EXHIBIT 10.16.1
AMENDED AND RESTATED ADDENDUM TO
MASTER REPURCHASE AGREEMENT
Dated as of November 22, 2005
Between
AMERICAN HOME MORTGAGE CORP.
and
AMERICAN HOME MORTGAGE SERVICING, INC.
as a Seller,
and
AHM SPV I, LLC
as Buyer
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..........................................................1
Section 1.01.
Certain Defined
Terms.......................................1
Section 1.02.
Other
Terms................................................20
ARTICLE II AMOUNTS AND TERMS OF
PURCHASES.....................................21
Section 2.01.
Facility...................................................21
Section 2.02.
Making
Purchases...........................................21
Section 2.03.
Margin
Maintenance.........................................22
Section 2.04.
Collections................................................23
Section 2.05.
Repurchase or
Substitution Procedures......................24
Section 2.06.
Payments and
Computations, Etc.............................25
Section 2.07.
Intent of the
Sellers and the Buyer........................25
Section 2.08.
No Segregation
of Assets...................................26
Section 2.09.
Substitution...............................................27
ARTICLE III CONDITIONS OF
PURCHASES...........................................27
Section 3.01.
Conditions
Precedent to Initial Purchase from the Sellers..27
Section 3.02.
Conditions
Precedent to All Purchases......................28
ARTICLE IV REPRESENTATIONS AND
WARRANTIES.....................................29
Section 4.01.
Representations
of the Sellers.............................29
ARTICLE V
COVENANTS...........................................................34
Section 5.01.
Financial
Statements and Reports...........................34
Section 5.02.
Taxes and Other
Liens......................................35
Section 5.03.
Maintenance................................................36
Section 5.04.
Further
Assurances.........................................36
Section 5.05.
Insurance..................................................36
Section 5.06.
Accounts and
Records.......................................37
Section 5.07. Periodic
Visits............................................37
Section 5.08.
Notice of
Certain Events...................................38
Section 5.09.
Performance of
Certain Obligations.........................38
Section 5.10.
Notice of
Default..........................................38
Section 5.11.
Compliance with
Laws and Material Agreements...............38
Section 5.12.
Deposits of
Proceeds.......................................38
Section 5.13.
Closing
Instructions.......................................39
Section 5.14.
Special
Affirmative Covenants Concerning Transferred
Mortgage Assets............................................39
Section 5.15.
Limitations on
Mergers and Dissolutions....................39
Section 5.16.
Fiscal
Year................................................39
Section 5.17.
Actions with
Respect to Transferred Mortgage Assets. The
Sellers shall not:.........................................39
Section 5.18.
Tangible Net
Worth.........................................40
Section 5.19.
Employee Benefit
Plans.....................................40
Section 5.20.
Change of
Principal Office and Organization................40
Section 5.21.
[Reserved].................................................40
Section 5.22.
Delivery of Wet
Loans......................................40
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Section 5.23.
Change in
Business.........................................41
Section 5.24.
Separate Conduct
of Business...............................41
Section 5.25.
Sales, Liens,
Etc..........................................41
Section 5.26.
Operations and
Properties..................................41
Section 5.27.
Performance
Guarantor Credit Rating........................41
Section 5.28.
Hedges.....................................................41
Section 5.29.
Environmental
Compliance...................................42
Section 5.30.
Approved
Take-Out Investor Concentration Limits............42
ARTICLE VI
COVENANTS..........................................................42
Section 6.01.
Servicing..................................................42
Section 6.02.
Releases of
Mortgage Notes for Servicing...................43
ARTICLE VII EVENTS OF
DEFAULT.................................................43
Section 7.01.
Events of
Default..........................................43
Section 7.02.
Remedies...................................................45
ARTICLE VIII
INDEMNIFICATION..................................................48
Section 8.01.
Indemnities by
the Sellers.................................48
ARTICLE IX
MISCELLANEOUS......................................................50
Section 9.01.
Amendments,
Etc............................................50
Section 9.02.
Notices,
Etc...............................................50
Section 9.03.
Binding Effect;
Assignability..............................50
Section 9.04.
Costs, Expenses
and Taxes, Expenses and Taxes..............51
Section 9.05.
No
Proceedings.............................................51
Section 9.06.
GOVERNING
LAW..............................................52
Section 9.07.
Third Party
Beneficiary....................................52
Section 9.08.
Execution in
Counterparts..................................52
Section 9.09.
Repurchase
Transactions....................................52
Section 9.10.
Consent to
Jurisdiction; Waiver of Immunities..............52
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EXHIBITS
EXHIBIT A-I Form
of Deferred Purchase Price Note for AMERICAN HOME
MORTGAGE CORP.
EXHIBIT A-II Form of
Deferred Purchase Price Note for AMERICAN HOME
MORTGAGE SERVICING, INC.
EXHIBIT B-I Form
of Bill of Sale for AMERICAN HOME MORTGAGE CORP.
EXHIBIT B-II Form of Bill of Sale for AMERICAN
HOME MORTGAGE SERVICING,
INC.
SCHEDULES
SCHEDULE I
Trade Names
SCHEDULE II
Approved Take-Out Investors
SCHEDULE III
Litigation
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AMENDED AND RESTATED ADDENDUM TO MASTER REPURCHASE AGREEMENT
This Amended and Restated Addendum to Master Repurchase
Agreement,
dated as of November 22, 2005, (this "Agreement"), is made by and
among AMERICAN
HOME MORTGAGE CORP., a New York corporation, AMERICAN HOME MORTGAGE
SERVICING,
INC., a Maryland corporation (hereinafter, together with their
successors and
assigns, the "Sellers") and AHM SPV I, LLC, a Delaware limited
liability company
(hereinafter, together with its successors and assigns, the
"Buyer").
RECITALS
(1) Certain
terms which are capitalized and used throughout this
Agreement (in addition to those defined above) are defined in
Article I of this
Agreement or, if not defined therein, in the Master Repurchase
Agreement.
(2) The
Sellers and Buyer have entered into that certain Master
Repurchase Agreement, dated as of August 8, 2003, and the Addendum
thereto lieu
of Annexes I-VII referred to in the Master Repurchase Agreement in
order to
supplement and amend the Master Repurchase Agreement to enter
Transactions
involving Mortgage Assets (as defined below) (together, the "Master
Repurchase
Agreement").
(3) As of
August 8, 2003, the Buyer and Sellers supplemented and
amended the Master Repurchase Agreement with an Addendum to Master
Repurchase
Agreement.
(4) The
Addendum to Master Repurchase Agreement is in lieu of the
amended and restated Annexes I-VII referred to in the Master
Repurchase
Agreement.
(5) The
parties desire to amend and restate the Addendum to Master
Purchase Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined
Terms.
