Exhibit 10.1
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MASTER REPURCHASE AGREEMENT
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, as
buyer ("Buyer", which term shall include any "Principal"
as defined and provided for in Annex I) or as agent pursuant hereto ("Agent"),
and
American Home Mortgage Corp., as seller ("AHMC" and a "Seller"),
American Home Mortgage Acceptance, Inc., as seller ("AHMA" and a "Seller"),
American Home Mortgage Servicing, Inc., as seller ("AHMS" and a "Seller"),
American Home Mortgage Investment Corp., as seller ("AHMIC", a "Seller"
and together with AHMC, AHMA and AHMS, the "Sellers")
and
American Home Mortgage Holdings, Inc. ("AHMHI" and the "Guarantor")
Dated September 13, 2006
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TABLE OF CONTENTS
Page
1. Applicability............................................................1
2. Definitions..............................................................1
3. Program; Initiation of Transactions.....................................20
4. Repurchase; Purchase Price Decrease.....................................22
5. Price Differential......................................................24
6. Margin Maintenance......................................................25
7. Income Payments.........................................................25
8. Security Interest.......................................................26
9. Payment and Transfer....................................................29
10. Conditions Precedent....................................................29
11. Program; Costs..........................................................33
12. Servicing...............................................................34
13. Representations and Warranties..........................................35
14. Covenants...............................................................42
15. Events of Default; Termination Event....................................48
16. Remedies Upon Default...................................................51
17. Reports.................................................................54
18. Repurchase Transactions.................................................57
19. Single Agreement........................................................57
20. Notices and Other Communications........................................58
21. Entire Agreement; Severability..........................................59
22. Non assignability.......................................................60
23. Set-off.................................................................60
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24. Binding Effect; Governing Law; Jurisdiction.............................60
25. No Waivers, Etc.........................................................61
26. Intent..................................................................61
27. Disclosure Relating to Certain Federal Protections......................62
28. Power of Attorney.......................................................62
29. Buyer May Act Through Affiliates........................................63
30. Indemnification; Obligations............................................63
31. Counterparts............................................................64
32. Confidentiality.........................................................64
33. Recording of Communications.............................................64
34. Commitment Fee..........................................................64
35. [Reserved]..............................................................65
36. Periodic Due Diligence Review...........................................65
37. Authorizations..........................................................65
38. Acknowledgement Of Anti-Predatory Lending Policies......................66
39. Documents Mutually Drafted..............................................66
40. General Interpretive Principles.........................................66
41. Joint and Several.......................................................67
SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased
Mortgage Loans and REO Property
Schedule 2 - Authorized Representatives
Schedule 3 - REO Subsidiaries
ANNEXES
Annex I - Buyer Acting as Agent
EXHIBITS
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Exhibit A - Form of Transaction Request
Exhibit B - Form of Purchase Confirmation
Exhibit C - Form of Asset Schedule
Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - Reserved
Exhibit F - Form of Opinion of Sellers' and Guarantor's counsel
Exhibit G - Underwriting Guidelines
Exhibit H - Officer's Certificate of the Sellers and Corporate
Resolutions of Sellers
Exhibit I - Sellers' and Guarantor's Tax Identification Number
[Sellers' please provide]
Exhibit J - Permitted Indebtedness [Sellers' please provide]
Exhibit K - Reserved
Exhibit L - Custodial and Bank Fee Schedule
Exhibit M - Form of Servicer Notice
Exhibit N - Form of REO Subsidiary Acknowledgment
Exhibit O - Second Amended and Restated Credit Agreement
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1. Applicability
From time to time the parties hereto may enter into transactions in
which Sellers agree to transfer to Buyer Mortgage Loans and the LLC Interests
(valued from time to time based on the REO Properties owned by the REO
Subsidiary) (as hereinafter defined) against the transfer of funds by Buyer,
with a simultaneous agreement by Buyer to transfer to Sellers such Mortgage
Loans and/or the LLC Interests and/or REO Properties at a date certain or on
demand, against the transfer of funds by Sellers. Each such transaction shall be
referred to herein as a "Transaction" and, unless otherwise agreed in writing,
shall be governed by this Agreement, including any supplemental terms or
conditions contained in any annexes identified herein, as applicable hereunder.
On an applicable Purchase Date, Buyer will purchase the LLC
Interests from a Seller in connection with the initial Transaction.
After such Purchase Date, as part of separate Transactions such
Seller may request and Buyer will fund, subject to the terms and conditions of
this Agreement, an increase in the Purchase Price for the LLC Interests based
upon the acquisition of additional REO Property by the REO Subsidiary.
Transactions relating to Purchase Price Increases will be terminated and the
Repurchase Price for the related REO Property paid to Buyer in accordance with
Section 4 hereof.
2. Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"30/40 Mortgage Loan" means a Mortgage Loan which has an original
term to maturity of not more than thirty years from commencement of
amortization, with a balloon payment in year thirty based upon a forty year
amortization schedule.
"Acceptable State" means any state acceptable pursuant to Sellers'
Underwriting Guidelines.
"Accepted Servicing Practices" means, with respect to any Mortgage
Loan or REO Property, those mortgage servicing practices of prudent mortgage
lending institutions which service mortgage loans of the same type as such
Mortgage Loan or REO Property in the jurisdiction where the related Mortgaged
Property or REO Property is located.
"Act of Insolvency" means, with respect to any Person, (i) the
filing of a petition, commencing, or authorizing the commencement of any case or
proceeding, or the voluntary joining of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law
relating to the protection of creditors, or suffering any such petition or
proceeding to be commenced by another which is consented to, not timely
contested or results in entry of an order for relief; (ii) the seeking of the
appointment of a receiver, trustee, custodian or similar official for such party
or any substantial part of its property; (iii) the appointment of a
receiver, conservator, or manager for such party by any governmental agency or
authority having the jurisdiction to do so; (iv) the making or offering by such
party of a composition with its creditors or a general assignment for the
benefit of creditors; (v) the admission by such party of its inability to pay
its debts or discharge its obligations as they become due or mature; or (vi)
that any governmental authority or agency or any person, agency or entity acting
or purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the property of such party, or shall have taken any action
to displace the management of such party or to curtail its authority in the
conduct of the business of such party.
"Adjusted Net Worth" means, for any Person, Net Worth of such Person
plus Subordinated Debt, minus all intangible assets, including goodwill,
patents, tradenames, trademarks, copyrights, franchises, any organizational
expenses, deferred expenses, prepaid expenses, prepaid assets, receivables from
shareholders, Affiliates or employees, and any other asset as shown as an
intangible asset on the balance sheet of such Person on a consolidated basis as
determined at a particular date in accordance with GAAP.
"Affiliate" means, with respect to any Person, any "affiliate" of
such Person, as such term is defined in the Bankruptcy Code.
"Aged Loan" means an Aged 120 Day Loan, Aged 180 Loan or an Aged 270
Day Loan.
"Aged 120 Day Loan" means a Mortgage Loan other than a Repurchased
Mortgage Loan which has been subject to a Transaction hereunder for a period of
at least 120 days but not greater than 180 days.
"Aged 180 Day Loan" means a Mortgage Loan other than a Repurchased
Mortgage Loan which has been subject to a Transaction hereunder for a period of
greater than 180 days but not greater than 270 days.
"Aged 270 Day Loan" means a Mortgage Loan other than a Repurchased
Mortgage Loan which has been subject to a Transaction hereunder for a period of
greater than 270 days but not greater than 364 days.
"Agency" means Freddie Mac, Fannie Mae or GNMA, as applicable.
"Agency Security" means a mortgage-backed security issued by an
Agency.
"Agent" means Credit Suisse First Boston Mortgage Capital LLC or any
affiliate or successor thereto.
"Agreement" means this Master Repurchase Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Alt-A Mortgage Loan" means a first lien Mortgage Loan originated in
accordance with the criteria established by Buyer for Alt-A Mortgage Loans,
which has a
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minimum FICO score that is consistent with Buyer's or its Affiliates'
underwriting guidelines in effect as of the time of origination, which are
subject to change at the discretion of the Buyer.
"Appraised Value" means the value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
"Asset Documents" means the documents in the related Asset File to
be delivered to the Custodian.
"Asset File" means, with respect to a Purchased Asset, the documents
and instruments relating to such Purchased Asset required to be delivered
pursuant to the Custodial Agreement.
"Asset Schedule" means, with respect to any Transaction as of any
date, a schedule in the form of Exhibit C attached hereto.
"Asset Tape" means a remittance report on a monthly basis or
requested by Buyer pursuant to Section 17d hereof containing servicing
information, including, without limitation, those fields reasonably requested by
Buyer from time to time, on an asset-by-asset basis and in the aggregate, with
respect to the Purchased Assets serviced by Sellers or any Servicer for the
month (or any portion thereof) prior to the Reporting Date.
"Assignment of Mortgage" means 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 sale of the Mortgage to Buyer.
"Attorney Bailee Letter" means a letter in the form of Exhibit D-3
to the Custodial Agreement.
"Available Borrowing Capacity" means available and unused borrowing
capacity which may be drawn upon by any Seller on a next Business Day basis.
Borrowing capacity shall not be deemed part of the Available Borrowing Capacity
if any event or circumstance has occurred which would prevent any Seller from
drawing on the borrowing capacity or cause the related lender to have no
obligation to make funds available.
"Bailee Letter" has the meaning assigned to such term in the
Custodial Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code of 1978,
as amended from time to time.
"Bid" has the meaning set forth in Section 4(e) hereof.
"Bid Fee" has the meaning set forth in the Pricing Side Letter.
"BPO" means an opinion of the fair market value of a Mortgaged
Property or REO Property given by a licensed real estate agent or broker which
generally includes three comparable sales and three comparable listings.
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"Business Day" means any day other than (A) a Saturday or Sunday and
(B) a public or bank holiday in New York City.
"Buydown Amount" has the meaning set forth in Section 5(c) hereof.
"Buyer" means Credit Suisse First Boston Mortgage Capital LLC, and
any successor or assign hereunder.
"Buyer Deed" has the meaning set forth in Section 8 hereof.
"Buyer's Margin Amount" means with respect to any Transaction as of
any date of determination, an amount equal to the product of (A) Buyer's Margin
Percentage and (B) the Purchase Price for such Transaction.
"Buyer's Margin Percentage" means, with respect to any Transaction
as of any date, a percentage equal to the percentage obtained by dividing the
(A) Market Value of the Purchased Assets on the Purchase Date for such
Transaction by (B) the Purchase Price on the Purchase Date for such Transaction;
provided, that, with respect to any Mortgage Loan which was not an Exception
Mortgage Loan on the related Purchase Date and which, as of the date of
determination, is an Exception Mortgage Loan, Buyer's Margin Percentage as of
such date of determination shall be equal to the percentage obtained by dividing
(A) the Market Value of such Mortgage Loan on the related Purchase Date by (B)
the amount the Purchase Price would have been on the Purchase Date if such
Mortgage Loan had been categorized as the type of Mortgage Loan (e.g., Exception
Mortgage Loan, etc.) that it is categorized on the date of determination.
"Capital Lease Obligations" means, 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" means (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 Buyer or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of Buyer or 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 S&P or P-1 or the equivalent thereof by 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,
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(f) securities with maturities of 90 days or less from the date of acquisition
backed by standby letters of credit issued by Buyer or 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.
"Change in Control" means:
(A) any transaction or event as a result of which a Seller ceases to
own, beneficially or of record, 100% of the limited liability
company interests of REO Subsidiary;
(B) the sale, transfer, or other disposition of all or substantially
all of any Seller's or Guarantor's assets (except for (i) any such
action taken in connection with any securitization transaction; (ii)
any transaction between such party and an Affiliate of such party
and (iii) transfers in the ordinary course of such party's
business);
(C) any transaction or event as a result of which a "person" or
"group" (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
shall become, or obtain rights (whether by means of warrants,
options or otherwise) to become, the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of a percentage of the total voting power of all classes
of capital stock of any Seller or the Guarantor entitled to vote
generally in the election of directors of 20% or more; or
(D) the consummation of a merger or consolidation of any Seller or
Guarantor with or into another entity or any other corporate
reorganization, if more than 50% of the combined voting power of the
continuing or surviving entity's stock outstanding immediately after
such merger, consolidation or such other reorganization is owned by
Persons who were not stockholders of such Seller or Guarantor
immediately prior to such merger, consolidation or other
reorganization.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means one or more accounts established by the
Servicer for the benefit of Buyer, into which all collections and proceeds on or
in respect of the Mortgage Loans shall be deposited by Servicer upon the
occurrence of an Event of Default.
"Committed Mortgage Loan" means a Mortgage Loan which is the subject
of a Take-out Commitment with a Take-out Investor.
"Commitment Fee" has the meaning set forth in the Pricing Side
Letter.
"Conforming Mortgage Loan" means a first lien Mortgage Loan
originated in accordance with the criteria of an Agency for purchase of Mortgage
Loans, including, without
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limitation, conventional Mortgage Loans, FHA Loans and VA Loans, as determined
by Buyer in its sole discretion.
"Credit Limit" means, with respect to each HELOC, the maximum amount
permitted under the terms of the related Credit Line Agreement.
"Credit Line Agreement" means, with respect to each HELOC, the
related home equity line of credit agreement, account agreement and promissory
note (if any) executed by the related Mortgagor and any amendment or
modification thereof.
"Custodial Agreement" means the custodial agreement dated as of the
date hereof, among Sellers, Buyer and Custodian as the same may be amended from
time to time.
"Custodian" means Deutsche Bank National Trust Company or such other
party specified by Buyer and agreed to by Sellers, which approval shall not be
unreasonably withheld.
"Default" means an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Delinquent Mortgage Loan" means a Delinquent 30 Day Loan or a
Delinquent 90 Day Loan.
"Delinquent 30 Day Loan" means a Mortgage Loan for which payments
under the Mortgage Note are 30 days or more delinquent but no more than 89 days
delinquent.
"Delinquent 90 Day Loan" means a Mortgage Loan for which payments
under the Mortgage Note are 90 days or more delinquent but the Mortgaged
Property has not been converted into REO Property.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Draw" means, with respect to each HELOC, an additional borrowing by
the Mortgagor in accordance with the related Credit Line Agreement.
"Due Date" means the day of the month on which the Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace.
"Due Diligence Cap" has the meaning set forth in the Pricing Side
Letter.
"Effective Date" means the date upon which the conditions precedent
set forth in Section 10 shall have been satisfied.
"Electronic Tracking Agreement" means an Electronic Tracking
Agreement among Buyer, Sellers, MERS and MERSCORP, Inc., to the extent
applicable as the same may be amended from time to time.
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"Eligible Asset" means a Purchased Asset (and with respect to the
LLC interests, the REO Property owned by the REO Subsidiary) which complies with
the representations and warranties et forth in Schedule 1 of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means 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 any 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 any Seller
is a member.
"Escrow Payments" means, with respect to any Mortgage Loan, the
amounts constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
"Event of Default" has the meaning specified in Section 15(a)
hereof.
"Event of Termination" means with respect to any Seller or Guarantor
(i) with respect to any Plan, a reportable event, as defined in Section 4043 of
ERISA, as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified with 30 days of the occurrence of
such event, or (ii) the withdrawal of such Seller, Guarantor or any ERISA
Affiliate thereof from a Plan during a plan year in which it is a substantial
employer, as defined in Section 4001(a)(2) of ERISA, or (iii) the failure by
such Seller, Guarantor or any ERISA Affiliate thereof to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA with respect
to any Plan, including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or Section
302(e) of ERISA, or (iv) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by such Seller
,Guarantor or any ERISA Affiliate thereof to terminate any plan, or (v) 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 such Seller, Guarantor or any ERISA
Affiliate thereof fails to timely provide security to the Plan in accordance
with the provisions of said sections, or (vi) the institution by the PBGC of
proceedings under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or (vii) the receipt by such
Seller, Guarantor or any ERISA Affiliate thereof of a notice from a
Multiemployer Plan that action of the type described in the previous clause (vi)
has been taken by the PBGC with respect to such Multiemployer Plan, or (viii)
any event or circumstance exists which may reasonably be expected to constitute
grounds for such Seller, Guarantor or any ERISA Affiliate thereof to incur
liability under Title IV of ERISA or under Sections 412(c)(11) or 412(n) of the
Code with respect to any Plan.
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"Exception Mortgage Loan" means any Mortgage Loan which is otherwise
ineligible for purchase hereunder, or which otherwise becomes ineligible for
purchase hereunder and which is approved by Buyer in its sole discretion;
provided, however, that the Sellers shall pay to Buyer a fee of $25 with respect
to any such approval of an Exception Mortgage Loan other than a Wet-Ink Mortgage
Loan and $10 with respect to any such approval of an Exception Mortgage Loan
which is a Wet-Ink Mortgage Loan; and provided, that upon 30 days' notice to the
Sellers, Buyer may change such Exception Mortgage Loan approval fee. Buyer's
approval of a Mortgage Loan as an Exception Mortgage Loan shall expire on the
earlier of (a) the date set forth by the Buyer in the written notice that such
Mortgage Loan is approved as an Exception Mortgage Loan (an "Exception Notice")
or (b) the occurrence of any additional event, other than that set forth in the
Exception Notice, which would cause the Mortgage Loan to become ineligible for
purchase hereunder. The Pricing Rate, Market Value, Purchase Price and Buyer's
Margin Percentage with respect to Exception Mortgage Loans shall be set in the
sole discretion of Buyer. Buyer may at any time, and in its sole discretion, no
longer consider a Mortgage Loan an Exception Mortgage Loan, in which case such
Mortgage Loan shall have a Market Value of zero.
"Fannie Mae" means Fannie Mae, the government sponsored enterprise
formerly known as the Federal National Mortgage Association.
"FHA" means the Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto, and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
"FHA Approved Mortgagee" means a corporation or institution approved
as a mortgagee by the FHA under the National Housing Act, as amended from time
to time, and applicable FHA Regulations, and eligible to own and service
mortgage loans such as the FHA Loans.
"FHA Loan" means a Mortgage Loan which is the subject of an FHA
Mortgage Insurance Contract.
"FHA Mortgage Insurance" means, mortgage insurance authorized under
the National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Mortgage Insurance Contract" means the contractual obligation
of the FHA respecting the insurance of a Mortgage Loan.
"FHA Regulations" means the regulations promulgated by the
Department of Housing and Urban Development under the National Housing Act, as
amended from time to time and codified in 24 Code of Federal Regulations, and
other Department of Housing and Urban Development issuances relating to FHA
Loans, including the related handbooks, circulars, notices and mortgagee
letters.
"FICO" means Fair Isaac & Co., or any successor thereto.
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"Fidelity Insurance" means insurance coverage with respect to
employee errors, omissions, dishonesty, forgery, theft, disappearance and
destruction, robbery and safe burglary, property (other than money and
securities) and computer fraud in an aggregate amount acceptable to Sellers'
regulators.
"Foreclosed Loan" means a Mortgage Loan, the property securing which
has been foreclosed upon by a Seller.
"Freddie Mac" means the Federal Home Loan Mortgage Corporation or
any successor thereto.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent basis.
"GNMA" means the Government National Mortgage Association and any
successor thereto.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions over any Seller,
Guarantor or Buyer, as applicable.
"Gross Margin" means, with respect to each adjustable rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note.
"Guarantee" means, 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 required by 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.
"Guarantor" means American Home Mortgage Holdings, Inc., in its
capacity as guarantor under the Guaranty.
"Guaranty" means the guaranty of American Home Mortgage Holdings,
Inc. dated as of the date hereof as the same may be amended from time to time,
pursuant to which the Guarantor fully and unconditionally guarantees the
obligations of the Sellers hereunder.
"HELOC" means a home equity revolving line of credit secured by a
mortgage, deed of trust or other instrument creating a second lien on the
related Mortgaged Property, which
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lien secures the related line of credit and that is underwritten in accordance
with Sellers' Underwriting Guidelines
"High Cost Mortgage Loan" means a Mortgage Loan classified as (a) a
"high cost" loan under the Home Ownership and Equity Protection Act of 1994 or
(b) a "high cost," "threshold," "covered," or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law, regulation or ordinance imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees).
"High Purchase Price Asset" means a Purchased Asset designated as a
High Purchase Price Asset by a Seller in accordance with Section 3(c).
"Income" means (a) with respect to any Purchased Mortgage Loan at
any time until repurchased by a Seller, any principal received thereon or in
respect thereof and all interest, dividends or other distributions thereon and
(b) with respect to LLC Interests during any period, any rental payments, if
any, and all proceeds of REO Property owned by the REO Subsidiary received upon
liquidation of such REO Property during such period.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business, so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations
(contingent or otherwise) of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial institutions
for the account of such Person; (e) Capital Lease Obligations of such Person;
(f) obligations of such Person under repurchase agreements, sale/buy-back
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; and (i) Indebtedness of
general partnerships of which such Person is a general partner.
"Index" means, with respect to any adjustable rate Mortgage Loan,
the index identified on the Asset Schedule and set forth in the related Mortgage
Note for the purpose of calculating the applicable Mortgage Interest Rate.
"Interest Only Adjustment Date" means, with respect to each Interest
Only Loan, the date, specified in the related Mortgage Note on which the Monthly
Payment will be adjusted to include principal as well as interest.
"Interest Only Loan" means a Mortgage Loan which only requires
payments of interest for a period of time specified in the related Mortgage
Note.
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"Interest Rate Adjustment Date" means the date on which an
adjustment to the Mortgage Interest Rate with respect to each Mortgage Loan
becomes effective.
"Interest Rate Protection Agreement" means, with respect to any or
all of the Purchased Assets, any short sale of a US Treasury Security, or
futures contract, or mortgage related security, or Eurodollar futures contract,
or options related contract, or interest rate swap, cap or collar agreement or
Take-out Commitment, or similar arrangement providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations,
either generally or under specific contingencies, entered into by a Seller and
an Affiliate of Buyer or such other party acceptable to Buyer in its sole
discretion, which agreement is acceptable to Buyer in its sole discretion.
