EXHIBIT 10.15
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MASTER REPURCHASE AGREEMENT
Dated as of December 14, 2005
Among:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., as Buyer,
AMERICAN HOME MORTGAGE CORP., as Seller
AMERICAN HOME MORTGAGE ACCEPTANCE, INC., as Seller
and
AMERICAN HOME MORTGAGE INVESTMENT CORP., as Seller
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TABLE OF CONTENTS
1. APPLICABILITY............................................................1
2. DEFINITIONS AND ACCOUNTING MATTERS.......................................1
3. THE TRANSACTIONS........................................................15
4. PAYMENT AND TRANSFER....................................................18
5. TAXES; TAX TREATMENT....................................................18
6. MARGIN MAINTENANCE......................................................19
7. INCOME PAYMENTS.........................................................20
8. SECURITY INTEREST; BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT..............20
9. CONDITIONS PRECEDENT....................................................23
10. RELEASE OF PURCHASED LOANS..............................................26
11. RELIANCE................................................................26
12. REPRESENTATIONS AND WARRANTIES..........................................27
13. COVENANTS OF SELLER.....................................................31
14. REPURCHASE DATE PAYMENTS/COLLECTIONS....................................38
15. REPURCHASE OF PURCHASED LOANS...........................................38
16. SUBSTITUTION............................................................39
17. ACCELERATION OF REPURCHASE DATE.........................................39
18. EVENTS OF DEFAULT.......................................................39
19. REMEDIES................................................................42
20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE...............................45
21. NOTICES AND OTHER COMMUNICATIONS........................................45
22. USE OF EMPLOYEE PLAN ASSETS.............................................45
23. INDEMNIFICATION AND EXPENSES............................................45
24. WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS..............................47
25. FURTHER ASSURANCES......................................................47
26. TERMINATION.............................................................47
27. SEVERABILITY............................................................47
28. BINDING EFFECT; GOVERNING LAW...........................................47
29. AMENDMENTS..............................................................47
30. SUCCESSORS AND ASSIGNS..................................................48
31. SURVIVAL................................................................48
32. CAPTIONS................................................................48
33. COUNTERPARTS............................................................48
34. SUBMISSION TO JURISDICTION; WAIVERS.....................................48
35. WAIVER OF JURY TRIAL....................................................49
36. ACKNOWLEDGEMENTS........................................................49
37. HYPOTHECATION OR PLEDGE OF PURCHASED ITEMS..............................49
38. ASSIGNMENTS; PARTICIPATIONS.............................................49
39. SINGLE AGREEMENT........................................................50
40. INTENT..................................................................50
41. CONFIDENTIALITY.........................................................51
42. SERVICING...............................................................51
43. PERIODIC DUE DILIGENCE REVIEW...........................................52
44. SET-OFF.................................................................53
45. JOINT AND SEVERAL LIABILITY; CROSS-DEFAULT..............................53
46. ENTIRE AGREEMENT........................................................53
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SCHEDULES
SCHEDULE 1 Representations and Warranties re: Loans
SCHEDULE 2 Filing Jurisdictions and Offices
SCHEDULE 3 Relevant States
SCHEDULE 4 Subsidiaries
EXHIBITS
EXHIBIT A Forms of Monthly and Quarterly Certifications
EXHIBIT B Form of Custodial Agreement
EXHIBIT C Form of Opinion of Counsel to the Seller
EXHIBIT D Form of Notice of Transaction Notice
EXHIBIT E Underwriting Guidelines
EXHIBIT F Required Fields for Servicing Transmission
EXHIBIT G Required Fields for Loan Data Transmission
EXHIBIT H Form of Market Value Certificate
EXHIBIT I Form of Confidentiality Agreement
EXHIBIT J Form of Instruction Letter
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MASTER REPURCHASE AGREEMENT, dated as of December 14, 2005, among
American Home Mortgage Corp., a New York corporation, American Home Mortgage
Acceptance, Inc., a Maryland corporation, and American Home Mortgage Investment
Corp., a Maryland corporation, each, and jointly and severally, as seller
("Seller") and Greenwich Capital Financial Products, Inc., a Delaware
corporation ("Buyer", which term shall include any "Principal" as defined and
provided for in Annex I), or as agent pursuant hereto ("Agent").
1. APPLICABILITY
Buyer may, from time to time, upon the terms and conditions set forth
herein, agree to enter into transactions in which Seller transfers to Buyer
Eligible Loans against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller Purchased Loans at a date certain,
against the transfer of funds by Seller. Each such transaction shall be referred
to herein as a "Transaction", and, unless otherwise agreed in writing, shall be
governed by this Agreement.
2. DEFINITIONS AND ACCOUNTING MATTERS
(a) Defined Terms. As used herein, the following terms 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):
"Accepted Servicing Practices" shall mean with respect to any Loan,
those accepted and prudent mortgage servicing practices (including collection
procedures) of prudent mortgage lending institutions which service mortgage
loans of the same type as the Loans in the jurisdiction where the related
Mortgaged Property is located, and which are generally in accordance with Fannie
Mae servicing practices and procedures for MBS pool mortgages, as defined in the
Fannie Mae servicing guides including future updates, and in a manner at least
equal in quality to the servicing the Seller or Seller's designee provides to
mortgage loans which they own in their own portfolio.
"Additional Purchased Loans" shall have the meaning specified in
Section 5(a) hereof.
"Adjustable Rate Loan" shall mean a Loan which provides for the
adjustment of the Mortgage Interest Rate payable in respect thereto.
"Adjustment Date" shall mean with respect to each Adjustable Rate Loan,
the date set forth in the related Note on which the Mortgage Interest Rate on
the Loan is adjusted in accordance with the terms of the Note.
"Affiliate" shall mean, with respect to any Person, any other Person
which, directly or indirectly, controls, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" (together
with the correlative meanings of "controlled by" and "under common control
with") means possession, directly or indirectly, of the power (a) to vote 10% or
more of the securities (on a fully diluted basis) having ordinary voting power
for the directors or managing general partners (or their equivalent) of such
Person, or (b) to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Agent" shall mean Buyer or any successor.
"Agreement" shall mean this Master Repurchase Agreement (including all
exhibits, schedules and other addenda hereto or thereto), as supplemented by the
Pricing Side Letter, as it may be amended, further supplemented or otherwise
modified from time to time.
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"ALTA" shall mean the American Land Title Association.
"Applicable Margin" shall have the meaning set forth in the Pricing
Side Letter.
"Appraised Value" shall mean the value set forth in an appraisal made
in connection with the origination of the related Loan as the value of the
Mortgaged Property (or the related Cooperative Unit in the case of a Cooperative
Loan).
"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.
"Attorney Bailee Letter" shall have the meaning assigned to such term
in the Custodial Agreement.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978,
as amended from time to time.
"Best's" shall mean Best's Key Rating Guide, as the same shall be
amended from time to time.
"Business Day" shall mean any day other than (i) a Saturday or Sunday,
(ii) a day on which the New York Stock Exchange, the Federal Reserve Bank of New
York, the Custodian or banking and savings and loan institutions in the State of
New York or Connecticut or the City of New York or the city or state in which
the Custodian's offices are located are closed, or (iii) a day on which trading
in securities on the New York Stock Exchange or any other major securities
exchange in the United States is not conducted.
"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 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 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.
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"Change of Control" shall mean the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of outstanding shares of voting stock of such
Person at any time if after giving effect to such acquisition (i) such Person or
Persons owns twenty percent (20%) or more of such outstanding voting stock or
(ii) American Home Mortgage Investment Corp. does not own directly or indirectly
more than fifty percent (50%) of such outstanding voting stock.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collection Account" shall mean the following account established by
the Seller in accordance with Section 13(ii) for the benefit of Buyer,
"Greenwich Capital Financial Products, Inc. - P&I account - Account # _______".
"Combined Loan-to-Value Ratio" or "CLTV" shall mean with respect to any
Loan, the ratio of (i) the original outstanding principal amount of the Loan and
any other loan which is secured by a lien on the related Mortgaged Property to
(ii) the lesser of (a) the Appraised Value of the Mortgaged Property at
origination of such Loan, or (b) if the Mortgaged Property was purchased within
twelve (12) months of the origination of the Loan, the purchase price of the
Mortgaged Property.
"Confirmation" shall have the meaning assigned thereto in Section 3(a)
hereof.
"Contractual Obligation" shall mean as to any Person, any material
provision of any agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound or any material
provision of any security issued by such Person.
"Cooperative Corporation" shall mean with respect to any Cooperative
Loan, the cooperative apartment corporation that holds legal title to the
related Cooperative Project and grants occupancy rights to units therein to
stockholders through Proprietary Leases or similar arrangements.
"Cooperative Loan" shall mean a Loan that is secured by a First Lien on
and perfected security interest in Cooperative Shares and the related
Proprietary Lease granting exclusive rights to occupy the related Cooperative
Unit in the building owned by the related Cooperative Corporation.
"Cooperative Project" shall mean, with respect to any Cooperative Loan,
all real property and improvements thereto and rights therein and thereto owned
by a Cooperative Corporation including without limitation the land, separate
dwelling units and all common elements.
"Cooperative Shares" shall mean, with respect to any Cooperative Loan,
the shares of stock issued by a Cooperative Corporation and allocated to a
Cooperative Unit and represented by a stock certificate.
"Cooperative Unit" shall mean, with respect to a Cooperative Loan, a
specific unit in a Cooperative Project.
"Custodial Agreement" shall mean the Custodial Agreement, dated as of
December 14, 2005, among Seller, Buyer, and Custodian as the same shall be
modified and supplemented and in effect from time to time.
"Custodian" shall mean Deutsche Bank Trust Company Americas, or its
successors and permitted assigns.
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"Custodian Loan Transmission" shall have the meaning assigned thereto
in the Custodial Agreement.
"Default" shall mean an Event of Default or any event, that, with the
giving of notice or the passage of time or both, would become an Event of
Default.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Dry Loan" shall mean a first or second lien Loan which is underwritten
in accordance with the Underwriting Guidelines and as to which the related
Mortgage File contains all required Loan Documents.
"Due Date" shall mean the day of the month on which the Monthly Payment
is due on a Loan, exclusive of any days of grace.
"Due Diligence Review" shall mean the performance by Buyer of any or
all of the reviews permitted under Section 44 hereof with respect to any or all
of the Loans or the Seller or related parties, as desired by Buyer from time to
time.
"Effective Date" shall mean the date upon which the conditions
precedent set forth in Section 9(a) have been satisfied.
"Electronic Tracking Agreement" shall mean the electronic tracking
agreement among Buyer, Seller, MERSCORP, Inc. and MERS, in form and substance
reasonably acceptable to Buyer to be entered into in the event that any of the
Loans become MERS Loans; provided that if no Loans are or will be MERS Loans,
all references herein to the Electronic Tracking Agreement shall be disregarded.
"Electronic Transmission" shall mean the delivery of information in an
electronic format reasonably 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).
"Eligible Loan" shall have the meaning assigned thereto in the Pricing
Side Letter.
"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 Letter" shall mean, with respect to any Wet Loan that becomes
subject to a Transaction before the end of the applicable rescission period, an
escrow agreement or letter, which is fully assignable to the Buyer, stating that
in the event of a Rescission or if for any other reason the Loan fails to fund
on a given day, the party conducting the closing is holding all funds which
would have been disbursed on behalf of the Mortgagor as agent for and for the
benefit of the Buyer and such funds shall be returned to the Seller not later
than one Business Day after the date of Rescission or other failure of the Loan
to fund on a given day.
"Escrow Payments" shall mean, with respect to any Loan, the amounts
constituting ground rents, taxes, assessments, water charges, sewer rents,
municipal charges, mortgage insurance premiums, fire and
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hazard insurance premiums, condominium charges, and any other payments required
to be escrowed by the Mortgagor with the Mortgagee pursuant to the terms of any
Note or Mortgage or any other document.
"Event of Default" shall have the meaning provided in Section 18
hereof.
"Exception" shall have the meaning assigned thereto in the Custodial
Agreement.
"Exception Report" shall mean the exception report prepared by the
Custodian pursuant to the Custodial Agreement.
"Fannie Mae" shall mean FannieMae, or any successor thereto.
"First Lien" shall mean with respect to each Mortgaged Property, the
lien of the mortgage, deed of trust or other instrument securing a mortgage note
which creates a first lien on the Mortgaged Property.
"Freddie Mac" shall mean Freddie Mac, or any successor thereto.
"GAAP" shall mean generally accepted accounting principles in effect
from time to time in the United States of America
"Governmental Authority" shall mean with respect to any Person, any
nation or government, any state or other political subdivision, agency or
instrumentality thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
court or arbitrator having jurisdiction over such Person, any of its
Subsidiaries or any of its properties.
"Gross Margin" shall mean with respect to each Adjustable Rate Loan,
the fixed percentage amount set forth in the related Note and the Loan Schedule
that is added to the Index on each Adjustment Date in accordance with the terms
of the related Note to determine the new Mortgage Interest Rate for such Loan.
"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, to purchase
assets, goods, securities or services, or to take-or-pay 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, to the extent reasonably required by the Buyer.
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.
"Income" shall mean, with respect to any Purchased Loan at any time,
any principal and/or interest thereon and all dividends, sale proceeds
(including, without limitation, any proceeds from the securitization of such
Purchased Loan or other disposition thereof) and other collections and
distributions thereon (including, without limitation, any proceeds received in
respect of mortgage insurance), but not including any commitment fees,
origination fees and/or servicing fees accrued in respect of periods on or after
the initial Purchase Date with respect to such Purchased Loan.
"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
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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) Capital Lease Obligations of such Person; (f)
obligations of such Person under repurchase agreements or like arrangements; (g)
indebtedness of others Guaranteed by such Person; (h) all obligations of such
Person incurred in connection with the acquisition or carrying of fixed assets
by such Person; (i) indebtedness of general partnerships of which such Person is
a general partner; and (j) any other indebtedness of such Person by a note,
bond, debenture or similar instrument.
"Index" shall mean with respect to each Adjustable Rate Loan, the index
identified on the related Loan Schedule and set forth in the related Note for
the purpose of calculating the interest rate thereon.
"Instruction Letter" shall mean a letter agreement between Seller and
the Servicer, or any subservicer, if applicable, substantially in the form of
Exhibit J attached hereto, in which such Persons acknowledge the Buyer's
ownership interest in the Loans, and agree to remit any collections with respect
to the Loans as Buyer may so direct from time to time, which Instruction Letter
may be delivered by Buyer to such Servicer or subservicer, as applicable in its
sole discretion.
"Insurance Proceeds" shall mean with respect to each Loan, proceeds of
insurance policies insuring the Loan or the related Mortgaged Property.
"Insured Closing Letter" shall mean, with respect to any Wet Loan that
becomes subject to a Transaction before the end of the applicable rescission
period, a letter of indemnification from an Approved Title Insurance Company, in
any jurisdiction where insured closing letters are permitted under applicable
law and regulation, addressed to the Seller, which is fully assignable to the
Buyer, with coverage that is customarily acceptable to Persons engaged in the
origination of mortgage loans, identifying the Settlement Agent covered thereby,
which may be in the form of a blanket letter.
"Interest Rate Adjustment Date" means with respect to each Adjustable
Rate Loan, the date, specified in the related Note and the Loan Schedule, on
which the Mortgage Interest Rate is adjusted.
"Interest Rate Protection Agreement" shall mean with respect to any or
all of the Purchased Loans, any interest rate swap, cap or collar agreement or
any other applicable hedging arrangements providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations,
either generally or under specific contingencies entered into by Seller and
reasonably acceptable to Buyer.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, including all rules and regulations promulgated thereunder.
"LIBO Base Rate" shall mean with respect to each day on which a
Transaction is outstanding (or if such day is not a Business Day, the next
succeeding Business Day), the rate per annum equal to the rate published by
Bloomberg or if such rate is not available, the rate appearing at page 3750 of
the Telerate Screen as one-month LIBOR on such date, and if such rate shall not
be so quoted, the rate per annum at which the Buyer is offered Dollar deposits
at or about 11:00 A.M., New York City time, on such date by prime banks in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange
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operations in respect of its Transactions are then being conducted for delivery
on such day for a period of one month and in an amount comparable to the amount
of the Transactions to be outstanding on such day.
"LIBO Rate" shall mean with respect to each Interest Period pertaining
to a Transaction, a rate (reset on a monthly basis) per annum determined by
Buyer in its sole discretion in accordance with the following formula (rounded
upwards to the nearest l/100th of one percent), which rate as determined by
Buyer shall be conclusive absent manifest error by Buyer:
LIBO Base Rate
---------------------------------------
1.00 - LIBO Reserve Requirements
The LIBO Rate shall be calculated on each Purchase Date and Repurchase
Date commencing with the first Purchase Date.
"LIBO Reserve Requirements" shall mean for any Interest Period for any
Transaction, the aggregate (without duplication) of the rates (expressed as a
decimal fraction) of reserve requirements applicable to the Buyer in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction with
respect thereto), dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such Governmental Authority. As of
the Effective Date, the LIBO Reserve Requirements shall be deemed to be zero.
"Lien" shall mean any mortgage, lien, pledge, charge, security interest
or similar encumbrance.
"Loan" shall mean a mortgage loan or a Cooperative Loan which the
Custodian has been instructed to hold for the Buyer pursuant to the Custodial
Agreement, and which loan includes, without limitation, (i) a Note, the related
Mortgage and all other Loan Documents and (ii) all right, title and interest of
the Seller in and to the Mortgaged Property covered by such Mortgage.
"Loan Data Transmission" shall mean a computer tape or other electronic
medium generated by or on behalf of Seller and delivered or transmitted to the
Buyer and Custodian which provides information relating to the Purchased Loans,
including the information set forth in the Loan Schedule, in a format reasonably
acceptable to the Buyer.
"Loan Documents" shall have the meaning assigned thereto in the
Custodial Agreement.
"Loan List" shall mean the hard copy report provided by the Seller
which shall include with respect to each Loan to be included in a Transaction:
(i) the Loan number, (ii) the Mortgagor's name, (iii) the original principal
amount of the Loan, (iv) the current principal balance of the Loan and (v)
whether the Loan is a MERS Loan.
"Loan Schedule" shall mean a hard copy or electronic format
incorporating the fields identified on Exhibit G, any other information required
by Buyer and any other additional information to be provided pursuant to the
Custodial Agreement.
"Loan-to-Value Ratio" or "LTV" shall mean with respect to any Loan, the
ratio of the outstanding principal amount of such Loan at the time of
origination to the lesser of (a) the Appraised Value of the related Mortgaged
Property at origination of such Loan and (b) if the related Mortgaged Property
was purchased within twelve (12) months of the origination of such Loan, the
purchase price of the related Mortgaged Property.
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"Margin Call" shall have the meaning assigned thereto in Section 6(a)
hereof.
"Margin Deficit" shall have the meaning assigned thereto in Section
6(a) hereof.
"Market Value" shall mean the value, determined by the Buyer in its
sole reasonable discretion, of the Loans if sold in their entirety to a single
third-party purchaser. The Buyer's determination of Market Value shall be
conclusive upon the parties, absent manifest error on the part of the Buyer. The
Buyer shall have the right to mark to market the Loans on a daily basis which
Market Value with respect to one or more of the Loans may be determined to be
zero. The Seller acknowledges that the Buyer's determination of Market Value is
for the limited purpose of determining the value of Purchased Loans which are
subject to Transactions hereunder without the ability to perform customary
purchaser's due diligence and is not necessarily equivalent to a determination
of the fair market value of the Loans achieved by obtaining competing bids in an
orderly market in which the originator/servicer is not in default under a
revolving debt facility and the bidders have adequate opportunity to perform
customary loan and servicing due diligence. The Market Value shall be deemed to
be zero with respect to each Loan that is not an Eligible Loan.
"Master Netting Agreement" shall mean the letter agreement among Buyer
and Seller certain Affiliates and Subsidiaries of Buyer and/or Seller in form
and substance acceptable to Buyer and Seller to be entered into in the event
that Buyer and Seller agree; provided that if such agreement is not entered
into, all references herein to the Master Netting Agreement shall be
disregarded.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the property, business, operations or financial condition of the Seller, (b) the
ability of the Seller to perform in all material respects its obligations under
any of the Program Documents to which it is a party, (c) the validity or
enforceability in all material respects of any of the Program Documents, (d) the
rights and remedies of the Buyer under any of the Program Documents, (e) the
timely repurchase of the Purchased Loans or payment of other amounts payable in
connection therewith, or (f) the Purchased Items.
"Maximum Aggregate Purchase Price" shall mean $500,000,000, less any
amounts outstanding from time to time under any other financing, purchase, note
purchase, repurchase, gestation or similar facility entered into between the
Buyer (or any of its affiliates or subsidiaries) and the Seller (or any of their
affiliates or subsidiaries).
"Maximum Mortgage Interest Rate" shall mean with respect to each
Adjustable Rate Loan, a rate that is set forth on the related Loan Schedule and
in the related Note and is the maximum interest rate to which the Mortgage
Interest Rate on such Loan may be increased on any Adjustment Date.
"MERS" shall mean Mortgage Electronic Registration Systems, Inc., a
Delaware corporation, or any successor in interest thereto.
"MERS Identification Number" shall mean the eighteen digit number
permanently assigned to each MERS Loan.
"MERS Loan" shall mean any Loan as to which the related Mortgage or
Assignment of Mortgage has been recorded in the name of MERS, as agent for the
holder from time to time of the Note, and which is identified as a MERS Loan on
the related Loan List.
"Monthly Payment" shall mean the scheduled monthly payment of principal
and interest on a Loan as adjusted in accordance with changes in the Mortgage
Interest Rate pursuant to the provisions of the Note for an Adjustable Rate
Loan.
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"Mortgage" shall mean with respect to a Loan, the mortgage, deed of
trust or other instrument, which creates a First Lien or Second Lien (as
indicated on the Loan Data Transmission) on either (i) with respect to a Loan
other than a Cooperative Loan, the fee simple or leasehold estate in such real
property or (ii) with respect to a Cooperative Loan, the Proprietary Lease and
related Cooperative Shares, which in either case secures the Note.
