EXHIBIT 10.6.1
September 13, 2005
American Home Mortgage Acceptance, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Transactions for Mortgage Loans
Ladies and Gentlemen:
Reference is made to the Master Repurchase Agreement, dated as of
March 29, 2004 (the "Master Repurchase Agreement"), by and among Xxxxxx Brothers
Inc. and Xxxxxx Commercial Paper Inc. (collectively "Buyer") and American Home
Mortgage Acceptance Inc. ("Seller"). Capitalized terms used herein but not
defined herein shall have the meanings given in the Master Repurchase Agreement.
This letter agreement (the "Letter Agreement") sets forth the terms
and conditions on which the Buyer may enter into Transactions with the Seller
with respect to the whole mortgage loans referenced on Schedule A attached
hereto (the "Mortgage Loans"). This Letter Agreement shall be deemed to
constitute a part of, and be read together with, the Master Repurchase
Agreement. In the event of any inconsistency between the Master Repurchase
Agreement and this Letter Agreement, this Letter Agreement shall prevail. This
Letter Agreement shall be governed by and construed in accordance with the laws
of the State of New York, without regard to its conflicts of laws principles.
In consideration of the willingness of the Buyer to enter into
Transactions for the Mortgage Loans, from time to time, the Seller and the Buyer
agree as follows:
1. Mortgage Loans. For all purposes of the Master Repurchase Agreement, all
references to Securities and Purchased Securities shall be deemed to include the
Mortgage Loans. This Letter Agreement shall apply to any Transaction for
Purchased Securities where the Purchased Securities are the Mortgage Loans,
without the requirement of any further action or notice being taken by the Buyer
or the Seller. The parties hereto acknowledge and agree that the Repurchase Date
for any Transaction for Mortgage Loans shall not extend beyond October 14, 2005.
The Seller expressly acknowledges and agrees that the Buyer shall not have any
obligation to make any future advances under the Mortgage Loans and any
requirements under the Mortgage Loans to disburse additional proceeds shall be
satisfied solely and exclusively by the Seller.
2. Definitions.
(a) The following definitions in Section 2 of the Master Repurchase
Agreement are hereby deleted in their entirety and replaced with the language
set forth below solely for purposes of any Transaction for the Mortgage Loans:
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"Buyer's Margin Percentage", 103.50%;
"Market Value", the price at which such Mortgage Loan could readily
be sold as determined by Buyer in its discretion, provided that
Market Value shall be deemed zero for any Mortgage Loan with respect
to which there is a breach of a representation or warranty made by
Seller in the Letter Agreement;
"Pricing Rate", the per annum percentage rate for determination of
the Price Differential, which shall equal LIBOR plus 0.50% (or after
the occurrence and during the continuance of an Event of Default on
the part of Seller, LIBOR plus 6.00%);
(b) The following definitions are hereby added to Section 2 of the Master
Repurchase Agreement for purposes of any Transaction for the Mortgage Loans:
"Affiliate" means, with respect to any Person, another Person that
directly or indirectly controls, or is under common control with, or
is controlled by, such Person. As used in this definition, "control"
(including its correlative meanings, "controlled by" and "under
common control with") means possession, directly or indirectly, of
power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
"Capital Lease", as applied to any Person or entity, shall mean any
lease of any property (whether real, personal or mixed) by that
Person or entity as lessee that, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person
or entity.
"Custodial Agreement" means that custodial agreement, dated as of
December 3, 2004, as amended by the First Amendment to Custodial
Agreement, dated as of June 10, 2005 and the Second Amendment to
Custodial Agreement, dated as of the date hereof (the "Second
Amendment") and as further amended, modified or supplemented from
time to time, by and among Buyer, Seller and Custodian. The form of
the Second Amendment is attached hereto as Schedule B.
"Custodian" means the custodian under the Custodial Agreement. The
initial custodian is Deutsche Bank National Trust Company.
"GAAP" means with respect to the financial statements or other
financial information of any Person, generally accepted accounting
principles in the United States that are in effect from time to
time.
