Exhibit 10.18.3
Execution Version
AMENDED AND RESTATED CUSTODIAL AGREEMENT
AMENDED AND RESTATED CUSTODIAL AGREEMENT (this "Custodial
Agreement"), dated as of November 26, 2003,
made by and among:
(i) AMERICAN HOME MORTGAGE CORP., a New York corporation
("AHM"),
AMERICAN HOME MORTGAGE INVESTMENT CORP., a
Maryland corporation, AMERICAN HOME
MORTGAGE HOLDINGS, INC., a Delaware
corporation, AMERICAN HOME MORTGAGE
ACCEPTANCE, INC., a Maryland corporation,
and COLUMBIA NATIONAL, INCORPORATED, a
Maryland corporation ("Columbia"), (each a
"Borrower", collectively the
"Borrowers");
(ii)
MORGAN STANLEY BANK (the "Lender Agent"); and
(iii) DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian for
the
Lender Agent pursuant to this Custodial
Agreement (in such capacity, the
"Custodian").
RECITALS
The Lender Agent, the Custodian, AHM and Columbia are parties
to
that certain Custodial Agreement, dated as
of August 2, 2003 (as amended,
supplemented or otherwise modified prior to
the date hereof, the "Existing
Custodial Agreement").
The Borrowers and the Lender Agent are parties to that certain
Amended and Restated Master Loan and
Security Agreement, dated as of the date
hereof (as amended, restated, supplemented
or otherwise modified and in effect
from time to time, the "Loan Agreement"),
pursuant to which the Lenders under
the Loan Agreement have agreed, subject to
the terms and conditions of the Loan
Agreement, to continue and to make, as
applicable, revolving credit loans to the
Borrowers to finance Eligible Mortgage
Loans (as defined therein) owned by the
Borrowers.
It is a condition precedent to the effectiveness of the Loan
Agreement that the Existing Custodial
Agreement shall be amended and restated in
its entirety by this Custodial
Agreement.
Accordingly, the Existing Custodial Agreement is hereby amended
and
restated in its entirety as set forth in
the heading and recitals above and as
follows:
Section 1. Definitions.
Unless otherwise defined herein, terms defined in the Loan
Agreement
shall have their respective assigned
meanings when used herein, and the
following terms shall have the following
meanings:
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"Affiliate" shall mean (i) with respect to the Lender Agent, MS
&
Co. and Morgan Stanley Dean Witter &
Co., and (ii) with respect to any other
Person, any "affiliate" of such Person as
such term is defined in the United
States Bankruptcy Code in effect from time
to time.
"Agency" shall mean Fannie Mae or Freddie Mac.
"Agency Guide" shall mean, with respect to Fannie Mae
securities,
the Fannie Mae Selling Guide and the Fannie
Mae Servicing Guide, with respect to
Freddie Mac securities, the Freddie Mac
Sellers' and Servicers' Guide, and with
respect to California Program securities,
the applicable program manual and the
servicer's guide, in each case including
all exhibits thereto, as such Agency
Guide may be amended, supplemented or
otherwise modified from time to time."
"Agency Program" shall mean a specific mortgage backed
securities
swap or purchase program under the relevant
Agency Guide or as otherwise
approved by the Agency with respect to
Mortgage Loans originated pursuant to the
Agency Guide.
"Assignment of Mortgage" means, with respect to any mortgage,
an
assignment of the mortgage, notice of
transfer or equivalent instrument in
recordable form, sufficient under the laws
of the jurisdiction wherein the
related mortgaged property is located to
reflect the assignment and pledge of
the mortgage.
"Authorized Representative" shall have the meaning specified in
Section 18 hereof.
"Business Day" shall mean any day other than (i) a Saturday or
Sunday or (ii) a day on which the New York
Stock Exchange, the Federal Reserve
Bank of New York or the Custodian is
authorized or obligated by law or executive
order to be closed.
"Collateral" shall have the meaning assigned thereto in the
Loan
Agreement.