"Jumbo Mortgage Loan" means an A quality first lien Mortgage Loan
which is not eligible for sale to an Agency.
"LIBOR" means for each day, the rate of interest (calculated on a
per annum basis) equal to the overnight British Bankers Association Rate as
reported on the display designated as "BBAM" "Page DG8 4a" on Bloomberg (or such
other display as may replace "BBAM" "Page DG8 4a" on Bloomberg) on such date of
determination, and if such rate shall not be so quoted, the rate per annum at
which Buyer or an Affiliate is offered Dollar deposits at or about 11:00 a.m.,
(New York City time), on such day, by prime banks in the interbank eurodollar
market where the eurodollar and foreign currency exchange operations in respect
of its loans are then being conducted for delivery on such day for an overnight
period, and in an amount comparable to the amount of the Purchase Price of
Transactions to be outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security interest
or similar encumbrance.
"Limited Liability Company Agreement" means the organizational
documents governing any REO Subsidiary as contemplated by this Agreement.
"LLC Interests" means any and all of Sellers' interests, including
units of membership interest, in REO Subsidiary including, without limitation,
all its rights to participate in the operation or management of REO Subsidiary
and all its rights to properties, assets, member interests and distributions
under the Limited Liability Company Agreement in respect of such member
interests. "LLC Interests" also include (i) all accounts receivable arising out
of the applicable Limited Liability Company Agreement; (ii) all general
intangibles arising out of the applicable Limited Liability Company Agreement;
and (iii) to the extent not otherwise included, all proceeds of any and all the
foregoing (including within proceeds, whether or not otherwise included therein,
and any and all contractual rights of the Sellers under any revenue sharing or
similar agreement to receive all or any portion of the revenues or profits of
such REO Subsidiary).
"Loan to Value Ratio" or "LTV" means with respect to any Mortgage
Loan, the ratio of the original outstanding principal amount of the Mortgage
Loan, with respect to a Mortgage Loan other than a HELOC, or the original Credit
Limit, with respect to a HELOC, and,
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with respect to any Second Lien Mortgage Loan, the outstanding principal amount
of any related first lien as of the date of origination of such mortgage loan,
to the lesser of (a) the Appraised Value of the related Mortgaged Property at
origination or (b) if the Mortgaged Property was purchased within 12 months of
the origination of such Mortgage Loan, the purchase price of the related
Mortgaged Property.
"Low Purchase Price Asset" means a Purchased Asset designated as a
Low Purchase Price Asset by Sellers in accordance with Section 3(c).
"Margin Call" has the meaning specified in Section 6(a) hereof.
"Margin Deadline" has the meaning specified in Section 6(b) hereof.
"Margin Deficit" has the meaning specified in Section 6(a) hereof.
"Market Value" has the meaning set forth in the Pricing Side Letter.
"Material Adverse Effect" means (a) a material adverse change in, or
a material adverse effect upon, the operations, business, properties or
condition (financial or otherwise) of any Seller, Guarantor or any Affiliate
that is a party to any Program Agreement taken as a whole; or (b) a material
impairment of the ability of any Seller, Guarantor or any Affiliate that is a
party to any Program Agreement to perform under any Program Agreement and to
avoid any Event of Default.
"Maximum Aggregate Purchase Price" has the meaning set forth in the
Pricing Side Letter.
"Maximum Committed Purchase Price" has the meaning set forth in the
Pricing Side Letter.
"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS System" means the system of recording transfers of mortgages
electronically maintained by MERS.
"Monthly Payment" means the scheduled monthly payment of principal
and/or interest on a Mortgage Loan.
"Moody's" means Moody's Investors Service, Inc. or any successors
thereto.
"Mortgage" means each mortgage, assignment of rents, security
agreement and fixture filing, or deed of trust, assignment of rents, security
agreement and fixture filing, deed to secure debt, assignment of rents, security
agreement and fixture filing, or similar instrument creating and evidencing a
lien on real property and other property and rights incidental thereto.
"Mortgage Interest Rate" means the rate of interest borne on a
Mortgage Loan from time to time in accordance with the terms of the related
Mortgage Note.
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"Mortgage Interest Rate Cap" means, with respect to an adjustable
rate Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set
forth in the related Mortgage Note.
"Mortgage Loan" means any Sub-Prime Mortgage Loan, Repurchased
Mortgage Loan, Exception Mortgage Loan, Jumbo Mortgage Loan, Alt-A Mortgage
Loan, 30/40 Mortgage Loan, Second Lien Mortgage Loan, HELOC, Pay-Option ARM or
Conforming Mortgage Loan which is a fixed or floating-rate, one-to-four-family
residential mortgage or home equity loan evidenced by a promissory note and
secured by a mortgage, which satisfies the requirements set forth in the
Underwriting Guidelines and Section 13(b) hereof; provided, however, that,
except as expressly approved in writing by Buyer, Mortgage Loans shall not
include any "high-LTV" loans (i.e., a mortgage loan having a loan-to-value ratio
in excess of 100% or in excess of such lower percentage set forth in the
Underwriting Guidelines or with respect to Second Lien Mortgage Loans, a
combined loan-to value ratio, in excess of the lower of (i) the percentage
specified in the Underwriting Guidelines or (ii) 100%) or any High Cost Mortgage
Loans and; provided, further, that the origination date with respect to such
Mortgage Loan other than a Repurchased Mortgage Loan, REO Property or Delinquent
Mortgage Loan is no earlier than ninety (90) days prior to the related Purchase
Date (unless otherwise agreed by Buyer in writing).
"Mortgage Note" means the promissory note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of
the debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor or obligors on a Mortgage Note,
including any person who has assumed or guaranteed the obligations of the
obligor thereunder.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been or are required to be
made by a Seller or any ERISA Affiliate and that is covered by Title IV of
ERISA.
"Net Income" means, for any period and any Person, the net income of
such Person for such period as determined in accordance with GAAP.
"Net Worth" means, with respect to any Person, an amount equal to,
on a consolidated basis, such Person's stockholder equity (determined in
accordance with GAAP).
"1934 Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Notice Date" has the meaning given to it in Section 3(b) hereof.
"Obligations" means (a) all of Sellers' indebtedness, obligations to
pay the Repurchase Price on the Repurchase Date, the Price Differential on each
Price Differential Payment Date, and other obligations and liabilities, to
Buyer, its Affiliates or Custodian arising under, or in connection with, the
Program Agreements, whether now existing or hereafter arising; (b) any and all
sums paid by Buyer or on behalf of Buyer in order to preserve any
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Purchased Asset or its interest therein; (c) in the event of any proceeding for
the collection or enforcement of any of Sellers' 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 Asset, or of any exercise by Buyer of its rights
under the Program Agreements, including, without limitation, attorneys' fees and
disbursements and court costs; and (d) all of the Sellers' indemnity obligations
to Buyer or Custodian or both pursuant to the Program Agreements.
"OFAC" has the meaning set forth in Section 13(a)(28) hereof.
"Par Percentage" has the meaning set forth in the Pricing Side
Letter.
"Pay-Option ARM" means an adjustable rate mortgage with flexible
payment options (a) which the Mortgagor may pay an initial low rate for the
initial Monthly Payments and a substantially higher rate in the later years of
such Mortgage and (b) is underwritten in accordance with the Underwriting
Guidelines.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Indebtedness" means the Indebtedness of the Sellers and
Guarantor set forth on Exhibit J hereto, as such Exhibit is amended and
delivered monthly by Sellers to Buyer.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means an employee benefit or other plan established or
maintained by any Seller or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
"Post Default Rate" has the meaning set forth in the Pricing Side
Letter.
"Price Differential" means with respect to any Transaction as of any
date of determination, an amount equal to the product of (A) the Pricing Rate
for such Transaction and (B) the Purchase Price for such Transaction, calculated
daily on the basis of a 360-day year for the actual number of days during the
period commencing on (and including) the Purchase Date for such Transaction and
ending on (but excluding) the Repurchase Date.
"Price Differential Payment Date" means, with respect to a Purchased
Asset, the 5th day of the month following the related Purchase Date and each
succeeding 5th day of the month thereafter; provided, that, with respect to such
Purchased Asset, the final Price Differential Payment Date shall be the related
Repurchase Date; and provided, further, that if any such day is not a Business
Day, the Price Differential Payment Date shall be the next succeeding Business
Day.
"Pricing Rate" has the meaning set forth in the Pricing Side Letter.
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"Pricing Side Letter" shall mean that certain pricing side letter
between Buyer, Sellers and the Guarantor dated as of September 13, 2006.
"Principal" has the meaning given to it in Annex I.
"Program Agreements" means, collectively, the Servicing Agreement,
if any, the Servicer Notice, if any, the Pricing Side Letter, the Custodial
Agreement, this Agreement, the Electronic Tracking Agreement, if entered into,
the Guaranty, the REO Contribution Agreement, the REO Subsidiary Acknowledgement
and the REO Subsidiary Agreement and, with respect to each Exception Mortgage
Loan, a Purchase Confirmation.
"Prohibited Person" has the meaning set forth in Section 13(a)(28)
hereof.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Confirmation" means a confirmation of a Transaction, in
the form attached as Exhibit B hereto.
"Purchase Date" means the date on which Purchased Assets are to be
transferred by a Seller to Buyer.
"Purchase Price" means the price at which each Purchased Asset is
transferred by a Seller to Buyer, which shall equal:
(i) on the Purchase Date, in the case of Purchased Assets (other
than LLC Interests), the lesser of (1) the applicable Purchase Price Percentage
for such Purchased Asset multiplied by the Market Value of such Purchased Asset
and (2) the applicable Par Percentage for such Purchased Asset multiplied by the
outstanding principal balance thereof as set forth on the related Asset
Schedule;
(ii) on the Purchase Date, in the case of Purchased Assets which are
LLC Interests (i.e., REO Property owned by the REO Subsidiary), the applicable
Purchase Price Percentage for such Purchased Asset multiplied by the Market
Value of such Purchase Asset;
(iii) on any day after the Purchase Date, except where Buyer and the
a Seller agree otherwise, the amount determined under the immediately preceding
clause (i) or (ii) decreased by the amount of any cash transferred by a Seller
to Buyer pursuant to Section 4(c) hereof or applied to reduce a Seller's
obligations under clause (ii) of Section 4(b) hereof or under Section 6 hereof.
"Purchase Price Decrease" means a decrease in the Purchase Price for
a Purchased Asset related to the removal of REO Property from the REO
Subsidiary, and the decrease in value of the LLC Interests related thereto, as
specified by a Seller in any Purchase Price Decrease Notice delivered in
accordance with Section 4 hereof.
"Purchase Price Decrease Date" means the date on which a Seller
requests a Purchase Price Decrease.
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"Purchase Price Decrease Notice" means the notice for a decrease in
Purchase Price requested by a Seller in accordance with Section 4 hereof.
"Purchase Price Increase" means an increase in the Purchase Price
for the LLC Interests based upon REO Subsidiary acquiring additional REO
Property, as requested by a Seller pursuant to Section 3(c) hereof.
"Purchase Price Percentage" has the meaning set forth in the Pricing
Side Letter.
"Purchased Asset" means a Mortgage Loan or LLC Interest as evidenced
by a Transaction Request and a Trust Receipt; provided that, in the case of LLC
Interests, Purchased Assets shall be deemed to include any and all REO Property
owned by the REO Subsidiary.
"Purchased Mortgage Loan" means a Purchased Asset that is a Mortgage
Loan.
"Qualified Insurer" means a mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Fannie Mae or Freddie Mac.
"Qualified Originator" means an originator of Mortgage Loans which
is acceptable under the Underwriting Guidelines.
"Records" means all instruments, agreements and other books,
records, and reports and data generated by other media for the storage of
information maintained by a Seller or any other person or entity with respect to
a Purchased Asset. Records shall include the Mortgage Notes, any Mortgages, the
Asset Files, the credit files related to the Purchased Asset and any other
instruments necessary to document or service a Mortgage Loan.
"REIT" means a real estate investment trust, as defined in Section
856 of the Code.
"REO Contribution Agreement" means that certain REO Contribution
Agreement to be entered into between the Sellers and REO Subsidiary pursuant to
which REO Subsidiary has acquired and shall acquire REO Property.
"REO Property" means the real property assets (a) purchased by the
REO Subsidiary from a lender who obtained title to such real property assets as
a result of foreclosure or deed in lieu of foreclosure of a mortgage or deed of
trust, or (b) acquired by the REO Subsidiary as a result of foreclosure or deed
in lieu of foreclosure of a mortgage or deed of trust.
"REO Subsidiary" means the wholly owned Subsidiary of the Sellers
that is a Special Purpose Entity formed for the sole purpose of holding REO
Property set forth on Schedule 3 hereto.
"REO Subsidiary Acknowledgement" means an instruction by REO
Subsidiary to the applicable Sellers to register the pledge of the LLC Interests
in the form of Exhibit N hereof.
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"REO Subsidiary Agreement" means that certain REO Subsidiary
Agreement to be executed and delivered by a duly authorized officer of the REO
Subsidiary in favor of the Buyer.
"Reporting Date" means the 5th day of each month or, if such day is
not a Business Day, the next succeeding Business Day.
"Repurchase Assets" has the meaning assigned thereto in Section 8
hereof.
"Repurchase Date" means the earlier of (i) the Termination Date,
(ii) the date set forth in the applicable Purchase Confirmation, (iii) the date
determined by application of Section 16 hereof or (iv) the date identified to
Buyer by Sellers as the date that the related Mortgage Loan is to be sold
pursuant to a Take-out Commitment.
"Repurchase Price" means the price at which Purchased Assets
(including REO Properties supporting a Purchase Price Increase) are to be
transferred from Buyer to a Seller upon termination of a Transaction, which will
be determined in each case (including Transactions terminable upon demand) as
the sum of the Purchase Price or Purchase Price Increase, as applicable, and the
accrued but unpaid Price Differential as of the date of such determination.
"Repurchased Mortgage Loan" means a Mortgage Loan (a) which is
repurchased by the Seller as a result of a breach of representations and
warranties under the agreed upon terms in which the claimed breach is not a
result of fraud or material misrepresentation of fact by any party to the
Mortgage Loan or consumer credit law violation, (b) where the claimed breach or
early payment default is expressly identified to Buyer in writing, and (c) which
has not been foreclosed upon or converted to REO Property. Notwithstanding the
foregoing, in no event will a Mortgage Loan be deemed a "Repurchased Mortgage
Loan" if there is a breach of representation and warranty in respect of such
Repurchased Mortgage Loan other than the breach identified in writing to the
Buyer pursuant to subclause (b) of this definition.
"Request for Certification" means a notice sent to the Custodian
reflecting the sale of one or more Purchased Assets to Buyer hereunder.
"Requirement of Law" means, with respect to any Person, any law,
treaty, rule or regulation or determination of an arbitrator, a court or other
governmental authority, applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer" means as to any Person, the chief executive
officer or, with respect to financial matters, the chief financial officer of
such Person.
"S&P" means Standard & Poor's Ratings Services, or any successor
thereto.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"Second Lien Mortgage Loan" means a Mortgage Loan secured by a
second lien on the related Mortgaged Property.
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"Sellers" means each of American Home Mortgage Corp., American Home
Mortgage Acceptance, Inc., American Home Mortgage Servicing, Inc. and American
Mortgage Investment Corp. or their permitted successors and assigns.
"Servicer" means American Home Mortgage Servicing, Inc. or any other
servicer requested by Sellers and approved by Buyer in its good faith
discretion, which may be Sellers.
"Servicer Notice" means the notice acknowledged by the Servicer
substantially in the form of Exhibit M hereto.
"Servicing Agreement" means the servicing agreement, if any, entered
into among the Sellers and a Servicer as the same may be amended from time to
time.
"Settlement Agent" means, with respect to any Transaction the
subject of which is a Wet-Ink Mortgage Loan, the entity approved by Buyer, in
its sole good-faith discretion, which may be a title company, escrow company or
attorney in accordance with local law and practice in the jurisdiction where the
related Wet-Ink Mortgage Loan is being originated. A Settlement Agent is deemed
approved unless Buyer notifies Sellers otherwise at any time electronically or
in writing.
"SIPA" means the Securities Investor Protection Act of 1970, as
amended from time to time.
"Special Purpose Entity" means a Person, other than an individual,
which is formed or organized solely for the purpose of holding, directly or
indirectly, an ownership interest in one or more REO Properties, does not engage
in any business unrelated to the REO Properties, does not have any assets other
than as otherwise expressly permitted by this Repurchase Agreement, has its own
separate books and records and will not commingle its funds in each case which
are separate and apart from the books and records of any other Person, and is
subject to all of the limitations on the powers set forth in the organizational
documentation of the Sellers or such REO Subsidiary, as the case may be, as in
effect on each Purchase Date, and holds itself out as a Person separate and
apart from any other Person and otherwise complies with all of the covenants set
forth in Section 14(gg).
"Subordinated Debt" means, Indebtedness of a Seller which is (i)
unsecured, (ii) no part of the principal of such Indebtedness is required to be
paid (whether by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the date which is one year following the
Termination Date and (iii) the payment of the principal of and interest on such
Indebtedness and other obligations of a Seller in respect of such Indebtedness
are subordinated to the prior payment in full of the principal of and interest
(including post-petition obligations) on the Transactions and all other
obligations and liabilities of each Seller to Buyer hereunder on terms and
conditions approved in writing by Buyer and all other terms and conditions of
which are satisfactory in form and substance to Buyer.
"Subsidiary" means, 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
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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.
"Sub-Prime Mortgage Loan" means a Mortgage Loan originated in
accordance with the criteria established by Buyer for sub-prime mortgage loans,
as determined by Buyer in its sole discretion.
"Super Jumbo Mortgage Loan" means a first lien Mortgage Loan that
has an original outstanding principal balance of greater than $1,000,000 but not
more than $3,500,000.
"Take-out Commitment" means a commitment of a Seller to either (a)
sell one or more identified Mortgage Loans to a Take-out Investor or (b) (i)
swap one or more identified Mortgage Loans with a Take-out Investor that is an
Agency for an Agency Security, and (ii) sell the related Agency Security to a
Take-out Investor, and in each case, the corresponding Take-out Investor's
commitment back to such Seller to effectuate any of the foregoing, as
applicable. With respect to any Take-out Commitment with an Agency, the
applicable agency documents list Buyer as sole subscriber.
"Take-out Investor" means (i) an Agency or (ii) other institution
which has made a Take-out Commitment and either (a) has a long-term credit
rating of A- or above or (b) has been approved by Buyer, which approval shall
not be unreasonably withheld.
"Termination Date" has the meaning set forth in the Pricing Side
Letter.
"Termination Event" shall have the meaning set forth in Section
15(b) hereof.
"Test Period" means any calendar quarter.
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from a Seller to Buyer, in the
form attached as Exhibit A hereto, to enter into a Transaction.
"Trust Receipt and Certification" means, with respect to any
Transaction as of any date, a receipt and certification in the form attached as
an exhibit to the Custodial Agreement.
"Underwriting Guidelines" means the standards, procedures and
guidelines of the Sellers for underwriting and acquiring Mortgage Loans, which
are set forth in the written policies and procedures of the Sellers, a copy of
which is attached hereto as Exhibit G and such other guidelines as are
identified and approved in writing by Buyer.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York or the Uniform Commercial
Code as in effect in the applicable jurisdiction.
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"VA" means the U.S. Department of Veterans Affairs, an agency of the
United States of America, or any successor thereto including the Secretary of
Veterans Affairs.
"VA Approved Lender" means a lender which is approved by the VA to
act as a lender in connection with the origination of VA Loans.
"VA Loan" means a Mortgage Loan which is subject of a VA Loan
Guaranty Agreement as evidenced by a loan guaranty certificate, or a Mortgage
Loan which is a vender loan sold by the VA.
"VA Loan Guaranty Agreement" means the obligation of the United
States to pay a specific percentage of a Mortgage Loan (subject to a maximum
amount) upon default of the Mortgagor pursuant to the Servicemen's Readjustment
Act, as amended.
"Violation Deadline" has the meaning assigned thereto in Section
4(c) hereof.
"Wet-Ink Documents" means, with respect to any Wet-Ink Mortgage
Loan, the (a) Transaction Request and (b) the Asset Schedule.
"Wet-Ink Mortgage Loan" means a Mortgage Loan which Sellers are
selling to Buyer simultaneously with the origination thereof.
3. Program; Initiation of Transactions
a. From time to time, Buyer will purchase from the Sellers certain
Mortgage Loans or LLC Interests that have been either originated by
any Seller or purchased by any Seller from other originators. This
Agreement is a commitment by Buyer to enter into Transactions with
the Sellers for the transfer of Purchased Assets in an amount which,
in the aggregate, shall not exceed at any given time the Maximum
Committed Purchase Price. This Agreement is not a commitment by
Buyer to enter into Transactions with the Sellers for the transfer
of Purchased Assets in an amount which, in the aggregate, exceeds at
any given time the Maximum Committed Purchase Price but rather sets
forth the procedures to be used in connection with periodic requests
for Buyer to enter into Transactions with the Sellers. Each Seller
hereby acknowledges that Buyer is under no obligation to agree to
enter into, or to enter into, any Transaction pursuant to this
Agreement which would, when aggregated with all other Transactions
then outstanding hereunder, exceed the Maximum Committed Purchase
Price. All Purchased Assets shall exceed or meet the Underwriting
Guidelines, and shall be serviced by Servicer. The aggregate
Purchase Price of Purchased Assets subject to outstanding
Transactions shall not exceed the Maximum Aggregate Purchase Price.
b. With respect to each Transaction involving Purchased Assets which
are not Wet-Ink Mortgage Loans, Sellers shall give Buyer and
Custodian at least 1 Business Day's prior notice of any proposed
Purchase Date (the date on which such notice is given, the "Notice
Date") (including Transactions resulting in a
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Purchase Price Increase; provided, that if a Seller is delivering 25
or fewer Mortgage Loans, which are not Wet-Ink Mortgage Loans, on a
Purchase Date, the notice shall be delivered on or before 10:30 a.m.