"Mortgage File" shall have the meaning assigned thereto in the
Custodial Agreement.
"Mortgage Interest Rate" means the annual rate of interest borne on a
Note, which shall be adjusted from time to time with respect to Adjustable Rate
Loans.
"Mortgaged Property" shall mean 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 Note.
"Mortgagee" shall mean the record holder of a Note secured by a
Mortgage.
"Mortgagor" shall mean the obligor or obligors on a 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.
"MV Margin Amount" means, with respect to any Transaction, as of any
date of determination, the amount obtained by application of the MV Margin
Percentage to the Repurchase Price (reduced by the amount of any accrued and
unpaid Price Differential) for such Transaction as of such date.
"MV Margin Percentage" shall have the meaning assigned thereto in the
Pricing Side Letter.
"Negative Amortization" shall mean with respect to each Negative
Amortization Loan, that portion of interest accrued at the Mortgage Interest
Rate in any month which exceeds the Monthly Payment on the related Loan for such
month and which, pursuant to the terms of the Note, is added to the principal
balance of the Loan.
"Negative Amortization Loan" shall mean each Loan that may be subject
to Negative Amortization.
"Net Income" shall mean, for any period, the net income of any Person
for such period as determined in accordance with GAAP.
"Net Worth" shall mean, with respect to any Person, the excess of total
assets of such Person, over total liabilities of such Person, determined in
accordance with GAAP.
"Note" shall mean, with respect to any Loan, the related promissory
note together with all riders thereto and amendments thereof or other evidence
of indebtedness of the related Mortgagor.
"Obligations" shall mean (a) all of Seller's obligation to pay the
Repurchase Price on the Repurchase Date and other obligations and liabilities of
Seller to Buyer, its Affiliates, the Custodian or any other Person arising
under, or in connection with, the Program Documents or directly related to the
Purchased Loans, whether now existing or hereafter arising; (b) any and all sums
paid by Buyer or on behalf of Buyer pursuant to the Program Documents in order
to preserve any Purchased Loan or its
9
interest therein; (c) in the event of any proceeding for the collection or
enforcement of any of Seller's indebtedness, obligations or liabilities referred
to in clause (a), the reasonable expenses of retaking, holding, collecting,
preparing for sale, selling or otherwise disposing of or realizing on any
Purchased Loan, or of any exercise by Buyer or any Affiliate of Buyer of its
rights under the Program Documents, including without limitation, reasonable
attorneys' fees and disbursements and court costs; and (d) all of Seller's
indemnity obligations to Buyer pursuant to the Program Documents.
"Par Margin Amount" means, with respect to any Transaction, as of any
date of determination, the amount obtained by application of the Par Margin
Percentage to the Repurchase Price (reduced by the amount of any accrued and
unpaid Price Differential) for such Transaction as of such date.
"Par Margin Percentage" shall have the meaning assigned thereto in the
Pricing Side Letter.
"Participants" shall have the meaning assigned thereto in Section 39
hereof.
"Payment Adjustment Date" shall mean with respect to each Negative
Amortization Loan, the date on which Monthly Payments shall be adjusted, which
date shall be specified on the Loan Data Transmission.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Exceptions" shall mean the following exceptions to lien
priority: (i) the lien of current real property taxes and assessments not yet
due and payable; (ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
acceptable to mortgage lending institutions generally and specifically referred
to in the lender's title insurance policy delivered to the originator of the
Loan and (A) referred to or otherwise considered in the appraisal (if any) made
for the originator of the Loan or (B) which do not adversely affect the
appraised value of the Mortgaged Property set forth in such appraisal; (iii)
other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property; and (iv) in the case of a Second Lien Loan, a First Lien on
the Mortgaged Property.
"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 either Seller or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"PMI Policy" or "Primary Insurance Policy" shall mean a policy of
primary mortgage guaranty insurance issued by a Qualified Insurer.
"Post-Default Rate" shall mean, in respect of the Repurchase Price for
any Transaction or any other amount under this Agreement, or any other Program
Document that is not paid when due to the Buyer (whether at stated maturity, by
acceleration or mandatory prepayment or otherwise), a rate per annum during the
period from and including the due date to but excluding the date on which such
amount is paid in full equal to 2% per annum, plus (a)(i) the Pricing Rate
otherwise applicable to such Loan or other amount, or (ii) if no Pricing Rate is
otherwise applicable, the LIBO Rate plus (b) the Applicable Margin.
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"Price Differential" shall mean, with respect to each Transaction as of
any date of determination, the aggregate amount obtained by daily application of
the Pricing Rate (or during the continuation of an Event of Default, by daily
application of the Post-Default Rate) for such Transaction to the Purchase Price
for such Transaction on a 360-day-per-year basis for the actual number of days
elapsed during the period commencing on (and including) the Purchase Date and
ending on (but excluding) the date of determination (reduced by any amount of
such Price Differential in respect of such period previously paid by Seller to
Buyer with respect to such Transaction).
"Pricing Rate" shall mean the per annum percentage rate for
determination of the Price Differential as set forth in the Pricing Side Letter.
"Pricing Side Letter" shall mean the pricing side letter, dated as of
December 14, 2005, among Seller and Buyer, as the same may be amended,
supplemented or modified from time to time.
"Principal" shall have the meaning given to it in Annex I.
"Program Documents" shall mean this Agreement, the Custodial Agreement,
any Servicing Agreement, the Pricing Side Letter, any assignment of an Interest
Rate Protection Agreement, any Instruction Letter, the Electronic Tracking
Agreement and any other agreement entered into by Seller, on the one hand, and
the Buyer and/or any of its Affiliates or Subsidiaries (or Custodian on its
behalf) on the other, in connection herewith or therewith.
"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.
"Proprietary Lease" shall mean the lease on a Cooperative Unit
evidencing the possessory interest of the owner of the Cooperative Shares in
such Cooperative Unit.
"Purchase Date" shall mean, with respect to each Transaction, the date
on which Purchased Loans are sold by Seller to the Buyer hereunder.
"Purchase Price" shall have the meaning assigned thereto in the Pricing
Side Letter.
"Purchased Items" shall have the meaning assigned thereto in Section 8
hereof.
"Purchased Loans" shall mean any of the following assets sold by Seller
to Buyer in a Transaction: the Loans, together with the related Records,
Servicing Rights, Seller's rights under any related Interest Rate Protection
Agreement, Seller's rights under any Escrow Letters and Insured Closing Letters
with respect to the Loans, Seller's rights under any takeout commitment related
to the Loans and other Purchased Items, such other property, rights, titles or
interest as are specified on a related Transaction Notice, and all instruments,
chattel paper, and general intangibles comprising or relating to all of the
foregoing. The term "Purchased Loans" with respect to any Transaction at any
time shall also include Additional Purchased Loans delivered pursuant to Section
5(a) hereof and Substitute Loans delivered pursuant to Section 16 hereof.
"Qualified Insurer" shall mean an insurance company duly qualified as
such under the laws of each state in which any Mortgaged Property is located,
duly authorized and licensed in each such state to transact the applicable
insurance business and to write the insurance provided, and approved as an
insurer by Fannie Mae and Freddie Mac and whose claims paying ability is rated
in the two highest rating categories by any of the rating agencies with respect
to primary mortgage insurance and in the two highest rating categories by Best's
with respect to hazard and flood insurance.
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"Qualified Originator" shall mean (a) any Seller and (b) any other
originator of Loans as specified by Seller on the Loan Schedule attached to the
related Transaction Notice.
"Reacquired Loans" shall have the meaning assigned thereto in Section
16.
"REIT" shall mean a real estate investment trust, as defined in Section
856 of the Code.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA, 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.
"Repurchase Date" shall mean the date occurring on (i) the 9th day of
each month following the related Purchase Date (or if such date is not a
Business Day, the following Business Day), (ii) any other Business Day set forth
in the related Transaction Notice and/or the related Confirmation, or (iii) the
date determined by application of Section 19, as applicable.
"Repurchase Price" shall mean the price at which Purchased Loans are to
be transferred from Buyer to Seller upon termination of a Transaction, which
will be determined in each case (including Transactions terminable upon demand)
as the sum of the outstanding Purchase Price for such Purchased Loans and the
Price Differential as of the date of such determination.
"Required Documents" shall have the meaning set forth in the Custodial
Agreement.
"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.
"Rescission" shall mean the right of a Mortgagor to rescind the related
Note and related documents pursuant to applicable law.
"Responsible Officer" shall mean, as to any Person, the chief executive
officer or, with respect to financial matters, the chief financial officer of
such Person; provided, that in the event any such officer is unavailable at any
time he or she is required to take any action hereunder, Responsible Officer
shall mean any officer authorized to act on such officer's behalf as
demonstrated by a certificate of corporate resolution.
"Restricted Payments" shall mean with respect to any Person,
collectively, all dividends or other distributions of any nature (cash,
securities, assets or otherwise), and all payments, by virtue of redemption or
otherwise, on any class of equity securities (including, without limitation,
warrants, options or rights therefor) issued by such Person, whether such
securities are now or may hereafter be authorized or outstanding and any
distribution in respect of any of the foregoing, whether directly or indirectly.
"Second Lien" shall mean with respect to each Mortgaged Property, the
lien of the mortgage, deed of trust or other instrument securing a mortgage note
which creates a second lien on the Mortgaged Property.
"Second Lien Loan" shall mean an Eligible Loan secured by the lien on
the Mortgaged Property, subject only to one prior lien on such Mortgaged
Property securing financing obtained by the related Mortgagor and to Permitted
Exceptions.
"Servicer" shall mean American Home Mortgage Servicing, Inc. in its
capacity as servicer or master servicer of the Loans.
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"Servicing Agreement" shall have the meaning provided in Section 42
hereof.
"Servicing File" shall mean with respect to each Loan, the file
retained by Servicer consisting of all documents that a prudent originator and
servicer would have, including copies of the Loan Documents, all documents
necessary to document and service the Loans and any and all documents required
to be delivered pursuant to any of the Program Documents.
"Servicing Records" shall have the meaning assigned thereto in Section
42 hereof.
"Servicing Rights" shall mean contractual, possessory or other rights
of Seller or any other Person, whether arising under the Servicing Agreement,
the Custodial Agreement or otherwise, to administer or service a Purchased Loan
or to possess related Servicing Records.
"Servicing Transmission" shall mean a computer-readable magnetic or
other electronic format acceptable to the parties containing the information
identified on Exhibit F.
"Settlement Agent" shall have the meaning assigned thereto in the
Custodial Agreement.
"Single Employer Plan" shall mean any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Subservicer" shall have the meaning provided in Section 43(c) hereof.
"Subprime Loan" shall mean an Eligible Loan to a Mortgagor of "B", "C"
or "D" credit quality.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership 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 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.
"Substitute Loans" has the meaning assigned thereto in Section 16.
"Tangible Net Worth" shall mean, with respect to any Person, as of any
date of determination, the consolidated Net Worth of such Person and its
Subsidiaries, less the consolidated net book value of all assets of such Person
and its Subsidiaries (to the extent reflected as an asset in the balance sheet
of such Person or any Subsidiary at such date) which will be treated as
intangibles under GAAP, including, without limitation, such items as deferred
financing expenses, deferred taxes, net leasehold improvements, good will,
trademarks, trade names, service marks, copyrights, patents, licenses and
unamortized debt discount and expense; provided, that residual securities issued
by such Person or its Subsidiaries shall not be treated as intangibles for
purposes of this definition.
"Termination Date" shall mean (i) September 17, 2006, (ii) such earlier
date on which Buyer may elect, in its sole discretion, by providing thirty (30)
days' prior written notice to Seller or (iii) such earlier date on which this
Agreement shall terminate in accordance with the provisions hereof or by
operation of law.
"Total Indebtedness" shall mean with respect to any Person, for any
period, the aggregate Indebtedness of such Person and its Subsidiaries during
such period, less the amount of any nonspecific consolidated balance sheet
reserves maintained in accordance with GAAP.
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"Transaction" has the meaning assigned thereto in Section 1.
"Transaction Notice" shall mean a written request by Seller in the form
of Exhibit D hereto, to enter into a Transaction, in a form to be mutually
agreed upon among Seller and Buyer, which is delivered to Buyer.
"Trust Receipt" shall have the meaning provided in the Custodial
Agreement.
"Underwriting Guidelines" shall mean the underwriting guidelines of the
Seller attached as Exhibit E hereto in effect as of the date of this Agreement,
as the same may be amended from time to time in accordance with terms of this
Agreement.
"Uniform Commercial Code" 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.
"USC" shall mean the United States Code, as amended.
"Wet Loan" shall mean a wet-funded First Lien or Second Lien Loan which
is underwritten in accordance with the Underwriting Guidelines and does not
contain all the required Loan Documents in the Mortgage File, which in order to
be deemed to an Eligible Loan shall have the following additional
characteristics:
(a) the proceeds thereof have been funded (or, on the
Purchase Date supported by a Transaction Notice are being funded) by wire
transfer or cashier's check, cleared check or draft or other form of
immediately available funds to the Settlement Agent for such Wet Loan;
(b) the Seller expects such Wet Loan to close and become a
valid lien securing actual indebtedness by funding to the order of the
Mortgagor thereunder;
(c) the proceeds thereof have not been returned to the
Buyer from the Settlement Agent for such Wet Loan;
(d) the Seller has not learned that such Wet Loan will not
be closed and funded to the order of the Mortgagor;
(e) upon recordation such Loan will constitute a First Lien
or Second Lien on the premises described therein; and
(f) any applicable rescission period has expired and such
Loan is not subject to any right of rescission.
(b) Accounting Terms and Determinations. Except as otherwise expressly
provided herein, all accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial matters
required to be delivered to the Buyer hereunder shall be prepared, in accordance
with GAAP.
(c) Interpretation. The following rules of this subsection (c) apply
unless the context requires otherwise. A gender includes all genders. Where a
word or phrase is defined, its other
14
grammatical forms have a corresponding meaning. A reference to a subsection,
Section, Annex or Exhibit is, unless otherwise specified, a reference to a
Section of, or annex or exhibit to, this Agreement. A reference to a party to
this Agreement or another agreement or document includes the party's successors
and permitted substitutes or assigns. A reference to an agreement or document
(including any Program Documents) is to the agreement or document as amended,
modified, novated, supplemented or replaced, except to the extent prohibited
thereby or by any Program Document as in effect from time to time in accordance
with the terms thereof. A reference to legislation or to a provision of
legislation includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory instrument issued
under it. A reference to writing includes a facsimile transmission and any means
of reproducing words in a tangible and permanently visible form. A reference to
conduct includes, without limitation, an omission, statement or undertaking,
whether or not in writing. The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement. The term "including" is not limiting and means "including
without limitation". In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including", the words
"to" and "until" each mean "to but excluding", and the word "through" means "to
and including".
Except where otherwise provided in this Agreement, any determination,
consent, approval, statement or certificate made or confirmed in writing with
notice to Seller by Buyer or an authorized officer of Buyer provided for in this
Agreement is conclusive and binds the parties in the absence of manifest error.
A reference to an agreement includes a security interest, guarantee, agreement
or legally enforceable arrangement whether or not in writing related to such
agreement.
A reference to a document includes an agreement (as so defined) in
writing or a certificate, notice, instrument or document, or any information
recorded in computer disk form. Where Seller is required to provide any document
to Buyer under the terms of this Agreement, the relevant document shall be
provided in writing or printed form unless Buyer requests otherwise. At the
request of Buyer, the document shall be provided in computer disk form or both
printed and computer disk form.
This Agreement is the result of negotiations among, and has been
reviewed by counsel to, Buyer and Seller, and is the product of all parties. In
the interpretation of this Agreement, no rule of construction shall apply to
disadvantage one party on the ground that such party proposed or was involved in
the preparation of any particular provision of this Agreement or this Agreement
itself. Except where otherwise expressly stated, Buyer may give or withhold, or
give conditionally, approvals and consents and may form opinions and make
determinations at its absolute discretion. Any requirement of good faith,
discretion or judgment by Buyer shall not be construed to require Buyer to
request or await receipt of information or documentation not immediately
available from or with respect to Seller, a servicer of the Purchased Loans, any
other Person or the Purchased Loans themselves.
3. THE TRANSACTIONS
(a) Subject to the terms and conditions of the Program Documents, Buyer
may, from time to time in its sole discretion, enter into Transactions with an
aggregate Purchase Price for all Purchased Loans acquired by Buyer not to exceed
the Maximum Aggregate Purchase Price. Unless otherwise agreed, Seller shall
request that Buyer enter into a Transaction by delivering (i) a Transaction
Notice substantially in the form of Exhibit D hereto (a "Transaction Notice"),
appropriately completed, and a Loan Data Transmission to Buyer and Custodian,
and (ii) the Mortgage File to Custodian for each Loan proposed to be included in
such Transaction, which Transaction Notice and Loan Data Transmission must be
received no later than 5:00 p.m. (New York City time) one (1) Business Day prior
to the requested Purchase Date. Such Transaction Notice shall clearly indicate
those Loans that are intended to be Wet Loans and Dry Loans and include a Loan
List in respect of the Eligible Loans that the Seller proposes to include in the
related Transaction. Each Transaction Notice shall specify the proposed Purchase
Date,
15
Purchase Price, Pricing Rate and Repurchase Date. Seller agrees to immediately
report to Custodian and the Buyer by facsimile transmission within one Business
Day of discovery that any Wet Loans that were previously subject to a
Transaction did not close for any reason including, but not limited to, a
Rescission. In the event that the parties hereto desire to enter into a
Transaction, the Buyer shall deliver to the Seller, in electronic or other
format, a "Confirmation" specifying such terms prior to entering into such
Transaction, including, without limitation, the Purchase Date, the Purchase
Price, the Pricing Rate therefor and the Repurchase Date. By entering into a
Transaction with the Buyer, the Seller consents to the terms set forth in the
related Confirmation. Any such Confirmation and the related Transaction Notice,
together with this Agreement, shall constitute conclusive evidence of the terms
agreed to between Buyer and Seller with respect to the Transaction to which the
Confirmation relates. In the event of any conflict between this Agreement and a
Confirmation, the terms of the Confirmation shall control with respect to the
related Transaction. It is acknowledged and agreed that, notwithstanding any
other provision of this Agreement to the contrary, the facility provided under
this Agreement is an uncommitted facility and the Buyer shall have no obligation
to enter into any Transactions hereunder.
(b) Pursuant to the Custodial Agreement, the Custodian shall review any
Required Documents delivered prior to 12:00 p.m. (New York City time) on any
Business Day on the same day. Not later than 3:00 p.m. (New York City time) on
each Business Day, the Custodian shall deliver to the Buyer, via Electronic
Transmission, the Custodian Loan Transmission and an Exception Report showing
the status of all Loans then held by the Custodian, including but not limited to
the Wet Loans and Dry Loans which are subject to Exceptions, and the time the
related Loan Documents have been released pursuant to Sections 5(a) or 5(b) of
the Custodial Agreement. In addition, the Custodian shall deliver to the Buyer
no later than 4:00 p.m. (New York City time) by facsimile transmission on each
Purchase Date, one or more Trust Receipts (as defined in the Custodial
Agreement) relating to either Wet Loans or Dry Loans. The original copies of
such Trust Receipts shall be delivered to JPMorgan Chase Bank at Four New York
Plaza, Ground Floor, Outsourcing Department, New York, New York 10004,
Attention: Jennifer John for the account of Greenwich Capital Markets, telephone
number (212) 623-5953), as agent for the Buyer by overnight delivery using a
nationally recognized insured overnight delivery service.
(c) Upon Seller's request to enter into a Transaction pursuant to
Section 3(a) above, Buyer shall, in its sole discretion, assuming all conditions
precedent set forth in this Section 3 and in Sections 9(a) and (b) have been
met, and provided no Default shall have occurred and be continuing, not later
than 5:00 p.m. (New York City time) on the requested Purchase Date purchase the
Eligible Loans included in the related Transaction Notice by transferring, via
wire transfer (pursuant to wire transfer instructions provided by the Seller on
or prior to such Purchase Date), the Purchase Price.
(d) Anything herein to the contrary notwithstanding, if, on or prior to
the determination of any LIBO Base Rate:
(i) the Buyer reasonably determines, which determination shall
be conclusive absent manifest error, that quotations of interest rates
for the relevant deposits referred to in the definition of "LIBO Base
Rate" in Section 2 hereof are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining
rates of interest for Transactions as provided herein; or
(ii) the Buyer reasonably determines, which determination
shall be conclusive absent manifest error, that the Applicable Margin
plus the relevant rate of interest referred to in the definition of
"LIBO Base Rate" in Section 2 hereof upon the basis of which the rate
of interest for Transactions is to be determined is not likely
adequately to cover the cost to the Buyer of purchasing and holding
Loans hereunder; or
16
(iii) it becomes unlawful for Buyer to enter into Transactions
with a Pricing Rate based on the LIBO Base Rate;
then the Buyer shall give the Seller prompt notice thereof (no later than one
(1) Business Day after Buyer's discovery of such condition) and, so long as such
condition remains in effect, the Buyer shall be under no obligation to purchase
Loans hereunder, and the Seller shall, at its option, either repurchase such
Loans or pay a Pricing Rate at a rate per annum as determined by the Buyer
taking into account the increased cost to the Buyer of purchasing and holding
the Loans.
(e) Seller shall repurchase Purchased Loans from Buyer on each related
Repurchase Date. Each obligation to repurchase exists without regard to any
prior or intervening liquidation or foreclosure with respect to any Purchased
Loan. Buyer is obligated to deliver the Purchased Loans to Seller or its
designee (including the Custodian) at Seller's reasonable expense on (or after)
the related Repurchase Date.
(f) Provided that the applicable conditions in Sections 9(a) and (b)
have been satisfied, Seller may request that a Purchased Loan that is
repurchased by Seller on the Repurchase Date become subject to a new Transaction
by delivering notice of such request to Buyer with a copy to Custodian not later
than 3:00 p.m. New York City time at least one (1) Business Day prior to any
such Repurchase Date. Upon Buyer agreeing in its sole discretion to enter into
such proposed Transaction, Buyer shall purchase the related Eligible Loans
pursuant to the procedures set forth in Section 3(c) above. For each new
Transaction, unless otherwise agreed, (y) the accrued and unpaid Price
Differential shall be settled in cash on each related Repurchase Date, and (z)
the Pricing Rate shall be as set forth in the Pricing Side Letter.
