardless of
the issuance of any waivers in accordance with Section 412(d)
of the Code or any successor provision thereof); and any
request for a waiver under Section 412(d) of the Code or any
successor provision thereof for any Plan;
(B) the distribution under Section 4041(c) of ERISA or
any successor provision thereof of a notice of intent to
terminate any Plan or any action taken by Seller or an ERISA
Affiliate to terminate any Plan;
(C) the institution by PBGC of proceedings under Section
4042 of ERISA or any successor provision thereof for the
termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by Seller or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been
taken by PBGC with respect to such Multiemployer Plan;
(D) the complete or partial withdrawal from a
Multiemployer Plan by AHMIC or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA or
any successor provision thereof (including the obligation to
satisfy secondary liability as a result of a purchaser
default) that would have a Material Adverse Effect or the
receipt by AHMIC or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or any successor
provision thereof or that it intends to terminate or has
terminated under Section 4041A of ERISA or any successor
provision thereof;
(E) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against AHMIC or any ERISA Affiliate to
enforce Section 515 of ERISA or any successor provision
thereof, which proceeding is not dismissed within thirty (30)
days; and
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(F) the adoption of an amendment to any Plan that would
result in the loss of tax-exempt status of the trust of which
such Plan is a part if AHMIC or an ERISA Affiliate fails to
provide timely security to such Plan in accordance with the
provisions of Section 401(a)(29) of the Code or Section 307 of
ERISA or any successor provision thereof.
AHMIC will furnish to Buyer, at the time AHMIC furnishes each set of
financial statements pursuant to paragraphs (a)(1) and (a)(2) above, a
certificate of a Responsible Officer of AHMIC to the effect that, to the
best of such Responsible Officer's knowledge, AHMIC during such fiscal
period or year has observed or performed in all material respects all of
its covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Repurchase Documents to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate (and, if any Default or Event of Default has
occurred and is continuing, describing the same in reasonable detail and
describing the action AHMIC has taken or proposes to take with respect
thereto).
(b) Litigation. Seller will promptly, and in any event within ten (10) days
after service of process on any of the following, give to Buyer notice of
all litigation, actions, suits, arbitrations, investigations (including,
without limitation, any of the foregoing which are threatened or pending)
or other legal or arbitrable proceedings affecting any Seller Entity or
any of their respective Subsidiaries or affecting any of the Property of
any of them before any Governmental Authority that (i) questions or
challenges the validity or enforceability of any of the Repurchase
Documents or any action to be taken in connection with the transactions
contemplated hereby, (ii) makes a claim or claims in an aggregate amount
greater than $2,000,000, or (iii) which, individually or in the aggregate,
if adversely determined, could be reasonably likely to have a Material
Adverse Effect. Seller shall set forth on its monthly compliance report
(in the form of Exhibit IX attached hereto) any such event requiring
notice to Buyer under this Section 11(b).
(c) Existence, etc. Each Seller Entity will:
(1) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises necessary for the
operation of its business (provided that nothing in this Section
11(c)(1) shall prohibit any transaction expressly permitted under
Section 11(d));
(2) comply with the requirements of all applicable laws, rules,
regulations and orders of Governmental Authorities (including,
without limitation, all environmental laws) if failure to comply
with such requirements could be reasonably likely (either
individually or in the aggregate) to have a Material Adverse Effect;
(3) keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP consistently applied;
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(4) not (i) cause or permit any change to be made in its name,
organizational identification number, identity or corporate
structure, each as described in Section 10(f), or (ii) change its
jurisdiction of organization, unless it shall have provided Buyer
thirty (30) days' prior written notice of such change and shall have
first taken all action required by Buyer for the purpose of
perfecting or protecting the lien and security interest of Buyer
established hereunder;
(5) pay and discharge all taxes, assessments and governmental charges or
levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained; and
(6) permit representatives of Buyer, upon reasonable notice (unless a
Default shall have occurred and is continuing, in which case, no
prior notice shall be required), during normal business hours, to
examine, copy and make extracts from its books and records, to
inspect any of its Properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by
Buyer.
(d) Prohibition of Fundamental Changes. Except with respect to the Bank
Charter Event, no Seller Entity shall enter into any transaction of merger
or consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation, winding up or dissolution) or sell all or
substantially all of its assets; provided, that each Seller Entity may
purchase all or substantially all of the assets and/or merge or
consolidate with (i) any Affiliate or wholly owned subsidiary of it, or
(ii) any other Person if it is the surviving corporation; and provided,
further, that if after giving effect thereto, no Default would exist
hereunder.
(e) Margin Deficit. If at any time there exists a Margin Deficit, Seller shall
cure same in accordance with Section 4.
(f) Notices. Seller shall give notice to Buyer:
(1) promptly upon receipt of notice or knowledge of the occurrence of
any Default or Event of Default;
(2) with respect to any Purchased Asset, promptly upon receipt of any
principal prepayment (in full or partial) of such Purchased Asset;
(3) with respect to any Purchased Asset hereunder, promptly upon receipt
of notice or knowledge that the underlying Mortgaged Property has
been damaged by waste, fire, earthquake or earth movement, flood,
tornado or other casualty, or otherwise damaged so as to affect
adversely the Asset Value of such Purchased Asset;
(4) promptly upon receipt of notice or knowledge of (i) any material
default related to any Purchased Item, (ii) any Lien or security
interest on, or claim asserted against, any Purchased Item or (iii)
any event or change in circumstances which could reasonably be
expected to have a Material Adverse Effect;
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(5) promptly upon any material change in the market value of any or all
of Seller's assets which could reasonably be expected to have a
Material Adverse Effect; and
(6) promptly upon the occurrence of any default or event of default
under the Existing Financing Facilities.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of Seller setting forth details of the occurrence
referred to therein and stating what action Seller has taken or proposes
to take with respect thereto.
(g) Reports. Within forty-five calendar days of the end of each calendar
quarter, Seller shall provide Buyer with a quarterly report, which report
shall include, among other items, (i) a summary of each Seller Entity's
delinquency and loss experience with respect to Mortgage Loans serviced by
Seller, any Servicer or any designee of either, operating statements and
the occupancy status of such Mortgaged Property and other property level
information, including internal quality control reports, plus (ii) with
respect to any MERS Designated Mortgage Loan, MERS Reports, plus (iii) any
such additional reports as Buyer may reasonably request with respect to
Seller or any Servicer's servicing portfolio or pending originations of
Mortgage Loans.