(New York City time) on the Purchase Date. With respect to Wet-Ink
Mortgage Loans, such Seller shall deliver notice of any proposed
purchase on or before 3:00 p.m. (New York City time) on the Purchase
Date. On the Notice Date, such Seller shall (i) request that Buyer
enter into a Transaction by furnishing to Buyer a Transaction
Request, (ii) deliver to Buyer and Custodian an Asset Schedule and
(iii) deliver to Custodian, or the Buyer, with respect to each
Wet-Ink Mortgage Loan, either a Request for Certification and each
Asset File or Wet-Ink Documents for each Wet-Ink Mortgage Loan, as
applicable, in accordance with Section 10(b)(3) hereof. With respect
to requested Transactions which would cause the aggregate
outstanding Purchase Price for all outstanding Transactions to
exceed the Maximum Committed Purchase Price, Buyer may enter into
such requested Transaction or may notify such Seller of its
intention not to enter into such Transaction. In the event the Asset
Schedule provided by a Seller contains erroneous computer data, is
not formatted properly or the computer fields are otherwise
improperly aligned, Buyer shall provide written or electronic notice
to such Seller describing such error and Seller may either (a) give
Buyer written or electronic authority to correct the computer data,
reformat the Mortgage Loans or properly align the computer fields or
(b) correct the computer data, reformat or properly align the
computer fields itself and resubmit the Asset Schedule as required
herein. In the event that the a Seller gives Buyer authority to
correct the computer data, reformat the Asset Schedule or properly
align the computer fields, the such Seller shall pay $10 per change
and any other direct expenses incurred by Buyer; provided, that upon
30 days' notice to the Sellers, Buyer may change such computer
correction fee. The Sellers shall hold Buyer harmless for such
correction, reformatting or realigning, as applicable, except as
otherwise expressly provided herein.
c. Once per month during any calendar month, with respect to all
requested Transactions and all related Purchased Assets and all
Transactions remaining outstanding, Sellers shall designate all such
Purchased Assets as either Low Purchase Price Assets or High
Purchase Price Assets. In the event that Sellers fail to make such
designation, the Purchase Price election set forth above will not be
available and all Purchased Assets in such calendar month shall be
treated as High Purchase Price Assets.
d. With respect to each Exception Mortgage Loan, upon receipt of the
Transaction Request, Buyer shall, consistent with this Agreement,
specify the terms for such proposed Transaction, including the
Purchase Price, the Pricing Rate, the Market Value and the
Repurchase Date in respect of such Transaction. The terms thereof
shall be set forth in the Purchase Confirmation to be delivered to
the Sellers on or prior to the Purchase Date.
e. With respect to each Exception Mortgage Loan, the Purchase
Confirmation, together with this Agreement, shall constitute
conclusive evidence of the terms
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agreed between Buyer and the Sellers with respect to the Transaction
to which the Purchase Confirmation relates, and the Sellers'
acceptance of the related proceeds shall constitute the Sellers'
agreement to the terms of such Purchase Confirmation. It is the
intention of the parties that, with respect to each Exception
Mortgage Loan, each Purchase Confirmation shall not be separate from
this Agreement but shall be made a part of this Agreement. In the
event of any conflict between this Agreement and, with respect to
each Exception Mortgage Loan, a Purchase Confirmation, the terms of
the Purchase Confirmation shall control with respect to the related
Transaction.
f. Upon the satisfaction of the applicable conditions precedent set
forth in Section 10 hereof, all of the Sellers' interest in the
Purchased Assets shall pass to Buyer on the Purchase Date, against
the transfer of the Purchase Price or the Purchase Price Increase,
as applicable, to the Sellers. Upon transfer of the Purchased Asset
to Buyer as set forth in this Section and until termination of any
related Transactions as set forth in Sections 4 or 16 of this
Agreement, ownership of each Purchased Asset, including each
document in the related Asset File and Records, is vested in Buyer;
provided that, prior to the recordation by the Custodian as provided
for in the Custodial Agreement record title in the name of the
related Seller to each Mortgage shall be retained by the related
Seller in trust, for the benefit of Buyer, for the sole purpose of
facilitating the servicing and the supervision of the servicing of
the Purchased Assets.
g. With respect to each Wet-Ink Mortgage Loan, by no later than
12:00 noon, (New York City time) on the seventh Business Day
following the applicable Purchase Date, the related Seller shall
cause the related Settlement Agent to deliver to the Custodian the
remaining documents in the Asset File.
h. Upon transfer of the LLC Interests to Buyer as set forth herein
and until termination of any related Transactions as set forth
herein, ownership of the LLC Interests is vested in the Buyer, and
prior to the recordation of the Buyer Deeds by the Custodian as
provided for in the Custodial Agreement, record title to each REO
Property shall be retained by REO Subsidiary for the benefit of
Buyer.
4. Repurchase; Purchase Price Decrease
a. The Sellers shall repurchase the related Purchased Assets from
Buyer on each related Repurchase Date. Such obligation to repurchase
exists without regard to any prior or intervening liquidation or
foreclosure with respect to any Purchased Asset (but liquidation or
foreclosure proceeds received by Buyer shall be applied to reduce
the Repurchase Price for such Purchased Asset on each Price
Differential Payment Date except as otherwise provided herein). The
Sellers are obligated to repurchase and take physical possession of
the Purchased Assets from Buyer or its designee (including the
Custodian) at the Sellers' expense on the related Repurchase Date.
The Sellers may request a Purchase Price Decrease without penalty or
premium on any date.
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b. Prior to an Event of Default, if any Purchased Asset is finally
liquidated in the ordinary course of servicing such Purchased Asset
during any weekly period, (A) the Repurchase Date for such Purchased
Asset shall be the date of liquidation, (B) all proceeds of such
liquidation shall be held by the Sellers in trust for Buyer and
shall constitute the property of the Buyer, and (C) the Repurchase
Price (in the case of liquidated Purchased Mortgage Loans) or
Purchase Price Decrease (in the case of liquidated REO Property) for
such Purchased Asset (including Price Differential through the date
of payment) shall be paid to Buyer on the first Business Day of the
following week.
c. In the case of any non-ordinary course liquidation of REO
Property, Sellers may at any time, and from time to time, request a
Purchase Price Decrease related to the removal of REO Property from
the REO Subsidiary by sending a notice to the Buyer at least one (1)
Business Day prior to the date that the Sellers intend to remove the
related REO Property from the REO Subsidiary, specifying the
Purchase Price Decrease Date of such decrease (a "Purchase Price
Decrease Notice"). The Purchase Price Decrease amount shall be due
and payable on the Purchase Price Decrease Date specified therein.
If a Purchase Price Decrease Notice is given, such Purchase Price
Decrease Notice shall be revocable at any time prior to 12:00 noon
(New York City time) on the Business Day preceding the requested
Purchase Price Decrease Date by delivery of written notice thereof
to the Buyer. On or before the date REO Subsidiary sells any REO
Property in connection with a Purchase Price Decrease Request under
this Section 4(c), and as a condition to such sale, Sellers shall
provide Buyer the amount of the reduction in Purchase Price on each
related Purchase Price Decrease Date. Such obligation to provide a
Purchase Price Decrease subsists without regard to any sale or
disposition with respect to any Purchased Asset (but sale or
disposition proceeds received by Buyer shall be applied to pay the
Purchase Price Decrease amount on each Price Differential Payment
Date except as otherwise provided herein). Sellers are obligated to
provide the Purchase Price Decrease amount and take physical
possession of the REO Property from the REO Subsidiary at Sellers'
expense on the related Purchase Price Decrease Date.
d. Provided that no Default shall have occurred and is continuing,
and Buyer has received the related Repurchase Price upon repurchase
of the Purchased Assets, Buyer agrees to release its ownership
interest hereunder in the Purchased Assets (including, the
Repurchase Assets related thereto) at the request of Sellers. With
respect to payments in full by the related Mortgagor of a Purchased
Asset, Sellers agree to (i) provide Buyer with a copy of a report
from the related Servicer indicating that such Purchased Asset has
been paid in full, (ii) remit to Buyer, within two Business Days,
the Repurchase Price with respect to such Purchased Assets and (iii)
provide Buyer a notice specifying each Purchased Asset that has been
prepaid in full. Buyer agrees to release its ownership interest in
Purchased Assets which have been prepaid in full after receipt of
evidence of compliance with clauses (i) through (iii) of the
immediately preceding sentence.
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e. In the event that at any time any Purchased Asset violates the
applicable sublimit set forth in the definition of Market Value,
Buyer may, in its sole discretion, redesignate such Mortgage Loan as
an Exception Mortgage Loan. If Buyer does not redesignate such
Mortgage Loan as an Exception Mortgage Loan, and if no Seller
notifies Buyer within five (5) Business Days following notice or
knowledge of such violation that any Seller does not want to receive
a bid for such Mortgage Loan as described below, Buyer or an
Affiliate of Buyer may offer to terminate the applicable Seller's
right and obligation to repurchase such Mortgage Loan by paying the
related Seller a price to be set by Buyer in its good faith
discretion (a "Bid"). Such Seller, within five (5) Business Days of
receipt of Buyer's bid (the "Violation Deadline") may, in its sole
discretion, either (i) accept Buyer's bid, terminating Sellers'
right to repurchase such Mortgage Loan under this Agreement or (ii)
immediately repurchase the Mortgage Loan at the Repurchase Price in
accordance with this Section 4. Sellers shall pay the Bid Fee with
respect to each Mortgage Loan on which Buyer or its Affiliate makes
a Bid, regardless of whether the Bid is accepted and such Bid Fee
shall be due and payable to Buyer on or before the Violation
Deadline. Any amount paid by Buyer or its Affiliate to terminate
Sellers' right to repurchase a Purchased Asset if a Bid is accepted
pursuant to this Section shall be applied by Buyer toward the
outstanding Repurchase Price for the applicable Transaction.
5. Price Differential.
a. On each Business Day that a Transaction is outstanding, the
Pricing Rate shall be reset and, unless otherwise agreed, the
accrued and unpaid Price Differential shall be settled in cash on
each related Price Differential Payment Date. Two Business Days
prior to the Price Differential Payment Date, Buyer shall give
Sellers written or electronic notice of the amount of the Price
Differential due on such Price Differential Payment Date. On the
Price Differential Payment Date, Sellers shall pay to Buyer the
Price Differential for such Price Differential Payment Date (along
with any other amounts to be paid pursuant to Sections 7 and 34
hereof), by wire transfer in immediately available funds.
b. If Sellers fail to pay all or part of the Price Differential by
3:00 p.m. (New York City time) on the related Price Differential
Payment Date, with respect to any Purchased Asset, Sellers shall be
obligated to pay to Buyer (in addition to, and together with, the
amount of such Price Differential) interest on the unpaid Repurchase
Price at a rate per annum equal to the Post Default Rate until the
Price Differential is received in full by Buyer.
c. Sellers may remit to Buyer funds up to the outstanding Purchase
Price, to be held as unsegregated cash margin and collateral for all
Obligations under the Repurchase Agreement (such amount, to the
extent not applied to Obligations under the Repurchase Agreement,
the "Buydown Amount"). The Buydown Amount shall be used by Buyer in
order to calculate the Price Differential, which will accrue on the
Purchase Price then outstanding minus the Buydown Amount, applied to
Transactions involving the lowest Pricing Rate. The Sellers shall be
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entitled to request a drawdown of the Buydown Amount or remit
additional funds to be added to the Buydown Amount no more than one
time per week. Without limiting the generality of the foregoing, in
the event that a Margin Call or other Default exists, the Buyer
shall be entitled to use any or all of the Buydown Amount to cure
such circumstance or otherwise exercise remedies available to the
Buyer without prior notice to, or consent from, the Sellers. Within
two (2) Business Days' receipt of written request from Sellers, and
provided no Margin Call or other Default exists, Buyer shall remit
any portion of such Buydown Amount back to Sellers.
6. Margin Maintenance
a. If at any time the Market Value of any Purchased Asset subject to
a Transaction is less than Buyer's Margin Amount for such
Transaction (a "Margin Deficit"), then Buyer may by notice to any
Seller require Sellers to transfer to Buyer cash in an amount at
least equal to the Margin Deficit (such requirement, a "Margin
Call").
b. Notice delivered pursuant to Section 6(a) may be given by any
written means. Any notice given before 10:00 a.m. (New York City
time) on a Business Day shall be met, and the related Margin Call
satisfied, no later than 5:00 p.m. (New York City time) on such
Business Day; notice given after 10:00 a.m. (New York City time) on
a Business Day shall be met, and the related Margin Call satisfied,
no later than 5:00 p.m. (New York City time) on the following
Business Day (the foregoing time requirements for satisfaction of a
Margin Call are referred to as the "Margin Deadlines"). The failure
of Buyer, on any one or more occasions, to exercise its rights
hereunder, 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. Sellers 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 Sellers.
c. In the event that a Margin Deficit exists with respect to any
Purchased Asset, Buyer may retain any funds received by it to which
the Sellers would otherwise be entitled hereunder, which funds (i)
shall be held by Buyer against the related Margin Deficit and (ii)
may be applied by Buyer against any Purchased Asset for which the
related Margin Deficit remains otherwise unsatisfied.
Notwithstanding the foregoing, the Buyer retains the right, in its
sole discretion, to make a Margin Call in accordance with the
provisions of this Section 6.
7. Income Payments
a. If Income is paid in respect of any Purchased Asset during the
term of a Transaction, such Income shall be the property of Buyer.
Notwithstanding the foregoing, upon the occurrence and continuation
of an Event of Default, Buyer agrees that if a third-party Servicer
is in place for any Purchased Assets, such Servicer shall deposit
such Income to the Collection Account. Sellers shall
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deposit all Income received in its capacity as Servicer of any
Purchased Assets to the Collection Account in accordance with
Section 12(c) hereof.
b. Provided no Event of Default has occurred and is continuing, on
each Price Differential Payment Date, Sellers shall remit to Buyer
an amount equal to the Price Differential out of the interest
portion of the Income paid in respect to the Purchased Assets for
the preceding month in accordance with Section 5 of this Agreement.
Upon termination of any Transaction, to the extent that there is any
excess Income after repayment of all amounts to be transferred to
Buyer by Sellers, Buyer, in its sole option, may apply the excess
income to reduce the Repurchase Price due upon termination of any
other outstanding Transactions.
c. In the event that an Event of Default has occurred and is
continuing, notwithstanding any provision set forth herein, Sellers
shall remit to Buyer all Income received with respect to each
Purchased Asset on the related Price Differential Payment Date or on
such other date or dates as Buyer notifies Sellers in writing.
d. Notwithstanding any provision to the contrary in this Section 7,
within two (2) Business Days of receipt by any Seller of any
prepayment of principal in full, with respect to a Purchased Asset,
Sellers shall remit such amount to Buyer and Buyer shall immediately
apply any such amount received by Buyer to reduce the amount of the
Repurchase Price due upon termination of the related Transaction.
e. Notwithstanding anything to the contrary set forth herein, upon
notice by Buyer to any Seller, Sellers shall remit to Buyer all
collections received by Servicer or Sellers on the Purchased Assets
in accordance with Buyer's directions no later than the day on which
aggregate collections of principal and interest (excluding principal
prepayments) on the Purchased Mortgaged Loans reaches an amount to
be indicated by Buyer in its sole discretion.
8. Security Interest
a. Although the parties intend that all Transactions hereunder be
sales and purchases and not loans, in the event any such
Transactions are deemed to be loans, each Seller hereby pledges to
Buyer as security for the performance by Sellers of their
Obligations and hereby grants, assigns and pledges to Buyer a fully
perfected first priority security interest in the Purchased Assets,
LLC Interests, any personal Property relating to any Purchased Asset
or any related Mortgaged Property, all instruments, agreements, the
Records, and all related servicing rights, the Program Agreements
(to the extent such Program Agreements and such Seller's right
thereunder relate to the Purchased Assets), any related Take-out
Commitments, any Property relating to the Purchased Assets, all
insurance policies and insurance proceeds relating to any Purchased
Asset or the related Mortgaged Property or REO Property, as
applicable, including, but not limited to, any payments or proceeds
under any related primary insurance, hazard insurance and FHA
Mortgage Insurance Contracts and VA
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Loan Guaranty Agreements (if any), Income, the Collection Account,
the Buydown Amount and any account to which such amount is
deposited, Interest Rate Protection Agreements, accounts (including
any interest of such Seller in escrow accounts) and any other
contract rights, instruments, accounts, payments, rights to payment
(including payments of interest or finance charges) general
intangibles and other assets relating to the Purchased Assets or LLC
Interests (including, without limitation, any other accounts) or any
interest in the Purchased Assets, and any proceeds (including the
related securitization proceeds) and distributions with respect to
any of the foregoing and any other property, rights, title or
interests as are specified on a Transaction Request and/or Trust
Receipt and Certification, in all instances, whether now owned or
hereafter acquired, now existing or hereafter created (collectively,
the "Repurchase Assets"). Sellers agree to execute, deliver and/or
file such documents and perform such acts as may be reasonably
necessary to fully perfect Buyer's security interest created hereby.
Furthermore, the Sellers hereby authorize the Buyer to file
financing statements relating to the Repurchase Assets, as the
Buyer, at its option, may deem appropriate in its good faith
discretion. The Sellers shall pay the filing costs for any financing
statement or statements prepared pursuant to this Section.
b. Provision of Buyer Deed.
(i) If Sellers shall acquire, or contemplate the acquisition of, any
REO Property or desire to extinguish any Mortgage Note in connection
with the foreclosure of the related Mortgage Loan, a transfer of the
real property underlying the Mortgage Note in lieu of foreclosure or
other transfer of such real property such Seller shall cause such
real property to be taken by deed, or by means of such instruments
as is provided by the Governmental Authority governing the transfer,
or right to request transfer and issuance of the deed, or such
instrument as is provided by the related Governmental Authority, of
REO Property acquired through foreclosure sale in the jurisdiction
in which the REO Property is located, in the name of REO Subsidiary.
Upon the acquisition of title to an REO Property by REO Subsidiary,
the Sellers will be deemed to make the representations and
warranties listed on Part B to Schedule 1 hereto with respect to
such REO Property. The Sellers shall, at its sole cost and expense,
take all such other steps as may be necessary in connection with the
pledge of all LLC Interests.
(ii) Sellers shall, with respect to any REO Property to be
transferred to REO Subsidiary and to be subject to a Transaction
under this Agreement, concurrently with the delivering of title to
such REO Property to REO Subsidiary, cause REO Subsidiary to provide
the Custodian a duly executed deed or similar instrument (a "Buyer
Deed") in favor of the Buyer, on such REO Property, which Buyer Deed
shall (A) name the Buyer or its designee as the assignee or
beneficiary thereof, and (B) be in recordable form in accordance
with applicable state law. The Buyer has the right to record such
Buyer Deed if an Event of Default has occurred and is continuing.
Such Buyer Deed shall constitute Repurchase Assets for all purposes
hereof. All costs and expenses in connection with the preparation,
execution,
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delivery and filing or recording of any Buyer Deed, and any filing
or recording tax or other charges with respect thereto shall be for
the account of the Sellers.
c. LLC Interests as Intangible. The parties acknowledge and agree
that the LLC Interests constitute "general intangibles" (as defined
in Section 9-102(a)(42) of the Uniform Commercial Code); and Sellers
therefore covenant and agrees that (A) the LLC Interests are not and
will not be dealt in or traded on securities exchanges or securities
markets, (B) the terms of the LLC Interests do not and will not
provide that they are securities governed by the Uniform Commercial
Code and (C) the LLC Interests are not and will not be investment
company securities within the meaning of Section 8-103 of the
Uniform Commercial Code.
d. Additional Interests. If Sellers shall, as a result of their
interest in the LLC Interests, become entitled to receive or shall
receive any certificate evidencing any limited liability company
interest or other equity interest, any option rights, or any equity
interest in REO Subsidiary, whether in addition to, in substitution
for, as a conversion of, or in exchange for the LLC Interests, or
otherwise in respect thereof, Sellers shall accept the same as the
Buyer's agent, hold the same in trust for the Buyer and deliver the
same forthwith to the Buyer in the exact form received, duly
endorsed by Sellers to the Buyer, if required, together with an
undated transfer power, if required, covering such certificate duly
executed in blank, to be held by the Buyer subject to the terms
hereof as additional security for the Obligations. Any sums paid
upon or in respect of the LLC Interests upon the liquidation or
dissolution of REO Subsidiary shall be paid over to the Buyer as
additional security for any outstanding Obligations. If following
the occurrence and during the continuation of an Event of Default
any sums of money or property so paid or distributed in respect of
the LLC Interests shall be received by Sellers, Sellers shall, until
such money or property is paid or delivered to the Buyer, hold such
money or property in trust for the Buyer segregated from other funds
of Sellers, as additional security for the Obligations.
e. Cash Dividends; Voting Rights. Unless an Event of Default shall
have occurred and be continuing, Sellers shall be permitted to
receive all cash dividends or other cash distributions paid in
respect of the LLC Interests and to exercise all voting and member
rights with respect to the LLC Interests; provided, however, that no
vote shall be cast or member right exercised or other action taken
which would impair the LLC Interests or which would be inconsistent
with or result in a violation of any provision of this Repurchase
Agreement. Without the prior consent of the Buyer, Sellers will not
(i) vote to enable, or take any other action to permit REO
Subsidiary to issue any membership interests of any nature or to
issue any other membership interests convertible into or granting
the right to purchase or exchange for any membership interests of
REO Subsidiary, or (ii) sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to, the LLC
Interests or (iii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, the
LLC Interests, or any interest therein, except for the Lien provided
for by this Agreement, or (iv) enter into any agreement (other than
the Limited Liability
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Company Agreement and this Agreement) or undertaking restricting the
right or ability of Sellers to sell, assign or transfer any of the
LLC Interests.
f. Indemnity. The Sellers agree to pay, and to save the Buyer
harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect
to any of the LLC Interests.