As used in this Agreement, the following terms shall have the
following
meanings (such meanings to be equally applicable to both the
singular and plural
forms of the terms defined):
"Adjusted Consolidated Funded Debt" means, on any date of
determination, the sum of (a) the Consolidated Funded Debt of AHMIC
and any
other Person which would be reflected on the consolidated balance
sheet of AHMIC
prepared in accordance with GAAP if such balance sheet were
prepared as of such
date of determination, less (b) 50% of any Subordinated Debt, less
(c) the
mortgage debt associated with the building and the land located at
538
Broadhollow Road, Melville, New York.
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"Administrative Agent" means Calyon, in its capacity as
administrative
agent for the Lenders, or any successor administrative agent.
"Administrative Agent Fee Letter" is defined in the Loan
Agreement.
"Advance" means any amount disbursed by the Lenders to the
Borrower,
whether such amount constitutes an original disbursement of funds
to the
Borrower under this Agreement or a continuation of an amount
outstanding.
"Advance Rate" means (i) with respect to a Conforming Loan
ninety-eight
percent (98%) or, if a Conforming FICO Score Trigger Event or
Conforming
Loan-to-Value Ratio Trigger Event has occurred and is continuing,
as reported to
the Collateral Agent by the Administrative Agent, then zero, (ii)
with respect
to a Jumbo Loan (other than a Super Jumbo Loan), ninety-eight
percent (98%) or
if a Non-Conforming FICO Score Trigger Event or Non-Conforming
Loan-to-Value
Ratio Trigger Event has occurred and is continuing, as reported to
the
Collateral Agent by the Administrative Agent, then zero; (iii) with
respect to a
Super Jumbo Loan, ninety-five percent (95%), or if a Non-Conforming
FICO Score
Trigger Event or Non-Conforming Loan-to-Value Ratio Trigger Event
has occurred
and is continuing, as reported to the Collateral Agent by the
Administrative
Agent, then zero and (iv) with respect to an Alt-A Loan,
ninety-seven percent
(97%) or, if a Non-Conforming FICO Score Trigger Event or
Non-Conforming
Loan-to-Value Ratio Trigger Event has occurred and is continuing,
as reported to
the Collateral Agent by the Administrative Agent, then zero.
"Advanced Funds" means funds advanced to an escrow agent for
purposes
of funding a Mortgage Loan to be pledged hereunder.
"Adverse Claim" means a lien, security interest, or other charge
or
encumbrance, or any other type of preferential arrangement.
"Affiliate" of any Person means (a) any other Person that, directly
or
indirectly, controls, is controlled by, or is under common control
with, such
Person, or (b) any other Person who is a director, officer or
employee (i) of
such Person, or (ii) of any Person described in the preceding
clause (a). For
purposes of this definition, the term "control" (and the terms
"controlled by"
and "under common control with"), as used with respect to any
Person, shall mean
the possession or ownership, directly or indirectly, of the power
either (x) to
direct or cause the direction of the management and policies of
such Person,
whether by contract or otherwise, or (y) vote 10% or more of the
securities
having ordinary power in the election of directors of such
Person.
"Aggregate Collateral Value" means an amount equal to the sum of
the
products of the book values (as determined in accordance with GAAP)
of the
consolidated assets of AHMIC and its Subsidiaries, such assets
being categorized
in the classes set forth on the calculation schedule that is part
of Exhibit E
attached to the Credit Agreement, times the percentage multiplier
for each such
class set forth on such calculation schedule.
"Agreement" means this Amended and Restated Addendum to Master
Repurchase Agreement, as amended, modified or supplemented from
time to time.
"AHMIC" means American Home Mortgage Investment Corp., a
Maryland
corporation.
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"Alt-A Loan" means a Mortgage Loan (other than a Conforming Loan or
a
Jumbo Loan) that (1) does not conform to the conventional
underwriting standards
of Fannie Mae, Freddie Mac or Ginnie Mae but that is underwritten
in a manner
designed to be purchased by an Approved Take-Out Investor (other
than Fannie
Mae, Freddie Mac or Ginnie Mae), within guidelines generally
acceptable to
industry norms for "Alt-A" loans, (2) has a demonstrated secondary
market and is
readily securitizable, and (3) matches all applicable requirements
for purchase
under the requirements of a Take Out Commitment or Hedge
specifically issued for
the purchase of such Mortgage Loan.
"Alternate Base Rate" means, with respect to any Group Bank on
any
date, a fluctuating rate of interest per annum equal to the higher
of:
(a) the rate of interest most recently announced by such Group
Bank as its base rate, changing when and as said base rate
changes;
or
(b) the Federal Funds Rate (as defined below) most recently
determined by the Administrative Agent plus 1.0% per annum.
For purposes of this definition, "Federal Funds Rate" means, for
any
period, a fluctuating interest rate per annum equal (for each day
during such
period) to (i) the weighted average of the rates on overnight
federal funds
transactions with members of the Federal Reserve System arranged by
federal
funds brokers, as published for such day (or, if such day is not a
Business Day,
for the immediately preceding Business Day) by the Federal Reserve
Bank of New
York; or (ii) if such rate is not so published for any day that is
a Business
Day, the average of the quotations for such day on such
transactions received by
the Administrative Agent from three federal funds brokers of
recognized standing
selected by it. The Alternate Base Rate is not necessarily intended
to be the
lowest rate of interest determined by any Group Bank in connection
with
extensions of credit.
"Amsterdam" has the meaning specified in the preamble of this
Agreement.
"Approved Hedge Counterparty" means:
(a) Fannie Mae, Freddie Mac or Ginnie Mae, or
(b) any Person with short-term ratings of at least P-1 from
Moody's and either at least A-1 from S&P or at least F1 from
Fitch, or
long-term unsecured debt ratings (or in the case of a bank without
such
ratings that is the principal subsidiary of a bank holding company,
the
rating of the bank holding company) of at least Aa2 by Moody's,
and
either at least AA from S&P or at least AA from Fitch, or
(c) any Person with short-term ratings of at least P-1 from
Moody's, and either at least A-1 from S&P or at least F1 from
Fitch, or
long-term unsecured debt ratings (or in the case of a bank without
such
ratings that is the principal subsidiary of a bank holding company,
the
rating of the bank holding company) of at least A2 from Moody's,
and
either at least A from S&P or at least A from Fitch, limited to
a
concentration limit of 50% of the concentration percentage for
such
Person as shown on Schedule II, or such other concentration
percentage
approved by the Majority Banks, or
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(d) all other Persons as may be approved by the Majority
Banks, which approvals may be subject to certain concentration
limits;
provided that (i) except for an Approved Hedge Counterparty
defined
above in section (d), if an Approved Hedge Counterparty has a
short-term rating
or a long-term unsecured debt rating at the time such Person
becomes an
"Approved Hedge Counterparty" and such Person's short-term ratings
or long-term
unsecured debt ratings are subsequently downgraded or withdrawn,
such Person
shall cease to be an "Approved Hedge Counterparty"; provided,
further, that with
respect to any Hedges issued by such Person prior to the date of
such downgrade
or withdrawal, such Person shall cease to be an "Approved Hedge
Counterparty"
sixty (60) days following such downgrade or withdrawal; and (ii) if
an Approved
Hedge Counterparty does not have a short-term rating or a long-term
unsecured
debt rating, such Person shall cease to be an "Approved Hedge
Counterparty" upon
prior written notice from the Administrative Agent which shall
provide such
notice if the Administrative Agent has (or if the Majority Banks
notify the
Administrative Agent that they have) good faith concerns about the
future
performance of such Person; provided, further, that with respect to
any Hedges
issued by such Person prior to such notice, such Person shall cease
to be an
"Approved Hedge Counterparty" sixty (60) days following such
notice.