(h) Underwriting Guidelines. All Eligible Assets will conform with the
Underwriting Guidelines. Seller shall not make any material change in the
Underwriting Guidelines without the prior written consent of Buyer and
shall review the Underwriting Guidelines periodically to confirm that they
are being complied with in all material respects and are adequate to meet
Seller's business objectives. In the event Seller makes any amendment or
modification to the Underwriting Guidelines, Seller shall promptly deliver
to Buyer a complete copy of the amended or modified Underwriting
Guidelines.
(i) Transactions with Affiliates. No Seller Entity shall enter into any
transaction with any Affiliate, including without limitation, any
purchase, sale, lease or exchange of property or the rendering of any
service unless such transaction is not otherwise expressly prohibited
under this Agreement and is upon fair and reasonable terms no less
favorable to such Seller Entity than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate except for (i)
the acquisition of equity or stock or warrants of an Affiliate, (ii) the
payment of dividends, in the ordinary course of business, (iii) the
contribution of capital (not to exceed $5,000,000) to an entity in which
any Seller Entity holds at least a majority equity interest unless such
other entity is also a Seller Entity, (iv) the purchase or sale of loans
in the ordinary course of business which is a true sale and does not
constitute a fraudulent conveyance and (v) any transaction or series of
transactions between two or more Seller Entities. No Seller Entity shall
make a payment that is not otherwise permitted by this Section 11(i) to
any Affiliate. In no event shall any Seller Entity transfer to Buyer
hereunder any Mortgage Loan acquired by such Seller Entity from an
Affiliate of such Seller Entity unless a True Sale Certification has been
delivered to Buyer prior to such sale or such Affiliate is a Seller
Entity.
(j) Limitation on Liens. Immediately upon notice of a Lien or any circumstance
which could give rise to a Lien on the Purchased Items, Seller will defend
the Purchased Items
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against, and will take such other action as is necessary to remove, any
Lien, security interest or claim on or to the Purchased Items (other than
any security interest created under this Agreement), and Seller will
defend the right, title and interest of Buyer in and to any of the
Purchased Items against the claims and demands of all persons whomsoever.
(k) Limitation on Distributions. After the occurrence and during the
continuation of any Default, no Seller Entity shall make any payment on
account of, or set apart assets for, a sinking or other analogous fund for
the purchase, redemption, defeasance, retirement or other acquisition of
any equity or partnership interest of Seller, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
Seller, except, with respect to AHMIC and AHMA, any distributions in cash
or other property to the extent required to satisfy the REIT Distribution
Requirement; provided, for the avoidance of doubt, that after the
occurrence and during the continuation of any Default, no Seller Entity
(other than AHMIC and AHMA) shall make any distributions as set forth in
this Section 11(k).
(l) Maintenance of Profitability. Seller shall not permit, for any period of
six (6) consecutive calendar months (each such period, a "Test Period"),
Net Income of AHMIC and its consolidated Subsidiaries for such Test Period
determined on a monthly basis, before income taxes for such Test Period
and distributions made during such Test Period, to be less than $1.00.
(m) Maintenance of Tangible Net Worth; Liquidity. Seller shall not permit
Tangible Net Worth of AHMIC and its consolidated Subsidiaries at any time
to be less than $500,000,000. In addition, Seller shall maintain at least
$50,000,000 in the aggregate of (i) Cash in an amount not less than
$25,000,000 and (ii) the amount available for borrowing as a result of the
excess of the value of collateral pledged at any such time over the sum of
the aggregate outstanding loan amounts advanced at such time against such
collateral under each Existing Financing Facility.
(n) Aggregate Collateral Value to the Adjusted Consolidated Funded Debt.
Seller shall not permit the ratio of the Aggregate Collateral Value to the
Adjusted Consolidated Funded Debt of AHMIC to be less than 1.00 to 1.00 at
any time.
(o) Servicer; Servicing Information. Seller shall provide to Buyer and to
Disbursement Agent via Electronic Transmission, a list of Mortgage Loans
(including each loan number, Mortgagor name and Mortgagor address) on a
monthly basis by no later than the 10th day following the end of each
month (the "Reporting Date") containing the following information, on a
loan-by-loan basis and in the aggregate, with respect to the Purchased
Assets serviced hereunder by Seller or any Servicer for the month (or any
portion thereof) prior to the Reporting Date: (i) Mortgage Loans that are
30 days or more delinquent (including the paid through date and the
outstanding principal balance of each such Mortgage Loan individually and
in the aggregate as of the last day of the preceding month) and (ii)
Mortgage Loans that were originated more than 45 days prior to the last
day of the calendar month preceding the Reporting Date (including the paid
through date and the outstanding principal balance of each such Mortgage
Loan individually and in the
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aggregate as of the last day of the preceding month). Seller shall not
cause the Mortgage Loans to be serviced by any servicer other than a
servicer expressly approved in writing by Buyer, which approval shall be
deemed granted by Buyer with respect to Seller with the execution of this
Agreement.
(p) Required Filings. Seller shall promptly provide Buyer with copies of all
documents which AHMC, AHMIC, AHMA, AHMH, AHMS, or any Subsidiary of AHMC,
AHMIC, AHMA, AHMH or AHMS is required to file with any regulatory body in
accordance with its regulations other than routine filings in the ordinary
course of business with regulatory bodies (other than the Securities and
Exchange Commission) which relate to, among other things, obtaining or
maintaining licenses to do business or corporate qualifications, including
licenses relating to the purchase, origination or acquisition of mortgage
loans; provided that Affiliates of Seller organized solely for the purpose
of acting as issuers under securitizations shall not be subject to the
requirements of this provision (p).
(q) Remittance of Prepayments. Seller shall remit or cause to be remitted to
Buyer, with sufficient detail via Electronic Transmission to enable Buyer
to appropriately identify the Mortgage Loan to which any amount remitted
applies, all full or partial principal prepayments on any Purchased Asset
that Seller has received no later than one (1) Business Day following the
date such prepayment was received.
(r) Custodial and Disbursement Agreement and Account Agreement. Seller shall
maintain each of the Custodial and Disbursement Agreement and Account
Agreement in full force and effect and shall not amend or modify either of
the Custodial and Disbursement Agreement or the Account Agreement or waive
compliance with any provisions thereunder without the prior written
consent of Buyer.