9. Payment and Transfer
Unless otherwise mutually agreed in writing, all transfers of funds
to be made by Sellers hereunder shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to Buyer at the
following account maintained by Buyer: Account No. 3064-6005, for the account of
CSFB Buyer/American Home Seller-Inbound Account, Citibank, ABA No. 021 000 089
or such other account as Buyer shall specify to Sellers in writing. Sellers
acknowledge that they have no rights of withdrawal from the foregoing account.
All Purchased Assets transferred by one party hereto to the other party shall be
in the case of a purchase by Buyer in suitable form for transfer or shall be
accompanied by duly executed instruments of transfer or assignment in blank and
such other documentation as Buyer may reasonably request. All Purchased Assets
shall be evidenced by a Trust Receipt and Certification. Any Repurchase Price
received by Buyer after 2:00 p.m. (New York City time) shall be deemed received
on the next succeeding Business Day.
10. Conditions Precedent
a. Initial Transaction. As conditions precedent to the initial
Transaction (subject to Section 10(c) with respect to Transactions
involving LLC Interests and the related REO Property), Buyer shall
have received on or before the day of such initial Transaction the
following, in form and substance satisfactory to Buyer and duly
executed by Sellers, Guarantor and each other party thereto:
(1) Program Agreements. The Program Agreements
(including without limitation the Guaranty, and a Custodial
Agreement in a form acceptable to Buyer and excluding the REO
Contribution Agreement, the REO Subsidiary Agreement, and the REO
Subsidiary Acknowledgment, which shall apply to Transactions
involving LLC Interests and the related REO Property) duly executed
and delivered by the parties thereto and being in full force and
effect, free of any modification, breach or waiver.
(2) Security Interest. Evidence that all other actions
necessary or, in the opinion of Buyer, desirable to perfect and
protect Buyer's interest in the Purchased Assets and other
Repurchase Assets have been taken, including, without limitation,
duly authorized and filed Uniform Commercial Code financing
statements on Form UCC-1.
(3) Organizational Documents. A certificate of the
corporate secretary of each of Sellers and Guarantor substantially
in the form of Exhibit H hereto, attaching certified copies of
Sellers' and Guarantor's charter, bylaws and
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corporate resolutions (or equivalent documents) approving the
Program Agreements and transactions thereunder (either specifically
or by general resolution) and all documents evidencing other
necessary corporate action or governmental approvals as may be
required in connection with the Program Agreements.
(4) Good Standing Certificate. A certified copy of a
good standing certificate from the jurisdiction of organization of
Sellers and Guarantor, dated as of no earlier than the date 10
Business Days prior to the Purchase Date with respect to the initial
Transaction hereunder.
(5) Incumbency Certificate. An incumbency certificate of
the corporate secretary of each of Sellers and Guarantor, certifying
the names, true signatures and titles of the representatives duly
authorized to request transactions hereunder and to execute the
Program Agreements.
(6) Opinion of Counsel. An opinion of Sellers' and
Guarantor's counsel, in form and substance substantially as set
forth in Exhibit F attached hereto.
(7) Underwriting Guidelines. A true and correct copy of
the Underwriting Guidelines certified by an officer of each Seller.
(8) Fees. Payment of any fees due to Buyer hereunder.
b. All Transactions. The obligation of Buyer to enter into each
Transaction pursuant to this Agreement is subject to the following
conditions precedent:
(1) Due Diligence Review. Without limiting the
generality of Section 36 hereof, Buyer shall have completed, to its
satisfaction, its due diligence review of the related Mortgage Loans
and Sellers, Guarantor and the Servicer.
(2) Required Documents.
(a) With respect to each Purchased Asset which is not a
Wet-Ink Mortgage Loan, the Asset File has been delivered to the
Custodian (i) with respect to any purchase of 25 or fewer Purchased
Assets on a single Purchase Date, on or prior to 3:00 p.m. (New York
City time) on the Purchase Date, and (ii) with respect to any
purchase of 26 or more Purchased Assets on a single Purchase Date,
at least 24 hours prior to the Purchase Date;
(b) With respect to each Wet-Ink Mortgage Loan, the Wet-Ink
Documents have been delivered to Buyer or Custodian, as the case may
be, by 3:00 p.m. (New York City time) on the Purchase Date.
(c) With respect to each Purchased Asset which is an LLC
Interest;
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(1) A certificate of the corporate secretary of the REO
Subsidiary substantially in the form of Exhibit H hereto,
attaching certified copies of REO Subsidiary's charter, bylaws
and corporate resolutions (or equivalent documents) approving
the Program Agreements and transactions thereunder (either
specifically or by general resolution) and all documents
evidencing other necessary corporate action or governmental
approvals as may be required in connection with the Program
Agreements.
(2) A certified copy of a good standing certificate from
the jurisdiction of organization of REO Subsidiary, dated as
of no earlier than the date 10 Business Days prior to the
Purchase Date with respect to the Transaction hereunder.
(3) An incumbency certificate of the corporate secretary
of the REO Subsidiary, certifying the names, true signatures
and titles of the representatives duly authorized to request
transactions hereunder and to execute the Program Agreements.
(4) An opinion or opinions of outside counsel to the REO
Subsidiary in form and substance acceptable to the Buyer.
(5) To better assure the perfection of the security
interest of the Buyer or its designee in any LLC Interests,
concurrently with the consummation of a Transaction with
respect to which a Purchased Asset is an LLC Interest, Sellers
shall send written instructions in the form of Exhibit N
hereto to REO Subsidiary, and shall cause the REO Subsidiary
to, and the REO Subsidiary shall, deliver to the Buyer or its
designee, the Confirmation Statement and Instruction Agreement
in the form of Exhibit A to Exhibit N hereto pursuant to which
the REO Subsidiary will confirm that it has registered the
pledge effected by this Agreement on its books and agrees to
comply with the instructions of the Buyer in respect of the
LLC Interests without further consent of Sellers or any other
Person.
(6) The REO Contribution Agreement dated the date of
such Transaction and duly executed and delivered by the
parties thereto.
(7) The REO Subsidiary Acknowledgment, duly executed and
delivered by the parties thereto.
(8) The REO Subsidiary Agreement, duly executed and
delivered by the parties thereto.
(3) Transaction Documents. Buyer or its designee shall
have received on or before the day of such Transaction (unless
otherwise specified in this Agreement) the following, in form and
substance satisfactory to Buyer and (if applicable) duly executed:
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(a) A Transaction Request delivered pursuant to Section 3(c)
hereof and a Purchase Confirmation.
(b) The Request for Certification and the related Asset
Schedule, and the Trust Receipt.
(c) Such certificates, opinions of counsel or other documents
as Buyer may reasonably request.
(4) No Default. No Default or Event of Default shall
have occurred and be continuing.
(5) Requirements of Law. Buyer shall not have determined
that the introduction of or a change in any Requirement of Law or in
the interpretation or administration of any Requirement of Law
applicable to Buyer has made it unlawful, and no Governmental
Authority shall have asserted that it is unlawful, for Buyer to
enter into Transactions with a Pricing Rate based on LIBOR.
(6) Representations and Warranties. Both immediately
prior to the related Transaction and also after giving effect
thereto and to the intended use thereof, the representations and
warranties made by Sellers in each Program Agreement shall be true,
correct and complete on and as of such Purchase Date in all material
respects with the same force and effect as if made on and as of such
date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date).
(7) Electronic Tracking Agreement. To the extent Sellers
are selling Mortgage Loans which are registered on the MERS(R)
System, an Electronic Tracking Agreement entered into, duly executed
and delivered by the parties thereto and being in full force and
effect, free of any modification, breach or waiver.
(8) Material Adverse Change. None of the following shall
have occurred and/or be continuing:
(a) Credit Suisse First Boston, New York Branch's corporate
bond rating as calculated by S&P or Moody's has been lowered or
downgraded to a rating below investment grade by S&P or Moody's;
(b) an event or events shall have occurred in the good faith
determination of Buyer resulting in the effective absence of a "repo
market" or comparable "lending market" for financing debt
obligations secured by mortgage loans or securities or an event or
events shall have occurred resulting in Buyer not being able to
finance Purchased Assets through the "repo market" or "lending
market" with traditional counterparties at rates which would have
been reasonable prior to the occurrence of such event or events; or
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(c) an event or events shall have occurred resulting in the
effective absence of a "securities market" for securities backed by
mortgage loans or an event or events shall have occurred resulting
in Buyer not being able to sell securities backed by mortgage loans
at prices which would have been reasonable prior to such event or
events; or
(d) there shall have occurred a material adverse change in the
financial condition of Buyer which affects (or can reasonably be
expected to affect) materially and adversely the ability of Buyer to
fund its obligations under this Agreement;
provided, that in the event that the Buyer fails to enter into any
Transaction pursuant to this subsection 8, the Buyer shall refund a
pro rata portion of the Commitment Fee corresponding to the number
of days remaining from the date of such failure to the date on which
the Buyer resumes entering into Transactions.
11. Program; Costs
a. Sellers shall reimburse Buyer for any of Buyer's reasonable
out-of-pocket costs, including due diligence review costs and
reasonable attorney's fees, incurred by Buyer in determining the
acceptability to Buyer of any Mortgage Loans or REO Properties.
Sellers shall also pay, or reimburse Buyer if Buyer shall pay, any
termination fee that may be due any servicer. Sellers shall
reimburse Buyer for any of Buyer's reasonable out-of-pocket costs,
including due diligence review costs and reasonable attorney's fees,
incurred by Buyer in reviewing the Purchased Assets subject to a
Transaction. Sellers shall pay the fees and expenses of Buyer's
counsel in connection with the Program Agreements. Legal fees for
any subsequent amendments to this Agreement or related documents
shall be borne by Sellers. Sellers shall pay ongoing custodial and
bank fees and expenses as set forth on Exhibit L hereto, and any
other ongoing fees and expenses under any other Program Agreement.
b. If Buyer determines that, due to the introduction of, any change
in, or the compliance by Buyer with (i) any eurocurrency reserve
requirement or (ii) the interpretation of any law, regulation or any
guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be
an increase in the cost to Buyer in engaging in the present or any
future Transactions, then Sellers agree to pay to Buyer, from time
to time, upon demand by Buyer (with a copy to Custodian) the actual
cost of additional amounts as specified by Buyer to compensate Buyer
for such increased costs.
c. With respect to any Transaction, Buyer may conclusively rely
upon, and shall incur no liability to Sellers 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 Sellers' behalf and is listed on the certificate
delivered pursuant to Section 10(a)(5) hereof. In each such case,
Sellers hereby
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waive the right to dispute Buyer's record of the terms of the
Purchase Confirmation, request or other communication.
d. Notwithstanding the assignment of the Program Agreements with
respect to each Purchased Asset to Buyer, each Seller agrees and
covenants with Buyer to enforce diligently Sellers' rights and
remedies set forth in the Program Agreements.
e. Any payments made by Sellers or Guarantor to Buyer shall be free
and clear of, and without deduction or withholding for, any taxes;
provided, however, that if such payer shall be required by law to
deduct or withhold any taxes from any sums payable to Buyer, then
such payer shall (A) make such deductions or withholdings and pay
such amounts to the relevant authority in accordance with applicable
law, (B) pay to Buyer the sum that would have been payable had such
deduction or withholding not been made, and (C) at the time Price
Differential is paid, pay to Buyer all additional amounts as
specified by Buyer to preserve the after-tax yield Buyer would have
received if such tax had not been imposed, and otherwise indemnify
Buyer for any such taxes imposed.
12. Servicing
a. Sellers, on Buyer's behalf, shall contract with Servicer to, or
if a Seller is the Servicer, such Seller shall, service the
Purchased Assets consistent with the degree of skill and care that
Sellers customarily require with respect to similar Purchased Assets
owned or managed by it and in accordance with Accepted Servicing
Practices. The Servicer shall (i) comply with all applicable
Federal, State and local laws and regulations, (ii) maintain all
state and federal licenses necessary for it to perform its servicing
responsibilities hereunder and (iii) not impair the rights of Buyer
in any Purchased Assets or any payment thereunder. Buyer may
terminate the servicing of any Purchased Asset with the
then-existing servicer in accordance with Section 12(e) hereof.
b. Sellers shall cause the Servicer to hold or cause to be held all
escrow funds collected by Servicer with respect to any Purchased
Assets in trust accounts and shall apply the same for the purposes
for which such funds were collected.
c. Upon the occurrence and continuance of an Event of Default,
Sellers shall cause the Servicer to deposit all collections received
by Servicer on the Purchased Assets in the Collection Account no
later than the 5th Business Day following receipt; provided,
however, that any amounts required to be remitted to Buyer shall be
deposited in the Collection Account on or prior to the day on which
such remittance is to occur.
d. Upon Buyer's request, Sellers shall provide promptly to Buyer (i)
a Servicer Notice addressed to and agreed to by the Servicer of the
related Purchased Assets, advising such Servicer of such matters as
Buyer may reasonably request, including, without limitation,
recognition by the Servicer of Buyer's interest in
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such Purchased Assets and the Servicer's agreement that upon receipt
of notice of an Event of Default from Buyer, it will follow the
instructions of Buyer with respect to the Purchased Assets and any
related Income with respect thereto.
e. Upon the occurrence of an Event of Default hereunder or a
material default under the Servicing Agreement, Buyer shall have the
right to immediately terminate the Servicer's right to service the
Purchased Assets under the Servicing Agreement without payment of
any penalty or termination fee. Sellers and the Servicer shall
cooperate in transferring the servicing of the Purchased Assets to a
successor servicer appointed by Buyer in its sole discretion.
f. If Sellers should discover that, for any reason whatsoever,
Sellers or any entity responsible to Sellers for managing or
servicing any such Purchased Asset has failed to perform fully
Sellers' obligations under the Program Agreements or any of the
obligations of such entities with respect to the Purchased Assets,
Sellers shall promptly notify Buyer.
13. Representations and Warranties
a. Each Seller and Guarantor represents and warrants to Buyer as of
the date hereof and as of each Purchase Date for any Transaction and
on behalf of the REO Subsidiary as of the first Purchase Date
involving a Transaction the subject of which are LLC Interests and
as of each Purchase Date for any Transaction thereafter that:
(1) Seller, Guarantor and REO Subsidiary Existence. AHMC
has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of New York. AHMA has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland. AHMS has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland. AHMIC has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland. Guarantor has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware. REO Subsidiary has been
duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware.
(2) Licenses. Each Seller and Guarantor is duly licensed
or is otherwise qualified in each jurisdiction in which it transacts
business for the business which it conducts and is not in default of
any applicable federal, state or local laws, rules and regulations
unless, in either instance, the failure to be so licensed or to
comply with such laws, rules and regulations is not reasonably
likely (either individually or in the aggregate) to cause a Material
Adverse Effect. Each Seller and Guarantor has the requisite
corporate power and authority and legal right to originate and
purchase Mortgage Loans and REO Property (as applicable) and to own,
sell and grant a lien on all of its right, title and interest in
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and to the Mortgage Loans and REO Property, and to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement, each Program
Agreement and any Transaction Request or, if applicable, Purchase
Confirmation. Each Seller is an FHA Approved Mortgagee and VA
Approved Lender where necessary for the transaction of its business
as currently conducted.
(3) [Reserved].
(4) Due Authorization. Each Seller and Guarantor has all
necessary corporate power, authority and legal right to execute,
deliver and perform its obligations under each of the Program
Agreements, as applicable. This Agreement, any Transaction Request,
Purchase Confirmation and the Program Agreements have been (or, in
the case of Program Agreements and any Transaction Request, Purchase
Confirmation not yet executed, will be) duly authorized, executed
and delivered by Sellers and Guarantor, all requisite or other
corporate action having been taken, and each is valid, binding and
enforceable against Sellers and Guarantor in accordance with its
terms except as such enforcement may be affected by (a) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of
creditors and (b) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law.
(5) Financial Statements. AHMIC has heretofore furnished
to Buyer a copy of (a) its consolidated and consolidating balance
sheet and the consolidated and consolidating balance sheets of its
consolidated Subsidiaries for the fiscal year of AHMIC ended
December 31, 2005 and the related consolidated and consolidating
statements of income and retained earnings and of cash flows for
AHMIC and its consolidated Subsidiaries for such fiscal year,
setting forth in each case in comparative form the figures for the
previous year, with the opinion thereon of Deloitte & Touche LLP and
(b) its consolidated balance sheet and the consolidated balance
sheets of its consolidated Subsidiaries for the quarterly fiscal
periods of AHMIC ended March 31, 2006 and June 31, 2006 and the
related consolidated statements of income and retained earnings and
of cash flows for AHMIC and its consolidated Subsidiaries for such
quarterly fiscal periods, setting forth in each case in comparative
form the figures for the previous year. All such financial
statements are complete and correct and fairly present, in all
material respects, the consolidated financial condition of AHMIC,
Guarantor, Sellers and their Subsidiaries and the consolidated
results of their operations as at such dates and for such fiscal
periods, all in accordance with GAAP applied on a consistent basis.
Since December 31, 2005, there has been no material adverse change
in the consolidated business, operations or financial condition of
AHMIC, Guarantor, Sellers and their consolidated Subsidiaries taken
as a whole from that set forth in said financial statements nor are
Sellers aware of any state of facts which (with notice or the lapse
of time) would or could result in any such material adverse change.
Each of the Sellers, Guarantor and AHMIC has, on the date of the
statements delivered pursuant to this Section (the "Statement Date")
no liabilities,
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direct or indirect, fixed or contingent, matured or unmatured, known
or unknown, or liabilities for taxes, long-term leases or unusual
forward or long-term commitments not disclosed by, or reserved
against in, said balance sheet and related statements, and at the
present time there are no material unrealized or anticipated losses
from any loans, advances or other commitments of Sellers except as
heretofore disclosed to Buyer in writing.
(6) Event of Default. There exists no Event of Default
under Section 15(a)(2) hereof, which default gives rise to a right
to accelerate indebtedness as referenced in Section 15(a)(2) hereof,
under any mortgage, borrowing agreement or other instrument or
agreement pertaining to indebtedness for borrowed money or to the
repurchase of mortgage loans, REO Properties or securities.
(7) Solvency. Each of Sellers and Guarantor is solvent
and will not be rendered insolvent by any Transaction and, after
giving effect to such Transaction, will not be left with an
unreasonably small amount of capital with which to engage in its
business. No Seller or Guarantor intends to incur, nor believes that
it has incurred, debts beyond its ability to pay such debts as they
mature and 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 such entity or any of its assets. The
amount of consideration being received by Sellers upon the sale of
the Purchased Assets to Buyer constitutes reasonably equivalent
value and fair consideration for such Purchased Assets. Sellers are
not transferring any Purchased Assets with any intent to hinder,
delay or defraud any of their creditors.
(8) No Conflicts. The execution, delivery and
performance by each of Sellers and Guarantor of this Agreement, any
Transaction Request or Purchase Confirmation hereunder and the
Program Agreements do not conflict with any term or provision of the
certificate of incorporation or by-laws of Sellers or Guarantor or
any law, rule, regulation, order, judgment, writ, injunction or
decree applicable to Sellers or Guarantor of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over Sellers or Guarantor, which conflict would have a Material
Adverse Effect and will not result in any violation of any material
mortgage, instrument, agreement or obligation to which Sellers or
Guarantor is a party.
(9) True and Complete Disclosure. All information,
reports, exhibits, schedules, financial statements or certificates
of Sellers or Guarantor thereof or any of their officers furnished
or to be furnished to Buyer in connection with the initial or any
ongoing due diligence of Sellers or Guarantor or officer thereof,
negotiation, preparation, or delivery of the Program Agreements are
true and complete in all material respects and do not omit to
disclose any material facts necessary to make the statements herein
or therein, in light of the circumstances in which they are made,
not misleading. All financial statements have been prepared in
accordance with GAAP.
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(10) Approvals. No consent, approval, authorization or
order of, registration or filing with, or notice to any governmental
authority or court is required under applicable law in connection
with the execution, delivery and performance by Sellers or Guarantor
of this Agreement, any Transaction Request, Purchase Confirmation
and the Program Agreements.
(11) [Reserved].
(12) Material Adverse Change. There has been no material
adverse change in the business, operations, financial condition or
properties of any Seller or Guarantor since the date set forth in
the most recent financial statements supplied to Buyer.
(13) Ownership. Upon payment of the Purchase Price and
the filing of the financing statement and delivery of the Asset
Files to the Custodian and the Custodian's receipt of the related
Request for Certification, Buyer shall become the sole owner of the
Purchased Assets and related Repurchase Assets, free and clear of
all liens and encumbrances.
(14) Underwriting Guidelines. The Underwriting
Guidelines provided to Buyer are the true and correct Underwriting
Guidelines of the Sellers.
(15) Taxes. Sellers and Guarantor have timely filed all
tax returns that are required to be filed by them and have paid all
taxes, except for any such taxes as are being appropriately
contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves have been
provided. The charges, accruals and reserves on the books of
Sellers, Guarantor and their Subsidiaries in respect of taxes and
other governmental charges are, in the opinion of Sellers or
Guarantor, as applicable, adequate.
(16) Investment Company. No Seller nor Guarantor is an
"investment company", or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940,
as amended.