"Cooperative Corporation" shall mean the cooperative apartment
corporation that holds legal title to a
Cooperative Project and grants occupancy
rights to units therein to stockholders
through Proprietary Leases or similar
arrangements.
"Cooperative Mortgage Loan" shall mean a Mortgage Loan that is
secured by a first lien on a perfected
security interest in Cooperative Shares
and the related Proprietary Lease granting
exclusive rights to occupy the
related Cooperative Unit in the building
owned by the related Cooperative
Corporation.
"Cooperative Project" shall mean all real property owned by a
Cooperative Corporation including the land,
separate dwelling units and all
common elements.
"Cooperative Shares" shall mean the shares of stock issued by a
Cooperative Corporation and allocated to a
Cooperative Unit and represented by a
stock certificate.
"Cooperative Unit" shall mean a specific unit in a Cooperative
Project.
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"Custodial Agreement" shall mean this Amended and Restated
Custodial
Agreement, as the same shall be amended,
restated, supplemented or otherwise
modified and in effect from time to time in
accordance with the terms hereof.
"Custodial Delivery Failure" shall have the meaning assigned to
such
term in Section 13(c).
"Custodial Identification Certificate" shall mean the
certificate
executed by the Borrowers in connection
with the pledge of Eligible Mortgage
Loans to the Lender Agent to be held by the
Custodian pursuant to this Custodial
Agreement, a form of which is attached as
Annex 3 hereto.
"Electronic Agent" shall have the meaning assigned to such term
in
Section 2 of the Electronic Tracking
Agreement.
"Electronic Tracking Agreement" shall mean the Electronic
Tracking
Agreement, dated as of the date hereof,
among the Borrowers, the Lender Agent,
the Electronic Agent and MERS, as the same
shall be amended, restated,
supplemented or otherwise modified and in
effect from time to time.
"Eligible
Cooperative Mortgage Loan" shall mean a Cooperative
Mortgage Loan as to which the
representations and warranties in Section 6.10 of
the Loan Agreement and the eligibility
criteria set forth in Part I of Schedule
1 of the Loan Agreement are correct.
"Eligible Mortgage Loan" shall mean a Mortgage Loan secured by
a
first mortgage lien on a one-to-four family
residential property (a) as to which
the representations and warranties in
Section 6.10 and Part I of Schedule 1 of
the Loan Agreement are correct and (b)
which is either an Agency Eligible
Mortgage Loan, an Alternate 'A' Mortgage
Loan, a California Program Mortgage
Loan, an Eligible Cooperative Mortgage
Loan, a Jumbo Mortgage Loan, a MERS
Designated Mortgage Loan or a Conduit
Eligible Mortgage Loan; provided, that in
no event shall any Eligible Mortgage Loan
be a security for purposes of any
securities or blue sky laws.
"Exception" shall mean, with respect to any Mortgage Loan, any
of
the following: the variances from the
requirements of Section 2 hereof with
respect to the Mortgage Files (giving
effect to the Borrowers' right to deliver
certified copies in lieu of original
documents in certain circumstances).
"MERS Designated Mortgage Loan" shall have the meaning assigned
to
such term in Section 3 of the Electronic
Tracking Agreement.
"MERS Identification Number" shall mean the eighteen digit
number
permanently assigned to each MERS
Designated Mortgage Loan.
"MERS Procedures Manual" shall mean the MERS Procedures Manual
attached as Exhibit B to the Electronic
Tracking Agreement, as it may be
amended, supplemented or modified from time
to time.
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"MERS Report" shall mean the schedule listing MERS Designated
Mortgage Loans and other information
prepared by the Electronic Agent pursuant
to the Electronic Tracking Agreement.
"MERS(R) System" shall mean the Electronic Agent's mortgage
electronic registry system, as more
particularly described in the MERS
Procedures Manual."
"Mortgage File" shall mean, as to each Mortgage Loan, those
documents listed in Section 2 of this
Custodial Agreement that are delivered to
the Custodian or which at any time come
into the possession of the Custodian.