"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
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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 ninety (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 of such
Person in respect of letters of credit or similar instruments issued
or accepted by banks and other financial institutions for account of
such Person; (e) Capital Leases of such Person; and (f) any of the
foregoing types of indebtedness of others guaranteed by such Person
(without duplication).
"LIBOR" means the rate per annum calculated two (2) Business Days
prior to each Repurchase Date determined by Buyer on the basis of
the offered rate for one month deposits of not less than U.S.
$1,000,000, that appears on the date of determination on Dow Xxxxx
Market Service Page 3750 as of 11:00 a.m., London time (or such
other page as may replace the Dow Xxxxx Market Service Page on that
service for the purposes of displaying London interbank offered
rates of major banks). All percentages resulting from any
calculations of LIBOR referred to in this Letter Agreement shall be
rounded up to the nearest multiple of 1/100 of 1% and all U.S.
Dollar amounts used in or resulting from such calculations shall be
rounded to the next higher cent.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the business, assets, property or condition (financial or
otherwise) of Seller, or (b) the validity or enforceability of (i)
the Master Repurchase Agreement (or any material provision thereof)
or (ii) the rights, remedies or interests of Buyer hereunder or
thereunder.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
other instrument, creating a valid, enforceable first or second lien
on, or a first or second priority ownership interest in an estate in
fee simple in, real property and the improvements thereon, securing
a mortgage note or similar evidence of indebtedness.
"Mortgage Note" means a note or other evidence of indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of
the debt evidenced by a Mortgage Note.
"Person" means an individual, partnership, limited liability
company, corporation, joint stock company, trust or unincorporated
organization or a governmental agency or political subdivision
thereof.
"Subsidiary" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other
ownership interests having such power only by
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reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management
of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of
Seller.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date in effect from time to time in the State of New
York; provided, that if by reason of mandatory provisions of law,
the perfection or the effect of perfection or non-perfection of the
security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than New York,
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or effect of perfection or
non-perfection.
(c) The following definitions in Section 2 of the Master Repurchase
Agreement are hereby deleted for purposes of any Transaction for the Mortgage
Loans: "Margin Excess", "Seller's Margin Amount" and "Seller's Margin
Percentage".
3. Margin Excess. Section 4(b) of the Master Repurchase Agreement (and all
references to Section 4(b) in any other Section of the Master Repurchase
Agreement) are hereby deleted in their entirety.
4. Purchase Price; Maximum Purchase Price. The Purchase Price with respect
to any Transaction for the Mortgage Loans shall be equal to, with respect to
each Mortgage Loan, 98% of the lesser of (a) the Market Value of such Mortgage
Loan and (b) the outstanding principal balance of such Mortgage Loan, provided
that the maximum Purchase Price with respect to all Transactions for the
Mortgage Loans shall be equal to $500,000,000.
5. Security Interest. Solely for purposes of any Transaction for the
Mortgage Loans, Section 6 of the Master Repurchase Agreement is hereby deleted
in its entirety and replaced with the following:
(a) Xxxxx and Seller intend that the Transactions hereunder be sales to
Buyer of the Mortgage Loans and not loans from Buyer to Seller secured by the
Mortgage Loans. However, in order to preserve Buyer's rights under the Master
Repurchase Agreement in the event that a court or other forum recharacterizes
the Transactions hereunder as loans, and as security for the performance by
Seller of all of Seller's obligations to Buyer under, the Master Repurchase
Agreement and the Transactions entered into pursuant to the Master Repurchase
Agreement, Seller grants to Buyer a security interest in the Mortgage Loans,
servicing records, purchase commitments, insurance and guarantees relating to
the Mortgage Loans, Mortgage Notes, Mortgages, income, any and all xxxxxx, any
and all servicing agreements and any and all collection accounts and escrow
accounts relating to the Mortgage Loans and all cash or other property or
amounts on deposit therein and any other general intangibles, instruments,
supporting obligations, and other assets relating to the Mortgage Loans or any
interest in the Mortgage Loans and the servicing of the Mortgage Loans and any
and all replacements or substitutions for,
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distributions on or proceeds of any and all of the foregoing (collectively, and
together with any other property or interests in which Seller grants a security
interest to Buyer, the "Collateral").