(17) Chief Executive Office; Jurisdiction of
Organization. On the Effective Date, AHMC's chief executive office,
is, and has been, located at 538 Broadhollow Road, Melville, NY
11747 and jurisdiction of organization is New York. On the Effective
Date, AHMA's chief executive office, is, and has been, located at
538 Broadhollow Road, Melville, NY 11747 and jurisdiction of
organization is Maryland. On the Effective Date, AHMS's chief
executive office, is, and has been, located at 538 Broadhollow Road,
Melville, NY 11747 and jurisdiction of organization is Maryland. On
the Effective Date, AHMIC's chief executive office, is, and has
been, located at 538 Broadhollow Road, Melville, NY 11747 and
jurisdiction of organization is Maryland. On the first Payment Date
involving Transactions the subject of which are LLC Interests, REO
Subsidiary's jurisdiction of organization is Delaware. Sellers and
REO Subsidiary shall provide Buyer with thirty days advance notice
of any change in a
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Seller's principal office or place of business or jurisdiction. No
Seller nor REO Subsidiary has filed or had filed against it any
bankruptcy receivership or similar petitions nor has it made any
assignments for the benefit of creditors. On the Effective Date,
AHMHI's chief executive office, is, and has been, located at 538
Broadhollow Road, Melville, NY 11747 and jurisdiction of
organization is Delaware.
(18) Location of Books and Records. The location where
each Seller keeps its books and records, including all computer
tapes and records relating to the Purchased Assets and the related
Repurchase Assets, is its chief executive office.
(19) Adjusted Net Worth. On the Effective Date,
a. AHMIC has an Adjusted Net Worth of at least the
sum of (i) $914 million plus (ii) 75% of the net cash
proceeds of any capital stock (including preferred
stock) issued by AHMIC after June 30, 2006;
b. AHMS has an Adjusted Net Worth of at least $30
million.
c. AHMC has an Adjusted Net Worth of at least $21
million.
d. AHMA has an Adjusted Net Worth of at least $41
million.
e. AHMS, AHMC and AHMA, on a combined basis, have
an Adjusted Net Worth of at least $147 million.
(20) ERISA. Each Plan to which a Seller makes direct
contributions, and, to the knowledge of the Sellers, 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.
(21) Adverse Selection. The Sellers have not selected
the Purchased Assets in a manner so as to adversely affect Buyer's
interests.
(22) Agreements. No Seller is a party to any agreement,
instrument, or indenture or subject to any restriction materially
and adversely affecting its business, operations, assets or
financial condition, except as disclosed in the financial statements
described in Section 13(a)(5) hereof. No Seller is in default in the
performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement, instrument, or
indenture which default could have a material adverse effect on the
business, operations,
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properties, or financial condition of Sellers as a whole. No holder
of any indebtedness of Sellers has given notice of any asserted
default thereunder.
(23) Other Indebtedness. All Indebtedness (other than
Indebtedness evidenced by this Agreement) of Sellers existing on the
date hereof is listed on Exhibit J hereto, as such Exhibit is
amended and delivered monthly by Sellers to Buyer.
(24) Agency Approvals. With respect to each Agency
Security and to the extent necessary, Sellers and Guarantor are an
FHA Approved Mortgagee, a VA Approved Lender and a GNMA Approved
Lender. To the extent necessary, Sellers and Guarantor are also
approved by Fannie Mae as an approved lender and Freddie Mac as an
approved seller, and, to the extent necessary, approved by the
Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act. In each such case, Sellers and
Guarantor are in good standing, with no event having occurred or
Sellers or Guarantor having any reason whatsoever to believe or
suspect will occur prior to the issuance of the Agency Security or
the consummation of the Take-out Commitment, as the case may be,
including, without limitation, a change in insurance coverage which
would either make any Seller unable to comply with the eligibility
requirements for maintaining all such applicable approvals or
require notification to the relevant Agency or to the Department of
Housing and Urban Development, FHA or VA. Should Sellers or
Guarantor for any reason cease to possess all such applicable
approvals, or should notification to the relevant Agency or to the
Department of Housing and Urban Development, FHA or VA be required,
Sellers or Guarantor shall so notify Buyer immediately in writing.
Sellers have adequate financial standing, servicing facilities,
procedures and experienced personnel necessary for the sound
servicing of mortgage loans of the same types as may from time to
time constitute Mortgage Loans and in accordance with Accepted
Servicing Practices.
(25) No Reliance. Each Seller and Guarantor have made
their own independent decisions to enter into the Program Agreements
and each Transaction and as to whether such Transaction is
appropriate and proper for it based upon its own judgment and upon
advice from such advisors (including without limitation, legal
counsel and accountants) as it has deemed necessary. No Seller or
Guarantor is relying upon any advice from Buyer as to any aspect of
the Transactions, including without limitation, the legal,
accounting or tax treatment of such Transactions.
(26) Plan Assets. No Seller is an employee benefit plan
as defined in Section 3 of Title I of ERISA, or a plan described in
Section 4975(e)(1) of the Code, and the Purchased Assets are not
"plan assets" within the meaning of 29 CFR ss.2510.3-101 in the
Sellers' hands.
(27) No Prohibited Persons. No Seller nor any of its
Affiliates, officers, directors, partners or members, is an entity
or person (or to the Sellers'
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knowledge, owned or controlled by a n entity or person): (i) that is
listed in the Annex to, or is otherwise subject to the provisions of
Executive Order 13224 issued on September 24, 2001 ("EO13224"); (ii)
whose name appears on the United States Treasury Department's Office
of Foreign Assets Control ("OFAC") most current list of
"Specifically Designated National and Blocked Persons" (which list
may be published from time to time in various mediums including, but
not limited to, the OFAC website,
http:www.treas.gov/ofac/t11sdn.pdf); (iii) who commits, threatens to
commit or supports "terrorism", as that term is defined in EO13224;
or (iv) who is otherwise affiliated with any entity or person listed
above (any and all parties or persons described in clauses (i)
through (iv) above are herein referred to as a "Prohibited Person").
(28) REO Solvency. REO Subsidiary is not insolvent
within the meaning of 11 U.S.C. Section 101(32) and the consummation
of the transactions contemplated herein (i) will not cause REO
Subsidiary to become insolvent, (ii) will not result in any property
remaining with REO Subsidiary to be unreasonably small capital, and
(iii) will not result in debts that would be beyond REO Subsidiary's
ability to pay as the same mature.
(29) Real Estate Investment Trust. AHMIC has not engaged
in any material "prohibited transactions" as defined in Section
857(b)(6)(B)(iii) and (C) of the Code. AHMIC for its current "tax
year" (as defined in the Code) is entitled to a dividends paid
deduction under the requirements of Section 857 of the Code with
respect to any dividends paid by it with respect to each such year
for which it claims a deduction in its Form 1120-REIT filed with the
United States Internal Revenue Service for such year.
b. With respect to every Purchased Asset, each Seller and Guarantor
jointly and severally represents and warrants to Buyer as of the
applicable Purchase Date for any Transaction and each date
thereafter that each representation and warranty set forth on
Schedule 1 is true and correct.
c. The representations and warranties set forth in this Agreement
shall survive transfer of the Purchased Assets to Buyer and shall
continue for so long as the Purchased Assets are subject to this
Agreement. Upon discovery by any Seller, Servicer or Buyer of any
breach of any of the representations or warranties set forth in this
Agreement, the party discovering such breach shall promptly give
notice of such discovery to the others. Buyer has the right to
require, in its unreviewable discretion, a Seller to repurchase
within 1 Business Day after receipt of notice from Buyer any
Purchased Asset (i) for which a breach of one or more of the
representations and warranties referenced in Section 13(b) exists
and which breach has a material adverse effect on the value of such
Mortgage Loan, REO Property or the interests of Buyer or (ii) which
is determined by Buyer, in its good faith discretion, to be
unacceptable for inclusion in a securitization.
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14. Covenants
Each Seller and Guarantor covenants with Buyer that, during the term of this
facility and on behalf of the REO Subsidiary that on and after the first Payment
Date involving Transactions the subject of which are LLC Interests and during
the term of the facility thereafter:
a. Adjusted Net Worth.
(1) AHMIC shall maintain an Adjusted Net Worth of at
least the sum of (i) $914 million plus (ii) 75% of the net cash
proceeds of any capital stock (including preferred stock) issued by
AHMIC after June 30, 2006.
(2) AHMS shall maintain an Adjusted Net Worth of at
least $30 million.
(3) AHMC shall maintain an Adjusted Net Worth of at
least $21 million.
(4) AHMA shall maintain an Adjusted Net Worth of at
least $41 million.
(5) AHMS, AHMC and AHMA, on a combined basis, shall
maintain an Adjusted Net Worth of at least $147 million.
b. Indebtedness to Adjusted Net Worth Ratio. Guarantor's or any
Sellers' ratio of Indebtedness to Adjusted Net Worth shall not fall
below the lowest ratio of Indebtedness to Adjusted Net Worth under
any of the Sellers' other residential mortgage loan repurchase
facilities. Notwithstanding the foregoing, in the event the Sellers'
other residential mortgage loan warehouse or repurchase facilities
do not include a ratio of Indebtedness to Adjusted Net Worth, Buyer
and Sellers shall refer to that certain Second Amended and Restated
Credit Agreement, dated as of August 10, 2006, a copy of which is
attached hereto as Exhibit O and reasonably cooperate in negotiating
such other covenant as shall be mutually acceptable.
c. Litigation. Sellers and Guarantor, as applicable, will promptly,
and in any event within ten (10) days after service of process on
any of the following, give to Buyer notice of all litigation,
actions, suits, arbitrations, investigations (including, without
limitation, any of the foregoing which are threatened or pending) or
other legal or arbitrable proceedings affecting any of Sellers or
Guarantor or affecting any of the Property of any of them before any
Governmental Authority that (i) questions or challenges the validity
or enforceability of any of the Program Agreements or any action to
be taken in connection with the transactions contemplated hereby,
(ii) makes a claim individually in an amount greater than $2 million
or in an aggregate amount greater than $5 million, or (iii) which,
individually or in the aggregate, if adversely determined, could be
reasonably likely to have a Material Adverse Effect. Sellers and
Guarantor, as applicable, will promptly provide notice of any
judgment, which with the passage of time, could cause an Event of
Default hereunder.
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d. Prohibition of Fundamental Changes. No Seller shall enter into
any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation,
winding up or dissolution) or sell all or substantially all of its
assets; provided, that any Seller may merge or consolidate with (a)
any wholly owned subsidiary of any Seller, or (b) any other Person
if such Seller is the surviving corporation; and provided further,
that if after giving effect thereto, no Default would exist
hereunder.
e. Maintenance of Profitability. Sellers shall not permit, for any
Test Period, Net Income for such Test Period, before income taxes
for such Test Period and distributions made during such Test Period,
to be less than $1.00.
f. Servicer; Asset Tape. Upon the occurrence of any of the following
(a) the occurrence and continuation of an Event of Default, (b) upon
any Purchased Asset becoming an Aged Loan, (c) the fifth Business
Day of each month, or (d) upon the request of Buyer, Sellers shall
cause Servicer to provide to Buyer, electronically, in a format
mutually acceptable to Buyer and Sellers, an Asset Tape by no later
than the Reporting Date. Sellers shall not cause the Mortgage Loans
or REO Properties to be serviced by any servicer other than a
servicer expressly approved in writing by Buyer, which approval
shall be deemed granted by Buyer with respect to Sellers with the
execution of this Agreement.
g. [Reserved].
h. Insurance. The Sellers or Guarantor shall continue to maintain,
for Sellers and REO Subsidiary, Fidelity Insurance in an aggregate
amount at least equal to $10,000,000. The Sellers or Guarantor shall
maintain, for Sellers and REO Subsidiary, Fidelity Insurance in
respect of its officers, employees and agents, with respect to any
claims made in connection with all or any portion of the Repurchase
Assets. The Sellers or Guarantor shall notify the Buyer of any
material change in the terms of any such Fidelity Insurance. None of
the Sellers nor Guarantor have added, nor shall they add, any of
their lenders as an additional loss payee under their Fidelity
Insurance.
i. No Adverse Claims. Sellers warrant and will defend, and shall
cause any Servicer to defend, the right, title and interest of Buyer
in and to all Purchased Assets and the related Repurchase Assets
against all adverse claims and demands.
j. Assignment. Except as permitted herein, no Seller nor any
Servicer shall 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 Agreements), any of the Purchased Assets or
any interest therein, provided that this Section shall not prevent
any transfer of Purchased Assets in accordance with the Program
Agreements.
k. Security Interest. Sellers shall do all things necessary to
preserve the Purchased Assets and the related Repurchase Assets so
that they remain subject to
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a first priority perfected security interest hereunder. Without
limiting the foregoing, Sellers will comply with all applicable
rules, regulations and other laws of any Governmental Authority and
cause the Purchased Assets or the related Repurchase Assets to
comply with all applicable rules, regulations and other laws.
Sellers will not allow any default for which any Seller is
responsible to occur under any Purchased Assets or the related
Repurchase Assets or any Program Agreement and Sellers shall fully
perform or cause to be performed when due all of its obligations
under any Purchased Assets or the related Repurchase Assets and any
Program Agreement.
l. Records.
(1) Sellers shall collect and maintain or cause to be
collected and maintained all Records relating to the Purchased
Assets in accordance with industry custom and practice for assets
similar to the Purchased Assets, including those maintained pursuant
to the preceding subparagraph, and all such Records shall be in
Custodian's possession unless Buyer otherwise approves. No Seller
will allow 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 Mortgage Loan,
in which event Sellers will obtain or cause to be obtained a receipt
from a financially responsible person for any such paper, record or
file. Each Seller or the Servicer of the Purchased Assets will
maintain all such Records not in the possession of Custodian in good
and complete condition in accordance with industry practices for
assets similar to the Purchased Assets and preserve them against
loss.
(2) For so long as Buyer has an interest in or lien on
any Purchased Asset, the applicable Seller will hold or cause to be
held all related Records in trust for Buyer. Sellers shall notify,
or cause to be notified, every other party holding any such Records
of the interests and liens in favor of Buyer granted hereby.
(3) Upon reasonable advance notice from Custodian or
Buyer, the applicable 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, and (y) permit
Buyer or its authorized agents to discuss the affairs, finances and
accounts of such Seller with its chief operating officer and chief
financial officer and to discuss the affairs, finances and accounts
of such Seller with its independent certified public accountants.
m. Books. Each Seller shall keep or cause to be kept in reasonable
detail books and records of account of its assets and business and
shall clearly reflect therein the transfer of Purchased Assets to
Buyer.
n. Approvals. Sellers shall maintain all licenses, permits or other
approvals necessary for Sellers to conduct their business and to
perform their obligations
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under the Program Agreements, and Sellers shall conduct its business
strictly in accordance with applicable law.
o. Material Change in Business. No Seller or Guarantor shall make
any material change in the nature of its business as carried on at
the date hereof. There shall be no material change in the senior
management of Sellers.
p. Underwriting Guidelines. Without the prior written consent of
Buyer, Sellers shall not materially amend or otherwise modify the
Underwriting Guidelines. Without limiting the foregoing, in the
event that any Seller makes any amendment or modification to the
Underwriting Guidelines, each Seller shall promptly deliver to Buyer
a complete copy of the amended or modified Underwriting Guidelines.
q. Distributions. If an Event of Default pursuant to Section
15(a)(1), 15(a)(4), 15(a)(15) or 15(a)(16) has occurred and is
continuing, no Seller nor Guarantor shall pay any dividends with
respect to any capital stock or other equity interests in such
entity, 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 Sellers or
Guarantor.
r. [Reserved]
s. Existence. Sellers and the Guarantor shall preserve and maintain
their legal existence and all of their material rights, privileges,
licenses and franchises.
t. Chief Executive Office; Jurisdiction of Organization. No Seller
shall move its chief executive office from the address referred to
in Section 13(a)(17) or change its jurisdiction of organization from
the jurisdiction referred to in Section 13(a)(17) unless it shall
have provided Buyer 30 days' prior written notice of such change.
u. Taxes. Each Seller and Guarantor shall timely file all tax
returns that are required to be filed by them and shall timely 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.
v. Transactions with Affiliates. No Seller will enter into any
transaction, including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with
any Affiliate unless such transaction is (a) otherwise permitted
under the Program Agreements, (b) in the ordinary course of such
Seller's business and (c) upon fair and reasonable terms no less
favorable to such 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 to any
Affiliate.
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w. [Reserved].
x. Indebtedness. Sellers shall not incur any additional material
Indebtedness (other than (i) the Permitted Indebtedness in amounts
not to exceed the amounts specified on Exhibit J hereto as amended
from time to time and (ii) usual and customary accounts payable for
a mortgage company) without the prior written consent of Buyer.
y. [Reserved].
z. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of each Seller or
Guarantor or any of their officers furnished to Buyer hereunder and
during Buyer's diligence of such Seller and Guarantor are and will
be true and complete in all material respects and do not omit to
disclose any material facts necessary to make the statements herein
or therein, in light of the circumstances in which they are made,
not misleading. All required financial statements, information and
reports delivered by each Seller to Buyer pursuant to this Agreement
shall be prepared in accordance with U.S. GAAP, or, if applicable,
to SEC filings, the appropriate SEC accounting regulations.
aa. Agency Approvals; Servicing. Sellers shall maintain its status
with Fannie Mae as an approved lender and Freddie Mac as an approved
seller/servicer, in each case in good standing. Sellers shall
service all Purchased Assets which are Committed Mortgage Loans in
accordance with the applicable agency guide. Should Sellers, for any
reason, cease to possess all such applicable Agency Approvals, or
should notification to the relevant Agency or to the Department of
Housing and Urban Development, FHA or VA be required, such Seller
shall so notify Buyer immediately in writing. Notwithstanding the
preceding sentence, Sellers shall take all necessary action to
maintain all of their applicable Agency Approvals at all times
during the term of this Agreement and each outstanding Transaction.
AHMS has adequate financial standing, servicing facilities,
procedures and experienced personnel necessary for the sound
servicing of mortgage loans of the same types as may from time to
time constitute Mortgage Loans and in accordance with Accepted
Servicing Practices.
bb. Take-out Payments. With respect to each Committed Mortgage Loan,
Sellers shall arrange that all payments under the related Take-out
Commitment shall be paid directly to Buyer at the account set forth
in Section 9 hereof, or to an account approved by Buyer in writing
prior to such payment. With respect to any Agency Take-out
Commitment, if applicable, (1) with respect to the wire transfer
instructions as set forth in Freddie Mac Form 987 (Wire Transfer
Authorization for a Cash Warehouse Delivery) such wire transfer
instructions are identical to Buyer's wire instructions or Buyer has
approved such wire transfer instructions in writing in its sole
discretion, or (2) the Payee Number set forth on Fannie Mae Form
1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity Loan
Schedule) or Fannie Mae Form 1069 (Adjustable-Rate Loan Schedule),
as applicable, is
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identical to the Payee Number that has been identified by Buyer in
writing as Buyer's Payee Number or Buyer has previously approved the
related Payee Number in writing in its sole discretion; with respect
to any Take-out Commitment with an Agency, the applicable agency
documents list Buyer as sole subscriber, unless otherwise agreed to
in writing by Buyer, in Buyer's sole discretion.
cc. No Pledge. No Seller shall pledge, transfer or convey any
security interest in the Collection Account to any Person without
the express written consent of Buyer.
dd. Plan Assets. No Seller shall be an employee benefit plan as
defined in Section 3 of Title I of ERISA, or a plan described in
Section 4975(e)(1) of the Code and no Seller shall use "plan assets"
within the meaning of 29 CFR ss.2510.3-101 to engage in this
Repurchase Agreement or any Transaction hereunder.
ee. HELOC Provisions. With respect to each HELOC, if a Mortgagor
requests an increase in the related Credit Limit, the Sellers,
shall, in its sole discretion, either accept or reject the
Mortgagor's request in accordance with Seller's Underwriting
Guidelines and notify the Buyer in writing of Sellers' decision. If
the request for a Credit Limit increase is accepted by the Sellers,
the increase will be effected by the Sellers through modification of
the Mortgage Loan with the Mortgagor. Sellers shall deliver to the
Buyer an updated Asset Schedule reflecting the modification to the
Mortgage Loan and shall deliver any modified Mortgage Loan Documents
to the Custodian. Notwithstanding anything to the contrary herein,
in no event shall Buyer have any obligation to fund any Draws with
respect to any HELOC, which obligations shall be retained by the
Sellers.
ff. Maintenance of Liquidity. The Sellers, on a consolidated basis,
shall ensure that, at all times, they have unrestricted cash, Cash
Equivalents and Available Borrowing Capacity in an amount not less
than $75 million.
gg. SPE Covenant Separateness. Sellers shall cause REO Subsidiary to
(a) own no assets, and refrain from engaging in any business, other
than the assets and transactions specifically contemplated by this
Agreement; (b) not incur any Indebtedness or obligation, secured or
unsecured, direct or indirect, absolute or contingent (including
guaranteeing any obligation), other than pursuant hereto; (c) not
make any loans or advances to any third party, and not acquire
obligations or securities of its affiliates; (d) pay its debts and
liabilities (including, as applicable, shared personnel and overhead
expenses) only from its own assets; (e) comply with the provisions
of its organizational documents; (f) do all things necessary to
observe organizational formalities and to preserve its existence,
and not amend, modify or otherwise change its organizational
documents, or suffer same to be amended, modified or otherwise
changed, without the prior written consent of Buyer; (g) maintain
all of its books, records, financial statements and bank accounts
separate from those of its Affiliates; (h) be, and at all times hold
itself out to the public as, a legal entity separate and distinct
from any other entity
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(including any Affiliate), correct any known misunderstanding
regarding its status as a separate entity, conduct business in its
own name, refrain from identifying itself or any of its affiliates
as a division or part of the other and maintain and utilize a
separate telephone number and separate stationery, invoices and
checks; (i) maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and
in light of its contemplated business operations; (j) not engage in
or suffer any change of ownership, dissolution, winding up,
liquidation, consolidation or merger in whole or in part; (k) not
commingle its funds or other assets with those of any Affiliate or
any other Person; (l) maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify
its individual assets from those of any affiliate or any other
person; (m) refrain from holding itself out to be responsible for
the debts or obligations of any other Person; (n) cause each of its
direct and indirect owners to agree not to (i) file or consent to
the filing of any bankruptcy, insolvency or reorganization case or
proceeding with respect to the REO Subsidiary; institute any
proceedings under any applicable insolvency law or otherwise seek
any relief under any laws relating to the relief from debts or the
protection of debtors generally with respect to the REO Subsidiary;
(ii) seek or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, custodian or any similar official
for REO Subsidiary or a substantial portion of its properties; or
(iii) make any assignment for the benefit of the REO Subsidiary's
creditors.
hh. Compliance. Sellers shall and shall cause REO Subsidiary to
comply with all requirements and obligations imposed on REO
Subsidiary under the Limited Liability Company Agreement. Sellers
shall not cause, or permit REO Subsidiary to cause any REO Property
to be taken in the name of any Person other than an REO Subsidiary
without the written consent of Buyer.
ii. Other Warehouse Line. The Sellers have and shall maintain at
least one other warehouse line or repurchase facility with an
availability equal to or greater than the Maximum Aggregate Purchase
Price.