"Approved Take-Out Investor" means:
(a) Fannie Mae, Freddie Mac or Ginnie Mae, or
(b)
any Person with short-term ratings of at least P-1 from
Moody's, and either at least A-1 from S&P or at least F1 from
Fitch, or
long-term unsecured debt ratings (or in the case of a bank without
such
ratings that is the principal subsidiary of a bank holding company,
the
rating of the bank holding company) of at least Aa2 by Moody's,
and
either at least AA from S&P, or at least AA from Fitch, or
(c) any Person with short-term ratings of at least P-1 from
Moody's and either at least A-1 from S&P or at least F1 from
Fitch, or
long term unsecured debt ratings (or in the case of a bank without
such
ratings that is the principal subsidiary of a bank holding company,
the
rating of the bank holding company) of at least A2 from Moody's,
and
either at least A from S&P or at least A from Fitch, limited to
a
concentration limit of 50% of the concentration percentage for
such
Person as shown on Schedule II, or such other concentration
percentage
approved by the Majority Banks, or
(d) all other Persons as may be approved by the Majority
Banks, which approvals may be subject to certain concentration
limits;
provided that (i) except for an Approved Take-Out Investor
defined
above in section (d), if an Approved Take-Out Investor has a
short-term rating
or a long-term unsecured debt rating at the time such Person
becomes an
"Approved Take-Out Investor" and such Person's short-term ratings
or long-term
unsecured debt ratings are subsequently downgraded or withdrawn,
such Person
shall cease to be an "Approved Take-Out Investor"; provided,
further, that with
respect to any Take-Out Commitments issued by such Person prior to
the date of
such downgrade or withdrawal, such Person shall cease to be an
"Approved
Take-Out Investor" sixty (60) days
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following such downgrade or withdrawal; and (ii) if an Approved
Take-Out
Investor does not have a short-term rating or a long-term unsecured
debt rating,
such Person shall cease to be an "Approved Take-Out Investor" upon
prior written
notice from the Administrative Agent which shall provide such
notice if the
Administrative Agent has (or if the Majority Banks notify the
Administrative
Agent that they have) good faith concerns about the future
performance of such
Person; provided, further, that with respect to any Take-Out
Commitments issued
by such Person prior to such notice, such Person shall cease to be
an "Approved
Take-Out Investor" sixty (60) days following such notice.
As of the date of this Agreement, Schedule II hereto sets forth
the
Approved Take-Out Investors pursuant to the preceding clauses (b)
and (c) (and
any applicable concentration limits). Schedule II shall be updated
from time to
time as Approved Take-Out Investors are added or deleted or
concentration limits
are changed pursuant to the preceding clauses (b) and (c).
"Assignment and Acceptance" has the meaning set forth in the
Loan
Agreement.
"Bank" means each of Calyon, Lloyds, ABN AMRO, SG and JPMorgan and
each
respective Eligible Assignee (as defined in the Loan Agreement)
that shall
become a party to the Loan Agreement pursuant to an Assignment and
Acceptance
and in accordance with section 13.9 of the Loan Agreement.
"Barton" has the meaning ascribed to it in the Loan Agreement.
"Business Day" means (a) a day on which (i) commercial banks in
New
York City, New York and Chicago, Illinois are not authorized or
required to be
closed and (ii) commercial banks in the State in which the
Collateral Agent has
its principal office are not authorized or required to be closed,
and (b) if
this definition of "Business Day" is utilized in connection with a
Eurodollar
Advance, a day on which dealings in United States dollars are
carried out in the
London interbank market.
"Calyon" means Calyon New York Branch and its successors and
assigns.
"Calyon Group" means LaFayette, and each Group Bank of
LaFayette.
"Code" means the Internal Revenue Code of 1986, as amended from
time to
time.
"Collateral" means Property that is subject to a Lien for the
benefit
of the holders of the Obligations.
"Collateral Agency Agreement" means the Amended and Restated
Collateral
Agency Agreement, dated as of the date hereof, among the Buyer, as
borrower, the
Collateral Agent and the Administrative Agent, substantially in the
form of
Exhibit D to the Loan Agreement, as amended, supplemented, restated
or otherwise
modified from time to time.
"Collateral Agent" means Deutsche Bank National Trust Company, and
its
successors and assigns.
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"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at all
times, an amount equal to the Advance Rate for such Eligible
Mortgage
Loan times the least of:
(1) the lesser of the original principal amount of
such Eligible Mortgage Loan or the acquisition price paid by
the
related Originator on the closing and funding of such Eligible
Mortgage
Loan;
(2) a ratable amount determined by multiplying (a)
the weighted average Market Value of all Mortgage Loans owned by
the
Originators or the Borrower, as reflected on the most recent
Collateral
Agent Daily Report (it being understood that the Servicer shall
provide
to the Collateral Agent such Market Values as of the close of
business
on the last Business Day of the previous week) (or, while a Default
or
Event of Default is continuing, more frequently if so directed by
the
Administrative Agent) times (b) the original principal amount of
such
Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing
or upon the direction of any Managing Agent, the Market Value of
such
Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of
collected funds therein that is not subject to any Lien in favor of
any
Person other than the Lien in favor of the Administrative Agent for
the
benefit of the holders of the Obligations;
provided, however, that
(a) at any time, the portion of total Collateral Value that
may be attributable to Jumbo Loans shall not exceed fifty percent
(50%)
of the Maximum Facility Amount;
(b) at any time, the portion of total Collateral Value that
may be attributable to Super Jumbo Loans shall not exceed three
percent
(3%) of the Maximum Facility Amount, which percentage is a sublimit
of
the limitation set forth in clause (a), equal to 6% of the 50%
set
forth in clause (a) above;
(c) at any time, the portion of total Collateral Value that
may be attributable to
Alt-A Loans shall not exceed thirty-five percent
(35%) of the Maximum Facility Amount;
(d) at any time, the portion of total Collateral Value that
may be attributable to Non-Conforming Loans shall not exceed
fifty
percent (50%) of the Maximum Facility Amount;
(e) at any time, the portion of total Collateral Value that
may be attributable to Mortgage Loans with a Loan-to-Value
Ratio
greater than 95% shall not exceed five percent (5%) of the
Maximum
Facility Amount;
(f) at any time, the portion of total Collateral Value that
may be attributable to Eligible Mortgage Loans (a) with a FICO
Score
less than or equal to 640 shall not exceed
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twenty-five percent (25%) of the Maximum Facility Amount and (b)
with a
FICO Score less than or equal to 620 shall not exceed five percent
(5%)
of the Maximum Facility Amount;
(g) at any time, the portion of total Collateral Value that
may be attributable to Mortgage Loans for which the Mortgage Notes
have
been withdrawn pursuant to Section 3.5 of the Collateral Agency
Agreement shall not exceed 2.5% of the Maximum Facility Amount;
(h) [Reserved]
(i) at any time, the portion of total Collateral Value that
may be attributable to Mortgage Loans that have been Eligible
Mortgage
Loans owned by the Borrower for more than 90 days shall be
zero;
provided that, this clause (i) shall not apply to 5% of the
total
Collateral Value that may be attributable to Mortgage Loans that
have
been Eligible Mortgage Loans owned by the Borrower for more than
90
days but less than 180 days;
(j) a Mortgage Loan that ceases to be an Eligible Mortgage
Loan shall have a Collateral Value of zero;
(k) at any time, (A) except the first five and last five
Business Days of any month, the portion of total Collateral Value
that
may be attributable to Wet Loans shall not exceed thirty percent
(30%)
of the Maximum Facility Amount, and (B) during the first five and
last
five Business Days of any month, the portion of total Collateral
Value
that may be attributable to Wet Loans shall not exceed fifty
percent
(50%) of the Maximum Facility Amount (it being understood that on
any
day the Collateral Value of a Wet Loan with respect to which
the
related Principal Mortgage Documents have not been delivered to
the
Collateral Agent within nine (9) Business Days after the date
of
origination of the Wet Loan shall be zero until such Principal
Mortgage
Documents are so delivered).