(g) If the Seller intends to repurchase any Loans on any day which is
not a Repurchase Date, the Seller shall give two (2) Business Days' prior
written notice thereof to the Buyer. If such notice is given, the Repurchase
Price specified in such notice shall be due and payable on the date specified
therein, together with the Price Differential to such date on the amount
prepaid. Such early repurchases shall be in an aggregate principal amount of at
least $100,000.
(h) Reserved.
(i) If any Requirement of Law (other than with respect to any amendment
made to the 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 the 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:
(i) shall subject the Buyer to any tax of any kind whatsoever
with respect to this Agreement or any Loans purchased pursuant to it
(excluding net income taxes) or change the basis of taxation of
payments to the Buyer in respect thereof;
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory advance or similar requirement against
assets held by deposits or other liabilities in or for the account of
Transactions or extensions of credit by, or any other acquisition of
funds by any office of the Buyer which is not otherwise included in the
determination of the LIBO Base Rate hereunder;
(iii) shall impose on the Buyer any other condition;
and the result of any of the foregoing is to materially increase the cost to the
Buyer of effecting or maintaining purchases hereunder, or to reduce any amount
receivable hereunder in respect thereof, then,
17
in any such case, the Seller shall promptly, upon its receipt of a certificate
which Buyer shall deliver promptly upon its discovery of such increased costs
and which sets forth in reasonable detail the calculation and the basis for such
increased costs (an "Increased Cost Certificate"), (i) pay the Buyer such
additional amount or amounts set forth in such Increased Cost Certificate, or
(ii) repurchase the affected Loans at the Repurchase Price.
If the Buyer shall have reasonably determined that the adoption of or
any change in any Requirement of Law (other than with respect to any amendment
made to the 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 the Buyer or any
corporation controlling the 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 the Buyer's or such corporation's capital as a consequence
of its obligations hereunder to a level below that which the Buyer or such
corporation (taking into consideration the Buyer's or such corporation's
policies with respect to capital adequacy) by an amount deemed by the Buyer to
be material, then from time to time, the Buyer shall promptly send upon its
discovery of such increased costs an Increased Cost Certificate and the Seller
shall promptly, upon its receipt of such Increased Cost Certificate, either (i)
pay to the Buyer such additional amount or amounts as will thereafter compensate
the Buyer for such reduction, or (ii) repurchase the affected Loans at the
Repurchase Price.
If the Buyer becomes entitled to claim any additional amounts pursuant
to this subsection, it shall promptly notify the Seller of the event by reason
of which it has become so entitled. An Increased Cost Certificate as to any
additional amounts payable pursuant to this subsection submitted by the Buyer to
the Seller shall be conclusive in the absence of manifest error.
4. PAYMENT AND TRANSFER
(a) Payments. Except to the extent otherwise provided herein, all
payments to be made by the Seller under this Agreement, shall be made in
Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to the Buyer at the following account maintained by the Buyer at
JPMorgan Chase Bank Account Number 140095961, For the A/C of Greenwich Capital
Financial Products, Inc., ABA# 021000021, Attn: Brett Kibbe, not later than 1:00
p.m., New York City time, on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). The Seller acknowledges that it
has no rights of withdrawal from the foregoing account.
(b) Computations. The Pricing Differential shall be computed on the
basis of a 360-day year for the actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
5. TAXES; TAX TREATMENT
(a) All payments made by the Seller under this Repurchase Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities (including penalties, interest and additions
to tax) with respect thereto imposed by any Governmental Authority, excluding
income taxes, branch profits taxes, franchise taxes or any other tax imposed on
the net income by the United States, a state or a foreign jurisdiction under the
laws of which the Buyer is organized or of its applicable lending office, or any
political subdivision thereof (collectively, "Taxes"), all of which shall be
paid by the Seller for its own account not later than the date when due. If the
Seller is required by law or regulation to deduct or withhold any Taxes from or
in respect of any amount payable hereunder, it shall: (a) make such deduction or
withholding; (b) pay the amount so deducted or withheld to the appropriate
Governmental
18
Authority not later than the date when due; (c) deliver to Buyer, promptly,
original tax receipts and other evidence reasonably satisfactory to Buyer of the
payment when due of the full amount of such Taxes; and (d) pay to the Buyer such
additional amounts as may be necessary so that such Buyer receives, free and
clear of all Taxes, a net amount equal to the amount it would have received
under this Agreement, as if no such deduction or withholding had been made.
(b) In addition, the Seller agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (including, without limitation, mortgage recording taxes, transfer taxes
and similar fees) imposed by the United States or any taxing authority thereof
or therein that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Repurchase
Agreement ("Other Taxes").
(c) The Seller agrees to indemnify the Buyer for the full amount of
Taxes and Other Taxes, and the full amount of Taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 5, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, provided that the Buyer shall have provided the Seller with evidence,
reasonably satisfactory to the Seller, of payment of Taxes or Other Taxes, as
the case may be.
(d) Any Buyer that is not incorporated under the laws of the United
States, any State thereof, or the District of Columbia (a "Foreign Buyer") shall
provide the Seller with properly completed United States Internal Revenue
Service ("IRS") Form W-8BEN or W-8ECI or any successor form prescribed by the
IRS, certifying that such Foreign Buyer is entitled to benefits under an income
tax treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States on or prior to the date upon which each such
Foreign Buyer becomes a Buyer. Each Foreign Buyer will resubmit the appropriate
form on the earliest of (A) the third anniversary of the prior submission or (B)
on or before the expiration of thirty (30) days after there is a "change in
circumstances" with respect to such Foreign Buyer as defined in Treas. Reg.
Section 1.1441(e)(4)(ii)(D). For any period with respect to which a Foreign
Buyer has failed to provide the Seller with the appropriate form or other
relevant document pursuant to this Section 5(d) (unless such failure is due to a
change in treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Foreign Buyer shall not be
entitled to any "gross-up" of Taxes or indemnification under Section 5(c) with
respect to Taxes imposed by the United States; provided, however, that should a
Foreign Buyer, which is otherwise exempt from a withholding tax, become subject
to Taxes because of its failure to deliver a form required hereunder, the Seller
shall take such steps as such Foreign Buyer shall reasonably request to assist
such Foreign Buyer to recover such Taxes.
(e) Without prejudice to the survival or any other agreement of Seller
hereunder, the agreements and obligations of Seller contained in this Section 5
shall survive the termination of this Agreement. Nothing contained in this
Section 5 shall require Buyer to make available any of its tax returns or other
information that it deems to be confidential or proprietary.
(f) Each party to this Agreement acknowledges that it is its intent for
purposes of U.S. federal, state and local income and franchise taxes to treat
each Transaction as indebtedness of Seller that is secured by the Purchased
Loans and that the Purchased Loans are owned by Seller in the absence of an
Event of Default by Seller. All parties to this Agreement agree to such
treatment and agree to take no action inconsistent with this treatment, unless
required by law.
6. MARGIN MAINTENANCE
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(a) (a) If at any time either (i) the aggregate Market Value of all
Purchased Loans subject to all Transactions is less than the aggregate MV Margin
Amount for all such Transactions, or (ii) the aggregate unpaid principal balance
of the Purchased Loans for all Transactions is less than the aggregate Par
Margin Amount for all such Transactions (either such event, a "Margin Deficit"),
then the Buyer may, by written notice to Seller, require Seller in such
Transactions to transfer to the Buyer cash or, at the Buyer's option (and
provided Seller has additional Eligible Loans), additional Eligible Loans
("Additional Purchased Loans") within one (1) Business Day of such notice by
Buyer, so that both (x) the cash and aggregate Market Value of the Purchased
Loans, including any such Additional Purchased Loans, will thereupon equal or
exceed such aggregate MV Margin Amount, and (y) the cash and unpaid principal
balance of such Purchased Loans, including any such Additional Purchased Loans
and Purchased Loans, will therefore equal or exceed such aggregate Par Margin
Amount (either requirement, a "Margin Call"); provided that if Seller transfers
cash, Buyer shall deposit such cash into a non-interest bearing account until
the next succeeding Repurchase Date.
(b) Notice required pursuant to Section 6(a) may be given by any means
provided in Section 21 hereof. Any notice given on a Business Day before 5:00
p.m. (New York City time) shall be met, and the related Margin Call satisfied
within one (1) Business Day of Seller's receipt of such notice. The failure of
Buyer, on any one or more occasions, to exercise its rights under this Section
6, shall not change or alter the terms and conditions to which this Agreement is
subject or limit the right of Buyer to do so at a later date. Seller and Buyer
each agree that a failure or delay by Buyer to exercise its rights hereunder
shall not limit or waive Buyer's rights under this Agreement or otherwise
existing by law or in any way create additional rights for Seller.
7. INCOME PAYMENTS
Where a particular term of a Transaction extends over the date on which
Income is paid in respect of any Purchased Loan subject to that Transaction,
such Income shall be the property of Buyer. Notwithstanding the foregoing, and
provided no Default has occurred and is continuing, Buyer agrees that Seller
shall be entitled to receive an amount equal to all Income received in respect
of the Purchased Loans, whether by Buyer, Custodian or any servicer or any other
Person, which is not otherwise received by Seller, to the full extent it would
be so entitled if the Purchased Loans had not been sold to Buyer; provided that
any Income received by Seller while the related Transaction is outstanding shall
be deemed to be held by Seller solely for the benefit for Buyer pending the
repurchase on the related Repurchase Date; provided further that Seller shall
hold all such Income in the Collection Account. Provided no Default has
occurred, Buyer shall, as the parties may agree with respect to any Transaction,
on the Repurchase Date following the date such Income is received by Buyer (or a
servicer on its behalf) either (i) transfer (or permit the servicer to transfer)
to Seller such Income with respect to any Purchased Loans subject to such
Transaction, or (ii) if a Margin Deficit then exists, apply the Income payment
to reduce the amount, if any, to be transferred to Buyer by Seller upon
termination of such Transaction. Buyer shall not be obligated to take any action
pursuant to the preceding sentences (A) to the extent that such action would
result in the creation of a Margin Deficit, unless prior thereto or
simultaneously therewith Seller transfers to Buyer cash or Additional Purchased
Loans sufficient to eliminate such Margin Deficit, or (B) if an Event of Default
with respect to Seller has occurred and is then continuing at the time such
Income is paid.
8. SECURITY INTEREST; BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT
(a) Seller and Buyer intend that the Transactions hereunder be sales to Buyer of
the Purchased Loans and not loans from Buyer to Seller secured by the Purchased
Loans. 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
other than sales, and as security for Seller's performance of all of its
Obligations, Seller hereby grants Buyer a fully perfected first priority
security interest in the following
20
property, whether now existing or hereafter acquired: (i) all Loans identified
on a Transaction Notice delivered by the Seller to the Buyer and the Custodian
from time to time, (ii) all Loan Documents, including without limitation all
promissory notes, and all Records, all Servicing Rights, and any other
collateral pledged or otherwise relating to such Loans, together with all files,
material documents, instruments, surveys (if available), certificates,
correspondence, appraisals, computer records, computer storage media, Loan
accounting records and other books and records relating thereto, (iii) 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 Loans and all claims and
payments thereunder, (iv) all other insurance policies and insurance proceeds
relating to any Loans or the related Mortgaged Property, (v) all Interest Rate
Protection Agreements relating to any or all of the foregoing, (vi) any purchase
agreements or other agreements or contracts relating to or constituting any or
all of the foregoing, (vii) all purchase or take-out commitments relating to or
constituting any or all of the foregoing, (viii) all "accounts", "chattel
paper", "commercial tort claims", "deposit accounts", "documents," "equivalent",
"general intangibles", "goods", "instruments", "inventory", "investment
property", "letter of credit rights", and "securities' accounts" as each of
those terms is defined in the Uniform Commercial Code and all cash and Cash
Equivalents and all products and proceeds relating to or constituting any or all
of the foregoing, (ix) Seller's interests under any Escrow Letters and Insured
Closing Letters with respect to any Purchased Loans (x) all interests in real
property owned by the Seller or collateralizing any Loans, and (xi) any and all
replacements, substitutions, distributions on or proceeds of any or all of the
foregoing (collectively the "Purchased Items"). Seller acknowledges and agrees
that its rights with respect to the Purchased Items (including without
limitation, any security interest Seller may have in the Purchased Loans and any
other collateral granted to Seller pursuant to any other agreement) are and
shall continue to be at all times junior and subordinate to the rights of Buyer
hereunder.
(b) At any time and from time to time, upon the written request of the
Buyer, and at the sole expense of the Seller, the Seller will promptly and duly
execute and deliver, or will promptly cause to be executed and delivered, such
further instruments and documents and take such further action as the Buyer may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted. The Seller also
hereby authorizes the Buyer to file any financing or continuation statements to
the extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement for
filing in any jurisdiction. This Agreement shall constitute a security agreement
under applicable law.
(c) The Seller shall not (i) change the location of its chief executive
office/chief place of business from that specified in Section 12(l) hereof, (ii)
change its name, identity or corporate structure (or the equivalent) or change
the location where it maintains its records with respect to the Purchased Items,
or (iii) reincorporate or reorganize under the laws of another jurisdiction
unless it shall have given the Buyer at least 30 days prior written notice
thereof and shall have taken all other actions deemed reasonably necessary by
the Buyer to continue its perfected status in the Purchased Items with the same
or better priority.
(d) 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
Repurchase Agreement, including without limitation, protecting, preserving and
realizing upon the Purchased Items, to take any and all reasonable and
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Repurchase
Agreement, including without limitation, to protect, preserve and realize upon
the Purchased Items, to file such financing statement or statements relating to
the Purchased Loans and the Purchased Items as Buyer at its option may deem
appropriate in its reasonable discretion, and, without limiting the generality
of the foregoing, Seller
21
hereby gives Buyer the power and right, on behalf of Seller, without assent by,
but with notice to, Seller, if an Event of Default shall have occurred and be
continuing, to do the following:
(i) 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
with respect to any Purchased Loans 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 with respect to any Purchased Loans whenever
payable;
(ii) to pay or discharge taxes and Liens levied or placed on
or threatened against the Purchased Loans;
(iii) (A) to direct any party liable for any payment under any
Purchased Loans 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 Loans; (C) to sign and
endorse any invoices, assignments, verifications, notices and other
documents in connection with any Purchased Loans; (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 Loans or any
proceeds thereof and to enforce any other right in respect of any
Purchased Loans; (E) to defend any suit, action or proceeding brought
against Seller with respect to any Purchased Loans; (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 reasonably deem appropriate; and (G) generally,
to sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any Purchased Loans 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 reasonable expense, at any time, and
from time to time, all acts and things which Buyer deems necessary (in
its reasonable discretion) to protect, preserve or realize upon the
Purchased Loans and the Purchased Items and Buyer's Liens thereon and
to effect the intent of this Agreement, all as fully and effectively as
Seller might do.
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.
Seller also authorizes Buyer, if an Event of Default shall
have occurred, from time to time, to execute, in connection with any sale
provided for in Section 19 hereof, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Purchased Loans.
(e) The powers conferred on Buyer hereunder are solely to protect
Buyer's interests in the Purchased Loans 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.
(f) If the Seller fails to perform or comply with any of its material
agreements contained in the Program Documents and the Buyer may itself perform
or comply, or otherwise cause performance or compliance, with such agreement,
the reasonable out-of-pocket expenses of the Buyer incurred in connection with
such performance or compliance, together with interest thereon at a rate per
annum equal to the Post-Default Rate, shall be payable by the Seller to the
Buyer on demand and shall constitute Obligations.
22
(g) The Buyer's duty with respect to the custody, safekeeping and
physical preservation of the Purchased Items in its possession, under Section
9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in
the same manner as the Buyer deals with similar property for its own account.
Neither the Buyer nor any of its directors, officers or employees shall be
liable for failure to demand, collect or realize upon all or any part of the
Purchased Items or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Purchased Items upon the request of the Seller
or otherwise.
(h) All authorizations and agencies herein contained with respect to
the Purchased Items are irrevocable and powers coupled with an interest.
9. CONDITIONS PRECEDENT
(a) As conditions precedent to the initial Transaction, Buyer shall
have received on or before the date on which such initial Transaction is
consummated the following, in form and substance reasonably satisfactory to
Buyer and duly executed by each party thereto (as applicable):
(i) Program Documents. The Program Documents duly executed and
delivered by the parties to such documents and being in full force and
effect, free of any modification, breach or waiver.
(ii) Organizational Documents. A good standing certificate and
certified copies of the charter and by-laws (or equivalent documents)
of the Seller, in each case dated as of a recent date, but in no event
more than ten (10) days prior to the date of such initial Transaction
and of all corporate or other authority for the Seller with respect to
the execution, delivery and performance of the Program Documents (and
the Buyer may conclusively rely on such certificate until it receives
notice in writing from the Seller to the contrary).
(iii) Incumbency Certificate. An incumbency certificate of the
secretaries of Seller certifying the names, true signatures and titles
of Seller's representatives duly authorized to request Transactions
hereunder and to execute the Program Documents and the other documents
to be delivered thereunder;
(iv) Legal Opinion. A legal opinion of counsel to the Seller,
substantially in the form attached hereto as Exhibit C.
(v) Filings, Registrations, Recordings. (i) Any documents
(including, without limitation, financing statements) required to be
filed, registered or recorded in order to create, in favor of the
Buyer, a perfected, first-priority security interest in the Purchased
Items, subject to no Liens other than those created hereunder, shall
have been properly prepared and executed for filing, registration or
recording in each office in each jurisdiction in which such filings,
registrations and recordations are required to perfect such
first-priority security interest; and (ii) UCC lien searches, dated as
of a recent date, but in no event more than fourteen (14) days prior to
the date of such initial Transaction, in such jurisdictions as shall be
applicable to the Seller and the Purchased Items, the results of which
shall be satisfactory to the Buyer.
(vi)Fees and Expenses. The Buyer shall have received all fees
and expenses required to be paid by the Seller on or prior to the
initial Purchase Date, which fees and expenses may be netted out of any
purchase proceeds paid by the Buyer hereunder.
(vii) Financial Statements. The Buyer shall have received the
financial statements referenced in Section 12(b).
23
(viii) Underwriting Guidelines. The Buyer and the Seller shall
have agreed upon the Seller's current Underwriting Guidelines for Loans
and the Buyer shall have received a copy thereof, certified by a
responsible officer of the Seller.
(ix) Consents, Licenses, Approvals, etc. The Buyer shall have
received copies certified by the Seller of all consents, licenses and
approvals, if any, required in connection with the execution, delivery
and performance by the Seller of, and the validity and enforceability
of, the Loan Documents, which consents, licenses and approvals shall be
in full force and effect.
(x) Insurance. The Buyer shall have received evidence in form
and substance reasonably satisfactory to the Buyer showing compliance
by the Seller as of such initial Purchase Date with Section 13(w)
hereof.
(xi) Collection Account. Evidence of the establishment of the
Collection Account.
(xii) Other Documents. The Buyer shall have received such
other documents as the Buyer or its counsel may reasonably request.
(b) The obligation of Buyer to enter into each Transaction pursuant to
this Agreement (including the initial Transaction) is subject to the following
further conditions precedent, both immediately prior to any Transaction and also
after giving effect thereto and to the intended use thereof:
(i) No Default or Event of Default shall have occurred and be
continuing.
(ii) Both immediately prior to entering into such Transaction
and also after giving effect thereto and to the intended use of the
proceeds thereof, the representations and warranties made by the Seller
in Section 12 and Schedule 1 hereof, and in each of the other Program
Documents, shall be true and complete on and as of the Purchase Date in
all material respects (in the case of the representations and
warranties in Section 12(v) and 12(w) and Schedule 1, solely with
respect to Loans which have not been repurchased by Seller) 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). At the reasonable
request of the Buyer, the Buyer shall have received an officer's
certificate signed by a Responsible Officer of the Seller certifying as
to the truth and accuracy of the above, which certificate shall
specifically include a statement that the Seller is in compliance with
all necessary governmental licenses and authorizations and is qualified
to do business and in good standing in all required jurisdictions.
(iii) The then aggregate outstanding Purchase Price for all
Purchased Loans, when added to the Purchase Price for the requested
Transaction, shall not exceed the Maximum Aggregate Purchase Price.
(iv) Subject to the Buyer's right to perform one or more Due
Diligence Reviews pursuant to Section 44 hereof, the Buyer shall have
completed its Due Diligence Review of the Loan Documents for each
Purchase and such other documents, records, agreements, instruments,
Mortgaged Properties or information relating to such Purchases as the
Buyer in its reasonable discretion deems appropriate to review and such
review shall be satisfactory to the Buyer in its reasonable discretion.
(v) Buyer or its designee shall have received on or before the
day of a Transaction with respect to any Purchased Loans (unless
otherwise specified in this Agreement) the following, in form and
substance reasonably satisfactory to Buyer and (if applicable) duly
executed:
24
(A) The Transaction Notice and Loan Data Transmission
with respect to such Purchased Loans, delivered
pursuant to Section 3(a);
(B) The Trust Receipt with respect to such Purchased
Loans, with the Loan Data Transmission attached;
and
(C) Such certificates, customary opinions of counsel
or other documents as Buyer may reasonably
request, provided that such opinions of counsel
shall not be required routinely in connection
with each Transaction but shall only be required
from time to time as deemed necessary by Buyer in
its commercially reasonable judgment.
(vi) In the event that the Loans to be purchased would cause
the aggregate outstanding principal balance of Purchased Loans secured
by Mortgaged Property from any state to exceed 50% of the aggregate
outstanding principal balance of Loans pledged hereunder, then the
Seller shall, upon request by the Buyer, deliver an opinion of counsel
acceptable to the Buyer in such state, substantially in the form of
items number 11 and 12 of Exhibit C.