"Mortgage Loan" shall mean a mortgage loan which the Custodian
has
been instructed to hold for the Lender
Agent pursuant to this Custodial
Agreement.
"Mortgage Loan Schedule" shall mean a list (in computer
readable
form) of Eligible Mortgage Loans to be
pledged pursuant to the Loan Agreement,
attached to a Custodial Identification
Certificate, setting forth, as to each
Eligible Mortgage Loan, the applicable
information specified on Annex 1 to this
Custodial Agreement.
"Mortgage Loan Schedule and Exception Report" shall mean a list
of
Eligible Mortgage Loans delivered by the
Custodian to the Lender Agent on each
Business Day, reflecting the Mortgage Loans
held by the Custodian for the
benefit of the Lender Agent, which includes
codes indicating any Exceptions with
respect to each Mortgage Loan listed
thereon. Each Mortgage Loan Schedule and
Exception Report shall set forth (a) the
Mortgage Loans being pledged to the
Lender Agent on any applicable Funding Date
as well as the Mortgage Loans
previously pledged to the Lender Agent and
held by the Custodian hereunder, (b)
any Mortgage Loan that has been released to
the Borrower pursuant to Section 5
hereof and the date such Mortgage Loan was
released and (c) all Exceptions with
respect thereto, with any updates thereto
from the time last delivered.
"Officer's Certificate" shall mean a certificate signed by a
Responsible Officer of the Person
delivering such certificate and delivered as
required by this Custodial Agreement.
"Opinion of Counsel" shall mean a written opinion letter of
counsel
in form and substance reasonably acceptable
to the party receiving such opinion
letter.
"Pledgee" shall have the meaning specified in Section 25
hereof.
"Proceeds" shall mean whatever is receivable or received when
Collateral or proceeds are sold, collected,
exchanged or otherwise disposed of,
whether such disposition is voluntary or
involuntary, and includes, without
limitation, all rights to payment,
including return premiums, with respect to
any insurance relating thereto.
"Proprietary Lease" shall mean a lease on (or occupancy
agreement
with respect to) a Cooperative Unit
evidencing the possessory interest of the
owner of the Cooperative Shares or the
Seller in such Cooperative Unit.
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"Recognition Agreement" shall mean, with respect to a
Cooperative
Mortgage Loan, an agreement executed by a
Cooperative Corporation which, among
other things, acknowledges the lien of the
Mortgage on the Mortgaged Property in
question.
"Report" shall mean a report in computer readable form prepared
by
the Custodian, which shall be in a form
acceptable to the Lender Agent and the
Custodian detailing, with respect to any
Mortgage Loan that has been released by
the Custodian, the following: (i) the
Mortgage Loan identification number and
borrower name, (ii) the location to which
such Mortgage File was delivered by
the Custodian and (iii) the date on which
such Mortgage File was released by the
Custodian.
"Review Procedures" shall have the meaning specified in Section
3(c)
hereof.
"Security Agreement" the specific security agreement creating a
security interest on and pledge of the
Cooperative Shares and the appurtenant
Proprietary Lease securing a Cooperative
Mortgage Loan.
"Trust Receipt" shall mean a Trust Receipt in the form annexed
hereto as Annex 2 delivered to the Lender
Agent by the Custodian covering all of
the Mortgage Loans subject to this
Custodial Agreement from time to time, as
reflected on the Mortgage Loan Schedule and
Exception Report attached thereto in
accordance with Section 3(e).
Section 2. Delivery of Mortgage Files.