15. Events of Default; Termination Event
a. Each of the following shall constitute an "Event of Default"
hereunder:
(1) Payment Failure. Failure of any Seller or Guarantor
to (i) make any payment of Price Differential or Repurchase Price or
any other sum which has become due, on a Price Differential Payment
Date or a Repurchase Date or otherwise, whether by acceleration or
otherwise, under the terms of this Agreement, any other warehouse
and security agreement or any other document evidencing or securing
Indebtedness of any Seller or Guarantor to Buyer or to any Affiliate
of Buyer, or (ii) cure any Margin Deficit when due pursuant to
Section 6 hereof.
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(2) Cross Default. (i) Any Seller, Guarantor or any of
their Affiliates shall be in default under (i) any Indebtedness, in
the aggregate, in excess of $10 million of such entity which default
(1) involves the failure to pay a matured obligation, or (2) permits
the acceleration of the maturity of obligations by any other party
to or beneficiary with respect to such Indebtedness, or (ii) any
other contract or contracts, in the aggregate in excess of $10
million to which any Seller, Guarantor or such Affiliate is a party
which default (1) involves the failure to pay a matured obligation,
or (2) permits the acceleration of the maturity of obligations by
any other party to or beneficiary of such contract.
(3) Assignment. Assignment or attempted assignment by
any Seller or Guarantor of this Agreement or any rights hereunder
without first obtaining the specific written consent of Buyer, or
the granting by any Seller of any security interest, lien or other
encumbrances on any Purchased Assets to any person other than Buyer.
(4) Insolvency. An Act of Insolvency shall have occurred
with respect to any Seller, Guarantor or the REO Subsidiary.
(5) Material Adverse Change. Any material adverse change
in the Property, business, financial condition or operations of any
Seller or Guarantor shall occur, in each case as determined by Buyer
in its sole good faith discretion, or any other condition shall
exist which, in Buyer's sole good faith discretion, constitutes a
material impairment of any Seller's ability to perform its
obligations under this Agreement or any other Program Agreement.
(6) Breach of Financial Representation or Covenant or
Obligation. A breach by any Seller or Guarantor of any of the
representations, warranties or covenants or obligations set forth in
Sections 13(a)(1), 13(a)(7), 13(a)(12), 13(a)(19), 13(a)(24), 14a,
14b, 14d, 14e, 14s, 14x, 14cc, 14dd, 14ff, or 14gg of this
Agreement.
(7) Breach of Non-Financial Representation or Covenant.
A breach by any Seller or Guarantor of any other material
representation, warranty or covenant set forth in this Agreement
(and not otherwise specified in Section 15(a)(6) above), if such
breach is not cured within five (5) Business Days (other than the
representations and warranties set forth in Schedule 1, which shall
be considered solely for the purpose of determining the Market
Value, the existence of a Margin Deficit and the obligation to
repurchase such Mortgage Loan or REO Property) unless (i) such party
shall have made any such representations and warranties with
knowledge that they were materially false or misleading at the time
made, (ii) any such representations and warranties have been
determined by Buyer in its good faith discretion to be materially
false or misleading on a regular basis, or (iii) Buyer, in its good
faith discretion, determines that such breach of a material
representation, warranty or covenant materially and adversely
affects (A) the condition (financial or otherwise) of such party; or
(B) with respect to financial information, material litigation
information and regulatory information,
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Buyer's determination to enter into this Agreement or Transactions
with such party, then such breach shall constitute an immediate
Event of Default and any Seller shall have no cure right hereunder).
(8) Guarantor Breach. A breach by Guarantor of any
material representation, warranty or covenant set forth in the
Guaranty or any other Program Agreement, any "event of default" by
Guarantor under the Guaranty, any repudiation of the Guaranty by
Guarantor, or if the Guaranty is not enforceable against Guarantor.
(9) Change of Control. The occurrence of a Change in
Control.
(10) Failure to Transfer. Any Seller fails to transfer
the Purchased Assets to Buyer on the applicable Purchase Date
(provided Buyer has tendered the related Purchase Price).
(11) Judgment. A final judgment or judgments for the
payment of money in excess of (a) $10 million in the aggregate shall
be rendered against any Seller or any of its Affiliates by one or
more courts, administrative tribunals or other bodies having
jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay
of execution thereof shall not be procured, within 45 days from the
date of entry thereof.
(12) Government Action. 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 any Seller or Guarantor, or
shall have taken any action to displace the management of any Seller
or Guarantor thereof or to curtail its authority in the conduct of
the business of any Seller or Guarantor, or takes any action in the
nature of enforcement to remove, limit or restrict the approval of
any Seller or Guarantor as an issuer, buyer or a seller/servicer of
Mortgage Loans, REO Property or securities backed thereby, and such
action provided for in this subparagraph l shall not have been
discontinued or stayed within 45 days.
(13) Inability to Perform. An officer of any Seller or
Guarantor shall admit its inability to, or its intention not to,
perform any of such Seller's Obligations or Guarantor's obligations
hereunder or under the Guaranty.
(14) Security Interest. This Agreement shall for any
reason cease to create a valid, first priority security interest in
any material portion of the Purchased Assets or other Repurchase
Assets purported to be covered hereby.
(15) Financial Statements. Any Seller's or Guarantor's
audited annual financial statements or the notes thereto or other
opinions or conclusions stated therein shall be qualified or limited
by reference to the status of any Seller or Guarantor as a "going
concern" or a reference of similar import.
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(16) Qualification as REIT. The failure of AHMIC (i) to
continue to be qualified as a REIT as defined in Section 856 of the
Code or (ii) to continue to be 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 AHMIC of "prohibited
transactions" as defined in Sections 857(b)(6)(B)(iii) of the Code
(taking into account Sections 857(b)(6)(C), 857(b)(6)(D) and
857(b)(6)(E) of the Code) or (iii) to satisfy any of the income or
asset tests required to be satisfied by a REIT.
An Event of Default shall be deemed to be continuing unless
expressly waived by Buyer in writing.
b. (i) Each of the following shall constitute a "Termination Event"
hereunder and the Buyer shall have the rights set forth in Section
15(b)(ii):
(1) a material adverse effect upon the legality, validity,
binding effect or enforceability of any Program Agreement against
any Seller or Guarantor that is a party to any Program Agreement
occurs.
(ii) Upon the occurrence of a Termination Event, the Buyer shall
have the right, in its sole discretion, to immediately terminate the
Buyer's obligation to enter into any additional Transactions and the
Seller shall repurchase any Purchased Assets subject to a
Transaction hereunder within three (3) Business Days following
receipt of a request therefor from Buyer following the occurrence of
a Termination Event.
16. Remedies Upon Default
In the event that an Event of Default shall have occurred:
a. Buyer may, at its option (which option shall be deemed to have
been exercised immediately upon the occurrence of an Act of
Insolvency of a Seller or the REO Subsidiary), declare an Event of
Default to have occurred hereunder and, upon the exercise or deemed
exercise of such option, the Repurchase Date for each Transaction
hereunder shall, if it has not already occurred, be deemed
immediately to occur (except 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). Buyer shall (except upon the occurrence of an
Act of Insolvency) give notice to Sellers and Guarantor of the
exercise of such option as promptly as practicable.
b. If Buyer exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Section, (i) Sellers'
obligations in such Transactions to repurchase all Purchased Assets,
at the Repurchase Price therefor on the Repurchase Date determined
in accordance with subparagraph (a) of this Section, shall thereupon
become immediately due and payable, (ii) all Income paid after
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such exercise or deemed exercise shall be retained by Buyer and
applied, in Buyer's sole discretion, to the aggregate unpaid
Repurchase Prices for all outstanding Transactions and any other
amounts owing by a Seller hereunder, and (iii) each Seller shall
immediately deliver to Buyer the Asset Files relating to any
Purchased Assets subject to such Transactions then in such Seller's
possession or control.
c. Buyer also shall have the right to obtain physical possession,
and to commence an action to obtain physical possession, of all
Records and files of Sellers relating to the Purchased Assets and
all documents relating to the Purchased Assets (including, without
limitation, any legal, credit or servicing files with respect to the
Purchased Assets) which are then or may thereafter come in to the
possession of Seller or any third party acting for Sellers. To
obtain physical possession of any Purchased Assets held by
Custodian, Buyer shall present to Custodian a Trust Receipt and
Certification. Buyer shall be entitled to specific performance of
all agreements of Sellers contained in this Agreement.
d. Buyer shall have the right to direct all servicers then servicing
any Purchased Assets to remit all collections thereon to Buyer, and
if any such payments are received by any Seller, Sellers shall not
commingle the amounts received with other funds of Sellers and shall
promptly pay them over to Buyer. Buyer shall also have the right to
terminate any one or all of the servicers then servicing any
Purchased Assets with or without cause. In addition, Buyer shall
have the right to immediately sell the Purchased Assets and
liquidate all Repurchase Assets. Such disposition of Purchased
Assets may be, at Buyer's option, on either a servicing-released or
a servicing-retained basis; provided, that in the event that any
such Purchased Assets are sold or otherwise disposed of by Buyer on
a servicing-retained basis, Buyer shall give the Sellers a credit
for the servicing rights on such Purchased Assets in an amount equal
to the fair market value of such servicing rights against the
aggregate unpaid Repurchase Price and any other amounts owing by the
Sellers hereunder. Buyer shall not be required to give any
warranties as to the Purchased Assets with respect to any such
disposition thereof. Buyer may specifically disclaim or modify any
warranties of title or the like relating to the Purchased Assets.
Buyer shall be entitled to place the Purchased Assets in a pool for
issuance of mortgage-backed securities at the then-prevailing price
for such securities and to sell such securities for such prevailing
price in the open market. Buyer shall also be entitled to sell any
or all of such Mortgage Loans and REO Properties individually for
the prevailing price. Buyer shall also be entitled, in its sole
discretion to elect, in lieu of selling all or a portion of such
Purchased Assets, to give the Sellers credit for such Purchased
Assets and the Repurchase Assets in an amount equal to the Market
Value of the Purchased Assets against the aggregate unpaid
Repurchase Price and any other amounts owing by the Sellers
hereunder.
e. Upon the happening of one or more Events of Default, Buyer may
apply any proceeds from the liquidation of the Purchased Assets and
Repurchase Assets, which proceeds from liquidation shall include, if
applicable, any credit for the fair
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market value of any servicing rights on such Purchased Assets, to
the Repurchase Prices hereunder and all other Obligations in the
manner Buyer deems appropriate in its sole discretion.
f. Sellers shall be liable to Buyer for (i) the amount of all
reasonable legal or other expenses including, without limitation,
all costs and expenses of Buyer in connection with the enforcement
of this Agreement or any other agreement evidencing a Transaction,
whether in action, suit or litigation or bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally,
further including, without limitation, the reasonable fees and
expenses of counsel (including the costs of internal counsel of
Buyer) incurred in connection with or as a result of an Event of
Default, (ii) damages in an amount equal to the cost (including all
fees, expenses and commissions) of entering into replacement
transactions and entering into or terminating hedge transactions in
connection with or as a result of an Event of Default, and (iii) any
other loss, damage, cost or expense directly arising out of or
resulting from the occurrence of an Event of Default in respect of a
Transaction.
g. To the extent permitted by applicable law, Sellers shall be
liable to Buyer for interest on any amounts owing by Sellers
hereunder, from the date Sellers become liable for such amounts
hereunder until such amounts are (i) paid in full by Sellers or (ii)
satisfied in full by the exercise of Buyer's rights hereunder.
Interest on any sum payable by Sellers under this Section 16(g)
shall be at a rate equal to the Post-Default Rate.
h. Buyer shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable
law.
i. Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except
to the extent provided in subsections (a) and (d) of this Section,
at any time thereafter without notice to Sellers. All rights and
remedies arising under this Agreement as amended from time to time
hereunder are cumulative and not exclusive of any other rights or
remedies which Buyer may have.
j. Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and each Seller hereby expressly waives
any defenses such Seller might otherwise have to require Buyer to
enforce its rights by judicial process. Each Seller also waives any
defense (other than a defense of payment or performance) such Seller
might otherwise have arising from the use of nonjudicial process,
enforcement and sale of all or any portion of the Repurchase Assets,
or from any other election of remedies. Each 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.
k. Subject to the limitations and procedures set forth in Section 36
hereof, Buyer shall have the right to perform reasonable due
diligence with respect to Sellers
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and the Mortgage Loans and REO Properties, which review shall be at
the expense of Sellers.
l. The Sellers recognize that the Buyer may be unable to effect a
public sale of any or all of the LLC Interests, by reason of certain
prohibitions contained in the 1934 Act and applicable state
securities laws or otherwise, and may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers
which will be obliged to agree, among other things, to acquire such
securities for their own account for investment and not a view to
the distribution or resale thereof. The Sellers acknowledge and
agree that any such private sale may result in prices and other
terms less favorable to the Buyer than if such sale were a public
sale, and notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially
reasonable manner. The Buyer shall be under no obligation to delay a
sale of any of the LLC Interests for the period of time necessary to
permit the Sellers to register the LLC Interests for public sale
under the 1934 Act, or under applicable state securities laws, even
if the Sellers would agree to do so.
m. Sellers further agree to use its reasonable efforts to do or
cause to be done all such other acts as may be reasonably necessary
to make any sale or sales of any portion of the LLC Interests
pursuant to this Agreement valid and binding and in compliance with
any and all other applicable laws other than registration under
applicable securities laws, provided that the Sellers shall have no
obligation to register the LLC Interests for public sale under the
1934 Act. Sellers further agree that a breach of any of the
covenants contained in this Section will cause irreparable injury to
the Buyer, that the Buyer has no adequate remedy at law in respect
of such breach and, as a consequence, that each and every covenant
contained in this Section shall be specifically enforceable against
the Sellers, and the Sellers hereby waive and agree not to assert
any defenses against an action for specific performance of such
covenants except for defense that no Event of Default has occurred
hereunder.
17. Reports
a. Notices. Sellers or Guarantor shall furnish to Buyer (x)
promptly, copies of any material and adverse notices (including,
without limitation, notices of defaults, breaches, potential
defaults or potential breaches) and any material financial
information that is not otherwise required to be provided by Sellers
hereunder which is given to Sellers' lenders, (y) immediately,
notice of the occurrence of any Event of Default hereunder or
default or breach by Sellers or Servicer or Guarantor of any
obligation under any Program Agreement or any material contract or
agreement of Sellers or Servicer or Guarantor or the occurrence of
any event or circumstance that such party reasonably expects has
resulted in, or will, with the passage of time, result in, a
Material Adverse Effect or an Event of Default or such a default or
breach by such party and (z) the following:
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(1) [Reserved];
(2) as soon as available and in any event within
forty-five (45) calendar days after the end of each calendar
quarter, the unaudited consolidated and consolidating balance sheets
of AHMIC as at the end of such period and the related unaudited
consolidated and consolidating statements of income and retained
earnings and of cash flows for AHMIC for such period and the portion
of the fiscal year through the end of such period, accompanied by a
certificate of a Responsible Officer of AHMIC, which certificate
shall state that said consolidated and consolidating financial
statements fairly present in all material respects the consolidated
and consolidating financial condition and results of operations of
AHMIC in accordance with GAAP, consistently applied, as at the end
of, and for, such period (subject to normal year-end adjustments);
(3) as soon as available and in any event within ninety
(90) days after the end of each fiscal year of AHMIC, the
consolidated and consolidating balance sheets of AHMIC as at the end
of such fiscal year and the related consolidated and consolidating
statements of income and retained earnings and of cash flows for
AHMIC 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 and the scope of audit shall be acceptable
to Buyer in its sole discretion, shall have no "going concern"
qualification and shall state that said consolidated financial
statements fairly present the consolidated and consolidating
financial condition and results of operations of AHMIC as at the end
of, and for, such fiscal year in accordance with GAAP;
(4) such other prepared statements that Buyer may
reasonably request;
(5) [Reserved];
(6) promptly upon the reasonable request of Buyer,
copies of relevant portions of all final written Agency, FHA, VA and
Governmental Authority audits, examinations, evaluations, monitoring
reviews and reports of its operations (including those prepared on a
contract basis) which provide for or relate to (i) material
corrective action required, (ii) material sanctions proposed,
imposed or required, including without limitation notices of
defaults, notices of termination of approved status, notices of
imposition of supervisory agreements or interim servicing
agreements, and notices of probation, suspension, or non-renewal, or
(iii) "report cards," "grades" or other classifications of the
quality of Sellers' operations;
(7) from time to time such other information regarding
the financial condition, operations, or business of the Guarantor or
Sellers as Buyer may reasonably request;
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(8) as soon as reasonably possible, and in any event
within thirty (30) days after a Responsible Officer of the Guarantor
or a Seller has knowledge of the occurrence of any Event of
Termination, stating the particulars of such Event of Termination in
reasonable detail;
(9) As soon as reasonably possible, notice of any of the
following events:
(a) change in the insurance coverage required of any
Seller, Servicer or any other Person pursuant to any Program
Agreement, with a copy of evidence of same attached;
(b) any material dispute, litigation, investigation,
proceeding or suspension between any Seller or Servicer, on the one
hand, and any Governmental Authority or any Person;
(c) any material change in accounting policies or
financial reporting practices of any Seller or Servicer;
(d) with respect to any Purchased Asset, immediately
upon receipt of notice or knowledge thereof, that the underlying
Mortgaged Property has been damaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty, or
otherwise damaged so as to affect adversely the value of such
Mortgaged Loan or REO Property;
(e) any material issues raised upon examination of any
Seller or any Seller's facilities by any Governmental Authority;
(f) any material change in the Indebtedness of any
Seller, including, without limitation, any default, renewal,
non-renewal, termination, increase in available amount or decrease
in available amount related thereto;
(g) promptly upon receipt of notice or knowledge of (i)
any default related to any Repurchase Asset, (ii) any lien or
security interest (other than security interests created hereby or
by the other Program Agreements) on, or claim asserted against, any
of the Purchased Assets;
(h) any other event, circumstance or condition that has
resulted, or has a possibility of resulting, in a Material Adverse
Effect with respect to any Seller or Servicer; and
(i) the occurrence of any material employment dispute
and a description of the strategy for resolving it that has the
possibility of resulting in a Material Adverse Effect.
b. Officer's Certificates. Sellers will furnish to Buyer, at the
time the Sellers furnishes each set of financial statements pursuant
to Section 17(a)(1) or (2)
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above, a certificate of a Responsible Officer of Sellers in the form
of Exhibit D hereto.
c. Asset Reports. Sellers will furnish to Buyer monthly electronic
Mortgage Loan and REO Property performance data, including, without
limitation, delinquency reports (i.e., delinquency, foreclosure and
net charge-off reports).
d. Asset Tape. Sellers shall provide to Buyer, electronically, in a
format mutually acceptable to Buyer and Sellers, an Asset Tape by no
later than the Reporting Date.
e. Other. Sellers shall deliver to Buyer any other reports or
information reasonably requested by Buyer or as otherwise required
pursuant to this Agreement.
18. Repurchase Transactions
Buyer may, in its sole election, engage in repurchase transactions
with the Purchased Assets or otherwise pledge, hypothecate, assign, transfer or
otherwise convey the Purchased Assets with a counterparty of Buyer's choice.
Unless an Event of Default shall have occurred, no such transaction shall
relieve Buyer of its obligations to transfer Purchased Assets to Sellers
pursuant to Section 4 hereof, or of Buyer's obligation to credit or pay Income
to, or apply Income to the obligations of, Sellers pursuant to Section 7 hereof.
In the event Buyer engages in a repurchase transaction with any of the Purchased
Assets or otherwise pledges or hypothecates any of the Purchased Assets, Buyer
shall have the right to assign to Buyer's counterparty any of the applicable
representations or warranties herein and the remedies for breach thereof, as
they relate to the Purchased Assets that are subject to such repurchase
transaction.
19. Single Agreement
Buyer and Sellers acknowledge that, and have entered hereunto, 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, each of Buyer and each Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respect
of all Transactions hereunder, (ii) that each of them shall be entitled to
set-off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries and other transfers made by either of them
in respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
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20. Notices and Other Communications
Any and all notices (with the exception of Transaction Requests or
Purchase Confirmations, which shall be delivered via facsimile only),
statements, demands or other communications hereunder may be given by a party to
the other by mail, facsimile, messenger or otherwise to the address specified
below, or so sent to such party at any other place specified in a notice of
change of address hereafter received by the other. All notices, demands and
requests hereunder may be made orally, to be confirmed promptly in writing, or
by other communication as specified in the preceding sentence.
If to Sellers:
American Home Mortgage Corp.
538 Broadhollow Road
Melville, New York 11747
Attention: Craig Pino
Phone Number: (516) 495-7026
Fax Number: (516) 495-5411
American Home Mortgage Acceptance, Inc.
538 Broadhollow Road
Melville, New York 11747
Attention: Craig Pino
Phone Number: (516) 495-7026
Fax Number: (516) 495-5411
American Home Mortgage Servicing, Inc.