(b) Seller shall pay all fees and expenses associated with perfecting and
maintaining Buyer's security interest (and ownership interest) in the Collateral
(including the cost of filing financing statements under the Uniform Commercial
Code and recording assignments of Mortgage, as and when required by Buyer in its
discretion). Seller shall take such further actions as are necessary in order to
perfect Buyer's first priority security interest in any xxxxxx.
6. Payment, Transfer and Custody. Solely for purposes of any Transaction
for the Mortgage Loans, Section 7 of the Master Repurchase Agreement is hereby
deleted in its entirety and replaced with the following:
(a) On the Purchase Date for each Transaction, ownership of the Mortgage
Loans shall be transferred to Buyer or its designee (including Custodian)
against the simultaneous transfer of the Purchase Price to an account of Seller
specified in the Confirmation. Seller, simultaneously with the delivery to Buyer
or its designee (including Custodian) of the Mortgage Loans relating to each
Transaction, hereby sells, transfers, conveys and assigns to Buyer or its
designee (including Custodian) without recourse, but subject to the terms of the
Master Repurchase Agreement, all the right, title and interest of Seller in and
to the Mortgage Loans together with all right, title and interest in and to the
proceeds of any related insurance policies.
(b) In connection with each sale, transfer, conveyance and assignment, on
or prior to each Purchase Date with respect to each Mortgage Loan, Seller shall
deliver or cause to be delivered and released to Custodian the following
original documents (collectively the "Mortgage File"), pertaining to each of the
Mortgage Loans delivered therewith:
(i) the original Mortgage Note bearing all intervening
endorsements (or allonges), endorsed "Pay to the order of
___________, without recourse" and signed in the name of the last
endorsee (the "Last Endorsee") by an authorized officer (in the
event that the Mortgage Loan was acquired by the Last Endorsee in a
merger, the signature must be in the following form: "[the Last
Endorsee], successor by merger to [name of predecessor]"; in the
event that the Mortgage Loan was acquired or originated while doing
business under another name, the signature must be in the following
form: "[the Last Endorsee], formerly known as [previous name]");
(ii) the original of any guarantee executed in connection with
the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon
or a copy certified by Seller, its agent or the title company on
behalf of Seller that have been sent for recording;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording
thereon or copies certified by Seller, its agent or the title
company on behalf of Seller to have been sent for recording, if any;
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(v) the original assignment of Mortgage in blank for each
Mortgage Loan, in form and substance acceptable for recording and
signed in the name of the last endorsee thereof (in the event that
the Mortgage Loan was acquired by the last endorsee in a merger, the
signature must be in the following form: "[the last endorsee],
successor by merger to [name of predecessor]"; in the event that the
Mortgage Loan was acquired or originated while doing business under
another name, the signature must be in the following form: "[the
last endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage
with evidence of recording thereon or copies certified by Seller to
have been sent for recording, if any;
(vii) the original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage (if
any); and
(viii) the original power of attorney, if any, or a copy
thereof certified by Seller to have been sent for recording, for any
document described above.
(c) With respect to each Mortgage Loan delivered by Seller to Buyer or its
designee (including Custodian), Seller shall have executed an omnibus power of
attorney irrevocably appointing Buyer its attorney-in-fact with full power to
complete and record the assignment of Mortgage, complete the endorsement of the
Mortgage Note and take such other steps as may be necessary or desirable to
enforce Buyer's rights against such Mortgage Loans, the related Mortgage Files
and the servicing records.
(d) Buyer shall deposit the Mortgage Files representing the Mortgage
Loans, or direct that the Mortgage Files be deposited directly, with Custodian.
The Mortgage Files shall be maintained in accordance with the Custodial
Agreement.
(e) Any Mortgage Files not delivered to Buyer or its designee (including
Custodian) are and shall be held in trust by Seller or its designee for the
benefit of Buyer as the owner thereof. Seller or its designee shall maintain a
copy of the Mortgage File and the originals of the Mortgage File not delivered
to Buyer or its designee. The possession of the Mortgage File by Seller or its
designee is at the will of Buyer for the sole purpose of servicing the related
Mortgage Loan, and such retention and possession by Seller or its designee is in
a custodial capacity only. The books and records (including any computer records
or tapes) of Seller or its designee shall be marked appropriately to reflect
clearly the sale of the related Mortgage Loan to Buyer. Seller or its designee
(including Custodian) shall release its custody of the Mortgage File only in
accordance with written instructions from Buyer, unless such release is required
as incidental to the servicing of the Mortgage Loans or is in connection with a
repurchase of any Mortgage Loan by Seller.