No later than 11:00 p.m., New York City time, one (1) Business
Day
prior to any Funding Date (in the case of
the first 150 Eligible Mortgage Loans
delivered in connection with any Funding
Date) plus one additional Business Day
prior to any Funding Date (for each
additional 100 Eligible Mortgage Loans in
excess thereof delivered in connection with
any Funding Date) (provided, that,
such timing requirements shall be
inapplicable in the case of Mortgage Loans
already held by the Custodian for any other
reason), the Borrower shall release
to the Custodian the following original
documents pertaining to each Eligible
Mortgage Loan to be pledged to the Lender
Agent and included in the Borrowing
Base on such Funding Date, each of which
Mortgage Loans shall be identified in a
Mortgage Loan Schedule delivered therewith,
in a computer readable format
acceptable to the Borrower and the
Custodian, with a copy of such Mortgage Loan
Schedule delivered to the Lender Agent (or,
if another time is specified below
for such release or delivery, at such other
time):
(A)
With respect to
each Eligible Mortgage Loan:
(a) The original
Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________ without
recourse" and signed in the name of the last endorsee (the
"Last Endorsee") (in the event that the Mortgage Loan was
acquired by the Last Endorsee in a merger, the signature must
be in the following form: "[Last Endorsee], successor by
merger to [name of predecessor]"; in the event that the
Mortgage Loan was acquired or originated by the Last Endorsee
while doing business
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under another name, the signature must be in the following
form: "[Last Endorsee], formerly known as [previous name]").
(b) The original
of the guarantee executed in connection with the
Mortgage Note (if any).
(c) The original
Mortgage with evidence of recording thereon, or a
copy thereof together with an Officer's Certificate of the
applicable Borrower, title company, escrow agent or closing
attorney certifying that such represents a true and correct
copy of the original and that such original has been submitted
for
recordation in the appropriate governmental recording
office of the jurisdiction where the Mortgaged Property is
located.
(d) The
originals of all assumption, modification, consolidation
or extension agreements (if any) with evidence of recording
thereon, or copies thereof together with an Officer's
Certificate of the applicable Borrower, title company, escrow
agent or closing attorney certifying that such represent true
and correct copies of the originals and that such originals
have each been submitted for recordation in the appropriate
governmental recording office of the jurisdiction where the
Mortgaged Property is located (provided, that the Custodian
shall have no duty to verify whether any such documents
exist).
(e) Except in
the case of a MERS Designated Mortgage Loan, 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 (in the event that the
Mortgage Loan was acquired by the Last Endorsee in a merger,
the signature must be in the following form: "[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: "[Last Endorsee], formerly known as [previous
name]").
(f)
Except in the
case of a MERS Designated Mortgage Loan, the
originals of all intervening assignments of mortgage (if any)
with evidence of recording thereon, showing an unbroken chain
of title from the originator thereof to the Last Endorsee or
copies thereof together with an Officer's Certificate of the
applicable Borrower, title company, escrow agent or closing
attorney certifying that such represent true and correct
copies of the originals and that such originals have each been
submitted for recordation in the appropriate governmental
recording office of the jurisdiction where the Mortgaged
Property is located.
(g)
[intentionally omitted.]
(h) The original
of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage
Loan; provided, that
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the Custodian shall have no duty to verify whether any such
documents exist.
(i) Solely with
respect to each MERS Designated Mortgage Loan, a
MERS Report.
(B)
With respect to
each Eligible Cooperative Mortgage Loan:
(a) the original
Security Agreement;
(b) the original
Cooperative Shares;
(c) a stock
power executed in blank by the Person in whose name
the Cooperative Shares are issued;
(d) the
Proprietary Lease or occupancy agreement, accompanied by
an assignment in blank of such proprietary lease;
(e)
a Recognition
Agreement executed by the Cooperative
Corporation, which requires the Cooperative Corporation to
recognize the rights of the lender and its successors in
interest and assigns, under the Cooperative Mortgage Loan,
accompanied by an assignment of such recognition agreement in
blank;
(f) UCC-1
financing statements with recording information thereon
from the appropriate governmental recording offices if
necessary to perfect the security interest of the Cooperative
Mortgage Loan under the Uniform Commercial Code in the
jurisdiction in which the Cooperative Project is located,
accompanied by UCC-3 financing statements executed in blank
for recordation of the change in the secured party thereunder;
and
(g) any
guarantees, if applicable.