538 Broadhollow Road
Melville, New York 11747
Attention: Craig Pino
Phone Number: (516) 495-7026
Fax Number: (516) 495-5411
American Home Mortgage Investment Corp.
538 Broadhollow Road
Melville, New York 11747
Attention: Craig Pino
Phone Number: (516) 495-7026
Fax Number: (516) 495-5411
With a copy to Alan B. Horn, General Counsel, at the above address.
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If to the Guarantor:
American Home Mortgage Holdings, Inc.
538 Broadhollow Road
Melville, New York 11747
Attention: Craig Pino
Phone Number: (516) 495-7026
Fax Number: (516) 495-5411
With a copy to Alan B. Horn, General Counsel, at the above address.
If to Buyer:
For Transaction Requests and Purchase Confirmations:
Credit Suisse First Boston Mortgage Capital LLC
302 Carnegie Center, 2nd Floor
Princeton, NJ 08540
Attention: William Sachelari
Phone Number: (609) 627-5053
Fax Number: (609) 627-5080
For all other Notices:
Credit Suisse First Boston Mortgage Capital LLC
302 Carnegie Center, 2nd Floor
Princeton, NJ 08540
Attention: Gary Timmerman
Phone Number: 609-627-5026
Fax Number: 609-627-5080
with a copy to:
Credit Suisse First Boston Mortgage Capital LLC
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue, 9th Floor
New York, NY 10010
Attention: Legal Department--Warehouse Lending
21. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the
parties containing general terms and conditions for repurchase transactions.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
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22. Non assignability
The Program Agreements are not assignable by any Seller or Guarantor. Buyer may
from time to time assign all or a portion of its rights and obligations under
this Agreement and the Program Agreements; provided, however that Buyer shall
maintain as agent of Sellers, for review by Sellers upon written request, a
register of assignees and a copy of an executed assignment and acceptance by
Buyer and assignee ("Assignment and Acceptance"), specifying the percentage or
portion of such rights and obligations assigned. Upon such assignment, (a) such
assignee shall be a party hereto and to each Program Agreement to the extent of
the percentage or portion set forth in the Assignment and Acceptance, and shall
succeed to the applicable rights and obligations of Buyer hereunder, and (b)
Buyer shall, to the extent that such rights and obligations have been so
assigned by it to either (i) an Affiliate of Buyer which assumes the obligations
of Buyer or (ii) to another Person approved by Sellers (such approval not to be
unreasonably withheld) which assumes the obligations of Buyer, be released from
its obligations hereunder and under the Program Agreements. Unless otherwise
stated in the Assignment and Acceptance, Sellers shall continue to take
directions solely from Buyer unless otherwise notified by Buyer in writing.
Buyer may distribute to any prospective assignee any document or other
information delivered to Buyer by Sellers.
23. Set-off
In addition to any rights and remedies of Buyer provided by law,
Buyer shall have the right, without prior notice to any Seller or Guarantor, any
such notice being expressly waived by any Seller or Guarantor to the extent
permitted by applicable law, upon any amount becoming due and payable by any
Seller or Guarantor hereunder (whether at the stated maturity, by acceleration
or otherwise) to set-off and appropriate and apply against such amount any and
all 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, contingent, matured or unmatured, at any
time held or owing by Buyer or any branch or agency thereof to or for the credit
or the account of Sellers or the Guarantor. Buyer agrees promptly to notify
Sellers and the Guarantor after any such set-off and application made by Buyer;
provided, that the failure to give such notice shall not affect the validity of
such set-off and application.
24. Binding Effect; Governing Law; Jurisdiction
a. This Agreement shall be binding and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. Sellers acknowledge that the obligations of Buyer hereunder
or otherwise are not the subject of any guaranty by, or recourse to,
any direct or indirect parent or other Affiliate of Buyer. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
b. EACH OF SELLER, GUARANTOR AND BUYER HEREBY WAIVES TRIAL BY JURY.
EACH OF SELLER, GUARANTOR AND BUYER HEREBY IRREVOCABLY CONSENTS TO
THE EXCLUSIVE
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JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ARISING
OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY ACTION OR
PROCEEDING. EACH OF SELLER, GUARANTOR AND BUYER HEREBY SUBMITS TO,
AND WAIVES ANY OBJECTION IT MAY HAVE TO, EXCLUSIVE PERSONAL
JURISDICTION AND VENUE IN THE COURTS OF THE STATE OF NEW YORK AND
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE
PROGRAM AGREEMENTS.
25. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party
shall constitute a waiver of any other Event of Default and no exercise of any
remedy hereunder by any party shall constitute a waiver of its right to exercise
any other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the
parties hereto. Without limitation on any of the foregoing, the failure to give
a notice pursuant to Section 6(a), 16(a) or otherwise, will not constitute a
waiver of any right to do so at a later date.
26. Intent
a. The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the
United States Code, as amended (except insofar as the type of
Purchased Assets subject to such Transaction or the term of such
Transaction would render such definition inapplicable), and a
"securities contract" as that term is defined in Section 741 of
Title 11 of the United States Code, as amended (except insofar as
the type of assets subject to such Transaction would render such
definition inapplicable) and that all payments hereunder are deemed
"margin payments" or "settlement payments" as defined in Title 11 of
the USC.
b. It is understood that either party's right to liquidate Purchased
Assets delivered to it in connection with Transactions hereunder or
to exercise any other remedies pursuant to Section 16 hereof is a
contractual right to liquidate such Transaction as described in
Sections 555 and 559 of Title 11 of the United States Code, as
amended.
c. The parties agree and acknowledge that if a party hereto is an
"insured depository institution," as such term is defined in the
Federal Deposit Insurance Act, as amended ("FDIA"), then each
Transaction hereunder is a "qualified financial contract," as that
term is defined in FDIA and any rules, orders or policy statements
thereunder (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).
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d. It is understood that this Agreement constitutes a "netting
contract" as defined in and subject to Title IV of the Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") and
each payment entitlement and payment obligation under any
Transaction hereunder shall constitute a "covered contractual
payment entitlement" or "covered contractual payment obligation",
respectively, as defined in and subject to FDICIA (except insofar as
one or both of the parties is not a "financial institution" as that
term is defined in FDICIA).
e. This Agreement is intended to be a "repurchase agreement" and a
"securities contract," within the meaning of Section 555 and Section
559 under the Bankruptcy Code.
27. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the parties is a
broker or dealer registered with the SEC under Section 15 of the
1934 Act, the Securities Investor Protection Corporation has taken
the position that the provisions of the SIPA do not protect the
other party with respect to any Transaction hereunder;
b. in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA will
not provide protection to the other party with respect to any
Transaction hereunder; and
c. in the case of Transactions in which one of the parties is a
financial institution, funds held by the financial institution
pursuant to a Transaction hereunder are not a deposit and therefore
are not insured by the Federal Deposit Insurance Corporation or the
National Credit Union Share Insurance Fund, as applicable.
28. Power of Attorney
Each Seller hereby authorizes Buyer to file such financing statement
or statements relating to the Repurchase Assets without such Seller's signature
thereon as Buyer, at its option, may deem appropriate. Each Seller hereby
appoints Buyer as such Seller's agent and attorney-in-fact to execute any such
financing statement or statements in such Seller's name and to perform all other
acts which Buyer deems appropriate to perfect and continue its ownership
interest in and/or the security interest granted hereby, if applicable, and to
protect, preserve and realize upon the Repurchase Assets, including, but not
limited to, the right to endorse notes, complete blanks in documents, transfer
servicing, and sign assignments on behalf of such Seller as its agent and
attorney-in-fact. This agency and power of attorney is coupled with an interest
and is irrevocable without Buyer's consent. Notwithstanding the foregoing, the
power of attorney hereby granted may be exercised only during the occurrence and
continuance of any Event of Default hereunder. Sellers shall pay the filing
costs for any financing statement or statements prepared pursuant to this
Section 28.
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29. Buyer May Act Through Affiliates
Buyer may, from time to time, designate one or more affiliates for
the purpose of performing any action hereunder.
30. Indemnification; Obligations
a. Each Seller and Guarantor agree to hold Buyer and each of its
respective Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") harmless from and
indemnify each Indemnified Party (and will reimburse each
Indemnified Party as the same is incurred) against all liabilities,
losses, damages, judgments, costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) of any kind
which may be imposed on, incurred by, or asserted against any
Indemnified Party relating to or arising out of this Agreement, any
Transaction Request, Purchase Confirmation, any Program Agreement or
any transaction contemplated hereby or thereby resulting from
anything other than the Indemnified Party's gross negligence, bad
faith or willful misconduct. Each Seller and Guarantor also agrees
to reimburse each Indemnified Party for all reasonable expenses in
connection with the enforcement of this Agreement and the exercise
of any right or remedy provided for herein, any Transaction Request,
Purchase Confirmation and any Program Agreement, including, without
limitation, the reasonable fees and disbursements of counsel. Each
Seller's and Guarantor's agreements in this Section 30 shall survive
the payment in full of the Repurchase Price and the expiration or
termination of this Agreement. Each Seller and Guarantor hereby
acknowledge that its obligations hereunder are recourse obligations
of such Seller and Guarantor and are not limited to recoveries each
Indemnified Party may have with respect to the Purchased Assets.
Each Seller and Guarantor also agree 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 facility established
hereunder, 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.
b. Without limitation to the provisions of Section 4, if any payment
of the Repurchase Price of any Transaction is made by Sellers other
than on the then scheduled Repurchase Date thereto as a result of an
acceleration of the Repurchase Date pursuant to Section 16 or for
any other reason, Sellers shall, upon demand by Buyer, pay to Buyer
an amount sufficient to compensate Buyer for any losses, costs or
expenses that it may reasonably incur as of a result of such
payment.
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c. Without limiting the provisions of Section 30(a) hereof, if
Sellers fail to pay when due any costs, expenses or other amounts
payable by it under this Agreement, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be
paid on behalf of Sellers by Buyer, in its sole discretion.
31. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument.
32. Confidentiality
This Agreement and its terms, provisions, supplements and
amendments, and notices hereunder, are proprietary to Buyer and Agent and shall
be held by Sellers and Guarantor in strict confidence and shall not be disclosed
to any third party without the written consent of Buyer except for (i)
disclosure to Sellers' or Guarantor's direct and indirect Affiliates and
Subsidiaries, attorneys or accountants, but only to the extent such disclosure
is necessary and such parties agree to hold all information in strict
confidence, or (ii) disclosure required by law, rule, regulation or order of a
court or other regulatory body. Notwithstanding the foregoing or anything to the
contrary contained herein or in any other Program Agreement, the parties hereto
may disclose to any and all Persons, without limitation of any kind, the
federal, state and local tax treatment of the Transactions, any fact relevant to
understanding the federal, state and local tax treatment of the Transactions,
and all materials of any kind (including opinions or other tax analyses)
relating to such federal, state and local tax treatment and that may be relevant
to understanding such tax treatment; provided that Sellers may not disclose the
name of or identifying information with respect to Buyer or Agent or any pricing
terms (including, without limitation, the Pricing Rate, Commitment Fee, Purchase
Price Percentage and Purchase Price) or other nonpublic business or financial
information (including any sublimits and financial covenants) that is unrelated
to the federal, state and local tax treatment of the Transactions and is not
relevant to understanding the federal, state and local tax treatment of the
Transactions, without the prior written consent of the Buyer.
33. Recording of Communications
Buyer, Sellers and Guarantor shall have the right (but not the
obligation) from time to time to make or cause to be made tape recordings of
communications between its employees and those of the other party with respect
to Transactions.
34. Commitment Fee
No later than the Price Differential Payment Date following the end
of each calendar quarter, Sellers shall pay in immediately available funds to
Buyer a non-refundable Commitment Fee calculated in accordance with the formula
set forth in the Pricing Side Letter. Such payment shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
Buyer at such account designated by Buyer.
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35. [Reserved]
36. Periodic Due Diligence Review
Each Seller acknowledges that Buyer has the right to perform
continuing due diligence reviews with respect to such Seller and the Mortgage
Loans and REO Properties, for purposes of verifying compliance with the
representations, warranties and specifications made hereunder, or otherwise, and
each Seller agrees that upon reasonable (but no less than one (1) Business
Day's) prior notice unless an Event of Default shall have occurred, in which
case no notice is required, to Sellers, Buyer or its authorized representatives
will be permitted during normal business hours to examine, inspect, and make
copies and extracts of, the Asset Files and any and all documents, records,
agreements, instruments or information relating to such Mortgage Loans and REO
Properties in the possession or under the control of Sellers and/or the
Custodian. Sellers also shall make available to Buyer a knowledgeable financial
or accounting officer for the purpose of answering questions respecting the
Asset Files and the Mortgage Loans and REO Properties. Without limiting the
generality of the foregoing, Sellers acknowledges that Buyer may purchase
Mortgage Loans and REO Properties from Sellers based solely upon the information
provided by Sellers to Buyer in the Asset Schedule and the representations,
warranties and covenants contained herein, and that Buyer, at its option, has
the right at any time to conduct a partial or complete due diligence review on
some or all of the Mortgage Loans or REO Properties purchased in a Transaction,
including, without limitation, ordering BPOs, new credit reports and new
appraisals on the related Mortgaged Properties and otherwise re-generating the
information used to originate such Mortgage Loan or REO Property. Buyer may
underwrite such Mortgage Loans or REO Properties itself or engage a mutually
agreed upon third party underwriter to perform such underwriting. Seller agrees
to cooperate with Buyer and any third party underwriter in connection with such
underwriting, including, but not limited to, providing Buyer and any third party
underwriter with access to any and all documents, records, agreements,
instruments or information relating to such Mortgage Loans and REO Properties in
the possession, or under the control, of Sellers. Each Seller further agrees
that Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer in
connection with Buyer's activities pursuant to this Section 36 ("Due Diligence
Costs"); provided that such Due Diligence Costs shall not exceed the Due
Diligence Cap unless an Event of Default shall have occurred, in which event
Buyer shall have the right to perform due diligence at the sole expense of
Seller without regard to the dollar limitation set forth herein; and provided
further that on the Price Differential Payment Date for the calendar month
following the date hereof, the Buyer shall credit to the Sellers any Due
Diligence Costs associated with Buyer's due diligence of the Sellers prior to
the date hereof.
37. Authorizations
Any of the persons whose signatures and titles appear on Schedule 2
are authorized, acting singly, to act for any Seller or Buyer, as the case may
be, under this Agreement.
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38. Acknowledgement Of Anti-Predatory Lending Policies
Buyer has in place internal policies and procedures that expressly
prohibit its purchase of any High Cost Mortgage Loan.
39. Documents Mutually Drafted
The Sellers and the Buyer agree that this Agreement and each other
Program Agreement prepared in connection with the Transactions set forth herein
have been mutually drafted and negotiated by each party, and consequently such
documents shall not be construed against either party as the drafter thereof.
40. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
a. the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to
include the other gender;
b. accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
c. references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document
are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
d. a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also
apply to Paragraphs and other subdivisions;
e. the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision;
f. the term "include" or "including" shall mean without limitation
by reason of enumeration;
g. all times specified herein or in any other Program Document
(unless expressly specified otherwise) are local times in New York,
New York unless otherwise stated; and
h. all references herein or in any Program Document to "good faith"
means good faith as defined in Section 1-201(19) of the UCC as in
effect in the State of New York.
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41. Joint and Several
Sellers and Buyer hereby acknowledge and agree that Sellers are each
jointly and severally liable to Buyer for all of their respective obligations
hereunder.
[Signature Page Follows]
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IN WITNESS WHEREOF, each Seller and the Buyer have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
date first above written.
Credit Suisse First Boston Mortgage Capital LLC, as Buyer
By: /s/ A. Adam Loskove
-------------------------------------
Title: Vice President
----------------------------------
Date:
----------------------------------
American Home Mortgage Corp., as Seller
By: /s/ Alan B. Horn
-------------------------------------
Title: Executive Vice President, General
Counsel & Secretary
----------------------------------
Date:
----------------------------------
American Home Mortgage Acceptance, Inc., as Seller
By: /s/ Alan B. Horn
-------------------------------------
Title: Executive Vice President, General
Counsel & Secretary
----------------------------------
Date:
----------------------------------
American Home Mortgage Servicing, Inc., as Seller
By: /s/ Alan B. Horn
-------------------------------------
Title: Executive Vice President, General
Counsel & Secretary
----------------------------------
Date:
----------------------------------
American Home Mortgage Investment Corp., as Seller
By: /s/ Alan B. Horn
-------------------------------------
Title: Executive Vice President, General
Counsel & Secretary
----------------------------------
Date:
----------------------------------
American Home Mortgage Holdings, Inc., as Guarantor
By: /s/ Alan B. Horn
-------------------------------------
Title: Executive Vice President, General
Counsel & Secretary
----------------------------------
Date:
----------------------------------
SCHEDULE 1
PART A
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO PURCHASED
MORTGAGE LOANS
With respect to each Purchased Mortgage Loan, Sellers represent and
warrant to Buyer that each of the following representations and warranties are
true and correct, except with respect to any Repurchased Mortgage Loan in which
the claimed breach of the representation or warranty is expressly identified to
Buyer in writing pursuant to clause (b) of the definition of Repurchased
Mortgage Loan. With respect to any representations and warranties made to the
best of Sellers' knowledge, in the event that it is discovered that the
circumstances with respect to the related Mortgage Loan are not accurately
reflected in such representation and warranty notwithstanding the knowledge or
lack of knowledge of the Sellers, then, notwithstanding that such representation
and warranty is made to the best of the Sellers' knowledge, such Mortgage Loan
may be assigned a Market Value of zero.
(a) Payments Current. Except with respect to each Delinquent
Mortgage Loan, all payments required to be made up to the Purchase Date for the
Mortgage Loan under the terms of the Mortgage Note have been made and credited
and no payment required under the Mortgage Loan is delinquent nor has any
payment under the Mortgage Loan been delinquent at any time since the
origination of the Mortgage Loan. The first Monthly Payment shall be made, or
shall have been made, with respect to the Mortgage Loan on its Due Date or
within the grace period, all in accordance with the terms of the related
Mortgage Note.
(b) No Outstanding Charges. 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.
No Seller nor the Qualified Originator from which Seller acquired the Mortgage
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 Mortgage Loan, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
proceeds of the Mortgage Loan, whichever is earlier, to the day which precedes
by one month the Due Date of the first installment of principal and/or interest
thereunder.
(c) Original Terms Unmodified. The terms of the Mortgage 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 Buyer, and which has been
delivered to the Custodian and the terms of which are reflected in the Asset
Schedule. The substance of any such waiver, alteration or modification has been
approved by the title insurer, to the extent required, and its terms are
reflected on the Asset Schedule. No Mortgagor in respect of the Mortgage 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
Schedule 1-1
such policy, and which assumption agreement is part of the Asset File delivered
to the Custodian and the terms of which are reflected in the Asset Schedule.
(d) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including, without limitation, the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto, and no Mortgagor in respect of the Mortgage Loan was a debtor
in any state or Federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was originated. Sellers have no knowledge nor has it received any
notice that any Mortgagor in respect of the Mortgage Loan is a debtor in any
state or federal bankruptcy or insolvency proceeding.
(e) 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 applicable 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) the
outstanding principal balance of the Mortgage Loan, or (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. 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 Emergency Management Agency 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 Mortgage Loan and,
with respect to any Second Lien Mortgage Loan, the outstanding principal balance
of the prior mortgage loan, (2) the full insurable value of the Mortgaged
Property, and (3) the maximum amount of insurance available under the National
Flood Insurance Act of 1968, as amended by the Flood Disaster Protection Act of
1974. All such insurance policies (collectively, the "hazard insurance policy")
contain a standard mortgagee clause naming the applicable Seller, its successors
and assigns (including, without limitation, subsequent owners of the Mortgage
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
Sellers. All premiums 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.
No Seller has engaged in, and has any 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
Schedule 1-2
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 any Seller.
(f) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations, and the
applicable Seller shall maintain or shall cause its agent to maintain in its
possession, available for the inspection of Buyer, and shall deliver to Buyer,
upon demand, evidence of compliance with all such requirements.
(g) 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. No Seller has waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has any
Seller waived any default resulting from any action or inaction by the
Mortgagor.
(h) Location and Type of Mortgaged Property. The Mortgaged Property
is located in an Acceptable State as identified in the Asset 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 a low-rise 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 or shall conform to underwriting guidelines acceptable to Buyer in its
sole discretion and that no residence or dwelling is a mobile home. No portion
of the Mortgaged Property is used for commercial purposes; provided, that, the
Mortgaged Property may be a mixed use property if such Mortgaged Property
conforms to underwriting guidelines acceptable to Buyer in its sole discretion.
(i) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected (a) with respect to each first lien Mortgage Loan,
first priority lien and first priority security interest, or (b) with respect to
each Second Lien Mortgage Loan, second priority lien and second priority
security interest, in each 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. The lien of the
Mortgage is subject only to:
a. the lien of current real property taxes and assessments not yet due and
payable;
b. 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
Schedule 1-3
generally and specifically referred to in Buyer's title insurance policy
delivered to the originator of the Mortgage Loan and (a) referred to or
otherwise considered in the appraisal made for the originator of the Mortgage
Loan or (b) which do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal;
c. 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
d. with respect to each Mortgage Loan which is a Second Lien Mortgage
Loan, a first lien on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates (a) with
respect to each first lien mortgage loan, a valid, subsisting and enforceable
first lien and first priority security interest or (b) with respect to each
Second Lien Mortgage Loan, second priority lien and second priority security
interest on the property described therein and Sellers have full right to pledge
and assign the same to Buyer. The Mortgaged Property was not, as of the date of
origination of the Mortgage 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.
(j) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor or
guarantor, if applicable, in connection with a Mortgage 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 Mortgage Note, the Mortgage and
any other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any such
agreement, and the Mortgage 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 Mortgage 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 Mortgage Loan. Sellers have
reviewed all of the documents constituting the Asset File and has made such
inquiries as it deems necessary to make and confirm the accuracy of the
representations set forth herein. To the best of Sellers' knowledge, except as
disclosed to Buyer in writing, all tax identifications and property descriptions
are legally sufficient; and tax segregation, where required, has been completed.