(s) Compliance Report. Seller shall provide Buyer no later than the
forty-fifth (45th) day after the end of a calendar month, a compliance
report, in the form of Exhibit IX attached hereto, demonstrating therein
the calculations Seller utilized to determine its compliance with the
financial covenants set forth in clauses (m), (n) and (o) of this Section
11 as of the end of the immediately preceding month. Such compliance
report shall be delivered by Seller to Buyer in accordance with Section 17
and shall also be delivered by Seller to Buyer at 9 West 57th Street, New
York, NY 10019 Attn: Michael Friedman, Telecopier No.: (212) 891-6143,
Telephone No.: (212) 891-6261.
(t) Sub-Limits. Seller shall not sell to Buyer any Eligible Assets if, after
giving effect to such Transaction, the aggregate principal balance of all
Purchased Assets are in excess of any Sub-Limit as set forth in the
definition of "Asset Value".
(u) Inconsistent Agreements. Seller will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into any agreement
containing any provision which would be violated or breached by any
Transaction hereunder or by the performance by Seller of its obligations
under any Repurchase Document.
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(v) Escrow Imbalance. Seller will, no later than five (5) Business Days after
learning (from any source) of any material imbalance in any escrow
account, fully and completely correct and eliminate such imbalance
including, without limitation, depositing its own funds into such account
to eliminate any overdrawal or deficit.
(w) Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by
an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default or Default
if such action is taken or condition exists.
(x) Existing Financing Facilities. Seller shall promptly notify Buyer of any
new financing or credit facilities that should be added to, or any
terminated financing or credit facilities that should be deleted from,
Schedule 5 hereto as may be amended from time to time.
12. EVENTS OF DEFAULT
If any of the following events (each, an "Event of Default") occur, Seller
and Buyer shall have the rights set forth in Section 13, as applicable:
(a) Seller shall default in the payment of any Repurchase Price due or any
amount under Section 5 when due (whether at stated maturity, upon
acceleration or at mandatory or optional prepayment); or
(b) Seller shall default in the payment of any other amount payable by it
hereunder or under any other Repurchase Document after notification by
Buyer of such default, and such default shall have continued unremedied
for three (3) Business Days; or
(c) any representation, warranty or certification made or deemed made herein
or in any other Repurchase Document by any Seller Entity or any
certificate furnished to Buyer pursuant to the provisions hereof or
thereof or any information with respect to the Mortgage Loans furnished in
writing by or on behalf of Seller shall prove to have been false or
misleading in any material respect as of the time made or furnished (other
than the representations and warranties set forth in Schedule 1, which
shall be considered solely for the purpose of determining the Asset Value
of the Purchased Assets, unless (i) such Seller Entity shall have made any
such representations and warranties with actual knowledge that they were
materially false or misleading at the time made; or (ii) any such
representations and warranties have been determined in good faith by Buyer
in its sole discretion to be materially false or misleading on a regular
basis); or
(d) Seller shall fail to comply with the requirements of Section 11(c) through
Section 11(f), or Sections 11(g) through 11(t) or 11(y); or except as
otherwise set forth in Sections 12(a), 12(b), 12(c), or 12(d), Seller
shall fail to observe or perform any other covenant or agreement contained
in this Agreement or any other Repurchase Document and such failure to
observe or perform shall continue unremedied for a period of 10 Business
Days; or
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(e) a final judgment or judgments for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered against Seller or any of its
Affiliates by one or more courts, administrative tribunals or other bodies
having jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay of
execution thereof shall not be procured, within 30 days from the date of
entry thereof; or
(f) an Act of Insolvency shall have occurred with respect to any Seller Entity
or any of its Affiliates; or
(g) the Custodial and Disbursement Agreement, the Account Agreement or any
Repurchase Document shall for whatever reason be terminated or cease to be
in full force and effect, or the enforceability thereof shall be contested
by any Seller Entity; or
(h) Seller shall grant, or suffer to exist, any Lien on any Purchased Item
(except any Lien in favor of Buyer); or the Purchased Items shall not have
been sold to Buyer, or the Liens contemplated hereby shall cease or fail
to be first priority perfected Liens on any Purchased Items in favor of
Buyer or shall be Liens in favor of any Person other than Buyer; or
(i) any Seller Entity or any of its respective Affiliates shall be in default
under (i) any Indebtedness of such Seller Entity or of such Affiliate
which default (1) involves the failure to pay a matured obligation, or (2)
permits the acceleration of the maturity of obligations by any other party
to or beneficiary with respect to such Indebtedness, (ii) any other
contract to which such Seller Entity or such Affiliate is a party which
default (1) involves the failure to pay a matured obligation, or (2)
permits the acceleration of the maturity of obligations by any other party
to or beneficiary of such contract, or (iii) any Seller-Related
Obligation; or
(j) any material adverse change in the Property, business or financial
condition of any Seller Entity or any of its Affiliates shall occur, in
each case as determined by Buyer in its sole discretion, or any other
condition shall exist which, in Buyer's sole discretion exercised in good
faith, constitutes a material impairment of Seller's ability to perform
its obligations under this Agreement or any other Repurchase Document; or
(k) the failure of AHMIC to at any time continue to be (i) qualified as a real
estate investment trust as defined in Section 856 of the Code and (ii)
entitled to a dividend paid deduction under Section 857 of the Code with
respect to dividends paid by it with respect to each taxable year for
which it claims or will claim a deduction on its Form 1120 - REIT filed or
to be filed with the United States Internal Revenue Service for such year,
or the entering into by AHMIC of any material "prohibited transactions" as
defined in Sections 857(b) and 856(c) of the Code;
(l) (i) any Person shall engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on
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the assets of any Seller Entity or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of Buyer, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Plan shall terminate for
purposes of Title IV of ERISA, (v) any Seller Entity or any Commonly
Controlled Entity shall, or in the reasonable opinion of Buyer is likely
to, incur any liability in connection with a withdrawal from, or the
insolvency or reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(m) upon any event of default or event which, with the passage of time or
expiration of any grace periods, would constitute an event of default
under the Existing Financing Facilities; or
(n) any of the events specified in Section 3(b)(10) have occurred; or
(o) if the Buyer has purchased MERS Designated Mortgage Loans, the Electronic
Tracking Agreement has for whatever reason been terminated or ceases to be
in full force and effect and the Buyer (or the Custodian as its designee)
shall not have received an assignment of mortgage with respect to each
MERS Designated Mortgage Loan, in blank, in recordable form, but
unrecorded.