(vii) With respect to any Loan that was funded in the name of
or acquired by a Qualified Originator which is an Affiliate of the
Seller, the Buyer may, in its sole reasonable discretion, require the
Seller to provide evidence reasonably sufficient to satisfy the Buyer
that such Loan was acquired in a legal sale, including without
limitation, an opinion, in form and substance and from an attorney, in
both cases, reasonably acceptable to the Buyer in its sole discretion,
that such Loan was acquired in a legal sale.
(viii) None of the following shall have occurred and/or be
continuing:
(i) an event or events resulting in the inability of
the Buyer to finance its purchases of assets with
traditional counterparties at rates which would have
been reasonable prior to the occurrence of such event
or events or a material adverse change in the financial
condition of the Buyer which affects (or can reasonably
be expected to affect) materially and adversely the
ability of the Buyer to fund its obligations under or
otherwise comply with the terms of this Agreement; or
(ii) any other event beyond the control of the Buyer
which the Buyer reasonably determines may result in the
Buyer's inability to perform its obligations under this
Agreement including, without limitation, acts of God,
strikes, lockouts, riots, acts of war or terrorism,
epidemics, nationalization, expropriation, currency
restrictions, fire, communication line failures,
computer viruses, power failures, earthquakes, or other
disasters of a similar nature to the foregoing.
(ix) If any Loans to be purchased hereunder were acquired by
the Seller, such Loans shall conform to the Seller's Underwriting
Guidelines or the Buyer shall have received underwriting guidelines and
all amendments thereto for such Loans acceptable to the Buyer in its
reasonable discretion. The Buyer shall have received any amendments,
modifications or supplements to the Underwriting Guidelines in effect
on the date any of the Loans to be purchased were originated.
(x) The Buyer shall have received all information reasonably
requested from the Seller relating to Interest Rate Protection
Agreements pursuant to Section 13(z), and the Buyer shall have
reasonably determined that such Interest Rate Protection Agreements
adequately protect the Seller from interest rate fluctuations.
25
(xi) The Buyer shall have received, no later than 10:00 a.m.
three (3) days prior to the requested Purchase Date, an Instruction
Letter, executed by the Seller, with the related Servicing Agreement
attached thereto, if applicable, which such Servicing Agreement shall
be in form and substance reasonably acceptable to Buyer.
(xii) In no event shall Buyer be required to enter into (A)
more than one Transaction in any one Business Day, nor (B) any
Transaction whose Purchase Price would be less than $25,000,000.
(xiii) Buyer shall have determined, in its reasonable
discretion, that all actions necessary or desirable to maintain the
Buyer's perfected interest in the Purchased Loans and other Purchased
Items have been taken, including, without limitation, duly executed and
filed Uniform Commercial Code financing statements on Form UCC-1.
(xiv) Seller shall have paid to Buyer all fees and expenses
then owed to Buyer in accordance with this Agreement and any other
Program Document.
(xv) Buyer or its designee shall have received any other
documents reasonably requested by Buyer.
(xvi) There is no Margin Deficit at the time immediately prior
to entering into a new Transaction.
(xvii) Each secured party (including any party that has a
precautionary security interest in a Loan) has released all of its
right, title and interest in, to and under each Loan that Seller
proposes to sell in connection with such Transaction (including,
without limitation, any security interest that such secured party or
secured party's agent may have by virtue of its possession, custody or
control thereof) and has filed Uniform Commercial Code termination
statements in respect of any Uniform Commercial Code filings made in
respect of such Loan, and each such release and Uniform Commercial Code
termination statement has been delivered to the Buyer prior to each
Transaction and to the Custodian as part of the Mortgage File.
10. RELEASE OF PURCHASED LOANS
Upon timely payment in full of the Repurchase Price and all other
Obligations (if any) then owing with respect to a Purchased Loan, unless a
Default or Event of Default shall have occurred and be continuing, then (a)
Buyer shall be deemed to have terminated any security interest that Buyer may
have in such Purchased Loan and any Purchased Items solely related to such
Purchased Loan and (b) with respect to such Purchased Loan, Buyer shall direct
Custodian to release such Purchased Loan and any Purchased Items solely related
to such Purchased Loan to Seller unless such release and termination would give
rise to or perpetuate a Margin Deficit. Except as set forth in Sections 6(a) and
16, Seller shall give at least two (2) Business Days prior written notice to
Buyer if such repurchase shall occur on any date other than the Repurchase Date
set forth in Section 3(h).
If such release and termination gives rise to or perpetuates a Margin
Deficit, Buyer shall notify Seller of the amount thereof and Seller shall
thereupon satisfy the Margin Call in the manner specified in Section 6.
11. RELIANCE
26
With respect to any Transaction, Buyer may conclusively rely upon, and
shall incur no liability to Seller in acting upon, any request or other
communication that Buyer reasonably believes to have been given or made by a
person authorized to enter into a Transaction on Seller's behalf.
12. REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Buyer that throughout the
term of this Agreement:
(a) Existence. The Seller (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) 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, (c)
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 would not be reasonably likely
(either individually or in the aggregate) to have a Material Adverse Effect, and
(d) is in compliance in all material respects with all Requirements of Law.
(b) Financial Condition. The Seller has heretofore furnished to the
Buyer a copy of its audited consolidated balance sheets and the audited
consolidated balance sheets of its consolidated Subsidiaries, each as at
December 31, 2004 with the opinion thereon of Deloitte & Touche, a copy of which
has been provided to Buyer. The Seller has also heretofore furnished to the
Buyer the related consolidated statements of income and retained earnings and of
cash flows for the Seller and its consolidated Subsidiaries for the one year
period ending December 31, 2004, setting forth comparative form the figures for
the previous year. All such financial statements are materially complete and
correct and fairly present the consolidated financial condition of the Seller
and its Subsidiaries and the consolidated results of their operations for the
fiscal year ended on said date, all in accordance with GAAP applied on a
consistent basis. Since December 31, 2004, there has been no development or
event nor any prospective development or event which has had or should
reasonably be expected to have a Material Adverse Effect.
(c) Litigation. There are no actions, suits, arbitrations,
investigations or proceedings pending or, to its knowledge, threatened against
the Seller or any of its Subsidiaries or Affiliates or affecting any of the
property thereof before any Governmental Authority, (i) as to which individually
or in the aggregate there is a reasonable likelihood of an adverse decision
which would be reasonably likely to have a Material Adverse Effect or (ii) which
questions the validity or enforceability of any of the Program Documents or any
action to be taken in connection with the transactions contemplated thereby and
there is a reasonable likelihood of a Material Adverse Effect or adverse
decision.
(d) No Breach. Neither (a) the execution and delivery of the Program
Documents or (b) the consummation of the transactions therein contemplated in
compliance with the terms and provisions thereof will conflict with or result in
a breach of the charter or by-laws of the Seller, or any applicable law, rule or
regulation, or any order, writ, injunction or decree of any Governmental
Authority, or other material agreement or instrument to which the Seller, or any
of its Subsidiaries, is a party or by which any of them or any of their property
is bound or to which any of them or their property is subject, or constitute a
default under any such material agreement or instrument, or (except for the
Liens created pursuant to this Agreement) result in the creation or imposition
of any Lien upon any property of the Seller or any of its Subsidiaries, pursuant
to the terms of any such agreement or instrument.
(e) Action. The Seller has all necessary corporate or other power,
authority and legal right to execute, deliver and perform its obligations under
each of the Program Documents to which it is a party; the execution, delivery
and performance by the Seller of each of the Program Documents to which it is a
27
party has been duly authorized by all necessary corporate or other action on its
part; and each Program Document has been duly and validly executed and delivered
by the Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.
(f) Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority, or any other Person,
are necessary for the execution, delivery or performance by the Seller of the
Program 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 this Agreement.
(g) Taxes. The Seller and its Subsidiaries have 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 any of them, except for any such taxes, if any,
that 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 the Seller and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Seller, adequate. Any taxes, fees and other governmental charges
payable by Seller in connection with a Transaction and the execution and
delivery of the Program Documents have been paid.
(h) Investment Company Act. Neither the Seller nor any of its
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. The Seller is not subject to any Federal or state statute or
regulation which limits its ability to incur indebtedness.
(i) No Legal Bar. The execution, delivery and performance of this
Agreement, the other Program Documents, the sales hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Seller or of any of its Subsidiaries and will not result in,
or require, the creation or imposition of any Lien (other than the Liens created
hereunder) on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
(j) Compliance with Law. No practice, procedure or policy employed or
proposed to be employed by Seller in the conduct of its business violates any
law, regulation, judgment, agreement, regulatory consent, order or decree
applicable to it which, if enforced, would result in either a Material Adverse
Effect with respect to Seller.
(k) No Default. Neither the Seller nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which should reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
(l) Chief Executive Office; Chief Operating Office. Each Seller's chief
executive office and chief operating office on the Effective Date is located at
538 Broadhollow Road, Melville, New York 11747.
(m) Location of Books and Records. The location where the Seller keeps
its books and records including all computer tapes and records relating to the
Purchased Items is its chief executive office or chief operating office or the
offices of the Custodian.
(n) True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Seller to the Buyer in connection with the negotiation, preparation or delivery
of this Agreement and the other Program Documents or included herein or therein
or delivered pursuant hereto or thereto, when taken as a whole, do not contain
any untrue
28
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 the Seller to the Buyer in connection with this
Agreement and the other Program Documents and the transactions contemplated
hereby 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 that, after due inquiry, could reasonably be expected
to have a Material Adverse Effect that has not been disclosed herein, in the
other Program Documents or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Buyer for use in connection
with the transactions contemplated hereby or thereby.
(o) Net Worth; Tangible Net Worth; Liquidity; Committed Warehouse
Facilities. American Home Mortgage Corp.'s Tangible Net Worth is not less than
$21,000,000, American Home Mortgage Acceptance, Inc.'s Tangible Net Worth is not
less than $41,000,000, and American Home Mortgage Investment Corp.'s Tangible
Net Worth is not less than the sum of (i) $685,000,000 plus (ii) 75% of the
aggregate amount of any capital raised through its equity issuances after June
30, 2005. Each Seller's Tangible Net Worth is not less than 80% of such Seller's
Net Worth as of June 30, 2005. The Sellers have combined Cash Equivalents in an
amount not less than $20,000,000. The minimum ratio of (i) the sum of the
products of the book values (as determined in accordance with GAAP) of the
consolidated assets of Seller and their subsidiaries times the percentage
multiplier for each such class agreed to by Buyer to (ii) the sum of (a) the
consolidated funded debt of Seller and any other Person which would be reflected
on the consolidated balance sheet of Seller 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, is
1:1 (or such higher ratio provided under any other repurchase, financing, credit
or other similar facility entered into by such Seller). Each Seller shall at all
times have cash, Cash Equivalents and unused borrowing capacity on unencumbered
assets that could be drawn against (taking into account required haircuts) under
committed warehouse and repurchase facilities in an amount equal to not less
than $50,000,000. Each Seller has at least one committed warehouse facility with
a lender other than Buyer or any of its affiliates, for wet and dry mortgage
loans of "A", "Alt-A", "B", "C" and "D" credit quality originated or acquired by
such Seller, which facility shall have a term at least equal to that provided
under this Agreement in an amount equal to not less than $500,000,000 (with not
less than $50,000,000 available for wet mortgage loans).
(p) ERISA. Each Plan to which the Seller or its Subsidiaries make
direct contributions, and, to the knowledge of the 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 the Seller would be under
an obligation to furnish a report to the Buyer under Section 13(a)(iv) hereof.
(q) Licenses. The Buyer will not be required as a result of purchasing
the Loans to be licensed, registered or approved or to obtain permits or
otherwise qualify (i) to do business in any state in which it currently so
required or (ii) under any state or other jurisdiction's consumer lending, fair
debt collection or other applicable state or other jurisdiction's statute or
regulation.
(r) Relevant States. Schedule 1 sets forth all of the states or other
jurisdictions (the "Relevant States") in which the Seller originates Loans in
its own name or through brokers on the date of this Agreement.
(s) True Sales. Any and all interest of a Qualified Originator in, to
and under any Mortgage funded in the name of or acquired by such Qualified
Originator or seller which is an Affiliate of the Seller
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has been sold, transferred, conveyed and assigned to the Seller pursuant to a
legal sale and such Qualified Originator retains no interest in such Loan, and
if so requested by the Buyer, such sale is covered by an opinion of counsel to
that effect in form and substance reasonably acceptable to the Buyer.
(t) No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Seller or any of its Subsidiaries has a Material Adverse
Effect.
(u) Subsidiaries. All of the Subsidiaries of the Seller at the date
hereof are listed on Schedule 4 to this Agreement.
(v) Origination and Acquisition of Loans. The Loans were originated or
acquired by the Seller, and the origination and collection practices used by the
Seller or Qualified Originator, as applicable, with respect to the Loans have
been, in all material respects legal, proper, prudent and customary in the
residential mortgage loan origination and servicing business, and in accordance
with the Underwriting Guidelines. With respect to Loans acquired by the Seller,
all such Loans are in conformity with the Underwriting Guidelines. Each of the
Loans complies with the representations and warranties listed in Schedule 1
hereto.
(w) No Adverse Selection. The Seller used no selection procedures that
identified the Loans as being less desirable or valuable than other comparable
Loans owned by the Seller.
(x) Seller Solvent; Fraudulent Conveyance. As of the date hereof and
immediately after giving effect to each Transaction, the fair value of the
assets of each Seller is greater than the fair value of the liabilities
(including, without limitation, contingent liabilities if and to the extent
required to be recorded as a liability on the financial statements of each
Seller in accordance with GAAP) of each Seller and each Seller is and will be
solvent, is and will be able to pay its debts as they mature and does not and
will not have an unreasonably small capital to engage in the business in which
it is engaged and proposes to engage. Seller does not intend to incur, or
believe that it has incurred, debts beyond its ability to pay such debts as they
mature. Seller is not contemplating the commencement of insolvency, bankruptcy,
liquidation or consolidation proceedings or the appointment of a receiver,
liquidator, conservator, trustee or similar official in respect of Seller or any
of its assets. Seller is not transferring any Loans with any intent to hinder,
delay or defraud any of its creditors.
(y) No Broker. Seller has not dealt with any broker, investment banker,
agent, or other person, except for Buyer, who may be entitled to any commission
or compensation in connection with the sale of Purchased Loans pursuant to this
Agreement; provided, that if Seller has dealt with any broker, investment
banker, agent, or other person, except for Buyer, who may be entitled to any
commission or compensation in connection with the sale of Purchased Loans
pursuant to this Agreement, such commission or compensation shall have been paid
in full by Seller.
(z) MERS. The Seller is a member of MERS in good standing.
(aa) Insured Closing Letter. As of the date hereof and as of the date
of each delivery of a Wet Loan, the Settlement Agent has obtained an Insured
Closing Letter, closing protection letter or similar authorization letter from a
nationally recognized title insurance company approved by the Buyer, copies of
which shall be delivered by the Seller to the Custodian prior to the Purchase
Date. Among other things, the Insured Closing Letter covers any losses occurring
due to the fraud, dishonesty or mistakes of the closing agent. The Insured
Closing Letter inures to the benefit of, and the rights thereunder may be
enforced by, the loan originator and its successors and assigns, including the
Buyer.
(bb) Escrow Agreement. As of the date hereof and as of the date of each
delivery of a Wet Loan, the Settlement Agent has executed an Escrow Letter,
which Escrow letter inures to the benefit of,
30
and the rights thereunder may be enforced by, the loan originator and its
successors and assigns, including the Buyer.
13. COVENANTS OF SELLER
The Seller covenants and agrees with Buyer that during the term of this
Agreement:
(a) Financial Statements and Other Information; Financial Covenants.
(i) As soon as available and in any event within 45 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of the Seller, the consolidated balance sheets of the
Seller 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 the Seller and the consolidated
Subsidiaries of Seller for such period and the portion of the fiscal
year through the end of such period, setting forth in each case in
comparative form the figures for the previous year, accompanied by a
certificate of a Responsible Officer of the Seller, which certificate
shall state that said consolidated financial statements fairly present
the consolidated financial condition and results of operations of the
Seller and the Subsidiaries of the Seller in accordance with GAAP,
consistently applied, as at the end of, and for, such period (subject
to normal year-end audit adjustments);
(ii) As soon as available and in any event within 90 days
after the end of each fiscal year of the Seller, the consolidated
balance sheets of the Seller 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 the Seller 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 the Seller and its
consolidated Subsidiaries 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;
(iii) From time to time such other information regarding the
financial condition, operations, or business of the Seller as the Buyer
may reasonably request; and
(iv) As soon as reasonably possible, and in any event within
thirty (30) days after a Responsible Officer knows, or with respect to
any Plan or Multiemployer Plan to which the Seller, or any Subsidiaries
of the Seller 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 the Seller setting forth details
respecting such event or condition and the action, if any, that the
Seller 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 the Seller or an ERISA Affiliate with respect to such event
or condition):
a. any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC
has not by regulation or otherwise 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
31
the Code or Section 302 of ERISA, 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, shall be a
reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under Section
412(d) of the Code for any Plan;
b. the distribution under Section 4041(c) of
ERISA of a notice of intent to terminate any Plan or
any action taken by the Seller or an ERISA Affiliate
to terminate any Plan;
c. the institution by PBGC of proceedings
under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any
Plan, or the receipt by the 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 the Seller or any ERISA
Affiliate that results in liability under Section
4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a
purchaser default) or the receipt by the Seller 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 that it
intends to terminate or has terminated under Section
4041A of ERISA;
e. the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the
Seller or any ERISA Affiliate to enforce Section 515
of ERISA, which proceeding is not dismissed within 30
days; and
f. the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is
a part if the Seller or an ERISA Affiliate fails to
timely provide security to such Plan in accordance
with the provisions of said Sections.
The Seller will furnish to the Buyer, at the time it furnishes each set of
financial statements pursuant to paragraphs (a) and (b) above, a certificate of
a Responsible Officer of the Seller to the effect that, to the best of such
Responsible Officer's knowledge, the Seller during such fiscal period or year
has observed or performed all of its covenants and other agreements, and
satisfied every material condition, contained in this Agreement and the other
Program 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 the Seller has taken or proposes to take with respect
thereto).
(b) Litigation. The Seller will promptly, and in any event within 3
Business Days after service process on any of the following, give to the Buyer
notice of all legal or arbitrable proceedings affecting the Seller or any of its
Subsidiaries that questions or challenges the validity or enforceability of any
of the Program Documents or as to which an adverse determination which would
result in a Material Adverse Effect.
(c) Existence, Etc. Each of the Seller and its Subsidiaries will:
32
(i) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises;
(ii) comply with the requirements of all applicable laws,
rules, regulations and orders of Governmental Authorities (including,
without limitation, truth in lending, real estate settlement procedures
and all environmental laws) if failure to comply with such requirements
would be reasonably likely (either individually or in the aggregate) to
have a Material Adverse Effect;
(iii) keep adequate records and books of account, in which
complete entries will be made in accordance with GAAP consistently
applied;
(iv) not move its chief executive office or chief operating
office from the addresses referred to in Section 12(l) unless it shall
have provided the Buyer 30 days prior written notice of such change;
(v) 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
(vi) permit representatives of the Buyer, during normal
business hours upon three (3) Business Days' prior written notice at a
mutually desirable time or at any time during the continuance of an
Event of Default, 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 the Buyer; provided, however that if no default or Event of Default
has occurred and is continuing, Seller's expenses in connection with
any such examination shall not exceed $40,000 in any calendar year.
(d) Prohibition of Fundamental Changes. Seller shall not at any time,
directly or indirectly, (i) 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 without Buyer's prior consent; or (ii) form or enter into any
partnership, joint venture, syndicate or other combination which would have a
Material Adverse Effect with respect to Seller.
(e) Margin Deficit. If at any time there exists a Margin Deficit, the
Seller shall cure the same in accordance with Section 6 hereof.
(f) Notices. Seller shall give notice to Buyer promptly in writing of
any of the following:
(i) Upon the Seller becoming aware of, and in any event within
one (1) Business Day after the occurrence of any Default, Event of
Default or any event of default or default under any Program Document
or any event of default under any other material agreement of the
Seller or default under an agreement for which the Seller's obligations
are equal to or greater than $5,000,000;
(ii) upon, and in any event within three (3) Business Days
after, service of process on the Seller or any of its Subsidiaries, or
any agent thereof for service of process, in respect of any legal or
arbitrable proceedings affecting the Seller or any of its Subsidiaries
(i) that questions or challenges the validity or enforceability of any
of the Program Documents or (ii) in which the amount in controversy
exceeds $1,000,000;
33
(iii) upon the Seller becoming aware of any default related to
any Purchased Items, any Material Adverse Effect and any event or
change in circumstances which should reasonably be expected to have a
Material Adverse Effect;
(iv) upon the Seller becoming aware during the normal course
of its business that the Mortgaged Property in respect of any Loan or
Loans with an aggregate unpaid principal balance of at least $1,000,000
has been damaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty, or otherwise damaged so as
to materially and adversely affect the value of such Loan;
(v) upon the entry of a judgment or decree against the Seller
in an amount in excess of $3,000,000;
(vi) any material change in the insurance coverage required of
Seller or any other Person pursuant to any Program Document, with copy
of evidence of same attached; and
(vii) any material dispute, licensing issue, litigation,
investigation, proceeding or suspension between Seller, on the one
hand, and any Governmental Authority or any other Person.
Each notice pursuant to this Section 13(f) (other than (vi) above) shall be
accompanied by a statement of a Responsible Officer of the Seller, setting forth
details of the occurrence referred to therein and stating what action the Seller
has taken or proposes to take with respect thereto.
(g) Servicing. Except as provided in Section 43, the Seller shall not
permit any Person other than the Servicer to service Loans without the prior
written consent of the Buyer, which consent shall not be unreasonably withheld.
(h) Underwriting Guidelines. Seller shall not permit any material
modifications to be made to the Underwriting Guidelines that will impact either
the Buyer or the Purchased Loans without the prior consent of Buyer (such
consent not to be unreasonably withheld). Seller agrees to deliver to Buyer
copies of the Underwriting Guidelines in the event that any material changes are
made to the Underwriting Guidelines following the Closing Date.