(l) at any time, a Mortgage Loan with respect to which the
related Obligor is sixty (60) days or more in payment default,
shall
have a Collateral Value of zero.
"Collection Account" means the account established by the Buyer
pursuant to Section 2.7(b) of the Loan Agreement.
"Collections" means, with respect to any Mortgage Asset, all
cash
collections (other than in respect of escrows for taxes and
insurance premiums
payable under the related Mortgage Loan) and other cash proceeds of
such
Mortgage Asset.
"Confirmation" is defined in Section 2.02(a) hereto.
"Conforming FICO Score Trigger Event" means, with respect to
Conforming
Loans, that (A)(i) the Conforming Pool Weighted Average FICO Score
has been
reported, in a Collateral Agent Daily Report, as less than 675 but
more than
650, (ii) a period of ten (10) days has elapsed from the date of
receipt of such
report by the Administrative Agent and (iii) the Servicer has not
provided to
the Administrative Agent a revised Conforming Pool Weighted Average
FICO Score
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that is at least 675 or (B)(i) the Conforming Pool Weighted Average
FICO Score
has been reported, in a Collateral Agent Daily Report, as less than
650, (ii) a
period of five (5) days has elapsed from the date of receipt of
such report by
the Administrative Agent and (iii) the Servicer has not provided to
the
Administrative Agent a revised Conforming Pool Weighted Average
FICO Score that
is at least 675.
"Conforming Loan" means (i) a Mortgage Loan that complies with
all
applicable requirements for purchase under a Fannie Mae, Freddie
Mac or other
similar Governmental Authority standard form of conventional
mortgage loan
purchase contract, then in effect, or (ii) an FHA Loan or a VA
Loan.
"Conforming Loan-to-Value Ratio Trigger Event" means, with respect
to
Conforming Loans, that (A)(i) the weighted average Loan-to-Value
Ratio has been
reported, in a Collateral Agent Daily Report, as greater than 83%
but equal to
or less than 90%, (ii) a period of ten (10) days has elapsed from
the date of
receipt of such report by the Administrative Agent and (iii) the
Servicer has
not provided to the Administrative Agent a revised weighted
average
Loan-to-Value Ratio that is equal to or less than 83% or (B)(i) the
weighted
average Loan-to-Value Ratio has been reported, in a Collateral
Agent Daily
Report, as greater than 90%, (ii) a period of five (5) days has
elapsed from the
date of receipt of such report by the Administrative Agent and
(iii) the
Servicer has not provided to the Administrative Agent a revised
weighted average
Loan-to-Value Ratio that is equal to or less than 83%.
"Conforming Pool Weighted Average FICO Score" means the ratio of
(a)
the sum, for all Conforming Loans, of the product for each
Conforming Loan of
(i) its FICO Score and (ii) its original principal balance to (b)
the sum of the
original principal balances of all Conforming Loans.
"Credit and Collection Policy" has the meaning ascribed to the
term
Originator's Credit and Collection Policy as set forth in the Loan
Agreement.
"Debtor Laws" means all applicable liquidation,
conservatorship,
bankruptcy, fraudulent transfer or conveyance, moratorium,
arrangement,
receivership, insolvency, reorganization or similar laws from time
to time in
effect affecting the rights of creditors generally.
"Default" means any condition or event that, with the giving of
notice
or lapse of time or both and unless cured or waived, would
constitute an Event
of Default.
"Default Rate" has the meaning ascribed to such term in the
Loan
Agreement.
"Deferred Purchase Price" means the portion of the Purchase Price
of
Purchased Mortgage Assets purchased on any Purchase Date exceeding
the amount of
the Purchase Price under Section 2.02 to be paid in cash. The
obligations of the
Buyer in respect of the Deferred Purchase Price shall be evidenced
by the
Buyer's subordinated promissory note in the form of Exhibit A-I or
Exhibit A-II
hereto.
"Delinquent Mortgage Loan" means a Mortgage Asset under which
the
Obligor is 30 or more days in payment default or the Obligor has
taken any
action, or suffered any event of the type described in Sections
8.1(f), 8.1(g)
or 8.1(h) of the Loan Agreement or is in foreclosure.
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"Delinquent Ratio" means as of the end of any Collection Period,
the
ratio of (i) the principal amount of all Mortgage Loans that were
Delinquent
Mortgage Loans at such time, to (ii) the aggregate principal amount
of all
Mortgage Loans at such time.
"Eligible Institution" means any depository institution,
organized
under the laws of the United States or any state, having capital
and surplus in
excess of $200,000,000, the deposits of which are insured to the
full extent
permitted by law by the Federal Deposit Insurance Corporation and
that is
subject to supervision and examination by federal or state banking
authorities;
provided that such institution also must have short-term debt
ratings no lower
than P-1 by Moody's and A-1 by S&P and, if rated, F1 by Fitch.
If such
depository institution publishes reports of condition at least
annually,
pursuant to law or to the requirements of the aforesaid supervising
or examining
authority, then the combined capital and surplus of such
corporation shall be
deemed to be its combined capital and surplus as set forth in its
most recent
report of condition so published.
"Eligible Mortgage Asset" means an Eligible Mortgage Loan.
"Eligible Mortgage Collateral" means Eligible Mortgage Loans and
the
Collection
Account.