13. REMEDIES
(a) If an Event of Default occurs, the following rights and remedies are
available to Buyer; provided, that an Event of Default shall be deemed to
be continuing unless expressly waived by Buyer in writing.
(1) At the option of Buyer, exercised by written notice to Seller (which
option shall be deemed to have been exercised, even if no notice is
given, immediately upon the occurrence of an Act of Insolvency of
Seller), the Repurchase Date for each Transaction hereunder, if it
has not already occurred, shall be deemed immediately to occur.
Buyer shall (except upon the occurrence of an Act of Insolvency of
Seller) give notice to Seller of the exercise of such option as
promptly as practicable.
(2) If Buyer exercises or is deemed to have exercised the option
referred to in subsection (a)(1) of this Section 13,
(A) (i) Seller's obligations in such Transactions to
repurchase all Purchased Assets, at the Repurchase Price
therefor on the Repurchase Date, and to pay all other amounts
owned by Seller hereunder, shall thereupon become immediately
due and payable, (ii) all Income paid after such exercise or
deemed exercise shall be retained by Buyer and applied to the
aggregate unpaid Repurchase Prices and any other amounts owed
by
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Seller hereunder, and (iii) Seller shall immediately deliver
to Buyer any Purchased Assets subject to such Transactions
then in Seller's possession or control;
(B) to the extent permitted by applicable law, the
Repurchase Price with respect to each such Transaction shall
be increased by the aggregate amount obtained by daily
application of, on a 360 day per year basis for the actual
number of days during the period from and including the date
of the exercise or deemed exercise of such option to but
excluding the date of payment of the Repurchase Price, (x) the
Post-Default Rate to (y) the Repurchase Price for such
Transaction as of the Repurchase Date (decreased as of any day
by (i) any amounts actually in the possession of Buyer
pursuant to clause (C) of this subsection, (ii) any proceeds
from the sale of Purchased Assets applied to the Repurchase
Price pursuant to subsection (a)(4) of this Section 13, and
(iii) any amounts applied to the Repurchase Price pursuant to
subsection (a)(4) of this Section 13); and
(C) all Income actually received by Buyer pursuant to
Section 5 (excluding any Late Payment Fees paid pursuant to
Section 5(b)) shall be applied to the aggregate unpaid
Repurchase Price owed by Seller.
(3) Upon the occurrence of one or more Events of Default, Buyer shall
have the right to obtain physical possession of the Servicing
Records (subject to the provisions of the Custodial and Disbursement
Agreement) and all other files of Seller relating to the Purchased
Assets and all documents relating to the Purchased Assets which are
then or may thereafter come in to the possession of Seller or any
third party acting for Seller and Seller shall deliver to Buyer such
assignments as Buyer shall request and Buyer shall have the right to
appoint any Person to act as Servicer for the Purchased Assets.
Buyer shall be entitled to specific performance of all agreements of
Seller contained in the Repurchase Documents.
(4) At any time on the Business Day following notice to Seller (which
notice may be the notice given under subsection (a)(1) of this
Section 13), in the event Seller has not repurchased all Purchased
Assets, Buyer may (A) immediately sell, without demand or further
notice of any kind, at a public or private sale and at such price or
prices as Buyer may deem satisfactory any or all Purchased Assets
subject to such Transactions hereunder and apply the proceeds
thereof to the aggregate unpaid Repurchase Price and any other
amounts owing by Seller hereunder or (B) in its sole discretion
elect, in lieu of selling all or a portion of such Purchased Assets,
to give Seller credit for such Purchased Assets in an amount equal
to the Market Value of the Purchased Assets against the aggregate
unpaid Repurchase Price and any other amounts owing by Seller
hereunder. The proceeds of any disposition of Purchased Assets shall
be applied first to the costs and expenses incurred by Buyer in
connection with Seller's default; second to costs of related
covering and/or related hedging transactions; third to the
Repurchase Price; and fourth to any other outstanding obligation of
Seller to Buyer or its Affiliates. In connection with any sale
pursuant to clause (A) of this subsection (a)(4), Buyer
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may (i) sell any such Purchased Assets without giving any warranties
and (ii) specifically disclaim or modify any warranties of title or
the like, and this procedure shall not be considered to adversely
affect the commercial reasonableness of any such sale of Purchased
Assets.
(5) Seller agrees that Buyer may obtain an injunction or an order of
specific performance to compel Seller to fulfill its obligations as
set forth in Section 24, if Seller fails or refuses to perform its
obligations as set forth therein.
(6) Seller shall be liable to Buyer, payable as and when incurred by
Buyer, for (A) the amount of all actual out-of-pocket expenses,
including legal or other expenses incurred by Buyer in connection
with or as a consequence of an Event of Default, and (B) all costs
incurred in connection with hedging or covering transactions taken
in connection with or as a result of an Event of Default.
(7) Buyer shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable
law.
(b) Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except to the
extent provided in subsections (a)(1) and (4) of this Section 13, at any
time thereafter without notice to Seller. All rights and remedies arising
under this Agreement as amended from time to time hereunder are cumulative
and not exclusive of any other rights or remedies which Buyer may have.
(c) Buyer may enforce its rights and remedies hereunder without prior judicial
process or hearing, and Seller hereby expressly waives any defenses Seller
might otherwise have to require Buyer to enforce its rights by judicial
process. Seller recognizes that nonjudicial remedies are consistent with
the usages of the trade, are responsive to commercial necessity and are
the result of a bargain at arm's-length.
(d) To the extent permitted by applicable law, Seller shall be liable to Buyer
for interest on any amounts owing by Seller hereunder, from the date
Seller becomes liable for such amounts hereunder until such amounts are
(i) paid in full by Seller or (ii) satisfied in full by the exercise of
Buyer's rights hereunder. Interest on any sum payable by Seller to Buyer
under this paragraph 13(d) shall be at a rate equal to the Post-Default
Rate.