7. Representations and Warranties. In addition to the representations and
warranties set forth in Section 10 of the Master Repurchase Agreement, but
solely for purposes of any Transaction for the Mortgage Loans pursuant to this
Letter Agreement, the following shall apply:
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(a) Seller represents and warrants to Buyer that as of the Purchase Date
for the purchase of any Mortgage Loans by Xxxxx from Seller and as of the date
of this Letter Agreement and any Transaction hereunder and at all times while
this Letter Agreement and any Transaction for Mortgage Loans hereunder is in
full force and effect:
(i) Organization. Seller is duly organized, validly existing
and in good standing under the laws of the State of Maryland and is
duly licensed, qualified, and in good standing in every state where
Seller transacts business and in any state where any Mortgaged
Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
Seller, as the case may be, therein, except where the failure to be
so licensed, qualified, and in good standing would not result in a
Material Adverse Effect.
(ii) No Litigation. There is no action, suit, proceeding,
arbitration or investigation pending or, to Seller's knowledge,
threatened against Seller which, either in any one instance or in
the aggregate, is likely to result in any Material Adverse Effect.
(iii) No Broker. Seller has not dealt with any broker,
investment banker, agent, or other person, except for Xxxxx, who may
be entitled to any commission or compensation in connection with the
sale of Mortgage Loans pursuant to the Master Repurchase Agreement.
(iv) Good Title to Collateral. The Mortgage Loans shall be
free and clear of any lien, encumbrance or impediment to transfer,
and Seller has good, valid and marketable title and the right to
sell and transfer such Mortgage Loans to Buyer free and clear of all
liens.
(v) Delivery of Mortgage File. With respect to each Mortgage
Loan, the Mortgage Note, the Mortgage, the assignment of Mortgage
and any other documents required to be delivered under this Letter
Agreement and the Custodial Agreement for the Mortgage Loans have
been or will be delivered to Custodian. Seller or its designee is in
possession of a complete, true and accurate Mortgage File with
respect to the Mortgage Loans, except for such documents that have
been delivered to Custodian.
(vi) Selection Process. The Purchased Mortgage Loans were
selected from among the outstanding mortgage loans in Seller's
portfolio as to which the representations and warranties set forth
in this Letter Agreement could be made and such selection was not
made in a manner so as to affect adversely the interests of Buyer.
(vii) No Untrue Statements. Neither this Letter Agreement nor
any written statement made, or any report or other document issued
or delivered or to be issued or delivered by Seller, pursuant to
this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of a material
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fact or omits to state a material fact necessary to make the
statements contained herein not misleading.
(viii) Origination Practices. The origination practices used
by Seller with respect to each Mortgage Loan (A) have been and are
in all respects legal and proper in the mortgage origination
business and (B) are in accordance with the underwriting guidelines
previously supplied by Seller to Buyer.
(ix) Performance of Agreement. Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform
each and every covenant contained in the Master Repurchase Agreement
on its part to be performed.
(x) Seller Not Insolvent. Seller is not, and with the passage
of time does not expect to become, insolvent.
(xi) No Event of Default. No default or Event of Default has
occurred and is continuing hereunder.
(xii) Financial Condition.
(A) The consolidated balance sheet of American Home
Mortgage Investment Corp. and its respective consolidated
Subsidiaries, as at March 31, 2005, and the related
consolidated statements of income and of cash flows for the
quarter ended on such date, copies of which have heretofore
been furnished to Buyer, are complete and correct and present
fairly in accordance with GAAP the consolidated or
consolidating financial condition of each such Person and its
Subsidiaries as at such dates, and the results of their
operations and their cash flows for the quarter then ended.
(B) All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods
involved.