"Eligible Mortgage Loan" means a Mortgage Loan:
(a) that (i)
is a closed and fully funded Mortgage Loan, (ii) has
a maximum term to maturity of 30 years and the proceeds of which
were used
either to finance a portion of the purchase price of a Property
encumbered by
the related Mortgage or to refinance a loan secured by such
Property, (iii) is
secured by a perfected first-priority Lien on residential real
Property
consisting of land and a one-to-four family dwelling thereon which
is completed
and ready for owner occupancy, including townhouses and
condominiums and (iv)
was underwritten according to the applicable Seller's Underwriting
Guidelines
and was originated or purchased by one of the Originators;
(b) that is a
Conforming Loan, a Jumbo Loan or an Alt-A Loan;
(c) in which
the Administrative Agent has been granted and
continues to hold a perfected, first-priority, security interest
for the benefit
of the holders of the Obligations;
(d) for which
the Mortgage Note is payable to or endorsed (without
recourse) in blank and each of such Mortgage Loan and the related
Mortgage Note
is a legal, valid and binding obligation of the Obligor
thereof;
(e) for which,
other than in respect of Wet Loans, the Principal
Mortgage Documents have been received by the Collateral Agent and
are in form
and substance acceptable to the Collateral Agent;
(f) that, upon
pledge thereof under this Agreement and application
of any related Advance to pay off any prior lienholder as required
by the
Collateral Agency Agreement and hereunder, together with the
related Mortgage
Loan Collateral, is owned beneficially by
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Borrower free and clear of any Lien of any other Person other than
the
Administrative Agent for the benefit of the holders of the
Obligations;
(g) that,
together with the related Mortgage Loan Collateral, does
not contravene any Governmental Requirements applicable thereto
(including,
without limitation, the Real Estate Settlement Procedures Act of
1974, as
amended, and all laws, rules and regulations relating to usury,
truth-in-lending, fair credit billing, fair credit reporting, equal
credit
opportunity, fair debt collection practices, privacy and other
applicable
federal, state and local consumer protection laws) and with respect
to which no
party to the related Mortgage Loan Collateral is in violation of
any
Governmental Requirements (or procedure prescribed thereby) if such
violation
would impair the collectability of such Mortgage Loan or the
saleability of such
Mortgage Loan under the applicable Take-Out Commitment or
Hedge;
(h) that, (i)
is not a Delinquent Mortgage Loan at the time it is
transferred to the Buyer hereunder; (ii) has not previously been
sold to an
Approved Take-Out Investor or any of the Sellers and repurchased by
Buyer; (iii)
if, it was a Wet Loan when it was assigned to the Borrower and the
time periods
set forth in Section 2.3(c) of the Loan Agreement have occurred,
the Principal
Mortgage Documents relating to such Wet Loan were delivered to the
Collateral
Agent; provided, however, that, upon delivery of such Principal
Mortgage
Documents to the Collateral Agent, such Mortgage Loans may
subsequently qualify
as Eligible Mortgage Loans to support Borrowings subsequent to such
delivery;
(iv) has a Loan-to-Value Ratio not in excess of 100%; or (v) has an
original
principal balance not in excess of $2,500,000;
(i) that if
the Mortgage Loan Collateral has been withdrawn for
correction pursuant to Section 6.02 such Mortgage Loan Collateral
has been
returned to the Collateral Agent within 20 calendar days after
withdrawal as
required by Section 6.02.
(j) that is
denominated and payable in U.S. dollars in the United
States and the Obligor of which is a natural person who is a U.S.
citizen or
resident alien or a corporation or an inter vivos revocable trust
or other legal
entity organized under the laws of the United States or any State
thereof or the
District of Columbia;
(k) that is
not subject to any right of rescission, setoff,
counterclaim or other dispute whatsoever;
(l) that was
acquired by the Buyer from any of the Sellers within
60 days after its Mortgage Origination Date;
(m) that is
covered by the types and amounts of insurance required
by Section 5.06;
(n) with
respect to which all representations and warranties made
by the Sellers in the Loan Agreement and this Agreement are true
and correct in
all material respects and with respect to which all loan level
covenants made in
the Loan Agreement and this Agreement have been complied with;
and
(o) that is
subjected to the following "Quality Control" measures
by personnel of each of the Sellers before the Mortgage Note is
funded by any of
the Sellers:
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(i) for those Mortgage Loans not originated by any of
the Sellers, is subject to being selected at random for a review
for
thoroughness and compliance (including truth-in-lending, good
faith
estimates and other disclosures); and
(ii) with respect to which, all Mortgage Loan
Collateral is prepared by any of the Sellers and submitted to
the
closing agent at the time of funding the related Mortgage Loan;
"Employee Plan" means an employee pension benefit plan covered by
Title
IV of ERISA and established or maintained by each of the Sellers or
any ERISA
Affiliate.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
"ERISA Affiliate" means any corporation, trade or business that
is,
along with the Performance Guarantors, a member of a controlled
group of
corporations or a controlled group of trades or businesses, as
described in
Sections 414(b), (c), (m) and (o) of the Code, or Section 4001 of
ERISA.
"Event of Default" has the meaning specified in Section 7.01.
"Facility" means the borrowing facility provided by the Lenders
as
described in Section 2.1 of the Loan Agreement.
"Fannie Mae" means the government sponsored enterprise formerly
known
as the Federal National Mortgage Association, or any successor
thereto.
"FHA" means the Federal Housing Administration, or any
successor
thereto.
"FHA Loan" means a Mortgage Loan, the ultimate payment of which
is
partially or completely insured by the FHA or with respect to which
there is a
current, binding and enforceable commitment for such insurance
issued by the
FHA.
"FICO Score" means, with respect to the Obligor under a
particular
Mortgage Loan, a credit rating established by Fair Isaac
Corporation.
"Financial Officer" means (i) with respect to each of the Sellers,
the
chief financial officer, treasurer or a vice president having the
knowledge and
authority necessary to prepare and deliver the financial statements
and reports
required pursuant to Section 5.02(b) and (ii) with respect to the
Performance
Guarantors, the chief financial officer, the vice president -
assistant
comptroller, vice president - assistant treasurer or the senior
vice president -
comptroller.
"First Lien Mortgage Loan" means a loan secured by a perfected
first
lien mortgage on real property.
"Fitch" means Fitch, Inc., and any successor thereto.
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"Freddie Mac" means the Federal Home Loan Mortgage Corporation, or
any
successor thereto.
"GAAP" means generally accepted accounting principles as in effect
in
the United States from time to time.
"Ginnie Mae" means the Government National Mortgage Association, or
any
successor thereto.
"Governmental Authority" means any applicable nation or government,
any
agency, department, state or other political subdivision thereof,
or any
instrumentality thereof, and any entity exercising executive,
legislative,
judicial, regulatory or administrative functions of or pertaining
to government.
Governmental Authority shall include, without limitation, each of
Freddie Mac,
Fannie Mae, FHA, HUD, VA and Ginnie Mae.