14. INDEMNIFICATION AND EXPENSES
(a) Seller agrees to hold Buyer and its Affiliates and their present and
former respective officers, directors, employees, agents, advisors and
other representatives (each, an "Indemnified Party") harmless from and
indemnify any Indemnified Party against all liabilities, losses, damages,
judgments, costs and expenses of any kind which may be imposed on,
incurred by or asserted against such Indemnified Party (including
counsel's fees and disbursements) (collectively, "Costs"), relating to or
arising out of this Agreement, any other Repurchase Document or any
transaction contemplated hereby or thereby, or any amendment, supplement
or modification of, or any waiver or consent under or in respect of, this
Agreement, any other Repurchase Document or any transaction contemplated
hereby or thereby, that, in each case, results from anything
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other than the Indemnified Party's gross negligence or willful misconduct.
Without limiting the generality of the foregoing, Seller agrees to hold
any Indemnified Party harmless from and indemnify such Indemnified Party
against all Costs with respect to all Mortgage Loans relating to or
arising out of any violation or alleged violation of any environmental
law, rule or regulation or any consumer credit laws, including without
limitation the federal Truth in Lending Act and/or the federal Real Estate
Settlement Procedures Act, that, in each case, results from anything other
than the Indemnified Party's gross negligence or willful misconduct. In
any suit, proceeding or action brought by an Indemnified Party in
connection with any Mortgage Loan for any sum owing thereunder, or to
enforce any provisions of any Mortgage Loan, Seller will save, indemnify
and hold such Indemnified Party harmless from and against all expense,
loss or damage suffered by reason of any defense, set-off, counterclaim,
recoupment or reduction or liability whatsoever of the account debtor or
obligor thereunder, arising out of a breach by Seller of any obligation
thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or
obligor or its successors from Seller. Seller also agrees to reimburse an
Indemnified Party as and when billed by such Indemnified Party for all the
Indemnified Party's costs and expenses incurred in connection with the
enforcement or the preservation of Buyer's rights under this Agreement,
any other Repurchase Document or any transaction contemplated hereby or
thereby, including without limitation the fees and disbursements of its
counsel.
(b) Seller agrees to pay as and when billed by Buyer all of the out-of-pocket
costs and expenses (including legal fees and any costs associated with any
upfront due diligence costs, including appraisals) incurred by Buyer in
connection with the development, preparation and execution of, this
Agreement, any other Repurchase Document or any other documents prepared
in connection herewith or therewith. Seller agrees to pay as and when
billed by Buyer all of the out-of-pocket costs and expenses incurred in
connection with the consummation and administration of the transactions
contemplated hereby and thereby including without limitation all fees,
disbursements and expenses of counsel to Buyer which amount shall be
deducted from the Purchase Price paid for the first Transaction hereunder
and all initial set-up costs with the Custodian and the Disbursement
Agent. Seller agrees to pay as and when billed by Buyer all of the
out-of-pocket costs and expenses (including legal fees) incurred by Buyer
in connection with the development, preparation and execution of any
amendment, supplement or modification to this Agreement, any other
Repurchase Document or any other documents prepared in connection
therewith. Subject to the limitations set forth in Section 27, Seller
agrees to pay Buyer all the out of pocket due diligence, inspection,
appraisals, testing and review costs and expenses incurred by Buyer with
respect to Mortgage Loans submitted by Seller for purchase under this
Agreement, including, but not limited to, those out of pocket costs and
expenses incurred by Buyer pursuant to Sections 24 and 27.
15. RECORDING OF COMMUNICATIONS
Buyer and Seller shall have the right (but not the obligation) from time
to time to make or cause to be made tape recordings of communications
between its employees and those of the other party with respect to
Transactions upon notice to the other party of such
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recording. Buyer and Seller consent to the admissibility of such tape
recordings in any court, arbitration, or other proceedings. The parties
agree that a duly authenticated transcript of such a tape recording with a
Responsible Officer of such party shall be deemed to be a writing
conclusively evidencing the parties' agreement.
16. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and will
enter into each Transaction hereunder in consideration of and in reliance
upon the fact that, all Transactions hereunder constitute a single
business and contractual relationship and that each has been entered into
in consideration of the other Transactions. Accordingly, each of Buyer and
Seller agrees (i) to perform all of its obligations in respect of each
Transaction hereunder, and that a default in the performance of any such
obligations shall constitute a default by it in respect of all
Transactions hereunder, (ii) that each of them shall be entitled to set
off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transaction
hereunder; (iii) that payments, deliveries, and other transfers made by
either of them in respect of any Transaction shall be deemed to have been
made in consideration of payments, deliveries, and other transfers in
respect of any other Transactions hereunder, and the obligations to make
any such payments, deliveries, and other transfers may be applied against
each other and netted and (iv) to promptly provide notice to the other
after any such set off or application.
17. NOTICES AND OTHER COMMUNICATIONS
Except as otherwise expressly permitted by this Agreement, all notices,
requests and other communications provided for herein and under the
Custodial and Disbursement Agreement (including without limitation any
modifications of, or waivers, requests or consents under, this Agreement)
shall be given or made in writing (including without limitation by email,
telex or telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof or
thereof); or, as to any party, at such other address as shall be
designated by such party in a written notice to each other party. Except
as otherwise provided in this Agreement and except for notices given under
Section 3 (which shall be effective only on receipt), all such
communications shall be deemed to have been duly given when transmitted by
telecopy or personally delivered or, in the case of a mailed notice, upon
receipt.
18. ENTIRE AGREEMENT; SEVERABILITY
This Agreement together with the other Repurchase Documents and the
Account Agreement constitute the entire understanding between Buyer and
Seller with respect to the subject matter it covers and shall supersede
any existing agreements between the parties containing general terms and
conditions for repurchase transactions involving Purchased Assets. By
acceptance of this Agreement, Buyer and Seller acknowledge that they have
not made, and are not relying upon, any statements, representations,
promises or undertakings not contained in this Agreement or the other
Repurchase Documents. Each provision and agreement herein shall be treated
as separate and independent from
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any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or
agreement. No amendment, modification or release from any provision of
this Agreement shall be effective unless in writing and executed by or on
behalf of the party or parties to be charged therewith and shall be
effective only in the specific instance and for the specific purpose for
which given.