(C) Neither American Home Mortgage Investment Corp. nor
any of its Subsidiaries had, at the date of the most recent
financial statements referred to above, any material guarantee
obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term commitment
(including any interest rate or foreign currency swap or
exchange transaction, or other financial derivative), that is
not reflected in the foregoing statements or in the notes
thereto.
(xiii) No Change. Since June 30, 2005, there has been no
development or event, nor any prospective development or event,
which has had or is reasonably expected to have a Material Adverse
Effect.
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(xiv) Corporate Power; Compliance with Law. Seller (a) has the
corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee,
to carry on its business as now being or as proposed to be
conducted, to originate, acquire and own Mortgage Loans, to sell and
repurchase such Mortgage Loans pursuant to this Agreement, and to
make, deliver and perform the Master Repurchase Agreement, and (b)
is in compliance in all material respects with all legal
requirements (including environmental law and the Real Estate
Settlement Procedures Act, the Home Ownership and Equity Protection
Act and related state law).
(xv) Enforceability. This Agreement has been duly and validly
executed and delivered by Seller and constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).
(xvi) Collateral; Collateral Security.
(A) If the Transactions are recharacterized as secured
financings, the provisions of this Agreement are effective to
create in favor of Buyer a valid security interest in all
right, title and interest of Seller in, to and under the
Collateral.
(B) Upon receipt by Custodian of each Mortgage Note,
endorsed in blank by a duly authorized officer of Seller,
Buyer shall have a fully perfected first priority security
interest therein, in the Mortgage Loan evidenced thereby, and
Seller's interest in the related Mortgaged Property.
(C) Financing Statements on Form UCC-1 having been filed
naming Buyer as "Secured Party" and Seller as "Debtor", and
describing the Collateral, the security interests granted
hereunder in the Collateral (other than Mortgage Notes) will
constitute fully perfected first priority security interests
under the Uniform Commercial Code in all right, title and
interest of Seller in, to and under such Collateral, which can
be perfected by filing under the Uniform Commercial Code.
(xvii) Taxes. Seller has filed all Federal income tax returns
and all other material tax returns that are required to be filed by
it and has paid all taxes due pursuant to such returns or pursuant
to any claims or assessment received by it, except for any such
taxes or assessments, if any, that are being appropriately contested
in good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves in conformity with GAAP have
been established. No tax lien has been filed against Seller.
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(xviii) Investment Company Act; Other Regulations. Seller is
not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company
Act of 1940, as amended.
(xix) Subsidiaries. Seller has provided to Buyer a true,
complete and correct schedule of all of its Subsidiaries in
existence as of the date hereof.
(b) Seller represents and warrants to Buyer that each Mortgage Loan sold
hereunder and each pool of Mortgage Loans sold in a Transaction hereunder, as of
the related Purchase Date, conforms in all material respects to the
representations and warranties set forth in Schedule C attached hereto. It is
understood and agreed that the representations and warranties set forth in
Schedule C hereto, if any, shall survive delivery of the respective Mortgage
File to Buyer or its designee (including Custodian).
(c) On the Purchase Date for any Transaction, Seller shall be deemed to
have made all the foregoing representations as of such Purchase Date.