"Governmental Requirement" means any law, statute, code,
ordinance,
order, rule, regulation, judgment, decree, injunction, franchise,
permit,
certificate, license, authorization or other requirement
(including, without
limitation, any of the foregoing that relate to energy regulations
and
occupational, safety and health standards or controls and any
hazardous
materials laws) of any Governmental Authority that has jurisdiction
over the
Sellers or any of their respective Properties.
"Group Bank" means (1) with respect to La Fayette, Calyon, each
Bank
that has entered into an assignment and Acceptance with Calyon,
including
Lloyds, and each assignee (directly or indirectly) of any such
Bank, which
assignee has entered into an Assignment and Acceptance; (2) with
respect to
Amsterdam, ABN AMRO, each Bank that has entered into an Assignment
and
Acceptance with ABN AMRO and each assignee (directly or indirectly)
of any such
Bank, which assignee has entered into an Assignment and Acceptance;
(3) with
respect to Barton, SG, each Bank that has entered into an
Assignment and
Acceptance with SG and each assignee (directly or indirectly) of
any such Bank,
which assignee has entered into an Assignment and Acceptance; and
(4) with
respect to Park Avenue, JPMorgan, each Bank that has entered into
an Assignment
and Acceptance with JPMorgan and each assignee (directly or
indirectly) of any
such Bank, which assignee has entered into an Assignment and
Acceptance.
"Hedge" means a current, valid, binding, enforceable, written
commitment, including without limitation a forward purchase
commitment, issued
by an Approved Hedge Counterparty, to purchase mortgage loans from
one of the
Originators from time to time at a specified price (or a specified
spread to an
agreed-upon index), which commitment is not subject to any term or
condition (i)
that is not customary in commitments of like nature or (ii) that,
in the
reasonably anticipated course of events, cannot be fully complied
with prior to
the expiration thereof, in which a perfected security interest has
been granted
to the Administrative Agent.
"Hedge Report" means, a report prepared by the Servicer
prepared
pursuant to Section 3.6 of the Loan Agreement, showing, as of the
close of
business on the last Business Day of each week, all Take-Out
Commitments or
Hedges obtained by the Originators to cover all closed loans owned
by the
Originators or the Borrower, to the extent that such mortgage loans
have been
pledged hereunder or pursuant to another lending arrangement, and
certain
information
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<PAGE>
with respect to such trades including such information as the
Administrative
Agent may request, in the form of Exhibit K to the Loan Agreement.
Each such
Take-Out Commitment or Hedge shall have been pledged to the
Administrative
Agent; provided, however, that any Hedges may have been pledged
previously or
may be pledged in the future by the Originators on a pari passu
basis.
"HUD" means the Department of Housing and Urban Development, or
any
successor thereto.
"Indebtedness" means, for any Person, without duplication, and at
any
time, (a) all obligations required by GAAP to be classified on such
Person's
balance sheet as liabilities, (b) obligations secured (or for which
the holder
of the obligations has an existing contingent or other right to be
so secured)
by any Lien existing on property owned or acquired by such Person,
(c)
obligations that have been (or under GAAP should be) capitalized
for financial
reporting purposes, and (d) all guaranties, endorsements, and other
contingent
obligations with respect to obligations of others.
"Indemnified Amounts" has the meaning specified in Section
8.01.
"Indemnified Party" has the meaning specified in Section 8.01.
"Interest Period" is defined the Loan Agreement.
"Issuer" means each of La Fayette Amsterdam, Barton and Park Avenue
and
their respective successors and assigns.
"JPMorgan" means JPMorgan Chase Bank, as a Bank and as a
Managing
Agent.
"Jumbo Loan" means a Mortgage Loan (other than a Conforming Loan)
that
(1) is underwritten in a manner designed to be purchased by an
Approved Take-Out
Investor (other than Fannie Mae, Freddie Mac or Ginnie Mae), (2)
matches all
applicable requirements for purchase under the requirements of a
Take-Out
Commitment or Hedge issued for the purchase of such Mortgage Loan,
and (3)
differs from a Conforming Loan solely because the principal amount
of such
Mortgage Loan exceeds the limit set for Conforming Loans by Fannie
Mae or
Freddie Mac from time to time but shall not exceed $999,999;
provided, however,
that a Jumbo Loan having an original principal balance in excess of
$999,999 but
not more than $2,500,000 shall qualify as a Super Jumbo Loan. The
term Jumbo
Loan includes Super Jumbo Loans.
"La Fayette" means La Fayette Asset Securitization LLC and its
successors and assigns.
"Lenders" means, collectively, the Issuers and the Banks.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (whether statutory, consensual or
otherwise), or
other security arrangement of any kind (including, without
limitation, any
conditional sale or other title retention agreement, any financing
lease having
substantially the same economic effect as any of the foregoing, and
the filing
of any financing statement under the uniform commercial code or
comparable law
of any jurisdiction in respect of any of the foregoing).
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<PAGE>
"Lloyds" has the meaning specified in the preamble of this
Agreement.
"Loan Agreement" means the Amended and Restated Loan Agreement,
dated
as of the date hereof, by and among the Buyer, as the Borrower, the
Issuers
party thereto, the Banks party thereto, the Administrative Agent,
the Managing
Agents and the Servicer, as amended, modified or supplemented from
time to time.
"Loan to Value Ratio" means, with respect to any Mortgage Loan,
the
fraction, expressed as a percentage found by dividing the original
principal
balance of a Mortgage Loan by the value of the related mortgage
property, such
value being measured by (i) the appraised value of such property at
such time,
if the Mortgage Loan is a refinance of any existing lien or (ii)
the lower of
the sales price of the related property at the time of origination
of the
Mortgage Loan or the appraised value of such property at such time,
if the
Mortgage Loan is a purchase money loan.
"Managing Agent" means, (a) with respect to La Fayette, Calyon or
any
successor managing agent designated by such party; (b) with respect
to
Amsterdam, ABN AMRO or any successor managing agent designated by
such party;
(c) with respect to Park Avenue, JPMorgan or any successor managing
agent
designated by such party; and (d) with respect to Barton, SG or any
successor
managing agent designated by such party.
"Margin Deficit" is defined in Section 2.03(b) hereof.