19. NON-ASSIGNABILITY
The rights and obligations of the parties under this Agreement and under
any Transaction shall not be assigned by any Seller Entity without the
prior written consent of Buyer, and any attempted assignment without such
consent shall be null and void. Subject to the foregoing, this Agreement
and any Transactions shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns. Nothing in
this Agreement express or implied, shall give to any person, other than
the parties to this Agreement and their successors hereunder, any benefit
of any legal or equitable right, power, remedy or claim under this
Agreement.
20. TERMINABILITY
This Agreement may be terminated by (i) Seller (a) upon 30 days' written
notice to Buyer upon payment to Buyer of the Termination Fee and (b) upon
Buyer's unreasonable failure to approve a replacement facility (in which
case such termination shall not cause Seller to incur any Non-Use Fee or
Termination Fee) and (ii) Buyer (a) upon 30 days' notice from Buyer to
Seller upon the occurrence of the event set forth in Section 3(b)(20) or
3(b)(21) (in which case such termination shall not cause Seller to incur
any Non-Use Fee or Termination Fee) and (b) upon any material adverse
change in the terms of, or any material reduction in amounts available to
Seller or its Affiliates, under any of the Existing Financing Facilities
(in which case such termination shall not cause Seller to incur any
Non-Use-Fee or Termination Fee), except that this Agreement shall,
notwithstanding termination, remain applicable to any Transaction then
outstanding. Each representation and warranty made or deemed to be made by
entering into a Transaction, herein or pursuant hereto shall survive the
making of such representation and warranty, and Buyer shall not be deemed
to have waived any Default that may arise because any such representation
or warranty shall have proved to be false or misleading, notwithstanding
that Buyer may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time the
Transaction was made. Notwithstanding any such termination or the
occurrence of an Event of Default, all of the representations and
warranties and covenants hereunder shall continue and survive. The
obligations of Seller under Section 14 and under this Section 20 with
respect to the payment of the Termination Fee shall survive the
termination of this Agreement.
21. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW
PRINCIPLES.
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22. SUBMISSION TO JURISDICTION; WAIVERS
EACH OF BUYER AND SELLER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER REPURCHASE
DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID,
TO ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER
ADDRESS OF WHICH BUYER SHALL HAVE BEEN NOTIFIED;
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE
OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(E) 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 REPURCHASE DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
23. NO WAIVERS, ETC.
No failure on the part of Buyer to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power or privilege
under any Repurchase Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege under any
Repurchase Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies
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provided herein are cumulative and not exclusive of any remedies provided
by law. An Event of Default shall be deemed to be continuing unless
expressly waived by Buyer in writing.
24. SERVICING
(a) Seller covenants to maintain or cause the servicing of the Mortgage Loans
to be maintained in conformity with accepted and prudent servicing
practices in the industry for the same type of mortgage loans as the
Mortgage Loans and in a manner at least equal in quality to the servicing
Seller provides for mortgage loans which it owns. In the event that the
preceding language is interpreted as constituting one or more servicing
contracts, each such servicing contract shall terminate automatically upon
the earliest of (i) an Event of Default, (ii) the date on which this
Agreement terminates or (iii) the transfer of servicing approved by Buyer.
(b) If the Mortgage Loans are serviced by Seller, Seller agrees that Buyer is
the owner of all servicing records, including but not limited to any and
all servicing agreements, files, documents, records, data bases, computer
tapes, copies of computer tapes, proof of insurance coverage, insurance
policies, appraisals, other closing documentation, payment history
records, and any other records relating to or evidencing the servicing of
the Mortgage Loans (the "Servicing Records"). Seller covenants to
safeguard such Servicing Records and to deliver them promptly to Buyer or
its designee (including Custodian) at Buyer's request.
(c) If the Mortgage Loans are serviced by a person other than Seller (such
third party, the "Servicer"), Seller (i) shall, in accordance with Section
(3)(b)(7), provide a copy of the servicing agreement to Buyer, which shall
be in form and substance acceptable to Buyer (the "Servicing Agreement"),
and shall provide a Servicer Notice to the Buyer substantially in the form
of Exhibit VII hereto, fully executed by such Seller Entity and the
Servicer; and (ii) hereby irrevocably assigns to Buyer and Buyer's
successors and assigns all right, title and interest of Seller in, to and
under, and the benefits of, any Servicing Agreement with respect to the
Mortgage Loans. Seller agrees that no Person shall assume the servicing
obligations with respect to the Mortgage Loans as successor to the
Servicer unless such successor is approved in writing by Buyer prior to
such assumption of servicing obligations.
(d) If the servicer of the Mortgage Loans is Seller, upon the occurrence of an
Event of Default, Buyer shall have the right to terminate Seller as
servicer of the Mortgage Loans and transfer servicing to Buyer's
designated Servicer, at no cost or expense to Buyer, at any time
thereafter. If the Servicer of the Mortgage Loans is not Seller, Buyer
shall have the right, as contemplated in the applicable Servicer Notice,
upon the occurrence of an Event of Default, to terminate any applicable
Servicing Agreement and transfer servicing to Buyer's designated Servicer,
at no cost or expense to Buyer, it being agreed that Seller will pay any
and all fees required to terminate such Servicing Agreement and to
effectuate the transfer of servicing Buyer's designated Servicer, as well
as any servicing fees and expenses payable to such Servicer.
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(e) After the Purchase Date, until the repurchase of any Mortgage Loan, Seller
will have no right to modify or alter the terms of such Mortgage Loan and
Seller will have no obligation or right to repossess such Mortgage Loan or
substitute another Mortgage Loan, in each case except as provided in the
Custodial and Disbursement Agreement.
(f) In the event Seller or its Affiliate is servicing the Mortgage Loans,
Seller shall permit Buyer to inspect Seller's or its Affiliate's servicing
facilities, as the case may be, during normal business hours, for the
purpose of satisfying Buyer that Seller or its Affiliate, as the case may
be, has the ability to service the Mortgage Loans as provided in this
Agreement.
25. INTENT
(a) The parties recognize that each Transaction is a "repurchase agreement" as
that term is defined in Section 101 of Title 11 of the United States Code,
as amended (except insofar as the type of Purchased Assets subject to such
Transaction or the term of such Transaction would render such definition
inapplicable), and a "securities contract" as that term is defined in
Section 741 of Title 11 of the United States Code, as amended (except
insofar as the type of Purchased Assets subject to such Transaction would
render such definition inapplicable).