(k) Full Disbursement of Proceeds. Except with respect to HELOCs,
there is no further requirement for future advances under the Mortgage Loan, 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 Mortgage 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 Mortgage Note or Mortgage.
(l) Ownership. The applicable Seller has full right to sell the
Mortgage Loan to Buyer free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge,
Schedule 1-4
claim or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell each
Mortgage Loan pursuant to this Agreement and following the sale of each Mortgage
Loan, Buyer will own such Mortgage 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.
(m) Doing Business. All parties which have had any interest in the
Mortgage 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.
(n) Title Insurance. Other than HELOCs where the Underwriting
Guidelines provide for origination without title insurance and the Take-out
Investor does not require title insurance for its purchase thereof, the Mortgage
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 applicable Seller, its
successors and assigns, as to the first or second priority lien of the Mortgage,
as applicable, in the original principal amount of the Mortgage Loan, with
respect to a Mortgage Loan other than a HELOC, or the original Credit Limit,
with respect to a HELOC (or to the extent a Mortgage 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) and (3)
and, with respect to Second Lien Mortgage Loans, clause (4) of paragraph (i) of
this Schedule 1, and in the case of adjustable rate Mortgage 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 and Monthly Payment. 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 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
applicable 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 applicable 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
Schedule 1-5
attorney, firm or other Person, and no such unlawful items have been received,
retained or realized by any Seller.
(o) No Defaults. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage 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 no Seller nor their predecessors have waived any default,
breach, violation or event of acceleration.
(p) No Mechanics' Liens. There are 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.
(q) 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.
(r) Origination; Payment Terms. The Mortgage 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. Other than respect to HELOCs,
principal and/or interest payments on the Mortgage Loan commenced no more than
60 days after funds were disbursed in connection with the Mortgage Loan. With
respect to adjustable rate Mortgage Loans, the Mortgage Interest Rate is
adjusted 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. Other than with respect to a HELOC, or the Credit Limit, with
respect to a HELOC, the Mortgage Note is payable on the first day of each month
in equal monthly installments of principal and/or interest (subject to a balloon
payment in the case of a 30/40 Mortgage Loan and subject to an "interest only"
period in the case of Interest Only Loans), which installments of interest (a)
with respect to adjustable rate Mortgage Loans are subject to change on the
Interest Rate Adjustment Date due to adjustments to the Mortgage Interest Rate
on each Interest Rate Adjustment Date and (b) with respect to Interest Only
Loans are subject to change on the Interest Only Adjustment Date due to
adjustments to the Mortgage Interest Rate on each Interest Only Adjustment Date,
in both cases with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an original
term of not more than 30 years from commencement of amortization (except with
respect to any 30/40 Mortgage Loans). No 30/40 Mortgage Loan has a balloon
payment due prior to the date which is 15 years following the origination date.
The Due Date of the first payment under the Mortgage Note is no more than 60
days from the date of the Mortgage Note. With respect to HELOCs, the related
Mortgagor may request advances up to the Credit Limit within the first ten years
following the date of origination. Each HELOC will amortize within 30 years from
the date of origination.
Schedule 1-6
(s) Customary Provisions. The Mortgage 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 Mortgage Loan and foreclosure on, or trustee's sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
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. The Mortgage Note and
Mortgage are on forms acceptable to Freddie Mac or Fannie Mae.
(t) Occupancy of the Mortgaged Property. As of the Purchase Date the
Mortgaged Property is 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. No Seller has received 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. No Seller has received notice of any violation or failure to
conform with any such law, ordinance, regulation, standard, license or
certificate. With respect to any Mortgage Loan originated with an
"owner-occupied" Mortgaged Property, the Mortgagor represented at the time of
origination of the Mortgage Loan that the Mortgagor would occupy the Mortgaged
Property as the Mortgagor's primary residence.
(u) No Additional Collateral. The Mortgage 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 (i) above.
(v) 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
Buyer to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor.
(w) Transfer of Mortgage Loans. Except with respect to Mortgage
Loans intended for purchase by GNMA and for Mortgage Loans registered with MERS,
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.
(x) Due-On-Sale. Except with respect to Mortgage Loans intended for
purchase by GNMA, the Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder.
Schedule 1-7
(y) No Buydown Provisions; No Graduated Payments or Contingent
Interests. Except with respect to Agency Mortgage Loans, the Mortgage Loan does
not contain provisions pursuant to which Monthly Payments are paid or partially
paid with funds deposited in any separate account established by any 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 Mortgage Loan is not a graduated payment
mortgage loan (except with respect to 30/40 Mortgage Loans) and the Mortgage
Loan does not have a shared appreciation or other contingent interest feature.
(z) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Purchase Date 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 first or, in the case of Second Lien Mortgage Loans, a second
lien priority 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 Mortgage Loan.
(aa) No Condemnation Proceeding. There have not been any
condemnation proceedings with respect to the Mortgaged Property and no Seller
has knowledge of any such proceedings.
(bb) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination and collection practices used by the originator,
each servicer of the Mortgage Loan and the applicable Seller with respect to the
Mortgage Loan have been in all 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 Second Lien Mortgage Loan and for which the mortgagee under
the first lien is collecting Escrow Payments) all such payments are in the
possession of, or under the control of, the applicable 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
any Seller have been capitalized under the Mortgage or the Mortgage Note. All
Mortgage Interest Rate adjustments have been made in strict compliance with
state and federal law and the terms of the related Mortgage Note. Any interest
required to be paid pursuant to state, federal and local law has been properly
paid and credited.
(cc) Conversion to Fixed Interest Rate. Except as allowed by Fannie
Mae or Freddie Mac or otherwise as expressly approved in writing by Buyer, with
respect to adjustable rate Mortgage Loans, the Mortgage Loan is not convertible
to a fixed interest rate Mortgage Loan.
Schedule 1-8
(dd) 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 any Seller or by any officer, director, or employee
of any Seller or any designee of any Seller or any corporation in which any
Seller or any officer, director, or employee had a financial interest at the
time of placement of such insurance.
(ee) Servicemembers Civil Relief Act. The Mortgagor has not notified
any Seller, and no Seller has any knowledge, of any relief requested or allowed
to the Mortgagor under the Servicemembers Civil Relief Act of 2003.
(ff) Appraisal. Except with respect to HELOCs originated in
accordance with the Underwriting Guidelines, the Asset File contains an
appraisal of the related Mortgaged Property signed prior to the funding of the
Mortgage Loan by a qualified appraiser, duly appointed by any Seller, 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 Mortgage 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 Mortgage
Loan was originated.
(gg) 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 applicable Seller maintains such statement in the Asset File.
(hh) Construction or Rehabilitation of Mortgaged Property. No
Mortgage 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.
(ii) 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 any 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 any 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.
(jj) Capitalization of Interest. The Mortgage Note does not by its
terms provide for the capitalization or forbearance of interest.
Schedule 1-9
(kk) No Equity Participation. No document relating to the Mortgage
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 Mortgage Note is not convertible to an ownership interest in the
Mortgaged Property or the Mortgagor and no Seller has financed nor owns directly
or indirectly, any equity of any form in the Mortgaged Property or the
Mortgagor.
(ll) Proceeds of Mortgage Loan. The proceeds of the Mortgage Loan
have not been and shall not be used to satisfy, in whole or in part, any debt
owed or owing by the Mortgagor to the applicable Seller or any Affiliate or
correspondent of such Seller, except in connection with a refinanced Mortgage
Loan; provided, however, that no such refinanced Mortgage Loan shall have been
originated pursuant to a streamlined mortgage loan refinancing program.
(mm) Origination Date. The origination date with respect to a
Mortgage Loan other than a Repurchased Mortgage Loan, REO Property or Delinquent
Mortgage Loan is no earlier than ninety (90) days prior to the related Purchase
Date (unless otherwise agreed by Buyer in writing).
(nn) No Exception. The Custodian has not noted any material
exceptions on a Asset Schedule with respect to the Mortgage Loan which would
materially adversely affect the Mortgage Loan or Buyer's interest in the
Mortgage Loan.
(oo) Mortgage Submitted for Recordation. The Mortgage either has
been or will promptly be submitted for recordation in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located.
(pp) Documents Genuine. Such Purchased Asset and all accompanying
collateral documents are complete and authentic and all signatures thereon are
genuine. Such Purchased Asset is a "closed" loan fully funded by the applicable
Seller and held in such Seller's name.
(qq) Bona Fide Loan. Such Purchased Asset arose from a bona fide
loan, complying with all applicable State and Federal laws and regulations, to
persons having legal capacity to contract and is not subject to any defense,
set-off or counterclaim.
(rr) Other Encumbrances. To the best of each Seller's knowledge, any
property subject to any security interest given in connection with such
Purchased Asset is not subject to any other encumbrances other than a stated
first mortgage, if applicable, and encumbrances which may be allowed under the
Underwriting Guidelines.
(ss) Description. Each Purchased Asset conforms to the description
thereof as set forth on the related Asset Schedule delivered to the Custodian
and Buyer.
(tt) Located in U.S. No collateral (including, without limitation,
the related real property and the dwellings thereon and otherwise) relating to a
Purchased Asset is located in any jurisdiction other than in one of the fifty
(50) states of the United States of America or the District of Columbia.
Schedule 1-10
(uu) Underwriting Guidelines. Each Purchased Asset has been
originated in accordance with the Underwriting Guidelines (including all
supplements or amendments thereto) previously provided to Buyer.]
(vv) Aging. Such Purchased Asset has not been subject to a
Transaction hereunder for more than 364 days.
(ww) Committed Mortgage Loans. Each Committed Mortgage Loan is
covered by a Take-out Commitment, does not exceed the availability under such
Take-out Commitment (taking into consideration mortgage loans which have been
purchased by the respective Take-out Investor under the Take-out Commitment and
mortgage loan which each Seller has identified to Buyer as covered by such
Take-out Commitment) and conforms to the requirements and the specifications set
forth in such Take-out Commitment and the related regulations, rules,
requirements and/or handbooks of the applicable Take-out Investor and is
eligible for sale to and insurance or guaranty by, respectively the applicable
Take-out Investor and applicable insurer. Each Take-out Commitment is a legal,
valid and binding obligation of each Seller enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(xx) Primary Mortgage Guaranty Insurance. Each Mortgage Loan is
insured as to payment defaults by a policy of primary mortgage guaranty
insurance in the amount required where applicable, and by an insurer approved,
by the applicable Take-out Investor, if applicable, and all provisions of such
primary mortgage guaranty insurance have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have been
paid. Each Mortgage Loan which is represented to Buyer to have, or to be
eligible for, FHA insurance is insured, or eligible to be insured, pursuant to
the National Housing Act. Each Mortgage Loan which is represented by the
applicable Seller to be guaranteed, or to be eligible for guaranty, by the VA is
guaranteed, or eligible to be guaranteed, under the provisions of Chapter 37 of
Title 38 of the United States Code. As to each FHA insurance certificate or each
VA guaranty certificate, the applicable Seller has complied with applicable
provisions of the insurance for guaranty contract and federal statutes and
regulations, all premiums or other charges due in connection with such insurance
or guarantee have been paid, there has been no act or omission which would or
may invalidate any such insurance or guaranty, and the insurance or guaranty is,
or when issued, will be, in full force and effect with respect to each Mortgage
Loan. There are no defenses, counterclaims, or rights of setoff affecting the
Mortgage Loans or affecting the validity or enforceability of any private
mortgage insurance or FHA insurance applicable to the Mortgage Loans or any VA
guaranty with respect to the Mortgage Loans.
(yy) Predatory Lending Regulations; High Cost Loans. None of the
Mortgage Loans are classified as High Cost Mortgage Loans.
(zz) Wet-Ink Mortgage Loans. With respect to each Mortgage Loan that
is a Wet-Ink Mortgage Loan, the Settlement Agent has been instructed in writing
by the applicable Seller to hold the related Mortgage Loan Documents as agent
and bailee for Buyer or Buyer agent and to promptly forward such Mortgage Loan
Documents in accordance with the provisions of the Custodial Agreement.
Schedule 1-11
(aaa) FHA Mortgage Insurance; VA Loan Guaranty. With respect to the
FHA Loans, the FHA Mortgage Insurance Contract is in full force and effect and
there exists no impairment to full recovery without indemnity to the Department
of Housing and Urban Development or the FHA under FHA Mortgage Insurance. With
respect to the VA Loans, the VA Loan Guaranty Agreement is in full force and
effect to the maximum extent stated therein. All necessary steps have been taken
to keep such guaranty or insurance valid, binding and enforceable and each of
such is the binding, valid and enforceable obligation of the FHA and the VA,
respectively, to the full extent thereof, without surcharge, set-off or defense.
Each FHA Loan and VA Loan was originated in accordance with the criteria of an
Agency for purchase of such Mortgage Loans.
(bbb) Revolving Period. Each HELOC provides for an initial period
(the "Revolving Period") during which the Mortgagor is required to make monthly
payments of interest payable in arrears and requires repayment of the unpaid
principal balance thereof over a period following the Revolving Period (the
"Repayment Period") which is not in excess of 120 months. As of the Purchase
Date no HELOC was in its Repayment Period. The Mortgage Interest Rate on each
Mortgage Loan adjusts periodically in accordance with the Credit Line Agreement
to equal the sum of the Index and the related Gross Margin. On each Adjustment
Date the related Seller has made interest rate adjustments on the Mortgage Loan
which are in compliance with the related Mortgage and Mortgage Note and
applicable law.
Schedule 1-12
PART B
REPRESENTATIONS WITH RESPECT TO REO PROPERTIES
The Sellers make the following representations and warranties to the
Buyer, with respect to each REO Property subject to a Transaction, that as of
the Purchase Date for the purchase of any REO Property subject to a Transaction
or owned by the REO Subsidiary and as of the date of this Repurchase Agreement
and any Transaction hereunder relating to such REO Property is outstanding or
the REO Subsidiary continues to own such REO Property and at all times while the
Repurchase Documents and any Transaction hereunder is in full force and effect.
For purposes of this Schedule 1 and the representations and warranties set forth
herein, a breach of a representation or warranty shall be deemed to have been
cured with respect to an REO Property if and when the Sellers have taken or
caused to be taken action such that the event, circumstance or condition that
gave rise to such breach no longer materially and adversely affects such REO
Property. With respect to any representations and warranties made to the best of
Sellers' knowledge, in the event that it is discovered that the circumstances
with respect to the related REO Property are not accurately reflected in such
representation and warranty notwithstanding the knowledge or lack of knowledge
of the Sellers, then, notwithstanding that such representation and warranty is
made to the best of the Sellers' knowledge, such REO Property may be assigned a
Market Value of zero.
(a) REO Properties as Described. The information set forth in the
Asset Schedule with respect to the REO Property is true and correct in all
material respects. The REO Property was acquired in accordance with the
Underwriting Guidelines
(b) Hazard Insurance. Unless otherwise approved by the Buyer, the
REO Property is insured by a fire and extended perils insurance policy and
against such other hazards as are customary under Seller's servicing procedures
in the area where the REO Property is located. If any portion of the REO
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.
(c) No Lien. The REO Property is no subject to any Liens except:
(i) the lien of current real property taxes and assessments
not yet due and payable or due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record; and
(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 REO Property or the use,
enjoyment, value or marketability thereof, including common charges
regarding condominiums and planned unit developments.
Schedule 1-13
(d) Ownership. REO Subsidiary is the sole owner and holder of the
REO Property.
(e) No Mechanics' Liens. Unless approved by the Buyer, there are not
mechanics' or similar liens or claims which have been filed for work, labor or
material affecting the REO Property which are or may become liens against the
REO Property.
(f) REO Property Undamaged. Unless otherwise set forth on the Asset
Schedule, the REO Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty in excess of insurance
coverage so as to affect materially and adversely the value of the REO Property.
There have not been any condemnation proceedings with respect to the REO
Property and no Seller has any knowledge of any such proceedings.
(g) Type of REO Property. The REO Property consists of a single
family residence erected thereon.
(h) REO Property. The Sellers shall not cause, or permit the REO
Subsidiary to cause title to any REO Property to be taken in the name of any
person other than REO Subsidiary without the consent of Buyer.
(i) Real Property Tax. All real property taxes including
supplemental or other taxes, if any, governmental assets, insurance premiums,
water, sewer and municipal charges, condominium charges and assessments,
leasehold payments or ground rents which previously became due and owing will
have been paid by the Sellers prior to any penalty or interest accruing or
proceeding commencing with respect thereto.
(j) Environmental Law. Sellers have not received any written notice
that there exists a violation of any local, state or federal environmental law,
rule or regulation with respect to the REO Property.
(k) Doing Business. All parties which have had any interest in the
REO Property, whether as owner, assignee, pledgee or otherwise, are (or, during
the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the REO Property is located, and (2) organized under the laws of
such state, or (3) qualified to do business in such state, or (4) federal
savings and loan associations or national banks having principal offices in such
state, or (5) not doing business in such state.
(l) Asset File. The deed and any other documents required to be
delivered by Sellers under this Agreement have been delivered to the Custodian.
Sellers are in possession of a complete, true and accurate Asset File, except
for such documents the originals of which have been delivered to the Custodian.
The deed is in recordable form and is acceptable for recording under the laws of
the jurisdiction in which the REO Property is located.
(m) Eviction Proceedings. Each eviction proceeding relating to an
REO Property has been properly commenced and Sellers are not aware of any valid
defense or counterclaim by anyone with respect thereto. The REO Property has
been serviced and maintained in compliance with all applicable laws and
regulations.
Schedule 1-14
(n) Trustee's Sale Guaranty. Sellers will deliver a valid trustee's
sale guaranty from a reputable title insurance company with respect to the REO
Property, if same is customarily provided in the related jurisdiction.
(o) No Violation of Law. There has been no violation of any law or
regulation or breach of any contractual obligation contained in any agreement
included in the Asset File, by Sellers or their predecessors, in connection with
the management of the REO Property.
(p) No Cooperative Units. The REO Property is neither a cooperative
nor a condotel unit, except to the extent the purchase of same has been approved
in writing by the Buyer.
(q) Illegal Activity. There is no illegal activity being conducted
on the REO Property which could serve as the basis for a claim or prosecution of
any action or proceeding seeking to impose civil or criminal liability on the
REO Subsidiary as the owner as assignee.
(r) Condominium Units. Solely with respect to REO Properties which
are condominium units, no Seller or any Affiliate is a "sponsor" or a nominee of
a "sponsor" under any plan of condominium organization affecting the unit and
the ownership and sale of any condominium unit will not violate any federal,
state or local law or regulation regarding condominiums or require registration,
qualification or similar action under such law or regulation.
(s) Mechanic's Liens. No Seller or any Affiliate has performed any
work on the REO Property which could give rise to the filing of a mechanics' or
materialmen's lien or liens in the nature thereof.
(t) Listing Agreements. Sellers have provided the Custodian with a
copy of each listing agreement with any real estate broker with respect to the
REO Property; and
(u) Lease Agreements Terminable. There are no existing lease
agreements with any tenant with respect to any REO Property which are not
terminable upon thirty (30) days' notice to the tenant.
Schedule 1-15
PART C
REPRESENTATIONS WITH RESPECT TO REO SUBSIDIARY LLC INTERESTS
The Sellers make the following representations and warranties to the
Buyer, with respect to the LLC Interests subject to a Transaction, that as of
the Purchase Date for the purchase of LLC Interests subject to a Transaction by
the Buyer from the Sellers or REO Subsidiary and as of the date of this
Repurchase Agreement and any Transaction hereunder relating to the LLC Interests
is outstanding and at all times while the Repurchase Documents and any
Transaction hereunder is in full force and effect. For purposes of this Schedule
1 and the representations and warranties set forth herein, a breach of a
representation or warranty shall be deemed to have been cured with respect to
the LLC Interests if and when the Sellers have taken or caused to be taken
action such that the event, circumstance or condition that gave rise to such
breach no longer adversely affects such LLC Interests. With respect to any
representations and warranties made to the best of Sellers' knowledge, in the
event that it is discovered that the circumstances with respect to the related
LLC Interest are not accurately reflected in such representation and warranty
notwithstanding the knowledge or lack of knowledge of the Sellers, then,
notwithstanding that such representation and warranty is made to the best of the
Sellers' knowledge, such LLC Interest may be assigned a Market Value of zero.
(a) LLC Interest. The LLC Interests constitute all the issued and
outstanding limited liability company interests of all classes of REO Subsidiary
interests and are not certificated. The Sellers shall not issue certificates
representing the LLC interest or issue additional limited liability company
interest other than the LLC Interests.
(b) Duly and Validly Issued. All of the shares of the LLC Interests
have been duly and validly issued and, if capital stock of a corporation, are
fully paid and nonassessable.
(c) Securities. None of the LLC Interests (i) are dealt in or traded
on securities exchanges or in securities markets, (ii) are by their terms
expressly subject to Article 8 of the Uniform Commercial Code of any
jurisdiction, (iii) constitute an investment company security or (iv) are held
in a securities account (in each case within the meaning of Section 8-103(c) of
the Uniform Commercial Code.
(d) Beneficial Owners. The Sellers are the sole record and
beneficial owner of, and has title to, the LLC Interests, free of any and all
Liens or options in favor of, or claims of, any other Person, except the Lien
created herein.
(e) Consents. All consents of majority in interest of the members of
the REO Subsidiary to the grant of the security interests provided herein to the
Sellers and to the Transactions provided for herein have been obtained and are
in full force and effect.
(f) First Priority Lien. The Lien granted hereunder is a first
priority Lien on the LLC Interests; and
(g) No Waiver. The Sellers have not waived or agreed to any waiver
under, or agreed to any amendment or other modification of, the Limited
Liability Company Agreement.
Schedule 1-16