(i) Lines of Business. Seller shall not will not engage to any
substantial extent in any line or lines of business activity other than the
businesses generally carried on by it as of the Effective Date.
(j) Transactions with Affiliates. The Seller will not enter into any
material transaction, including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
without the consent of the Buyer unless such transaction is (a) otherwise
permitted under this Agreement, (b) in the ordinary course of the Seller's
business and (c) upon fair and reasonable terms no less favorable to the Seller
than it would obtain in a comparable arm's length transaction with a Person
which is not an Affiliate, or make a payment that is not otherwise permitted by
this Section (j) to any Affiliate.
(k) Defense of Title. Seller warrants and will defend the right, title
and interest of Buyer in and to all Purchased Items against all adverse claims
and demands of all Persons whomsoever.
(l) Preservation of Purchased Items. Seller shall take all action
necessary to preserve the Purchased Items so that they remain subject to a first
priority perfected security interest hereunder. Without limiting the foregoing,
Seller will comply with all applicable laws, rules, regulations and other laws
of any Governmental Authority applicable to Seller or relating to the Purchased
Items and cause the
34
Purchased Items to comply with all applicable laws, rules, regulations and other
laws of any such Governmental Authority. Seller will not allow any default to
occur for which Seller is responsible under any Purchased Items or any Program
Documents and Seller shall fully perform or cause to be performed when due all
of its obligations under any Purchased Items or the Program Documents.
(m) No Assignment. Except as permitted herein, Seller shall not sell,
assign, transfer or otherwise dispose of, or grant any option with respect to,
or pledge, hypothecate or grant a security interest in or lien on or otherwise
encumber (except pursuant to the Program Documents), any of the Purchased Loans
or any interest therein, provided that this Section 13(m) shall not prevent any
contribution, assignment, transfer or conveyance of Purchased Loans in
accordance with the Program Documents.
(n) Limitation on Sale of Assets. Seller shall not convey, sell, lease,
assign, transfer or otherwise dispose of (collectively, "Transfer"), all or
substantially all of its Property, business or assets (including, without
limitation, receivables and leasehold interests) whether now owned or hereafter
acquired or allow any Subsidiary to Transfer substantially all of its assets to
any Person; provided, that the Seller may after prior written notice to the
Buyer allow such action with respect to any Subsidiary which is not a material
part of the Seller's overall business operations.
(o) Limitation on Distributions. Without the Buyer's consent (which
shall not be unreasonably withheld), the Seller shall not 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 stock
or senior or subordinate debt of the 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 the Seller.
(p) Maintenance of Liquidity. Each Seller shall insure that, as of the
end of each calendar month, it has cash and Cash Equivalents in an amount of not
less than $20,000,000. The Seller shall insure that it has Cash Equivalents and
unused borrowing capacity on unencumbered assets that could be drawn against
(taking into account required haircuts) under committed warehouse and repurchase
facilities in an amount equal to not less than $ 50,000,000.
(q) Maintenance of Tangible Net Worth. American Home Mortgage Corp.
shall not permit its Tangible Net Worth at any time to be less than $21,000,000,
American Home Mortgage Acceptance, Inc. shall not permit its Tangible Net Worth
at any time to be less than $41,000,000 and American Home Mortgage Investment
Corp. shall not permit its Tangible Net Worth at any time to be less than the
sum of (i) $685,000,000 plus (ii) 75% of the aggregate amount of any capital
raised through its equity issuances after June 30, 2005.
(r) Committed Repurchase or Warehouse Facility. Each Seller shall
maintain throughout the term of this Agreement, with a nationally recognized and
established counterparty (other than the Buyer) at least one committed loan
repurchase or warehouse facility that provides funding on a committed basis, and
accommodates wet and dry prime, alt-a, and subprime mortgage loans in an amount
not less than $500,000,000, with $50,000,000 available for wet loans.
(s) Maintenance of Book Value to Indebtedness. The minimum ratio of (i)
the sum of the products of the book values (as determined in accordance with
GAAP) of the consolidated assets of each Seller and its subsidiaries times the
percentage multiplier for each such class agreed to by Buyer to (ii) the sum of
(a) the consolidated funded debt of such Seller and any other person which would
be reflected on the consolidated balance sheet of such Seller 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
35
York, shall be 1:1 at all times (or such higher ratio provided under any other
repurchase, financing, credit or other similar facility entered into by such
Seller).
(t) Restricted Payments. The Seller shall not make any Restricted
Payments following a monetary Event of Default.
(u) Servicing Transmission. The Seller shall provide to the Buyer on a
monthly basis no later than 11:00 a.m. New York City time two (2) Business Days
prior to each Repurchase Date (or such other day reasonably requested by Buyer)
(i) the Servicing Transmission, on a loan-by-loan basis and in the aggregate,
with respect to the Loans serviced hereunder by the Seller which were funded
prior to the first day of the current month, summarizing the Seller's
delinquency and loss experience with respect to Loans serviced by the Seller
(including, in the case of the Loans, the following categories: current, 30-59,
60-89, 90-119, 120-149 and 150+) and (ii) any other information reasonably
requested by the Buyer with respect to the Loans.
(v) No Amendment or Compromise. Without Buyer's prior written consent,
none of Seller or those acting on Seller's behalf shall amend or modify, or
waive any term or condition of, or settle or compromise any claim in respect of,
any item of the Purchased Loans, any related rights or any of the Program
Documents, provided that Seller may amend or modify a Loan if such amendment or
modification does not affect the amount or timing of any payment of principal or
interest, extend its scheduled maturity date, modify its interest rate, or
constitute a cancellation or discharge of its outstanding principal balance and
does not materially and adversely affect the security afforded by the real
property, furnishings, fixtures, or equipment securing the Loan.
(w) Maintenance of Property; Insurance. The Seller shall keep all
property useful and necessary in its business in good working order and
condition. The Seller shall maintain errors and omissions insurance and/or
mortgage impairment insurance and blanket bond coverage in such amounts as are
in effect on the Effective Date (as disclosed to Buyer in writing) and shall not
reduce such coverage without the written consent of the Buyer, which shall not
be unreasonably withheld, and shall also maintain such other insurance with
financially sound and reputable insurance companies, and with respect to
property and risks of a character customarily maintained by entities engaged in
the same or similar business similarly situated, against loss, damage and
liability of the kinds and in the amounts customarily maintained by such
entities.
(x) Further Identification of Purchased Items. The Seller will furnish
to the Buyer from time to time statements and schedules further identifying and
describing the Purchased Items and such other reports in connection with the
Purchased Items as the Buyer or any Buyer may reasonably request, all in
reasonable detail.
(y) Loan Determined to be Defective. Upon discovery by Seller or the
Buyer of any breach of any representation or warranty listed on Schedule 1
hereto applicable to any Loan, the party discovering such breach shall promptly
give notice of such discovery to the other.
(z) Interest Rate Protection Agreements. Upon the Buyer's reasonable
request, the Seller shall deliver to the Buyer any and all material information
relating to Interest Rate Protection Agreements.
(aa) Certificate of a Responsible Officer of the Seller. At the time
that the Seller delivers financial statements to the Buyer in accordance with
Section 13(a) hereof, the Seller shall forward to the Buyer a certificate of a
Responsible Officer of the Seller which demonstrates that the Seller is in
compliance with the covenants set forth in Sections 13(p), (q), and (r) above.
36
(bb) Reserved.
(cc) Maintenance of Papers, Records and Files. Seller shall acquire,
and Seller shall build, maintain and have available, a complete file in
accordance with lending industry custom and practice for each Purchased Loan.
Seller will maintain all such Records not in the possession of Custodian in good
and complete condition in accordance with industry practices and preserve them
against loss or destruction.
(i) Seller shall collect and maintain or cause to be collected
and maintained all Records relating to the Purchased Loans in
accordance with industry custom and practice, including those
maintained pursuant to the preceding subsection, and all such Records
shall be in Custodian's possession unless Buyer otherwise approves.
Seller will not cause or authorize any such papers, records or files
that are an original or an only copy to leave Custodian's possession,
except for individual items removed in connection with servicing a
specific Loan or otherwise in accordance with the terms of the
Custodial Agreement, in which event Seller will obtain or cause to be
obtained a receipt from the Custodian for any such paper, record or
file.
(ii)For so long as Buyer has an interest in or lien on any
Purchased Loan, Seller will hold or cause to be held all related
Records in trust for Buyer. Seller shall notify, or cause to be
notified, every other party holding any such Records of the interests
and liens granted hereby.
(iii) Upon at least three (3) Business Days' prior written
notice from Custodian or Buyer, Seller shall (x) make any and all such
Records available to Custodian or Buyer to examine any such Records,
either by its own officers or employees, or by agents or contractors,
or both, and make copies of all or any portion thereof, (y) permit
Buyer or its authorized agents to discuss the affairs, finances and
accounts of Seller with its respective chief operating officer and
chief financial officer and to discuss the affairs, finances and
accounts of Seller with its independent certified public accountants;
provided, however that if no default or Event of Default has occurred
and is continuing, Seller's expenses in connection with any examination
in excess of one (1) such examination per fiscal quarter shall not
exceed $25,000.
(dd) Maintenance of Licenses. Seller shall (i) maintain all licenses,
permits or other approvals necessary for Seller to conduct its business and to
perform its obligations under the Program Documents, (ii) remain in good
standing under the laws of each state in which it conducts business or any
Mortgage Property is located, and (iii) shall conduct its business strictly in
accordance with applicable law.
(ee) Taxes, Etc. The Seller shall pay and discharge or cause to be paid
and discharged, when due all taxes, assessments and governmental charges or
levies imposed upon the Seller or upon its income and profits or upon any of its
property, real, personal or mixed (including without limitation, the Purchased
Loans) or upon any part thereof, as well as any other lawful claims which, if
unpaid, might become a Lien upon such properties or any part thereof, except for
any such taxes, assessments and governmental charges, levies or claims as are
appropriately contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are provided. The Seller
shall file on a timely basis all federal, and material state and local tax and
information returns, reports and any other information statements or schedules
required to be filed by or in respect of it.
(ff) Use of Custodian. Without the prior written consent of Buyer, or
except as otherwise permitted under the Custodial Agreement, Seller shall use no
third party custodian as document custodian other than the Custodian with
respect to third party purchasers, prospective third party purchasers, lenders
and prospective third party lenders with respect to loans of the same type as
the Purchased Loans.
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(gg) Change of Fiscal Year. Seller will not at any time, directly or
indirectly, except upon ninety (90) days' prior written notice to Buyer, change
the date on which Seller's fiscal year begins from Seller's current fiscal year
beginning date.
(hh) Delivery of Servicing Rights. Seller shall deliver the Servicing
Rights to a Loan to the Buyer on the applicable Purchase Date. With respect to
the actual servicing and Servicing Records for each Loan, Seller shall deliver
such servicing and Servicing Records to the designee of Buyer, within (75) days
of a Purchase Date, unless otherwise stated in writing by Buyer; provided that
on each Repurchase Date that is subject to a new Transaction, such delivery
requirement is deemed restated for such new Transaction (and the immediately
preceding delivery requirement is deemed to be rescinded) in the absence of
directions to the contrary from Buyer, and a new 75-day period is deemed to
commence as of such Repurchase Date. Seller's transfer of the Servicing Rights
and Servicing Records under this Section shall be in accordance with customary
standards in the industry.
(ii) Establishment of Collection Account. Prior to the initial Purchase
Date, Seller shall establish the Collection Account for the sole and exclusive
benefit of the Buyer. The Seller shall segregate all amounts collected on
account of the Purchased Loans, to be held in trust for the benefit of the
Buyer, and shall remit such collections in accordance with the Buyer's written
instructions. No amounts deposited into such account shall be removed without
the Buyer's prior written consent. The Seller shall follow the instructions of
Buyer with respect to the Purchased Loans and deliver to Buyer any information
with respect to the Purchased Loans reasonably requested by Buyer. Seller shall
deposit or credit to the Collection Account all items to be deposited or
credited thereto irrespective of any right of setoff or counterclaim arising in
favor of it (or any third party claiming through it) under any other agreement
or arrangement.
(jj) MERS. Seller will comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the MERS Loans for as
long as such Purchased Loans are registered with MERS.
14. REPURCHASE DATE PAYMENTS/COLLECTIONS
On each Repurchase Date, Seller shall remit or shall cause to be
remitted to Buyer the Repurchase Price together with any other Obligations then
due and payable.
15. REPURCHASE OF PURCHASED LOANS
Upon discovery by Seller of a breach of any of the representations and
warranties set forth on Schedule 1 to this Agreement, Seller shall give prompt
written notice thereof to Buyer. Upon any such discovery by Buyer, Buyer will
give prompt written notice to Seller. It is understood and agreed that the
representations and warranties set forth in Schedule 1 with respect to the
Purchased Loans shall survive delivery of the respective Mortgage Files to the
Custodian and shall inure to the benefit of Buyer. The fact that Buyer has
conducted or has failed to conduct any partial or complete due diligence
investigation in connection with its purchase of any Purchased Loan shall not
affect Buyer's right to demand repurchase as provided under this Agreement.
Seller shall, within two (2) Business Days of the earlier of Seller's discovery
or Seller receiving notice with respect to any Purchased Loan of (i) any breach
of a representation or warranty contained in Schedule 1, or (ii) any failure to
deliver any of the items required to be delivered as part of the Mortgage File
within the time period required for delivery pursuant to the Custodial
Agreement, promptly cure such breach or delivery failure in all material
respects. If within two (2) Business Days after the earlier of Seller's
discovery of such breach or delivery failure or Seller receiving notice thereof
that such breach or delivery failure has not been remedied by Seller, Seller
shall promptly upon receipt of written instructions from Buyer, at Buyer's
option, either (i) repurchase such Purchased Loan at a purchase price equal to
the Repurchase Price with respect to such Purchased Loan by
38
wire transfer to the account designated by Buyer, or (ii) transfer comparable
Substitute Loans to Buyer, as provided in Section 16 hereof.
16. SUBSTITUTION
Seller may, subject to agreement with and acceptance by Buyer (which
shall not be unreasonably withheld) upon one (1) Business Day's notice,
substitute other assets which are substantially the same as the Purchased Loans
(the "Substitute Loans") for any Purchased Loans. Such substitution shall be
made by transfer to Buyer of such Substitute Loans and transfer to Seller of
such Purchased Loans (the "Reacquired Loans") along with the other information
to be provided with respect to the applicable Substitute Loan as described in
the form of Transaction Notice. Upon substitution, the Substitute Loans shall be
deemed to be Purchased Loans, the Reacquired Loans shall no longer be deemed
Purchased Loans, Buyer shall be deemed to have terminated any security interest
that Buyer may have had in the Reacquired Loans and any Purchased Items solely
related to such Reacquired Loans to Seller unless such termination and release
would give rise to or perpetuate a Margin Deficit. Concurrently with any
termination and release described in this Section 16, Buyer shall execute and
deliver to Seller upon request and Buyer hereby authorizes Seller to file and
record such documents as Seller may reasonably deem necessary or advisable in
order to evidence such termination and release.
17. ACCELERATION OF REPURCHASE DATE
The Buyer may, at any time, terminate this Agreement by providing
written notice to the Seller. Within thirty (30) calendar days of receipt of
such notice, the Seller agrees to repurchase all Purchased Loans at the
Repurchase Price and to satisfy all of its Obligations hereunder.
18. EVENTS OF DEFAULT
Each of the following events shall constitute an Event of Default (an
"Event of Default") hereunder:
(a) Seller fails to transfer the Purchased Loans to Buyer on the
applicable Purchase Date (provided Buyer has tendered the related Purchase
Price);
(b) Seller either fails to repurchase the Purchased Loans on the
applicable Repurchase Date or fails to perform its obligations under Section 6;
(c) Seller shall default in the payment of any other amount payable by
it hereunder or under any other Program Document after notification by the Buyer
of such default, and such default shall have continued unremedied for five (5)
Business Days; or
(d) any representation, warranty or certification made or deemed made
herein or in any other Program Document by the Seller or any certificate
furnished to the Buyer pursuant to the provisions thereof, 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 Market Value
of the Loans; unless (i) the Seller shall have made any such representations and
warranties with knowledge that they were materially false or misleading at the
time made or (ii) any such representations and warranties have been determined
by the Buyer in its sole discretion to be materially false or misleading on a
regular basis); or
(e) the Seller shall fail to comply with the requirements of Section
13(c)(i), Section 13(d), Section 13(f)(i) or (iii) or Sections 13(k) through
13(s) or Section 13(w) hereof; or the Seller shall default in the performance of
its obligations under Section 13(e) hereof, and such default shall continue
39
unremedied for a period of one (1) Business Day; or the Seller shall otherwise
fail to observe or perform any other agreement contained in this Agreement or
any other Program Document and such failure to observe or perform shall continue
unremedied for a period of five (5) Business Days; or
(f) any final judgment or judgments or order or orders for the payment
of money in excess of $5,000,000 in the aggregate (to the extent that it is, in
the reasonable determination of Buyer, uninsured and provided that any insurance
or other credit posted in connection with an appeal shall not be deemed
insurance for these purposes) shall be rendered against Seller or any of
Seller's Affiliates by one or more courts, administrative tribunals or other
bodies having jurisdiction over them and the same shall not be discharged (or
provisions shall not be made for such discharge), satisfied, or bonded, or a
stay of execution thereof shall not be procured, within sixty (60) days from the
date of entry thereof and Seller or any of Seller's Affiliates, as applicable,
shall not, within said period of sixty (60) days, appeal therefrom and cause the
execution thereof to be stayed during such appeal;
(g) Seller shall admit in writing its inability to, or intention not
to, perform any of Seller's Obligations, or Buyer shall have determined in good
faith that Seller is unable to meet its commitments;
(h) Seller or any of Seller's Affiliates files a voluntary petition in
bankruptcy, seeks relief under any provision of any bankruptcy, reorganization,
moratorium, delinquency, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction whether now or subsequently
in effect; or consents to the filing of any petition against it under any such
law; or consents to the appointment of or taking possession by a custodian,
receiver, conservator, trustee, liquidator, sequestrator or similar official for
Seller or any of Seller's Affiliates, or of all or any part of Seller's or
Seller's Affiliates' Property; or makes an assignment for the benefit of Seller
or Seller's Affiliates' creditors;
(i) A custodian, receiver, conservator, liquidator, trustee,
sequestrator or similar official for Seller, or any of Seller's Affiliates, or
of any of Seller's, or their respective Property (as a debtor or creditor
protection procedure), is appointed or takes possession of such Property; or
Seller or any of Seller's Affiliates generally fails to pay Seller's or Seller's
Affiliates' debts as they become due; or Seller or any of Seller's Affiliates is
adjudicated bankrupt or insolvent; or an order for relief is entered under the
Federal Bankruptcy Code, or any successor or similar applicable statute, or any
administrative insolvency scheme, against Seller or any of Seller's Affiliates;
or any of Seller's or Seller's Affiliates' Property is sequestered by court or
administrative order; or a petition is filed against Seller or any of Seller's
Affiliates under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, moratorium, delinquency or liquidation law of
any jurisdiction, whether now or subsequently in effect;
(j) Any Governmental Authority 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 Seller or any of Seller's Affiliates, or
shall have taken any action to displace the management of Seller or any of
Seller's Affiliates or to curtail its authority in the conduct of the business
of any Seller or any of Seller's Affiliates, or takes any action in the nature
of enforcement to remove, limit or restrict the approval of Seller or any of
Seller's Affiliates as an issuer, buyer or a seller/servicer of Loans or
securities backed thereby, and such action provided for in this subsection (j)
shall not have been discontinued or stayed within thirty (30) days provided,
however that nothing in this clause shall trigger an Event of Default unless it
has a Material Adverse Effect;
(k) Any Program Document shall for whatever reason (including an event
of default thereunder) be terminated (other than by mutual agreement of the
parties). This Agreement shall for any reason cease to create a valid, first
priority security interest or ownership interest upon transfer in any material
portion of the Purchased Loans or Purchased Items purported to be covered hereby
or any of Seller's material
40
obligations hereunder (including Seller's Obligations) shall cease to be in full
force and effect, or the enforceability thereof shall be contested by the
Seller;
(l) Any Material Adverse Effect has occurred with respect to any Seller
or any of their Affiliates, in each case as determined by Buyer in its sole
discretion, or the existence of any other condition which, in Buyer's sole
reasonable discretion, constitutes a material impairment of any Seller's ability
to perform its obligations under this Agreement or any other Program Document;
(m) (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 the assets of the Buyer 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 Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Buyer, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Seller
or any Commonly Controlled Entity shall, or in the reasonable opinion of the
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;
(n) A Change of Control of Seller shall have occurred without the prior
consent of the Buyer;
(o) Seller shall grant, or suffer to exist, any Lien on any Purchased
Items except the Liens contemplated hereby; or the Liens contemplated hereby
shall cease to be first priority perfected Liens on the Purchased Items in favor
of the Buyer or shall be Liens in favor of any Person other than Buyer;
(p) Buyer shall reasonably request, specifying the reasons for such
request, reasonable information, and/or written responses to such requests,
regarding the financial well-being of Seller and such reasonable information
and/or responses shall not have been provided within five (5) Business Days of
such request;
(q) Seller or any subsidiary or Affiliate of Seller shall default
under, or fail to perform as required under, or shall otherwise materially
breach the terms of any instrument, agreement or contract between the Seller or
such other entity, on the one hand, and the Buyer or any of the Buyer's
Affiliates on the other; or the Seller or any Subsidiary or Affiliate of the
Seller shall default under, or fail to perform as requested under, the terms of
any repurchase agreement, loan and security agreement or similar credit facility
or agreement for borrowed funds entered into by the Seller or such other entity
and any third party, which default or failure entitles any party to require
acceleration or prepayment of any indebtedness thereunder;
(r) The failure of American Home Mortgage Investment Corp. to continue
to be (i) qualified as a REIT 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 a
deduction on its Form 1120 - REIT filed with the United States Internal Revenue
Service for such year, or the entering into by American Home Mortgage Investment
Corp. of any material "prohibited transactions" as defined in Sections 857(b)
and 856(c) of the Code; or
41
(s) If at any time while any MERS Loans are serviced by an affiliate of
the Seller, the Seller shall have its membership in MERS terminated by MERS, and
shall fail to remove any MERS Loans from the MERS system within ten (10) days;
(t) The failure of American Home Mortgage Investment Corp. to satisfy
any of the following asset or income tests and the Buyer has delivered notice of
an Event of Default to the Seller with respect thereto:
(i) At the close of each taxable year, at least 75 percent of
gross income consists of (A) "rents from real property" within the
meaning of Section 856(c)(3)(A) of the Code, (B) interest on
obligations secured by mortgages on real property or on interests in
real property, within the meaning of Section 856(c)(3)(B) of the Code,
(C) gain from the sale or other disposition of real property (including
interests in real property and interests in mortgages on real property)
which is not property described in Section 1221(a)(1) of the Code,
within the meaning of Section 856(c)(3)(C) of the Code, (D) dividends
or other distributions on, and gain (other than gain from "prohibited
transactions" within the meaning of Section 857(b)(6)(B)(iii) of the
Code) from the sale or other disposition of, transferable shares (or
transferable certificates of beneficial interest) in other qualifying
REITs within the meaning of Section 856(d)(3)(D) of the Code, and (E)
amounts described in Sections 856(c)(3)(E) through 856(c)(3)(I) of the
Code;
(ii) At the close of each taxable year, at least 95 percent of
American Home Mortgage Investment Corp.'s gross income consists of (A)
the items of income described in paragraph 1 hereof (other than those
described in Section 856(c)(3)(I) of the Code), (B) gain realized from
the sale or other disposition of stock or securities which are not
property described in Section 1221(a)(1) of the Code, (C) interest, (D)
dividends, in each case within the meaning of Section 856(c)(2) of the
Code;
(iii) At the close of each quarter of American Home Mortgage
Investment Corp.'s taxable year, at least 75 percent of the value of
American Home Mortgage Investment Corp.'s total assets (as determined
in accordance with Treasury Regulations Section 1.856-2(d)) has
consisted of and will consist of real estate assets within the meaning
of Sections 856(c)(4) and 856(c)(5)(B) of the Code, cash and cash items
(including receivables which arise in the ordinary course of American
Home Mortgage Investment Corp.'s operations, but not including
receivables purchased from another person), and Government Securities;
(iv) At the close of each quarter of each of American Home
Mortgage Investment Corp.'s taxable years, (A) not more than 25 percent
of American Home Mortgage Investment Corp.'s total asset value will be
represented by securities (other than those described in paragraph 3),
(B) not more than 20 percent of American Home Mortgage Investment
Corp.'s total asset value will be represented by securities of one or
more taxable REIT subsidiaries, and (C) (1) not more than 5 percent of
the value of American Home Mortgage Investment Corp.'s total assets
will be represented by securities of any one issuer (other than
Government Securities and securities of taxable REIT subsidiaries), and
(2) American Home Mortgage Investment Corp. will not hold securities
possessing more than 10 percent of the total voting power or value of
the outstanding securities of any one issuer (other than Government
Securities, securities of taxable REIT subsidiaries, and securities of
a qualified REIT subsidiary within the meaning of Section 856(i) of the
Code).