(b) It is understood that either party's right to liquidate Purchased Assets
delivered to it in connection with Transactions hereunder or to exercise
any other remedies pursuant to Section 16 hereof is a contractual right to
liquidate such Transaction as described in Sections 555 and 559 of Title
11 of the United States Code, as amended.
(c) The parties agree and acknowledge that if a party hereto is an "insured
depository institution," as such term is defined in the Federal Deposit
Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a
"qualified financial contract," as that term is defined in FDIA and any
rules, orders or policy statements thereunder (except insofar as the type
of Purchased Assets subject to such Transaction would render such
definition inapplicable).
(d) It is understood that this Agreement constitutes a "netting contract" as
defined in and subject to Title IV of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA") and each payment
entitlement and payment obligation under any Transaction hereunder shall
constitute a "covered contractual payment entitlement" or "covered
contractual payment obligation", respectively, as defined in and subject
to FDICIA (except insofar as one or both of the parties is not a
"financial institution" as that term is defined in FDICIA or regulations
promulgated thereunder).
26. PERIODIC DUE DILIGENCE REVIEW
Seller acknowledges that Buyer has the right to perform continuing due
diligence reviews with respect to the Mortgage Loans, for purposes of
verifying compliance with the representations, warranties and
specifications made hereunder, or otherwise, and Seller agrees that upon
reasonable (but no less than one (1) Business Day's) prior notice unless
an Event of Default shall have occurred, in which case no notice is
required, to Seller,
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Buyer or its authorized representatives will be permitted during normal
business hours to examine, inspect, and make copies and extracts of, the
Mortgage Files and any and all documents, records, agreements, instruments
or information relating to such Mortgage Loans in the possession or under
the control of Seller and/or Custodian. Seller also shall make available
to Buyer a knowledgeable financial or accounting officer for the purpose
of answering questions respecting the Mortgage Files and the Mortgage
Loans. Without limiting the generality of the foregoing, Seller
acknowledges that Buyer may purchase Mortgage Loans from Seller based
solely upon the information provided by Seller to Buyer in the Seller
Asset Schedule and the representations, warranties and covenants contained
herein, and that Buyer, at its option, has the right at any time to
conduct a partial or complete due diligence review on some or all of the
Mortgage Loans purchased in a Transaction, including without limitation
ordering new credit reports and new appraisals on the related Mortgaged
Properties and otherwise re-generating the information used to originate
such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or
engage a mutually agreed upon third party underwriter to perform such
underwriting. Seller agrees to cooperate with Buyer and any third party
underwriter in connection with such underwriting, including, but not
limited to, providing Buyer and any third party underwriter with access to
any and all documents, records, agreements, instruments or information
relating to such Mortgage Loans in the possession, or under the control,
of Seller. Buyer shall pay all out-of-pocket costs and expenses incurred
by Buyer in connection with Buyer's activities pursuant to this Section 26
("Due Diligence Costs"); provided that,(i) in the event that a Default or
an Event of Default shall have occurred or (ii) in the event that Buyer
shall determine in good faith the need to confirm compliance with local,
state or federal laws concerning the regulation of predatory lending
practices, Seller shall reimburse Buyer for all Due Diligence Costs for
any and all reasonable out-of-pocket costs and expenses incurred by Buyer
in connection with Buyer's activities pursuant to this Section 26.
27. BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT
(a) Seller hereby irrevocably constitutes and appoints Buyer and any officer
or agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of Seller and in the name of Seller or in its own name, from
time to time in Buyer's discretion, for the purpose of carrying out the
terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be reasonably
necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, Seller hereby gives
Buyer the power and right, on behalf of Seller, without assent by, but
with notice to, Seller, to do the following:
(1) in the name of Seller, or in its own name, or otherwise, to take
possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under
any mortgage insurance or with respect to any other Purchased Items
and to file any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by Buyer
for the purpose of collecting any and all such moneys due under any
such
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mortgage insurance or with respect to any other Purchased Items
whenever payable;
(2) to pay or discharge taxes and Liens levied or placed on or
threatened against the Purchased Items;
(3) (A) to direct any party liable for any payment under any Purchased
Items to make payment of any and all moneys due or to become due
thereunder directly to Buyer or as Buyer shall direct; (B) to ask or
demand for, collect, receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Purchased Items; (C) to sign and
endorse any invoices, assignments, verifications, notices and other
documents in connection with any Purchased Items; (D) to commence
and prosecute any suits, actions or proceedings at law or in equity
in any court of competent jurisdiction to collect the Purchased
Items or any proceeds thereof and to enforce any other right in
respect of any Purchased Items; (E) to defend any suit, action or
proceeding brought against Seller with respect to any Purchased
Items; (F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as Buyer may deem
appropriate; and (G) generally, to sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any Purchased
Items as fully and completely as though Buyer were the absolute
owner thereof for all purposes, and to do, at Buyer's option and
Seller's expense, at any time, and from time to time, all acts and
things which Buyer deems necessary to protect, preserve or realize
upon the Purchased Items and Buyer's Liens thereon and to effect the
intent of this Agreement, all as fully and effectively as such
Seller might do;
(4) to direct the actions of Custodian with respect to the Purchased
Items under the Custodial and Disbursement Agreement; and
(5) to execute, from time to time, in connection with any sale provided
for in Section 13, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Purchased
Items.
Seller hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
(b) The powers conferred on Buyer hereunder are solely to protect Buyer's
interests in the Purchased Items and Purchase Assets and shall not impose
any duty upon it to exercise any such powers. Buyer shall be accountable
only for amounts that it actually receives as a result of the exercise of
such powers, and neither it nor any of its officers, directors, employees
or agents shall be responsible to Seller for any act or failure to act
hereunder, except for its or their own gross negligence or willful
misconduct.
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28. MISCELLANEOUS
(a) If there is any conflict between the terms of this Agreement or any
Transaction entered into hereunder and the Custodial and Disbursement
Agreement, this Agreement shall prevail.
(b) This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such
counterpart.
(c) The captions and headings appearing herein are for included solely for
convenience of reference and are not intended to affect the interpretation
of any provision of this Agreement.
(d) Seller hereby acknowledges that:
(1) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Repurchase Documents;
(2) Buyer has no fiduciary relationship to Seller; and
(3) no joint venture exists between Buyer and Seller.