"Market Value" means at the time determined, for any Mortgage Loan
(a)
the market value of such Mortgage Loan determined by the Servicer
based upon the
then most recent posted net yield for 30-day mandatory future
delivery furnished
by Fannie Mae, Freddie Mac, Ginnie Mae or another entity deemed
most appropriate
by the Servicer and published and distributed by Telerate Mortgage
Services, or,
if such posted net yield is not available from Telerate Mortgage
Services, such
posted net yield obtained directly from Fannie Mae, Freddie Mac,
Ginnie Mae or
another entity deemed most appropriate by the Servicer, or (b) if
an appropriate
posted rate is not available, the value determined by the Servicer
in good
faith, using commercially reasonable efforts, which efforts shall
include
consulting with two or more entities that make a market in similar
mortgage
loans, to determine such Market Value. Notwithstanding the
foregoing, within
three (3) Business Days of the date upon which a Market Value
determination is
provided, any Lender may dispute the Servicer's determination of
Market Value in
writing to the Servicer and each of the Lenders. Upon receipt of
such a notice,
the Servicer and the Lenders shall make a good faith effort to
resolve the
discrepancy. If the discrepancy is not resolved within seven (7)
days in a
manner satisfactory to each of the Lenders (an "Unresolved
Dispute"), then the
Administrative Agent shall obtain a different market valuation (an
"Additional
Determination"). At any time the Administrative Agent may, and upon
an
Unresolved Dispute, shall, obtain an Additional Determination. If
the
Administrative Agent shall have obtained an Additional
Determination as of any
determination date (which Additional Determination may be from
the
Administrative Agent or any Affiliate thereof) and the amount of
the Additional
Determination as of such determination date is more than 0.50% less
than the
amount of the aggregate Market Values determined by the Servicer on
such
determination date, then, the amount of the Additional
Determination shall be
used as the Market Value for purposes of clause (A)(2) and (A)(3)
of the
definition of "Collateral Value." The Borrower shall be solely
responsible for
the costs incurred with respect to such Additional Determinations.
The
Administrative Agent shall
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<PAGE>
notify the Servicer of the variance between the Servicer's
determination of the
Market Value and the Additional Determinations and the source(s)
used by the
Administrative Agent to determine the Additional Determinations.
Following such
notice and prior to the next determination date, either (i) the
Servicer and the
Administrative Agent will determine a mutually acceptable,
reasonable,
alternative valuation for the Market Value of such Mortgage Loan or
(ii) the
Servicer shall use an amount equal to the Additional Determination
as the Market
Value of such Mortgage Loan for subsequent determination dates
until clause (i)
is satisfied in good faith.
"Material Adverse Effect" means, with respect to any Person,
any
material adverse effect on (i) the validity or enforceability of
this Agreement,
the Notes or any other Transaction Document, (ii) the business,
operations,
total Property or financial condition of such Person, (iii) the
Transferred
Mortgage Assets taken as a whole, (iv) the enforceability of the
purchases of
Mortgage Assets under this Agreement free of any Adverse Claims, or
(v) the
ability of such Person to fulfill its obligations under this
Agreement or any
other Transaction Document.
"Maximum Facility Amount" is defined in the Loan Agreement.
"MERS" means Mortgage Electronic Registration Systems, Inc., a
Delaware
corporation.
"MERS Designated Mortgage Loan" means a Mortgage Loan registered to
or
by the related Originator on the MERS electronic mortgage
registration system.
"Moody's" means Moody's Investors Service, Inc., and any
successor
thereto.
"Mortgage" means a mortgage or deed of trust or other security
instrument creating a Lien on real property, on a standard form as
approved by
Fannie Mae, Freddie Mac or Ginnie Mae or such other form as any of
the Sellers
determine is satisfactory for any Approved Take-Out Investor unless
otherwise
directed by the Administrative Agent and communicated to the
Collateral Agent.
"Mortgage Assets" means, collectively:
(a) any and
all Mortgage Loans purchased by the Buyer
hereunder;
(b) any and
all instruments, documents and other property
of every kind or description, of or in the name of any of the
Sellers,
now or hereafter for any reason or purpose whatsoever, in the
possession or control of, or in transit to, the Collateral
Agent;
(c) any and all
general intangibles and Mortgage Loan
Collateral that relate in any way to the Mortgage Assets;
(d) any and
all Take-Out Commitments and Hedges
identified on Hedge Reports from time to time prepared by the
Servicer
on behalf of any of the Sellers and the Buyer;
(e) any and
all contract rights, chattel paper,
certificated securities, uncertificated securities, financial
assets,
securities accounts or investment property which constitute
proceeds of
the Mortgage Assets;
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<PAGE>
(f) this
Agreement, the Performance Guaranties and the
Subordination Agreement, including all moneys due or to become
due
thereunder, claims of each of the Sellers arising out of or for
breach
or default thereunder, and the right of each of the Sellers to
compel
performance and otherwise exercise all remedies thereunder;
(g) any
Advanced Funds; and
(h) any and
all proceeds of any of the foregoing,
including all Collections.
"Mortgage File" means the mortgage documents pertaining to a
particular
Mortgage Loan and any additional documents required to be included
in or added
to the Mortgage File pursuant to the Loan Agreement.
"Mortgage Loan" means a loan evidenced by a Mortgage Note and
secured
by a Mortgage, the beneficial interest of which has been acquired
by the Buyer
from any of the Sellers by purchase pursuant to this Agreement
(with the record
owner thereof being such Seller or, in the case of a MERS
Designated Mortgage
Loan, MERS as nominee for such Seller, and its successors and
assigns).
"Mortgage Loan Collateral" means all Mortgage Notes and related
Principal Mortgage Documents, Other Mortgage Documents and other
Collateral.
"Mortgage Note" means a promissory note, on a standard form
approved by
Fannie Mae, Freddie Mac or Ginnie Mae or such other form as the
Sellers
determine is satisfactory for any Approved Take-Out Investor unless
otherwise
directed by the Administrative Agent and communicated to the
Collateral Agent.
"Mortgage Origination Date" means, with respect to each Mortgage
Loan,
the date (transmitted to the Collateral Agent) that is the later of
(1) the date
of the Mortgage Note or (2) the date such Mortgage Loan was funded
and disbursed
to or at the direction of the Obligor.
"Multiemployer Plan" means a multiemployer plan defined in
Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which
a Seller or
any ERISA Affiliate is required to make contributions.
"Non-Conforming FICO Score Trigger Event" means, with respect
to
Non-Conforming Loans, that (A)(i) the Non-Conforming Pool Weighted
Average FICO
Score has been reported, in a Collateral Agent Daily Report, as
less than 675
but equal to or more than 650, (ii) a period of ten (10) days has
elapsed from
the date of receipt of such report by the Administrative Agent and
(iii) the
Servicer has not provided to the Administrative Agent a revised
Non-Conforming
Pool Weighted Average FICO Score that is at least 675 or (B)(i)
the
Non-Conforming Pool Weighted Average FICO Score has been reported,
in a
Collateral Agent Daily Report, as less than 650, (ii) a period of
five (5) days
has elapsed from the date of receipt of such report by the
Administrative Agent
and (iii) the Servicer has not provided to the Administrative Agent
a revised
Non-Conforming Pool Weighted Average FICO Score that is at least
675.
"Non-Conforming Loan" means a Jumbo Loan or an Alt-A Loan.
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<PAGE>
"Non-Conforming Loan-to-Value Ratio Trigger Event" means, with
respect
to Non-Conforming Loans, that (A)(i) the weighted average
Loan-to-Value Ratio
has been reported, in a Collateral Agent Daily Report, as greater
than 83% but
equal to or less than 90%, (ii) a period of ten (10) days has
elapsed from the
date of receipt of such report by the Administrative Agent and
(iii) the
Servicer has not provided to the Administrative Agent a revised
weighted average
Loan-to-Value Ratio that is equal to or less than 83% or (B)(i) the
weighted
average Loan-to-Value Ratio has been reported, in a Collateral
Agent Daily
Report, as greater than 90%, (ii) a period of five (5) days has
elapsed from the
date of receipt of such report by the Administrative Agent and
(iii) the
Servicer has not provided to the Administrative Agent a revised
weighted average
Loan-to-Value Ratio that is equal to or less than 83%.