From time to time, the Borrowers shall forward to the Custodian
additional original documents or additional
documents evidencing any assumption,
modification, consolidation or extension of
a Mortgage Loan approved by the
applicable Borrowers, in accordance with
the terms of the Loan Agreement, and
upon receipt of any such other documents.
Subject to the inclusion of these
documents within the Custodial
Identification Certificate and Mortgage Loan
Schedule delivered by the Borrower, upon
receipt, the Custodian shall hold such
additional documents.
With respect to any documents which have been delivered or are
being
delivered to recording offices for
recording and have not been returned to the
applicable Borrower in time to permit their
delivery hereunder at the time
required, in lieu of delivering such
original documents, such Borrower shall
deliver to the Custodian a true copy
thereof with an Officer's Certificate of
the applicable Borrower, title company,
escrow agent or closing attorney
certifying that such copy is a true,
correct and complete copy of the original,
which has been transmitted
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for recordation. Each Borrower shall
deliver such
original documents to the Custodian
promptly when they are received.
Section 3. Custodial Identification
Certificate; Mortgage Loan Schedule and
Exception Report; Trust Receipt.
(a) No later than 12:00 p.m., New York City time, two (2)
Business
Days prior to each Funding Date, the
applicable Borrower shall provide the
Custodian with a Custodial Identification
Certificate and a related Mortgage
Loan Schedule (such information contained
on the Mortgage Loan Schedule shall be
delivered to the Custodian in
computer-readable form) with respect to the
Eligible Mortgage Loans to be pledged to
the Lender Agent on such Funding Date.
If the Custodian has received such
Custodial Identification Certificate by the
time set forth above, and has received a
Mortgage File for a Mortgage Loan
identified on the Mortgage Loan Schedule
attached thereto by the time set forth
in Section 2 hereof, then on such Funding
Date, the Custodian will deliver, via
electronic transmission acceptable to the
Lender Agent and the Custodian (or via
facsimile in the event of a delivery
failure via such electronic transmission),
no later than 11:00 a.m., New York City
time, to the Lender Agent a Mortgage
Loan Schedule and Exception Report for each
Mortgage Loan pledged hereunder on
such date, with Exceptions identified by
the Custodian as current as of the date
and time of delivery of such Mortgage Loan
Schedule and Exception Report.
(b) Notwithstanding and in addition to the foregoing, on each
Business Day, as of the opening of business
on such Business Day, the Custodian
shall deliver to the applicable Borrower
and the Lender Agent, via electronic
transmission acceptable to the Lender Agent
and the Custodian (or via facsimile
in the event of a delivery failure via such
electronic transmission), a
superceding Mortgage Loan Schedule and
Exception Report, in each case no later
than 12:00 noon, New York City time, which
shall supercede and replace any and
all previously delivered Mortgage Loan
Schedule and Exception Reports and which
shall reflect the Exceptions identified by
the Custodian as of the Business Day
prior to the date of delivery of the
applicable Mortgage Loan Schedule and
Exception Report.
(c) Each Mortgage Loan Schedule and Exception Report shall list
all
Exceptions using such codes as shall be in
form and substance agreed to by the
Custodian and the Lender Agent. Each
Mortgage Loan Schedule and Exception Report
shall be superseded by a subsequently
issued Mortgage Loan Schedule and
Exception Report. The delivery of each
Mortgage Loan Schedule and Exception
Report to the Lender Agent shall be the
Custodian's representation that, other
than the Exceptions listed as part of the
Exception Report: (i) all documents
required to be delivered in respect of such
Mortgage Loan pursuant to Section 2
of this Custodial Agreement have been
delivered and are in the possession of the
Custodian as part of the Mortgage File for
such Mortgage Loan, (ii) all such
documents have been reviewed by the
Custodian in accordance with the review
procedures attached hereto as Annex 4 (the
"Review Procedures") and appear on
their face to be regular and to relate to
such Mortgage Loan and to satisfy
(except in the case of a MERS Designated
Mortgage Loan) the requirements set
forth in Section 2 of this Custodial
Agreement, (iii) each Mortgage Loan (except
in the case of a MERS Designated Mortgage
Loan) identified on such Mortgage Loan
Schedule and Exception Report is being held
by the Custodian as the bailee for
the Lender Agent and/or its designees
pursuant to
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this Custodial Agreement and (iv) each MERS
Designated Mortgage Loan is being
held by MERS as the bailee for the Lender
Agent and/or its designees pursuant to
the Loan Agreement.