19. REMEDIES
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Upon the occurrence of an Event of Default, Buyer, at its option (which
option shall be deemed to have been exercised immediately upon the occurrence of
an Event of Default pursuant to Section 18(g), (h), (i) or (j) hereof), shall
have the right to exercise any or all of the following rights and remedies:
(a) (i) The Repurchase Date for each Transaction hereunder shall, if it
has not already occurred, be deemed immediately to occur (provided
that, in the event that the Purchase Date for any Transaction has not
yet occurred as of the date of such exercise or deemed exercise, such
Transaction shall be deemed immediately canceled). Seller's obligations
hereunder to repurchase all Purchased Loans at the Repurchase Price
therefor on the Repurchase Date in such Transactions shall thereupon
become immediately due and payable; all Income then on deposit in the
Collection Account and all Income paid after such exercise or deemed
exercise shall be remitted to and retained by Buyer and applied to the
aggregate Repurchase Price and any other amounts owing by Seller
hereunder.
(ii)If Seller has not paid the Repurchase Price on the
Business Day following the date on which the Repurchase Price became
due and payable pursuant to Section 19(a)(i), Buyer shall have the
right to (A) sell, without notice or demand of any kind, at a public or
private sale and at such price or prices as Buyer may reasonably deem
satisfactory any or all Purchased Loans and/or (B) in its sole
discretion elect, in lieu of selling all or a portion of such Purchased
Loans, to give Seller credit for such Purchased Loans in an amount
equal to the Market Value of the Purchased Loans against the aggregate
unpaid Repurchase Price and any other amounts owing by Seller
hereunder. Seller shall remain liable to Buyer for any amounts that
remain owing to Buyer following a sale and/or credit under the
preceding sentence. The proceeds of any disposition of Purchased Loans
shall be applied first to the reasonable costs and expenses incurred by
Buyer in connection with or as a result of an Event of Default; second
to the aggregate Repurchase Prices; and third to all other Obligations.
Seller shall immediately deliver to Buyer or its designee any and all
original papers, Records and files relating to the Purchased Loans
subject to such Transaction then in Seller's possession and/or control;
and all right, title and interest in and entitlement to such Purchased
Loans and Servicing Rights thereon shall be deemed transferred to Buyer
or its designee.
(iii) Buyer shall have the right to terminate this Agreement and
declare all obligations of Seller to be immediately due and payable, by
a notice in accordance with Section 21 hereof.
(iv) The parties recognize that it may not be possible to
purchase or sell all of the Purchased Loans on a particular Business
Day, or in a transaction with the same purchaser, or in the same manner
because the market for such Purchased Loans may not be liquid. In view
of the nature of the Purchased Loans, the parties agree that
liquidation of a Transaction or the underlying Purchased Loans does not
require a public purchase or sale and that a good faith private
purchase or sale shall be deemed to have been made in a commercially
reasonable manner. Accordingly, Buyer may elect the time and manner of
liquidating any Purchased Loan and nothing contained herein shall
obligate Buyer to liquidate any Purchased Loan on the occurrence of an
Event of Default or to liquidate all Purchased Loans in the same manner
or on the same Business Day or constitute a waiver of any right or
remedy of Buyer. Notwithstanding the foregoing, the parties to this
Agreement agree that the Transactions have been entered into in
consideration of and in reliance upon the fact that all Transactions
hereunder constitute a single business and contractual obligation and
that each Transaction has been entered into in consideration of the
other Transactions.
(v) To the extent permitted by applicable law, the Seller waives
all claims, damages and demands it may acquire against the Buyer
arising out of the exercise by the Buyer of any of its rights
hereunder, other than those claims, damages and demands arising from
the gross
43
negligence or willful misconduct of the Buyer. If any notice of a
proposed sale or other disposition of Purchased Items shall be required
by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
(b) Seller hereby acknowledges, admits and agrees that Seller's
obligations under this Agreement are recourse obligations of Seller to which
Seller pledges its full faith and credit. In addition to its rights hereunder,
Buyer shall have the right to proceed against any of Seller's assets which may
be in the possession of Buyer, any of Buyer's Affiliates or their respective
designees (including the Custodian), including the right to liquidate such
assets and to set-off the proceeds against monies owed by Seller to Buyer
pursuant to this Agreement. Buyer may set off cash, the proceeds of the
liquidation of the Purchased Loans and Additional Purchased Loans, any other
Purchased Items and their proceeds proceeds and all other sums or obligations
owed by Buyer to Seller against all of Seller's obligations to Buyer, whether
under this Agreement, under a Transaction, or under any other agreement between
the parties, or otherwise, whether or not such obligations are then due, without
prejudice to Buyer's right to recover any deficiency.
(c) Buyer shall have the right to obtain physical possession of the
Servicing Records and all other files of Seller relating to the Purchased Loans
and all documents relating to the Purchased Loans which are then or may
thereafter come into the possession of Seller or any third party acting for
Seller and Seller shall deliver to Buyer such assignments as Buyer shall
request.
(d) Buyer shall have the right to direct all Persons servicing the
Purchased Loans to take such action with respect to the Purchased Loans as Buyer
determines appropriate.
(e) Buyer shall, without regard to the adequacy of the security for the
Obligations, be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession of and protect, collect,
manage, liquidate, and sell the Purchased Loans and any other Purchased Items or
any portion thereof, collect the payments due with respect to the Purchased
Loans and any other Purchased Items or any portion thereof, and do anything that
Buyer is authorized hereunder or by law to do. Seller shall pay all costs and
expenses incurred by Buyer in connection with the appointment and activities of
such receiver.
(f) Buyer may, at its option, enter into one or more Interest Rate
Protection Agreements covering all or a portion of the Purchased Loans, and the
Seller shall be responsible for all damages, judgments, costs and expenses of
any kind which may be imposed on, incurred by or asserted against the Buyer
relating to or arising out of such Interest Rate Protection Agreements;
including without limitation any losses resulting from such Interest Rate
Protection Agreements. Notwithstanding the foregoing, Seller shall not be
responsible for any damages, judgments, costs and expenses with respect to such
Interest Rate Protection Agreements which result from Buyer's default, gross
negligence or intentional misconduct under such agreements.
(g) In addition to all the rights and remedies specifically provided
herein, Buyer shall have all other rights and remedies provided by applicable
federal, state, foreign, and local laws, whether existing at law, in equity or
by statute, including, without limitation, all rights and remedies available to
a purchaser or a secured party, as applicable, under the Uniform Commercial
Code.
Except as otherwise expressly provided in this Agreement, Buyer shall
have the right to exercise any of its rights and/or remedies without
presentment, demand, protest or further notice of any kind other than as
expressly set forth herein, all of which are hereby expressly waived by Seller.
Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives, to the extent
permitted by law, any right Seller might otherwise have
44
to require Buyer to enforce its rights by judicial process. Seller also waives,
to the extent permitted by law, any defense Seller might otherwise have to the
Obligations, arising from use of nonjudicial process, enforcement and sale of
all or any portion of the Purchased Loans and any other Purchased Items or from
any other election of remedies. 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.
Seller shall cause all sums received by it with respect to the Purchased
Loans to be deposited with such Person as Buyer may direct after receipt
thereof. Seller shall be liable to Buyer for the amount of all expenses (plus
interest thereon at a rate equal to the Post-Default Rate) including, without
limitation, all costs and expenses incurred within thirty (30) days of the Event
of Default in connection with hedging or covering transactions related to the
Purchased Loans, conduit advances and payments for mortgage insurance.
20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE
No failure on the part of Buyer to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Buyer of any right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All rights and remedies of Buyer
provided for herein are cumulative and in addition to any and all other rights
and remedies provided by law, the Program Documents and the other instruments
and agreements contemplated hereby and thereby, and are not conditional or
contingent on any attempt by Buyer to exercise any of its rights under any other
related document. Buyer may exercise at any time after the occurrence of an
Event of Default one or more remedies, as they so desire, and may thereafter at
any time and from time to time exercise any other remedy or remedies.
21. 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 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 telex or telecopy) delivered to the intended recipient at
the "Address for Notices" specified below its name on the signature pages
hereof); 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, all such communications shall be deemed to have been duly
given when transmitted by telex or telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
22. USE OF EMPLOYEE PLAN ASSETS
No assets of an employee benefit plan subject to any provision of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") shall be
used by either party hereto in a Transaction.
23. INDEMNIFICATION AND EXPENSES.
(a) The Seller agrees to hold the Buyer, and its Affiliates and their
officers, directors, employees, agents and advisors (each an "Indemnified
Party") harmless from and indemnify any Indemnified Party against all
liabilities, losses, damages, judgments, reasonable costs and expenses of any
kind which may be imposed on, incurred by or asserted against such Indemnified
Party (collectively, the "Costs") relating to or arising out of this Agreement,
any other Program 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 Program Document or any transaction
contemplated hereby or
45
thereby, that, in each case, results from anything other than (i) any
Indemnified Party's gross negligence or willful misconduct or (ii) an action,
claim or dispute in which a Seller is the prevailing party pursuant to a final
judgment. Without limiting the generality of the foregoing, the Seller agrees to
hold any Indemnified Party harmless from and indemnify such Indemnified Party
against all Costs with respect to all 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 laws with respect to
unfair or deceptive lending practices and predatory lending practices, the Truth
in Lending Act and/or the Real Estate Settlement Procedures Act, that, in each
case, results from anything other than such Indemnified Party's gross negligence
or willful misconduct. In any suit, proceeding or action brought by an
Indemnified Party in connection with any Loan for any sum owing thereunder, or
to enforce any provisions of any Loan, the Seller will save, indemnify and hold
such Indemnified Party harmless from and against all reasonable 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 the Seller of any obligation thereunder or arising
out of any other related agreement, indebtedness or liability at any time owing
to or in favor of such account debtor or obligor or its successors from the
Seller. The Seller also agrees to reimburse an Indemnified Party as and when
billed by such Indemnified Party for all such Indemnified Party's costs and
expenses incurred in connection with the enforcement or the preservation of such
Indemnified Party's rights under this Agreement, any other Program Document or
any transaction contemplated hereby or thereby, including without limitation the
reasonable fees and disbursements of its counsel. The Seller hereby acknowledges
that, the obligations of the Seller under this Agreement are recourse
obligations of the Seller.
(b) The Seller agrees to pay as and when billed by the Buyer all of the
reasonable out-of pocket costs and expenses incurred by the Buyer in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement, any other Program Document or any
other documents prepared in connection herewith or therewith. The Seller agrees
to pay as and when billed by the Buyer all of the reasonable out-of-pocket costs
and expenses incurred in connection with the consummation and administration of
the transactions contemplated hereby and thereby including, without limitation,
(i) all the reasonable fees, disbursements and expenses of counsel to the Buyer
and (ii) all the reasonable due diligence, inspection, testing and review costs
and expenses incurred by the Buyer with respect to Purchased Items under this
Agreement, including, but not limited to, those reasonable costs and expenses
incurred by the Buyer pursuant to Sections 23 and 44 hereof. Seller also agrees
not to assert any claim against Buyer or any of its Affiliates, or any of their
respective officers, directors, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Program Documents, the actual or proposed
use of the proceeds of the Transactions, this Agreement or any of the
transactions contemplated thereby. THE FOREGOING INDEMNITY AND AGREEMENT NOT TO
ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES.
(c) If Seller fails to pay when due any costs, expenses or other
amounts payable by it under this Agreement, including, without limitation,
reasonable fees and expenses of counsel and indemnities, such amount may be paid
on behalf of Seller by Buyer, in its sole discretion and Seller shall remain
liable for any such payments by Buyer. No such payment by Buyer shall be deemed
a waiver of any of Buyer's rights under the Program Documents.
(d) Without prejudice to the survival of any other agreement of Seller
hereunder, the covenants and obligations of Seller contained in this Section 23
shall survive the payment in full of the Repurchase Price and all other amounts
payable hereunder and delivery of the Purchased Loans by Buyer against full
payment therefor.
46
(e) All sums reasonably expended by Buyer in connection with the
exercise of any right or remedy provided for herein shall be and remain Seller's
obligation (unless and to the extent that Seller is the prevailing party in any
dispute, claim or action relating thereto). Seller agrees to pay, with interest
at the Post-Default Rate to the extent that an Event of Default has occurred,
the reasonable out-of-pocket expenses and reasonable attorneys' fees incurred by
Buyer and/or Custodian in connection with the preparation, negotiation,
enforcement (including any waivers), administration and amendment of the Program
Documents (regardless of whether a Transaction is entered into hereunder), the
taking of any action, including legal action, required or permitted to be taken
by Buyer (without duplication to Buyer) and/or Custodian pursuant thereto, any
"due diligence" or loan agent reviews conducted by Buyer or on its behalf or by
refinancing or restructuring in the nature of a "workout."
24. WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS
Each Seller hereby expressly waives, to the fullest extent permitted by
law, every statute of limitation on a deficiency judgment, any reduction in the
proceeds of any Purchased Items as a result of restrictions upon Buyer or
Custodian contained in the Program Documents or any other instrument delivered
in connection therewith, and any right that it may have to direct the order in
which any of the Purchased Loans shall be disposed of in the event of any
disposition pursuant hereto.
25. FURTHER ASSURANCES
Seller agrees to do such further acts and things and to execute and
deliver to Buyer such additional assignments, acknowledgments, agreements,
powers and instruments as are reasonably required by Buyer to carry into effect
the intent and purposes of this Agreement and the other Program Documents, to
perfect the interests of Buyer in the Purchased Items or to better assure and
confirm unto Buyer its rights, powers and remedies hereunder and thereunder.
26. TERMINATION
This Agreement shall remain in effect until the Termination Date.
However, no such termination shall affect Seller's outstanding obligations to
Buyer at the time of such termination. Seller's obligations under Section 3(h),
Section 5, Section 12 and Section 23 and any other reimbursement or indemnity
obligation by Seller to Buyer pursuant to this Agreement or any other Program
Documents shall survive the termination hereof.
27. SEVERABILITY
If any provision of any Program Document is declared invalid by any
court of competent jurisdiction, such invalidity shall not affect any other
provision of the Program Documents, and each Program Document shall be enforced
to the fullest extent permitted by law.
28. BINDING EFFECT; GOVERNING LAW
This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Seller may not
assign or transfer any of its respective rights or obligations under this
Agreement or any other Program Document without the prior written consent of
Buyer. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF (EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
29. AMENDMENTS
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Except as otherwise expressly provided in this Agreement, any provision
of this Agreement may be modified or supplemented only by an instrument in
writing signed by the Seller and the Buyer and any provision of this Agreement
may be waived by the Buyer.
30. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
31. SURVIVAL
The obligations of the Seller under Sections 3(i), 5, and 23 hereof and
any other reimbursement or indemnity obligation of Seller to Buyer pursuant to
this Agreement or any other Program Document shall survive the repurchase of the
Loans hereunder and the termination of this Agreement. In addition, each
representation and warranty made, or deemed to be made by a request for a
purchase, herein or pursuant hereto shall survive the making of such
representation and warranty, and the Buyer shall not be deemed to have waived,
by reason of purchasing any Loan, any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that the Buyer may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading at the time
such purchase was made.
32. CAPTIONS
The table of contents and captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
33. COUNTERPARTS
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.
34. SUBMISSION TO JURISDICTION; WAIVERS
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND/OR ANY OTHER PROGRAM DOCUMENT, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, 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;
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(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 THE BUYER SHALL HAVE
BEEN NOTIFIED; AND
(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.
35. WAIVER OF JURY TRIAL
EACH OF THE SELLER AND THE BUYER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
36. ACKNOWLEDGEMENTS
The Seller hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Program Documents to which it is a
party;
(b) the Buyer has no fiduciary relationship to the Seller; and
(c) no joint venture exists among or between the Buyer and the Seller.
37. HYPOTHECATION OR PLEDGE OF PURCHASED ITEMS.
The Buyer shall have free and unrestricted use of all Loans and
Purchased Items and nothing in this Agreement shall preclude the Buyer from
engaging in repurchase transactions with the Loans and Purchased Items or
otherwise pledging, repledging, transferring, hypothecating, or rehypothecating
the Loans and Purchased Items. Nothing contained in this Agreement shall
obligate the Buyer to segregate any Loans or Purchased Items delivered to the
Buyer by the Seller.
38. ASSIGNMENTS; PARTICIPATIONS.
(a) The Seller may assign any of its rights or obligations hereunder
only with the prior written consent of the Buyer. The Buyer may assign or
transfer to any bank or other financial institution that makes or invests in
repurchase agreements or loans or any Affiliate of the Buyer all or any of its
rights under this Agreement and the other Program Documents.
(b) The Buyer may, in accordance with applicable law, at any time sell
to one or more Buyers or other entities ("Participants") participating interests
in this Agreement, its agreement to purchase Loans, or any other interest of the
Buyer hereunder and under the other Program Documents. In the event of any such
sale by the Buyer of participating interests to a Participant, (i) the Buyer's
obligations under this Agreement to the Seller shall remain unchanged, (ii) the
Buyer shall remain solely responsible for the performance thereof, (iii) the
Seller shall continue to deal solely and directly with the Buyer in connection
with the Buyer's rights and obligations under this Agreement and the other
Program
49
Documents, and (iv) any agreement between Buyer and any Participant effecting
such participation must contain a confidentiality provision substantially
similar to Section 41 hereof in which the participant agrees to keep all
information it receives with respect to the Seller confidential. The Seller
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Buyer under this Agreement; provided, that such
Participant shall only be entitled to such right of set-off if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Buyer the proceeds thereof. The Buyer
also agrees that each Participant shall be entitled to the benefits of Sections
3(h) and 23 with respect to its participation in the Loans and Purchased Items
outstanding from time to time; provided, that the Buyer and all Participants
shall be entitled to receive no greater amount in the aggregate pursuant to such
Sections than the Buyer would have been entitled to receive had no such transfer
occurred.
(c) The Buyer may furnish any information concerning the Seller or any
of its Subsidiaries in the possession of such Buyer from time to time to
assignees and Participants (including prospective assignees and Participants)
only after notifying the Seller in writing and securing signed confidentiality
statements (a form of which is attached hereto as Exhibit I) and only for the
sole purpose of evaluating participations and for no other purpose.
(d) The Seller agrees to cooperate with the Buyer in connection with any
such assignment and/or participation, to execute and deliver such replacement
notes, and to enter into such restatements of, and amendments, supplements and
other modifications to, this Agreement and the other Program Documents in order
to give effect to such assignment and/or participation; provided, however,
Seller shall not be in privity with any participant as a result fo any such
participation and shall only be required to fulfill its obligations with respect
to the Buyer under the Program Documents.
39. SINGLE AGREEMENT
Seller and Buyer 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 have been made in consideration of each other.
Accordingly, Seller and Buyer each agree (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, and (ii) that payments, deliveries and other transfers
made by any 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 Transaction hereunder, and the obligations to make any such payments,
deliveries and other transfers may be applied against each other and netted.