29. CONFIDENTIALITY
Seller and Buyer hereby acknowledge and agree that all information
regarding the terms set forth in any of the Repurchase Documents or the
Transactions contemplated thereby (the "Confidential Terms") shall be kept
confidential by it and the Buyer and shall not be divulged to any party
without the prior written consent of such other party except to the extent
that (i) it is necessary to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies or regulatory bodies or
in order to comply with any applicable federal or state laws, (ii) any of
the Confidential Terms are in the public domain other than due to a breach
of this covenant, (iii) in the event of a Default or an Event of Default,
Buyer determines such information to be necessary or desirable to disclose
in connection with the marketing and sales of the Purchased Assets or
otherwise to enforce or exercise Buyer's rights hereunder or (iv) Buyer
determines such disclosure to be necessary in connection with pledging,
repledging, transferring, hypothecating, or rehypothecating the Purchased
Assets and Purchased Items pursuant to Section 9 hereof. Notwithstanding
the foregoing or anything to the contrary contained herein or in any other
transaction document, the parties hereto may disclose to any and all
Persons, without limitation of any kind, the federal, state and local tax
treatment of the Transaction, any fact relevant to understanding the
federal, state and local tax treatment of the Transaction, and all
materials of any kind (including opinions or other tax analyses) relating
to such federal, state and local tax treatment and any fact relevant to
understanding such tax treatment; provided that no party may disclose any
pricing terms (including, without limitation, the Pricing Rate, Commitment
Fee, Purchase Percentage and Purchase Price) or other nonpublic business
or financial information (including any sublimits and financial covenants)
that is unrelated to the purported or claimed federal,
-62-
state and local tax treatment of the Transaction and is not relevant to
understanding the federal, state and local tax treatment of the
Transaction, without the prior written consent of the other party. The
provisions set forth in this Section 29 shall survive the termination of
this Agreement for a period of one year following such termination.
30. CONFLICTS
In the event of any conflict between the terms of this Agreement, any
other Repurchase Document and any Confirmation, the documents shall
control in the following order of priority: first, the terms of the
Confirmation shall prevail, then terms of this Agreement shall prevail,
and then terms of the other Repurchase Documents shall prevail.
31. SET-OFF
In addition to any rights and remedies of Buyer provided by this Agreement
and by law, Buyer shall have the right, without prior notice to Seller,
any such notice being expressly waived by Seller to the extent permitted
by applicable law, upon any amount becoming due and payable by Seller to
Buyer hereunder or otherwise (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against
such amount any and all monies and other property of Seller, any and all
deposits (general or special, time or demand, provisional or final), in
any currency, and any and all other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, and in each case at any time held or
owing by Buyer or any Affiliate thereof to or for the credit or the
account of Seller. Buyer agrees promptly to notify Seller after any such
set-off and application made by Buyer; provided that the failure to give
such notice shall not affect the validity of such set-off and application.
32. OBLIGATIONS JOINT AND SEVERAL
(a) Each of the Seller Entities hereby acknowledges and agrees that it shall
be jointly and severally liable to Buyer for all representations,
warranties, covenants, obligations and indemnities of Seller hereunder.
(b) Each of the Seller Entities waives any and all notice of the creation,
renewal, extension or accrual of any of the Repurchase Obligations and
notice of or proof of reliance by the Buyer upon the obligations of such
Seller Entity set forth herein or acceptance of such obligations by such
Seller Entity hereunder. Each Seller Entity waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon
each other Seller Entity with respect to the Repurchase Obligations. Each
Seller Entity's obligations shall be construed as continuing, absolute and
unconditional obligations without regard to (i) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by any Seller Entity against the
Buyer, or (ii) any other circumstance whatsoever (with or without notice
to or knowledge of any Seller Entity) which constitutes, or might be
construed to constitute, an equitable or legal discharge of such Seller
Entity for the Repurchase Obligations. Each Seller Entity hereby waives
any defense arising by reason
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of, and any and all right to assert against the Buyer any claim or defense
based upon, an election of remedies by the Buyer which in any manner
impairs, affects, reduces, releases, destroys and/or extinguishes such
Seller Entity's subrogation rights, rights to proceed against such Seller
Entity or any other party for reimbursement or contribution, and/or any
other rights of such Seller Entity to proceed against any other Seller
Entity, against any other guarantor, or against any other person or
security.
(c) The parties intend that the each Seller Entity's Repurchase Obligations
are primary obligations and not in the nature of a guaranty or suretyship.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date set forth above.
BUYER:
IXIS REAL ESTATE CAPITAL INC.
By: /s/ Joe Piscina
--------------------------------------
Name: Joe Piscina
Title: Managing Director
By: /s/ William Branagh
--------------------------------------
Name: William Branagh
Title: Managing Director
Address for Notices: with a copy to:
9 West 57th Street 9 West 57th Street
New York, NY 10019 New York, NY 10019
Attn: Ray Sullivan Attn: Al Zakes, Esq., General Counsel
Telecopier No.: (212) 891-1922
Telecopier No.: (212) 891-3347 Telephone No.: (212) 891-6137
Telephone No.: (212) 891-5815 Email: albert.zakes@ixiscm.com
Email: r.sullivan@ixiscm.com
and with a copy to:
9 West 57th Street
New York, NY 10019
Attn: Michael Friedman
Telecopier No.: (212) 891-6143
Telephone No.: (212) 891-6261
Email: m.friedman@ixiscm.com
Exh. IX-1
SELLER:
AMERICAN HOME MORTGAGE CORP.
By: /s/ Alan Horn
--------------------------------------
Name: Alan Horn
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ Alan Horn
--------------------------------------
Name: Alan Horn
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: /s/ Alan Horn
--------------------------------------
Name: Alan Horn
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
By: /s/ Alan Horn
--------------------------------------
Name: Alan Horn
Title: Executive Vice President,
General Counsel and Secretary
Exh. IX-2
AMERICAN HOME MORTGAGE SERVICING, INC.
f/k/a COLUMBIA NATIONAL, INCORPORATED
By: /s/ Alan Horn
--------------------------------------
Name: Alan Horn
Title: Executive Vice President,
General Counsel and Secretary
Address for Notices:
--------------------
538 Broadhollow Road,
Melville, New York 11747
Attn: Alan B. Horn, Esq., Executive
Vice President and General Counsel
Telecopier No.: (800) 209-7276
Telephone No: (516) 396-7703
Email: alan.horn@americanhm.com
Exh. IX-3