8. Events of Default. In addition to the Events of Default set forth in
Section 11 of the Master Repurchase Agreement, but solely for purposes of any
Transaction for the Mortgage Loans pursuant to this Letter Agreement, the
following shall be deemed Events of Default on the part of Seller for all
purposes of the Master Repurchase Agreement:
(i) any governmental, regulatory, or self-regulatory authority
takes any action to remove, limit, restrict, suspend or terminate
the rights, privileges, or operations of Seller or any of its
Affiliates, including suspension as an issuer, lender or
seller/servicer of mortgage loans, which action results in a
Material Adverse Effect, and which continues for more than 24 hours;
(ii) Seller dissolves, merges or consolidates with another
entity (unless (A) it is the surviving party or (B) the entity into
which it merges has equity and a market value of at least that of
Seller immediately prior to such merger and such entity and
expressly assumes its obligations under the Master Repurchase
Agreement), or sells, transfers, or otherwise disposes of a material
portion of its business or assets, except for the sale or transfer
of Mortgage Loans in the ordinary course of business;
(iii) Buyer, in its reasonable good faith judgment, believes
that there has been a material adverse change in the business,
operations, corporate structure or financial condition of Seller or
that Seller will not meet any of its obligations under the Master
Repurchase Agreement or any other agreement between the parties;
(iv) Guarantor or any of its Subsidiaries shall fail to
perform or shall violate the Master Repurchase Agreement or any
other agreement or instrument between any of them and Buyer or any
of its Affiliates and such failure or violation continues unremedied
after any applicable grace period therefor, or Guarantor or any of
Guarantor 's Subsidiaries shall fail to pay when due or within any
applicable grace period therefor any portion of any single
obligation
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constituting Indebtedness of Guarantor or any of Guarantor's
Subsidiaries in excess of $2,500,000; or any default or other event
shall occur under or with respect to any agreement under which any
single obligation constituting Indebtedness of Guarantor or any of
Guarantor's Subsidiaries in excess of $2,500,000 was created or is
governed, the effect of which is to cause, or to permit the holder
or holder of such indebtedness to cause, such indebtedness to become
due prior to its stated maturity; or any single obligation
constituting indebtedness of Guarantor or any of Guarantor's
Subsidiaries in excess of $2,500,000 shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled payment), prior to the stated maturity thereof;
(v) A final judgment by any competent court in the United
States of America for the payment of money in an amount of at least
$2,500,000 is rendered against Seller, and the same remains
undischarged or unpaid for a period of thirty (30) days during which
execution of such judgment is not effectively stayed;
(vi) This Letter Agreement shall for any reason cease to
create a valid, first priority security interest in any of the
Mortgage Loans purported to be covered hereby;
(vii) any Person or entity or any group (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
of Persons and/or entities, shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended),
directly or indirectly, in one or more transactions, of securities
of Seller (or other securities convertible into such securities)
representing more than 50% of the combined voting power of all
securities of such entity entitled to vote in the election of
directors (other than the Person or entities owning such securities
on the date of this Letter Agreement or any other Affiliate of
Seller); or
(viii) Guarantor revokes its status as a REIT or ceases to
qualify as a REIT or Seller ceases to qualify as a qualified REIT
subsidiary as defined in Section 856 of the Internal Revenue Code.
9. Remedies. In Section 11(d)(i) of the Master Repurchase Agreement, the
phrase in the eighth through tenth lines which reads "the price therefor on such
date, obtained from a generally recognized source or the most recent closing bid
quotation from such a source," is hereby deleted in its entirety with respect to
any Transaction for Mortgage Loans and replaced with the following: "the Market
Value of the Mortgage Loans".
10. Guaranty. On the date hereof, American Home Mortgage Investment Corp.
(in such capacity, the "Guarantor") shall deliver to the Buyer a Guaranty of the
full and timely payment of the Repurchase Price with respect to any Transaction
for the Mortgage Loans, the form of which is attached hereto as Schedule D.
Schedule D-11
11. Indemnification. Seller agrees to hold Buyer harmless from and
indemnify Buyer (and its directors, officers, employees and agents) against all
liabilities, losses, damages, judgments, reasonably incurred out-of-pocket costs
and expenses of any kind that may be imposed on, incurred by or asserted against
Buyer (collectively, the "Costs") relating to or arising out of the Transactions
for Mortgage Loans or the Master Repurchase Agreement, including reasonable
legal costs and settlement costs, except if a court of competent jurisdiction
determines by final and nonappealable judgment that such losses, liabilities,
claims, damages or expenses result from the gross negligence or willful
misconduct of the indemnified party ("Excluded Causes"). Without limiting the
generality of the foregoing, Seller agrees to hold Buyer harmless from and
indemnify Buyer against all Costs with respect to all Mortgage Loans relating to
or arising out of any violation or alleged violation of any environmental law,
rule or regulation or any consumer credit laws, including ERISA, the Truth in
Lending Act, the Home Ownership and Equity Protection Act and/or the Real Estate
Settlement Procedures Act, that, in each case, results from anything other than
Excluded Causes. In any suit, proceeding or action brought by Buyer in
connection with any Mortgage Loan for any sum owing thereunder, or to enforce
any provisions of any Mortgage Loan, Seller will save, indemnify and hold Buyer
harmless from and against all expense, loss or damage suffered by reason of any
defense, set-off, counterclaim, recoupment or reduction or liability whatsoever
of the account debtor or obligor thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such
account debtor or obligor or its successors from Seller. Xxxxxx also agrees to
reimburse Buyer as and when billed by Xxxxx for all Buyer's ongoing due
diligence and auditing expenses and costs and expenses incurred in connection
with the enforcement or the preservation of Buyer's rights under the Master
Repurchase Agreement or any Transaction for Mortgage Loans contemplated hereby,
including the reasonable fees and disbursements of its counsel and other third
party agents. Seller hereby acknowledges that the obligation of Seller hereunder
is a recourse obligation of Seller.