40. INTENT
Seller and Buyer recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the USC (except
insofar as the Purchased Loans 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 USC (except
insofar as the Purchased Loans subject to such Transaction or the term of such
Transaction would render such definition inapplicable).
It is understood that Buyer's right to liquidate the Purchased Loans
delivered to it in connection with the Transactions hereunder or to accelerate
or terminate this Agreement or otherwise exercise any
50
other remedies pursuant to Section 19 hereof is a contractual right to
liquidate, accelerate or terminate such Transaction as described in Sections 555
and 559 of Title 11 of the USC.
41. CONFIDENTIALITY
The Program Documents and their respective terms, provisions,
supplements and amendments, and transactions and notices thereunder are
proprietary to Buyer and shall be held by Seller in strict confidence and shall
not be disclosed to any third party without the consent of Buyer except for (i)
disclosure to Seller's direct and indirect parent companies, directors,
attorneys, agents or accountants, provided that such attorneys or accountants
likewise agree to be bound by this covenant of confidentiality, or are otherwise
subject to confidentiality restrictions or (ii) upon prior written notice to
Buyer, disclosure required by law, rule, regulation or order of a court or other
regulatory body or (iii) upon prior written notice to Buyer, disclosure to any
approved hedge counterparty to the extent necessary to obtain any Interest Rate
Protection Agreement hereunder or (iv) any disclosures or filing required under
Securities and Exchange Commission ("SEC") or state securities' laws; provided
that in the case of (ii), (iii) and (iv), Seller shall take reasonable actions
to provide Buyer with prior written notice; provided further that in the case of
(iv), the Seller shall not file any of the Program Documents other than the
Agreement with the SEC or state securities office unless Seller shall have
provided at least thirty (30) days (or such lesser time as may be demanded by
the SEC or state securities office) prior written notice of such filing to
Buyer. Notwithstanding anything herein to the contrary, each party (and each
employee, representative, or other agent of each party) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure
of the transaction and all materials of any kind (including opinions or other
tax analyses) that are provided to it relating to such tax treatment and tax
structure. For this purpose, tax treatment and tax structure shall not include
(i) the identity of any existing or future party (or any Affiliate of such
party) to this Agreement or (ii) any specific pricing information or other
commercial terms, including the amount of any fees, expenses, rates or payments
arising in connection with the transactions contemplated by this Agreement.
Buyer acknowledges that this Agreement will be filed with the Securities and
Exchange Commission.
42. SERVICING
(a) The Seller covenants to maintain or cause the servicing of the
Loans to be maintained in conformity with Accepted Servicing Practices. 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, or (ii) the date on which all the
Secured Obligations have been paid in full, or (iii) the transfer of servicing
to any entity approved by the Buyer in its reasonable discretion, and the
assumption thereof by such entity.
(b) During the period the Seller is servicing the Loans, (i) the 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 such
Loans (the "Servicing Records"), and (ii) the Seller grants the Buyer a security
interest in all servicing fees and rights relating to the Loans and all
Servicing Records to secure the obligation of the Seller or its designee to
service in conformity with this Section 42 and any other obligation of Seller to
the Buyer. The Seller covenants to safeguard such Servicing Records and to
deliver them promptly to the Buyer or its designee (including the Custodian) at
the Buyer's reasonable request. It is understood and agreed by the parties that
prior to an Event of Default, the Seller shall retain the servicing fees with
respect to the Loans.
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(c) If the Loans are serviced by any other third party servicer (such
third party servicer, the "Subservicer") the Seller shall provide a copy of the
related servicing agreement with a properly executed Instruction Letter to the
Buyer at least three (3) Business Days prior to the applicable Purchase Date or
the date on which the Subservicer shall begin subservicing the Loans, which
shall be in the form and substance reasonably acceptable to Buyer (the
"Servicing Agreement") and shall have obtained the written consent (which shall
not be unreasonably withheld) of the Buyer for such Subservicer to subservice
the Loans. Initially, there shall not be a subservicer.
(d) The Seller agrees that upon the occurrence of an Event of Default,
the Buyer may terminate the Seller in its capacity as servicer and terminate any
Servicing Agreement and transfer such servicing to the Buyer or its designee, at
no cost or expense to the Buyer. In addition, the Seller shall provide to the
Buyer an Instruction Letter from the Seller to the effect that upon the
occurrence of an Event of Default, the Buyer may terminate any Subervicer or
Servicing Agreement and direct that collections with respect to the Loans be
remitted in accordance with the Buyer's instructions. The Seller agrees to
cooperate with the Buyer in connection with the transfer of servicing.
(e) After the Purchase Date, until the Repurchase Date, the Seller will
have no right to modify or alter the terms of the Loan or consent to the
modification or alteration of the terms of any Loan, and the Seller will have no
obligation or right to repossess any Loan or substitute another Loan, except as
provided in any Custodial Agreement.
(f) The Seller shall permit the Buyer to inspect upon reasonable prior
written notice at a mutually convenient time, the Seller's or its Affiliate's
servicing facilities, as the case may be, for the purpose of satisfying the
Buyer that the Seller or its Affiliate, as the case may be, has the ability to
service the Loans as provided in this Agreement. In addition, with respect to
any Subservicer which is not an Affiliate of the Seller, the Seller shall use
its best efforts to enable the Buyer to inspect the servicing facilities of such
Subservicer.
43. PERIODIC DUE DILIGENCE REVIEW
The Seller acknowledges that the Buyer has the right to perform
continuing due diligence reviews with respect to the Loans, for purposes of
verifying compliance with the representations, warranties, covenants and
specifications made hereunder or under any other Program Document, or otherwise,
and the Seller agrees that upon reasonable (but no less than three (3) Business
Days') prior written notice to the Seller, the Buyer or its authorized
representatives will be permitted during normal business hours to examine,
inspect, make copies of, and make extracts of, the Mortgage Files, the Servicing
Records and any and all documents, records, agreements, instruments or
information relating to such Loans in the possession, or under the control, of
the Seller and/or the Custodian. The Seller also shall make available to the
Buyer a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Mortgage Files and the Loans. Without
limiting the generality of the foregoing, the Seller acknowledges that the Buyer
shall purchase Loans from the Seller based solely upon the information provided
by the Seller to the Buyer in the Loan Data Transmission and the
representations, warranties and covenants contained herein, and that the 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 Purchased Loans, including, without
limitation, ordering new credit reports, new appraisals on the related Mortgaged
Properties and otherwise re-generating the information used to originate such
Loan. The Buyer may underwrite such Loans itself or engage a third party
underwriter to perform such underwriting. The Seller agrees to cooperate with
the Buyer and any third party underwriter in connection with such underwriting,
including, but not limited to, providing the Buyer and any third party
underwriter with access to any and all documents, records, agreements,
instruments or information relating to such Loans in the possession, or under
the control, of the Seller. In addition, the Buyer has the right to perform
continuing Due Diligence Reviews of the Seller
52
and its Affiliates, directors, officers and employees. The Seller and Buyer
further agree that all reasonable out-of-pocket costs and expenses incurred by
the Buyer in connection with the Buyer's activities pursuant to this Section 43
shall be paid by the Seller.
44. SET-OFF
In addition to any rights and remedies of the Buyer provided by this
Agreement and by law, the Buyer shall have the right, without prior notice to
the Seller, any such notice being expressly waived by the Seller to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Seller hereunder (whether at the stated maturity, by acceleration or otherwise)
to set-off and appropriate and apply against such amount any and all Property
and deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Buyer or any Affiliate thereof to or
for the credit or the account of the Seller. The Buyer may set-off cash, the
proceeds of the liquidation of any Purchased Items and all other sums or
obligations owed by the Buyer or its Affiliates to Seller against all of
Seller's obligations to the Buyer or its Affiliates, whether under this
Agreement or under any other agreement between the parties or between Seller and
any Affiliate of the Buyer, or otherwise, whether or not such obligations are
then due, without prejudice to the Buyer's or its Affiliate's right to recover
any deficiency. The Buyer agrees immediately to notify the Seller after any such
set-off and application made by the Buyer; provided that the failure to give
such notice shall not affect the validity of such set-off and application.
45. JOINT AND SEVERAL LIABILITY; CROSS-DEFAULT.
Each Seller hereby acknowledges and agrees that the Sellers are jointly
and severally liable to the Buyer for all representations, warranties,
covenants, obligations and liabilities of either Seller hereunder. Each Seller
hereby further acknowledges and agrees that any Default, Event of Default or
breach of a representation, warranty or covenant by either Seller under this
Agreement is hereby considered a Default, Event of Default or breach by each
Seller, as applicable. Each Seller hereby waives any defense to their
obligations under this Agreement based upon or arising out of the disability or
other defense or cessation of liability of one Seller versus another. A Seller's
subrogation claim arising out of payments to Buyer shall constitute a capital
investment in another Seller subordinated to any claims of Buyer and equal to a
ratable share of the equity interests in such Seller.
46. ENTIRE AGREEMENT
This Agreement and the other Program Documents embody the entire
agreement and understanding of the parties hereto and thereto and supersedes any
and all prior agreements, arrangements and understandings relating to the
matters provided for herein and therein. No alteration, waiver, amendments, or
change or supplement hereto shall be binding or effective unless the same is set
forth in writing by a duly authorized representative of each party hereto.
[SIGNATURE PAGE FOLLOWS]
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AMERICAN HOME MORTGAGE ACCEPTANCE, INC., a Maryland corporation, as Seller
By: /s/ Alan B. Horn
-------------------------------
Name: Allen B. Horn
Title: Executive Vice President
Address for Notices:
538 Broadhollow Road
Melville, New York 11747
Attention: Alan B. Horn, Executive Vice President, General
Counsel and Secretary
Telecopier No: (800) 209-7276
Telephone No: (516) 396-7703
AMERICAN HOME MORTGAGE INVESTMENT CORP., a Maryland
corporation, as Seller
By: /s/ Alan B. Horn
-------------------------------
Name: Alan B. Horn
Title: Executive Vice President, General Counsel and
Secretary
Address for Notices:
538 Broadhollow Road
Melville, New York 11747
Attention: Alan B. Horn, Executive Vice President, General
Counsel and Secretary
Telecopier No: (800) 209-7276
Telephone No: (516) 396-7703
AMERICAN HOME MORTGAGE CORP., a New York corporation, as Seller
By: /s/ Alan B. Horn
-------------------------------
Name: Allen B. Horn
Title: Executive Vice President
Address for Notices:
538 Broadhollow Road
Melville, New York 11747
Attention: Alan B. Horn, Executive Vice President,
General Counsel and Secretary
Telecopier No: (800) 209-7276
Telephone No: (516) 396-7703
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as Buyer and
Agent, as applicable
By: /s/ Anthony Palmisano
-------------------------------
Name: Anthony Palmisano
-----------------------------
Title: Managing Director
----------------------------
Address for Notices:
600 Steamboat Road
Greenwich, Connecticut 06830
Attention:
Telecopier No.:
Telephone No.:
With a copy to:
Attention: General Counsel
Telecopier No.: (203) 618-2132
Telephone No.: (203) 625-2700
ANNEX I
BUYER ACTING AS AGENT
This Annex I forms a part of the Master Repurchase Agreement dated as
of December 14, 2005 (the "Agreement") among Greenwich Capital Financial
Products, Inc., American Home Mortgage Acceptance, Inc., American Home Mortgage
Corp., and American Home Mortgage Investment Corp. This Annex I sets forth the
terms and conditions governing all transactions in which the Buyer selling
assets or buying assets, as the case may be ("Agent"), in a Transaction is
acting as agent for one or more third parties (each, a "Principal"). Capitalized
terms used but not defined in this Annex I shall have the meanings ascribed to
them in the Agreement.
1. Additional Representations. Agent hereby makes the following
representations, which shall continue during the term of any
Transaction: Principal has duly authorized Agent to execute and deliver
the Agreement and the other Program Documents on its behalf, has the
power to so authorize Agent and to enter into the Transactions
contemplated by the Agreement and the other Program Documents and to
perform the obligations of Seller or the Buyer, as the case may be,
under such Transactions, and has taken all necessary action to
authorize such execution and delivery by Agent and such performance by
it.
2. Identification of Principals. Agent agrees (a) to provide the other
party, prior to the date on which the parties agree to enter into any
Transaction under the Agreement, with a written list of Principals for
which it intends to act as Agent (which list may be amended in writing
from time to time with the consent of the other party) and (b) to
provide the other party, before the close of business on the next
business day after orally agreeing to enter into a Transaction, with
notice of the specific Principal or Principals for whom it is acting in
connection with such Transaction. If (i) Agent fails to identify such
Principal or Principals prior to the close of business on such next
business day or (ii) the other party shall determine in its sole
discretion any Principal or Principals identified by Agent are not
acceptable to it, the other party may reject and rescind any
Transaction with such Principal or Principals, return to Agent any
Purchased Loans or portion of the Purchase Price, as the case may be,
previously transferred to the other party and refuse any further
performance under such Transaction, and Agent shall immediately return
to the other party any portion of the Purchase Price or Purchased
Loans, as the case may be, previously transferred to Agent in
connection with such Transaction; provided, however, that (A) the other
party shall promptly (and in any event within one business day) notify
Agent of its determination to reject and rescind such Transaction and
(B) to the extent that any performance was rendered by any party under
any Transaction rejected by the other party, and such party shall
remain entitled to any Price Differential or other amounts that would
have been payable to it with respect to such performance if such
Transaction had not been rejected. The other party acknowledges that
Agent shall not have any obligation to provide it with confidential
information regarding the financial status of its Principals; Agent
agrees, however, that it will assist the other party in obtaining from
Agent's Principals such Information regarding the financial status of
such Principals as the other party may reasonably request.
3. Limitation of Agent's Liability. The parties expressly acknowledge that
if the representations of Agent under the Agreement, including this
Annex I, are true and correct in all material respects during the term
of any Transaction and Agent otherwise complies with the provisions of
this Annex I, then (a) Agent's obligations under the Agreement shall
not include a guarantee of performance by its Principal or Principals;
provided that Agent shall remain liable for performance pursuant to
Section 10 of the Agreement, and (b) the other party's remedies shall
not include a right of setoff in respect of rights or obligations, if
any, of Agent arising in other transactions in which Agent is acting as
principal.
1
4. Multiple Principals.
(a) In the event that Agent proposes to act for more than one
Principal hereunder, Agent and the other party shall elect
whether (i) to treat Transactions under the Agreement as
transactions entered into on behalf of separate Principals or
(ii) to aggregate such Transactions as if they were
transactions by a single Principal. Failure to make such an
election in writing shall be deemed an election to treat
Transactions under the Agreement as transactions on behalf of
a single Principal.
(b) In the event that Agent and the other party elect (or are
deemed to elect) to treat Transactions under the Agreement as
transactions on behalf of separate Principals, the parties
agree that (i) Agent will provide the other party, together
with the notice described in Section 2(b) of this Annex I,
notice specifying the portion of each Transaction allocable to
the account of each of the Principals for which it is acting
(to the extent that any such Transaction is allocable to the
account of more than one Principal); (ii) the portion of any
individual Transaction allocable to each Principal shall be
deemed a separate Transaction under the Agreement; (iii) the
margin maintenance obligations of Seller under Section 5(a) of
the Agreement shall be determined on a
Transaction-by-Transaction basis (unless the parties agree to
determine such obligations on a Principal-by-Principal basis);
and (iv) Buyer's remedies under the Agreement upon the
occurrence of an Event of Default shall be determined as if
Agent had entered into a separate Agreement with the other
party on behalf of each of its Principals.
(c) In the event that Agent and the other party elect to treat
Transactions under the Agreement as if they were transactions
by a single Principal, the parties agree that (i) Agent's
notice under Section 2(b) of this Annex I need only identify
the names of its Principals but not the portion of each
Transaction allocable to each Principal's account; (ii) the
margin maintenance obligations of Seller under Section 6(a) of
the Agreement shall, subject to any greater requirement
imposed by applicable law, be determined on an aggregate basis
for all Transactions entered into by Agent on behalf of any
Principal; and (iii) Buyer's remedies upon the occurrence of
an Event of Default shall be determined as if all Principals
were a single Buyer.
(d) Notwithstanding any other provision of the Agreement
(including, without limitation, this Annex I), the parties
agree that any Transactions by Agent on behalf of an employee
benefit plan under ERISA shall be treated as Transactions on
behalf of separate Principals in accordance with Section 4(b)
of this Annex I (and all margin maintenance obligations of the
parties shall be determined on a Transaction-by-Transaction
basis).
5. Interpretation of Terms. All references to "Seller" or "Buyer", as the
case may be, in the Agreement shall, subject to the provisions of this
Annex I (including, among other provisions, the limitations on Agent's
liability in Section 3 of this Annex 1), be construed to reflect that
(i) each Principal shall have, in connection with any Transaction or
Transactions entered into by Agent on its behalf, the rights,
responsibilities, privileges and obligations of a "Seller" or "Buyer",
as the case may be, directly entering into such Transaction or
Transactions with the other party under the Agreement, and (ii) Agent's
Principal or Principals have designated Agent as their sole agent for
performance of Seller's obligations to Buyer or Buyer's obligations to
Seller, as the case may be, and for receipt of performance by Buyer of
its obligations to Seller or Seller of its obligations to Buyer as the
case may be, in connection with any Transaction or Transactions under
the Agreement (including, among other things, as Agent for each
Principal in connection with transfers of Loans, securities, cash or
other property and as agent for giving and receiving all notices under
the Agreement). Both Agent and its Principal or Principals shall be
deemed
2
"parties" to the Agreement and all references to a "party" or "either party" in
the Agreement shall be deemed revised accordingly.
3
Schedule 1
REPRESENTATIONS AND WARRANTIES RE: LOANS
Eligible Loans
As to each Loan that is subject to a Transaction hereunder (and the
related Mortgage, Note, Assignment of Mortgage and Mortgaged Property), Seller
shall be deemed to make the following representations and warranties to Buyer as
of the Purchase Date and as of each date such Loan is subject to a Transaction:
(a) Loans as Described. The information set forth in the Loan Schedule with
respect to the Loan is complete, true and correct in all material respects.
(b) Payments Current. The first Monthly Payment shall have been made prior to
the second scheduled Monthly Payment becoming due.
(c) No Outstanding Charges. There are no defaults in complying with the terms of
the Mortgage securing the Loan, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or an escrow
of funds has been established in an amount sufficient to pay for every such item
which remains unpaid and which has been assessed but is not yet due and payable.
Neither the Seller nor the Qualified Originator from which the Seller acquired
the Loan has advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Loan, except for interest
accruing from the date of the Note or date of disbursement of the proceeds of
the Loan, whichever is more recent, to the day which precedes by one month the
Due Date of the first installment of principal and interest thereunder.
(d) Original Terms Unmodified. The terms of the Note and Mortgage have not been
impaired, waived, altered or modified in any respect, from the date of
origination; except by a written instrument which has been recorded, if
necessary to protect the interests of the Buyer, and which has been delivered to
the Custodian and the terms of which are reflected in the Loan Schedule. The
substance of any such waiver, alteration or modification has been approved by
the title insurer, to the extent required by the title insurance policy, and its
terms are reflected on the Loan Schedule. No Mortgagor in respect of the Loan
has been released, in whole or in part, except in connection with an assumption
agreement approved by the title insurer, to the extent required by such policy,
and which assumption agreement is part of the Mortgage File delivered to the
Custodian and the terms of which are reflected in the Loan Schedule.
(e) No Defenses. The Loan is not subject to any right of rescission, setoff,
counterclaim or defense, including without limitation the defense of usury, nor
will the operation of any of the terms of the Note or the Mortgage, or the
exercise of any right thereunder, render either the Note or the Mortgage
unenforceable, in whole or in part and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
in respect of the Loan was a debtor in any state or Federal bankruptcy or
insolvency proceeding at the time the Loan was originated.
(f) Hazard Insurance. The Mortgaged Property is insured by a fire and extended
perils insurance policy, issued by a Qualified Insurer, and such other hazards
as are customary in the area where the Mortgaged Property is located, and to the
extent required by the Seller as of the date of origination consistent with the
Underwriting Guidelines, against earthquake and other risks insured against by
Persons operating like properties in the locality of the Mortgaged Property, in
an amount not less than the greatest of (i) 100% of the replacement cost of all
improvements to the Mortgaged Property, (ii) either (A) the outstanding
principal balance of the Loan with respect to each First Lien Loan or (B) with
respect to
B-1
each Second Lien Loan, the sum of the outstanding principal balance of the First
Lien Loan and the outstanding principal balance of the Second Lien Loan, (iii)
the amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property, and consistent with the amount that would
have been required as of the date of origination in accordance with the
Underwriting Guidelines or (iv) the amount necessary to fully compensate for any
damage or loss to the improvements that are a part of such property on a
replacement cost basis. If any portion of the Mortgaged Property is in an area
identified by any federal Governmental Authority as having special flood
hazards, and flood insurance is available, a flood insurance policy meeting the
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the outstanding principal balance of the Loan, (2)
the full insurable value of the Mortgaged Property, and (3) the maximum amount
of insurance available under the Flood Disaster Protection Act of 1973, as
amended. All such insurance policies (collectively, the "hazard insurance
policy") contain a standard mortgagee clause naming the Seller, its successors
and assigns (including without limitation, subsequent owners of the Loan), as
mortgagee, and may not be reduced, terminated or canceled without 30 days' prior
written notice to the mortgagee. No such notice has been received by the Seller.
All premiums due and owing on such insurance policy have been paid. The related
Mortgage obligates the Mortgagor to maintain all such insurance and, at such
Mortgagor's failure to do so, authorizes the mortgagee to maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement therefor
from such Mortgagor. Where required by state law or regulation, the Mortgagor
has been given an opportunity to choose the carrier of the required hazard
insurance, provided the policy is not a "master" or "blanket" hazard insurance
policy covering a condominium, or any hazard insurance policy covering the
common facilities of a planned unit development. The hazard insurance policy is
the valid and binding obligation of the insurer and is in full force and effect.