(d) In connection with a Mortgage Loan Schedule and Exception
Report
delivered hereunder by the Custodian, the
Custodian shall make no
representations as to and shall not be
responsible to verify (A) the validity,
legality, enforceability, due
authorization, recordability, sufficiency, or
genuineness of any of the documents
contained in each Mortgage File, (B) the
collectability, insurability, effectiveness
or suitability of any such Mortgage
Loan or (C) whether such Mortgage Loan is
an "Eligible Mortgage Loan" pursuant
to the Loan Agreement. Subject to the
following sentence, each of the Borrowers
and the Lender Agent hereby give the
Custodian notice that from and after the
Funding Date, the Lender Agent shall have a
security interest in each Mortgage
Loan identified on a Mortgage Loan Schedule
and Exception Report until such time
that the Custodian receives written notice
from the Lender Agent that the Lender
Agent no longer has a security interest in
such Mortgage Loan. In the event that
a Loan is not made to the applicable
Borrower prior to 5:00 p.m., New York City
time, on such Funding Date, upon written
notice thereof from the applicable
Borrower, acknowledged by the Lender Agent,
the Custodian shall hold or release
to such Borrower, pursuant to such
Borrower's written instructions, the Mortgage
Loans in respect of the Mortgage Loan
Schedule and Exception Report delivered by
the Custodian on such Funding Date. Each
Mortgage Loan Schedule and Exception
Report delivered to the Lender Agent by the
Custodian, via electronic
transmission acceptable to the Lender Agent
and the Custodian (or via facsimile
in the event of a delivery failure via such
electronic transmission), shall be
deemed superseded and canceled upon the
delivery of a subsequent Mortgage Loan
Schedule and Exception Report.
(e)
In addition to the foregoing, on the initial Funding Date, the
Custodian shall deliver to the Lender
Agent, no later than 11:00 a.m., New York
City time, a Trust Receipt with a Mortgage
Loan Schedule and Exception Report
attached thereto via electronic
transmission acceptable to the Lender Agent and
the Custodian (or via facsimile in the
event of a delivery failure via such
electronic transmission) (with the original
to follow on the next Business Day).
Each Mortgage Loan Schedule and Exception
Report delivered by the Custodian to
the Lender Agent shall supersede and cancel
the Mortgage Loan Schedule and
Exception Report previously delivered by
the Custodian to the Lender Agent
hereunder, and shall replace the then
existing Mortgage Loan Schedule and
Exception Report to be attached to the
Trust Receipt. Notwithstanding anything
to the contrary set forth herein, in the
event that the Mortgage Loan Schedule
and Exception Report attached to the Trust
Receipt is different from the most
recently delivered Mortgage Loan Schedule
and Exception Report, then the most
recently delivered Mortgage Loan Schedule
and Exception Report shall control and
be binding upon the parties hereto.
Section 4. Obligations of the Custodian.
(a) The Custodian shall maintain continuous custody of all
items
constituting the Mortgage Files in secure
facilities in accordance with
customary standards for such custody and
shall reflect in its records the
interest of the Lender Agent therein. Each
Mortgage Note (and Assignment of
Mortgage) shall be maintained in fire
resistant facilities.
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(b) With respect to the documents constituting each Mortgage
File
relating to a Mortgage Loan listed on the
related Mortgage Loan Schedule and
Exception report, the Custodian shall (i)
act exclusively as the bailee of, and
custodian for, the Lender Agent, (ii) hold
all documents constituting such
Mortgage File received by it for the
exclusive use and benefit of the Lender
Agent, and (iii) make disposition thereof
only in accordance with the terms of
this Custodial