12. Expenses. Seller shall be responsible for (a) all reasonable
out-of-pocket costs and expenses incurred by Buyer in connection with the
preparation, execution, delivery and administration of this Letter Agreement and
any amendment or waiver with respect thereto (including reasonable fees and
disbursements and other charges of counsel), (b) all out-of-pocket costs and
expenses incurred by Buyer in connection with the enforcement of this Letter
Agreement (including the fees and disbursements and other reasonable charges of
counsel) and (c) ongoing due diligence and auditing expenses of Buyer (including
reasonable fees and disbursements of third party agents).
13. Servicing. Seller (directly or through an Affiliate of Seller) shall
service the Mortgage Loans in accordance with standards as are customary with
other prudent mortgage lenders with respect to mortgage loans similar to the
Mortgage Loans and are acceptable to Buyer. In the event that Buyer must
liquidate the Mortgage Loans after an Event of Default, Seller acknowledges such
Mortgage Loans may be sold on a servicing-released basis and that no servicing
termination fee will be payable to Seller or any sub-servicers, if applicable.
Any sub-servicer that is not an Affiliate of Seller must be approved by Xxxxx.
14. Collateral Information. On each Purchase Date (with respect to
Mortgage Loans purchased on such date) and by no later than the fifth business
day of each month (with respect to all Mortgage Loans subject to Transactions as
of the last day of the preceding month), Seller
Schedule D-12
shall deliver to Buyer, either by direct modem electronic transmission or via a
computer diskette, information in Excel format with respect to each Mortgage
Loan the following data: (i) loan ID, (ii) borrower name, (iii) property
address, (iv) property city and state, (v) property zip code, (vi) credit limit,
(vii) current drawn balance, (viii) current interest rate, (ix) index, (x)
margin, (xi) interest rate adjustment frequency, (xii) maximum rate adjustment
(lifetime cap), (xiii) any other interest rate caps, (xiv) teaser rate and
expiry (if applicable), (xv) original term to maturity, (xvi) draw/repayment
period, (xvii) max draw, (xviii) paydown, (xix) draw in most recent period, (xx)
total draws, (xxi) origination date, (xxii) first payment date, (xxiii) lien
position, (xxiv) appraisal value (and purchase price if applicable), (xxv)
appraisal type, (xxvi) type of AVM used (if applicable), (xxvii) senior lien
balance(s), (xxviii) combined loan-to-value (or LTV as applicable), (xxix)
property type, (xxx) occupancy status, (xxxi) loan purpose, (xxxii) document
type (full, limited, stated, etc.), (xxxiii) asset verification (yes/no),
(xxxiv) FICO Score (current and original), (xxxv) date of FICO score, (xxxvi)
payment history, (xxxvii) prepayment penalty type & duration (if applicable),
and (xxxviii) flag for employee accounts.
Schedule D-13
Please indicate your agreement to the terms and conditions of this
Letter Agreement in the space provided below where upon this Letter Agreement
shall become a binding agreement between us.
Very truly yours,
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. X'Xxxx
------------------------------------
Name: Xxxxxx X. X'Xxxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxx X. X'Xxxx
------------------------------------
Name: Xxxxxx X. X'Xxxx
Title: Senior Vice President
Accepted and Agreed as of
the date first above written:
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Executive Vice President
Secretary, and General Counsel
Schedule D-14