The Seller has not engaged in, and has no knowledge of the Mortgagor's having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
Person, and no such unlawful items have been received, retained or realized by
the Seller.
(g) Compliance with Applicable Laws. Any and all requirements of any federal,
state or local law including, without limitation, usury, truth-in-lending, all
applicable predatory and abusive lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity or disclosure laws
applicable to the origination and servicing of such Loan have been complied
with, the consummation of the transactions contemplated hereby will not involve
the violation of any such laws or regulations, and the Seller shall maintain or
shall cause its agent to maintain in its possession, available for the
inspection of the Buyer, and shall deliver to the Buyer, upon two Business Days'
request, evidence of compliance with all such requirements.
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole-or in part, nor has
any instrument been executed that would effect any such release, cancellation,
subordination or rescission other than in the case of a release of a portion of
the land comprising a Mortgaged Property or a release of a blanket Mortgage
which release will not cause the Loan to fail to satisfy the Underwriting
Guidelines. The Seller has not waived the performance by the Mortgagor of any
action, if the Mortgagor's failure to perform such action would cause the Loan
to be in default, nor has the Seller waived any default resulting from any
action or inaction by the Mortgagor.
(i) Location and Type of Mortgaged Property. The Mortgaged Property is located
in the state identified in the Loan Schedule and consists of a single parcel of
real property with a detached single family residence erected thereon, or a two-
to four-family dwelling, or an individual condominium unit in
B-2
a condominium project, or an individual unit in a planned unit development or a
de minimis planned unit development, provided, however, that any condominium
unit or planned unit development shall conform with the applicable Fannie Mae
and Freddie Mac requirements regarding such dwellings, that a de minimus
percentage of the Loans may be Cooperative Loans and that no residence or
dwelling is a mobile home or a manufactured dwelling. No portion of the
Mortgaged Property is used for commercial purposes.
(j) Valid Lien. The Mortgage (including any Negative Amortization which may
arise thereunder) is a valid, subsisting, enforceable and perfected (A) first
lien and first priority security interest with respect to each Loan which is
indicated by the Seller to be a First Lien (as reflected on the Loan Schedule),
or (B) second lien and second priority security interest with respect to each
Loan which is indicated by the Seller to be a Second Lien (as reflected on the
Loan Schedule), in either case, on the real property included in the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing and with respect
to Cooperative Loans, including the Proprietary Lease and the Cooperative
Shares. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments not yet due
and payable;
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording acceptable to
prudent mortgage lending institutions generally and specifically referred to in
the lender's title insurance policy delivered to the originator of the Loan and
(a) referred to or otherwise considered in the appraisal made for the originator
of the Loan or (b) which do not adversely affect the Appraised Value of the
related Mortgaged Property set forth in such appraisal;
(3) other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property; and
(4) with respect to each Loan which is indicated by the Seller to be a
Second Lien Loan (as reflected on the Loan Data Transmission) a First Lien on
the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Loan establishes and creates a valid,
subsisting and enforceable (A) first lien and first priority security interest
with respect to each Loan which is indicated by the Seller to be a First Lien
(as reflected on the Loan Schedule), or (B) second lien and second priority
security interest with respect to each Loan which is indicated by the Seller to
be a Second Lien Loan (as reflected on the Loan Schedule), in either case, on
the property described therein and the Seller has full right to pledge and
assign the same to the Buyer. The Mortgaged Property was not, as of the date of
origination of the Loan, subject to a mortgage, deed of trust, deed to secure
debt or other security instrument creating a lien subordinate to the lien of the
Mortgage.
(k) Validity of Mortgage Documents. The Note and the Mortgage and any other
agreement executed and delivered by a Mortgagor or guarantor, if applicable, in
connection with a Loan are genuine, and each is the legal, valid and binding
obligation of the maker thereof enforceable in accordance with its terms. All
parties to the Note, the Mortgage and any other such related agreement had legal
capacity to enter into the Loan and to execute and deliver the Note, the
Mortgage and any such agreement, and the Note, the Mortgage and any other such
related agreement have been duly and properly executed by such related parties.
No fraud, error, omission, misrepresentation, negligence or similar occurrence
with respect to a Loan has taken place on the part of any Person, including,
without limitation, the Mortgagor, any appraiser, any builder or developer, or
any other party involved in the origination of the Loan. The Seller
B-3
has reviewed all of the documents constituting the Servicing File and has made
such inquiries as it deems necessary to make and confirm the accuracy of the
representations set forth herein.
(l) Full Disbursement of Proceeds. The proceeds of the Loan have been fully
disbursed and there is no further requirement for future advances thereunder,
and any and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing the
Loan and the recording of the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Note or Mortgage.
(m) Ownership. The Seller is the sole owner and holder of the Loan. All Loans
acquired by the Seller from third parties (including affiliates) were acquired
in a true and legal sale pursuant to which such third party sold, transferred,
conveyed and assigned to the Seller all of its right, title and interest in, to
and under such Loan and retained no interest in such Loan. In connection with
such sale, such third party received reasonably equivalent value and fair
consideration and, in accordance with GAAP and for federal income tax purposes,
reported the sale of such Loan to the Seller as a sale of its interests in such
Loan. The Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer, pledge and assign
the Loan to the Buyer free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and has full right
and authority subject to no interest or participation of, or agreement with, any
other party, to assign, transfer and pledge each Loan pursuant to this Agreement
and following the pledge of each Loan, the Buyer will hold such Loan free and
clear of any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest except any such security interest created pursuant to
the terms of this Agreement.
(n) Doing Business. All parties which have had any interest in the Loan, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) (i) in compliance with any
and all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (ii) either (A) organized under the laws of
such state, (B) qualified to do business in such state, (C) a federal savings
and loan association, a savings bank or a national bank having a principal
office in such state or (D) not doing business in such state.
(o) LTV. As of the date of origination of the Loan, the LTV and CLTV (if
applicable) are as identified on the Loan Schedule.
(p) Title Insurance. The Loan is covered by either (i) an attorney's opinion of
title and abstract of title, the form and substance of which is acceptable to
prudent mortgage lending institutions making mortgage loans in the area wherein
the Mortgaged Property is located or (ii) an ALTA lender's title insurance
policy or other generally acceptable form of policy or insurance acceptable to
Fannie Mae or Freddie Mac and each such title insurance policy is issued by a
title insurer acceptable to Fannie Mae or Freddie Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Loan (including, to the extent
a Note provides for Negative Amortization, the maximum amount of Negative
Amortization in accordance with the Mortgage), subject only to the exceptions
contained in clauses (1), (2), (3) and, with respect to each Loan which is
indicated by the Seller to be a Second Lien Loan (as reflected on the Loan
Schedule) clause (4) of paragraph (j) of this Part I of Schedule 1, and in the
case of Adjustable Rate Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate, Monthly Payment and
Negative Amortization. Where required by state law or regulation, the Mortgagor
has been given the opportunity to choose the carrier of the required mortgage
title insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress and against encroachments by or upon
the Mortgaged Property or any interest therein. The title policy
B-4
does not contain any special exceptions (other than the standard exclusions) for
zoning and uses and has been marked to delete the standard survey exception or
to replace the standard survey exception with a specific survey reading. The
Seller, its successors and assigns, are the sole insureds of such lender's title
insurance policy, and such lender's title insurance policy is valid and remains
in full force and effect and will be in force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder or servicer of
the related Mortgage, including the Seller, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy, including, without limitation, no unlawful fee, commission, kickback or
other unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other Person, and no such unlawful
items have been received, retained or realized by the Seller. The related
Servicing File contains the original policy of title insurance (or a commitment
for title insurance, if the policy is being held by the title insurance company
pending recordation of the Mortgage), and a copy of such original policy of
title insurance or commitment for title insurance shall be provided to Buyer
upon its reasonable request.
(q) No Defaults. There is no default, breach, violation or event of acceleration
existing under the Mortgage or the Note and no event has occurred which, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of acceleration,
and neither the Seller nor its predecessors have waived any default, breach,
violation or event of acceleration. With respect to each Loan which is indicated
by the Seller to be a Second Lien Loan (as reflected on the Loan Schedule) (i)
the First Lien is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such First Lien mortgage or
the related mortgage note, (iii) no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either (A)
the First Lien mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the second lien Loan to receive notice of, and
affords such mortgagee an opportunity to cure any default by payment in full or
otherwise under the First Lien mortgage.
(r) No Mechanics' Liens. At origination, there were no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens) affecting the
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with the lien of the Mortgage.
(s) Location of Improvements; No Encroachments. All improvements which were
considered in determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning and building law, ordinance or
regulation.
(t) Origination; Payment Terms. The Loan was originated by or in conjunction
with a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or similar banking institution which is supervised and examined by a federal or
state authority. Principal payments on the Loan commenced no more than sixty
(60) days after funds were disbursed in connection with the Loan. The Mortgage
Interest Rate is adjusted, with respect to Adjustable Rate Loans, on each
Interest Rate Adjustment Date to equal the Index plus the Gross Margin (rounded
up or down to the nearest .125 %), subject to the Mortgage Interest Rate Cap.
With respect to each Negative Amortization Loan, the related Note requires a
Monthly Payment which is sufficient during the period following each Payment
Adjustment Date, to fully amortize the outstanding principal balance as of the
first day of such period (including any Negative Amortization) over the then
remaining term of such Note and to pay interest at the related Mortgage Interest
Rate; provided, that the Monthly Payment shall not
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increase to an amount that exceeds 107.5% of the amount of the Monthly Payment
that was due immediately prior to the Payment Adjustment Date; provided,
further, that the payment adjustment cap shall not be applicable with respect to
the adjustment made to the Monthly Payment that occurs in a year in which the
Loan has been outstanding for a multiple of five (5) years and in any such year
the Monthly Payment shall be adjusted to fully amortize the Loan over the
remaining term. The Due Date of the first payment under the Note is no more than
60 days from the date of the Note.
(u) Customary Provisions. The Note has a stated maturity. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. Upon default by a Mortgagor on a Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Loan will be able to deliver good and
merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage.
(v) Conformance with Underwriting Guidelines and Agency Standards. The Loan was
underwritten in accordance with the applicable Underwriting Guidelines. The Note
and Mortgage are on forms similar to those used by Freddie Mac or Fannie Mae and
the Seller has not made any representations to a Mortgagor that are inconsistent
with the mortgage instruments used.
(w) Occupancy of the Mortgaged Property. As of the Purchase Date the Mortgaged
Property is either vacant or lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. The Seller has not received written notification
from any governmental authority that the Mortgaged Property is in material
non-compliance with such laws or regulations, is being used, operated or
occupied unlawfully or has failed to have or obtain such inspection, licenses or
certificates, as the case may be. The Seller has not received notice of any
violation or failure to conform with any such law, ordinance, regulation,
standard, license or certificate. Except as otherwise set forth in the Loan
Schedule, the Mortgagor represented at the time of origination of the Loan that
the Mortgagor would occupy the Mortgaged Property as the Mortgagor's primary
residence.
(x) No Additional Collateral. The Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to in
clause (j) above.
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of trust, a
trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Custodian or
the Buyer to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor.
(z) Delivery of Mortgage Documents. If the Loan is a Dry Loan, the Note, the
Mortgage, the Assignment of Mortgage (other than for a MERS Loan) and any other
documents required to be delivered under the Custodial Agreement for each Loan
have been delivered to the Custodian. The Seller or its agent is in possession
of a complete, true and materially accurate Mortgage File in compliance with the
Custodial Agreement, except for such documents the originals of which have been
delivered to the Custodian.
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(aa) Transfer of Loans. The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located.
(bb) Due-On-Sale. The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the Loan in the
event that the Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder.
(cc) No Buydown Provisions; No Graduated Payments or Contingent Interests. The
Loan does not contain provisions pursuant to which Monthly Payments are paid or
partially paid with funds deposited in any separate account established by the
Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid by any
source other than the Mortgagor nor does it contain any other similar provisions
which may constitute a "buydown" provision. The Loan is not a graduated payment
mortgage loan and the Loan does not have a shared appreciation or other
contingent interest feature.
(dd) Consolidation of Future Advances. Any future advances made to the Mortgagor
prior to the origination of the Loan have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term. The lien
of the Mortgage securing the consolidated principal amount is expressly insured
as having (A) first lien priority with respect to each Loan which is indicated
by the Seller to be a First Lien (as reflected on the Loan Schedule), or (B)
second lien priority with respect to each Loan which is indicated by the Seller
to be a Second Lien Loan (as reflected on the Loan Schedule), in either case, by
a title insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to Fannie Mae and
Freddie Mac. The consolidated principal amount does not exceed the original
principal amount of the Loan plus any Negative Amortization.
(ee) Mortgaged Property Undamaged. The Mortgaged Property (and with respect to
any Cooperative Loan, the Cooperative Unit) is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so as
to affect adversely the value of the Mortgaged Property as security for the Loan
or the use for which the premises were intended and each Mortgaged Property is
in good repair. There have not been any condemnation proceedings with respect to
the Mortgaged Property and the Seller has no knowledge of any such proceedings.
(ff) Collection Practices; Escrow Deposits: Interest Rate Adjustments. The
origination and collection practices used by the originator, each servicer of
the Loan and the Seller with respect to the Loan have been in all material
respects in compliance with Accepted Servicing Practices, applicable laws and
regulations, and have been in all respects legal and proper. With respect to
escrow deposits and Escrow Payments (other than with respect to each Loan which
is indicated by the Seller to be a Second Lien Loan and for which the mortgagee
under the First Lien is collecting Escrow Payments (as reflected on the Loan
Schedule), all such payments are in the possession of, or under the control of,
the Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law. An
escrow of funds is not prohibited by applicable law and has been established in
an amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow Payments
or other charges or payments due the Seller have been capitalized under the
Mortgage or the Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related Note.
Any interest required to be paid pursuant to state, federal and local law has
been properly paid and credited.
(gg) Conversion to Fixed Interest Rate. With respect to Adjustable Rate Loans,
the Loan is not convertible to a fixed interest rate Loan.
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(hh) Other Insurance Policies. No action, inaction or event has occurred and no
state of facts exists or has existed that has resulted or will result in the
exclusion from, denial of, or defense to coverage under any applicable special
hazard insurance policy, PMI Policy or bankruptcy bond, irrespective of the
cause of such failure of coverage. In connection with the placement of any such
insurance, no commission, fee, or other compensation has been or will be
received by the Seller or by any officer, director, or employee of the Seller or
any designee of the Seller or any corporation in which the Seller or any
officer, director, or employee had a financial interest at the time of placement
of such insurance.
(ii) Servicepersons' Civil Relief Act. The Mortgagor has not notified the
Seller, and the Seller has no knowledge, of any relief requested or allowed to
the Mortgagor under the Servicepersons' Civil Relief Act.
(jj) Appraisal. The Mortgage File contains an appraisal of the related Mortgaged
Property signed prior to the approval of the Loan application by a qualified
appraiser, duly appointed by the Seller or the Qualified Originator, who had no
interest, direct or indirect in the Mortgaged Property or in any loan made on
the security thereof, and whose compensation is not affected by the approval or
disapproval of the Loan, and the appraisal and appraiser both satisfy the
requirements of Fannie Mae or Freddie Mac and Title XI of the Federal
Institutions Reform, Recovery, and Enforcement Act of 1989 as amended and the
regulations promulgated thereunder, all as in effect on the date the Loan was
originated.
(kk) Disclosure Materials. The Mortgagor has executed a statement to the effect
that the Mortgagor has received all disclosure materials required by applicable
law with respect to the making of adjustable rate mortgage loans, and the Seller
maintains such statement in the Mortgage File.
(ll) Construction or Rehabilitation of Mortgaged Property. No Loan was made in
connection with the construction or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property.
(mm) No Defense to Insurance Coverage. No action has been taken or failed to be
taken, no event has occurred and no state of facts exists or has existed on or
prior to the Purchase Date (whether or not known to the Seller on or prior to
such date) which has resulted or will result in an exclusion from, denial of, or
defense to coverage under any private mortgage insurance (including, without
limitation, any exclusions, denials or defenses which would limit or reduce the
availability of the timely payment of the full amount of the loss otherwise due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Seller, the related Mortgagor or
any party involved in the application for such coverage, including the
appraisal, plans and specifications and other exhibits or documents submitted
therewith to the insurer under such insurance policy, or for any other reason
under such coverage, but not including the failure of such insurer to pay by
reason of such insurer's breach of such insurance policy or such insurer's
financial inability to pay.
(nn) Capitalization of Interest. Other than with respect to any Negative
Amortization which has been legally and properly disclosed in all respects, the
Note does not by its terms provide for the capitalization or forbearance of
interest.
(oo) No Equity Participation. No document relating to the Loan provides for any
contingent or additional interest in the form of participation in the cash flow
of the Mortgaged Property or a sharing in the appreciation of the value of the
Mortgaged Property. The indebtedness evidenced by the Note is not convertible to
an ownership interest in the Mortgaged Property or the Mortgagor and the Seller
has not financed nor does it own directly or indirectly, any equity of any form
in the Mortgaged Property or the Mortgagor.
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(pp) Withdrawn Loans. If the Loan has been released to the Seller pursuant to a
Request for Release as permitted under Section 5 of the Custodial Agreement,
then the promissory note relating to the Loan was returned to the Custodian
within 10 days (or if such tenth day was not a Business Day, the next succeeding
Business Day).
(qq) No Exception. Other than as noted by the Custodian on the Exception Report;
no Exception exists (as defined in the Custodial Agreement) with respect to the
Loan which would materially adversely affect the Loan or the Buyer's security
interest, granted by the Seller, in the Loan as determined by the Buyer in its
sole discretion.
(rr) Qualified Originator. The Loan has been originated by, and, if applicable,
purchased by the Seller from, a Qualified Originator.
(ss) Mortgage Submitted for Recordation. The Mortgage (other than for a MERS
Loan) has been submitted for recordation in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is located.
(tt) First Lien Consent. With respect to each Loan which is a Second Lien Loan,
(i) if the related first lien provides for negative amortization, the LTV was
calculated at the maximum principal balance of such first lien that could result
upon application of such negative amortization feature, and (ii) either no
consent for the Loan is required by the holder of the first lien or such consent
has been obtained and is contained in the Mortgage File.
(uu) Acceptable Investment. No specific circumstances or conditions exist with
respect to the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that should reasonably be expected to (i) cause
private institutional investors which invest in Loans similar to the Loan to
regard the Loan as an unacceptable investment, (ii) cause the Loan to be more
likely to become past due in comparison to similar Loans, or (iii) adversely
affect the value or marketability of the Loan in comparison to similar Loans;
(vv) Environmental Matters. The Mortgaged Property is free from any and all
toxic or hazardous substances and there exists no violation of any local, state
or federal environmental law, rule or regulation;
(ww) Ground Leases. With respect to each ground lease to which the Mortgaged
Property is subject (a "Ground Lease"): (i) the Mortgagor is the owner of a
valid and subsisting interest as tenant under the Ground Lease; (ii) the Ground
Lease is in full force and effect, unmodified and not supplemented by any
writing or otherwise; (iii) all rent, additional rent and other charges reserved
therein have been paid to the extent they are payable to the date hereof; (iv)
the Mortgagor enjoys the quiet and peaceful possession of the estate demised
thereby, subject to any sublease; (v) the Mortgagor is not in default under any
of the terms thereof and there are no circumstances which, with the passage of
time or the giving of notice or both, would constitute an event of default
thereunder; (vi) the lessor under the Ground Lease is not in default under any
of the terms or provisions thereof on the part of the lessor to be observed or
performed; (vii) the lessor under the Ground Lease has satisfied all of its
repair or construction obligations, if any, to date pursuant to the terms of the
Ground Lease; (viii) the remaining term of the Ground Lease extends not less
than ten (10) years following the maturity date of such Loan; and (ix) the
execution, delivery and performance of the Mortgage do not require the consent
(other than those consents which have been obtained and are in full force and
effect) under, and will not contravene any provision of or cause a default
under, the Ground Lease;
(xx) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that should reasonably be expected to adversely affect
the value or the marketability of the Mortgaged
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Property or the Loan or to cause the Loan to prepay during any period materially
faster or slower than the Loans originated by the Seller generally;
(yy) HOEPA. No Loan is (a) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended ("HOEPA"), (b) a "high cost" mortgage
loan, "covered" mortgage loan, "high risk home" mortgage loan, or "predatory"
mortgage loan or any other comparable term, no matter how defined under any
federal, state or local law, (c) subject to any comparable federal, state or
local statutes or regulations, or any other statute or regulation providing for
heightened regulatory scrutiny or assignee liability to holders of such mortgage
loans, or (d) a High Cost Loan or Covered Loan, as applicable (as such terms are
defined in the current Standard & Poor's LEVELS(R) Glossary Revised, Appendix
E);
(zz) No Predatory Lending. No predatory, abusive or deceptive lending practices,
including but not limited to, the extension of credit to a mortgagor without
regard for the mortgagor's ability to repay the Loan and the extension of credit
to a mortgagor which has no tangible net benefit to the mortgagor, were employed
in connection with the origination of the Loan;
(aaa) Georgia Mortgage Loans. No Loan which is secured by a Mortgaged Property
which is located in the state of Georgia was originated prior to March 7, 2004;
and
(bbb) Cooperative Loans. With respect to each Cooperative Loan, each original
UCC financing statement, continuation statement or other governmental filing or
recordation necessary to create or preserve the perfection and priority of the
first priority lien and security interest in the Cooperative Shares and
Proprietary Lease has been timely and properly made. Any security agreement,
chattel mortgage or equivalent document related to the Cooperative Loan and
delivered to the Seller or its designee establishes in the Seller a valid and
subsisting perfected first lien on and security interest in the Mortgaged
Property described therein, and the Seller has full right to sell and assign the
same.
(ccc) MERS Loans. With respect to each MERS Loan, a Mortgage Identification
Number has been assigned by MERS and such Mortgage Identification Number is
accurately provided on the Loan Schedule. The related Assignment of Mortgage to
MERS has been duly and properly recorded. With respect to each MERS Loan, Seller
has not received any notice of liens or legal actions with respect to such Loan
and no such notices have been electronically posted by MERS.
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