"Non-Conforming Pool Weighted Average FICO Score" means the ratio
of
(a) the sum, for all Non-Conforming Loans, of the product for
each
Non-Conforming Loan of (i) its FICO Score and (ii) its original
principal
balance to (b) the sum of the original principal balances of all
Non-Conforming
Loans.
"Note" means each or any of the promissory notes executed by the
Buyer,
substantially in the form of Exhibit E of the Loan Agreement,
together with all
renewals, extensions, and replacements for any such note.
"Obligations" means any and all present and future
indebtedness,
obligations, and liabilities of the Buyer, as the borrower, to any
of the
Lenders, the Collateral Agent, each Managing Agent, each Affected
Party (as
defined in the Loan Agreement), each Indemnified Party and the
Administrative
Agent, and all renewals, rearrangements and extensions thereof, or
any part
thereof, arising pursuant to the Loan Agreement or any other
Transaction
Document, and all interest and fees accrued thereon, and attorneys'
fees and
other costs incurred in the drafting, negotiation, enforcement or
collection
thereof, regardless of whether such indebtedness, obligations, and
liabilities
are direct, indirect, fixed, contingent, joint, several or joint
and several.
"Obligor" means (i) with respect to each Mortgage Note included in
the
Collateral, the obligor on such Mortgage Note and (ii) with respect
to any other
agreement included in the Mortgage Assets, any person from whom any
of the
Sellers is entitled to performance.
"Originator Performance Guaranty" means the Amended and
Restated
Originator Performance Guaranty, in the form attached the Loan
Agreement as
Exhibit G-2, as confirmed by the Confirmation of Performance
Guarantees, dated
as of even date herewith, made by the Performance Guarantors in
favor of the
Buyer, as borrower, and assigned to the Administrative Agent for
the benefit of
the Lenders.
"Other Mortgage Documents" is defined in Section 3.2(c) to the
Loan
Agreement.
"Outstanding Balance" means as of any date of determination (A)
with
respect to each Mortgage Loan, an amount equal to the lesser of:
(i) the lesser
of the original principal amount or the acquisition price of such
Mortgage Loan
paid by any of the Sellers on the closing and funding of such
Mortgage Loan; and
(ii) for each Mortgage Loan that is a Conforming Loan, the amount
determined by
multiplying (a) the weighted average purchase price (expressed as
a
17
<PAGE>
percentage) that Approved Take-Out Investors are committed to pay,
pursuant to
Take-Out Commitments, for all Eligible Mortgage Loans, as shown on
the most
recent Collateral Agent Daily Report, multiplied by the outstanding
principal
balance of such Eligible Mortgage Loan.
"Park Avenue" has the meaning ascribed to it in the Loan
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor
thereto.
"Performance Guaranties" means, collectively, the Servicer
Performance
Guaranty and the Originator Performance Guaranty.
"Performance Guarantors" means, together, American Home
Mortgage
Holdings, Inc., a Delaware corporation, and AHMIC, and their
respective
successors and assigns.
"Person" means any individual, corporation (including a
business
trust), limited liability company, partnership, joint venture,
association,
joint stock company, trust, unincorporated organization,
Governmental Authority,
or any other form of entity.
"Pricing Rate" has the meaning specified in Section 2.02.
"Principal Mortgage Documents" is defined in Section 3.2(b) to the
Loan
Agreement.
"Property" means any interest in any kind of property or asset,
whether
real, personal or mixed, or tangible or intangible.
"Purchase" means a purchase by the Buyer of Mortgage Assets from
any of
the Sellers pursuant to Article II.
"Purchase Date" has the meaning specified in Section 2.02(a).
"Purchase Price" for any Purchase means an amount equal to the
Outstanding Balance of the Mortgage Assets that are the subject of
such
Purchase.
"Purchase Request" has the meaning specified in Section
2.02(a).
"Purchased Mortgage Asset" means any Mortgage Asset which has
been
purchased by the Buyer pursuant to Section 2.02.
"Repurchase Date" is defined in Section 2.02(a) hereto.
"Repurchase Price" the price at which the Purchased Mortgage Assets
are
to be transferred from Buyer to any of the Sellers upon termination
of a
transaction, which will be determined in each case as the sum of
the Purchase
Price and the Price Differential as of the end of the related
Interest Period.
"Requirement of Law" as to any Person means the articles of
incorporation, by-laws, certificate of formation and limited
liability company
agreement or other organizational or governing documents of such
Person, and any
law, statute, code, ordinance, order, rule, regulation, judgment,
decree,
injunction, franchise, permit, certificate, license, authorization
or
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other determination, direction or requirement (including, without
limitation,
any of the foregoing that relate to energy regulations and
occupational, safety
and health standards or controls and any hazardous materials laws)
of any
Governmental Authority, in each case applicable to or binding upon
such Person
or any of its Property or to which such Person or any of its
Property is
subject.
"S&P" means Standard & Poor's Rating Services, a Division
of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Servicer" means at any time the Person then authorized pursuant
to
Section 11.1 of the Loan Agreement to administer and collect
Mortgage Loans on
behalf of the Lenders. The initial Servicer shall be American Home
Mortgage
Servicing, Inc., a Maryland corporation.
"Servicer Performance Guaranty" means the Amended and Restated
Servicer
Performance Guaranty, in the form attached to the Loan Agreement as
Exhibit G-1,
as confirmed by the Confirmation of Performance Guarantees, as of
even date
herewith, made by the Performance Guarantors in favor of the
Administrative
Agent for the benefit of the Lenders.
"Settlement Date" means the 15th day of each calendar month, or,
if
such day is not a Business Day, the next succeeding Business Day,
provided,
however, that on and after the Termination Date, the Administrative
Agent may,
with the consent of the Managing Agents, by notice to the Buyer and
the
Servicer, select other days to be Settlement Dates (including days
occurring
more frequently than once per month).
"Subordination Agreement" means the Amended and Restated
Subordination
Agreement, substantially in the form attached as Exhibit B to the
Loan
Agreement, executed by the Performance Guarantors and certain of
their
respective Affiliates in favor of the Buyer and the Administrative
Agent for the
benefit of the holders of the obligations.
"Subsidiary" means, with respect to any Person, any corporation
or
other entity of which securities having ordinary voting power to
elect a
majority of the board of directors or other persons performing
similar functions
are at the time directly or indirectly owned by such Person, or one
or more of
its Subsidiaries, or by such Person and one or more of its
Subsidiaries.
"Super Jumbo Loan" means a Jumbo Loan having an original
principal
balance in excess of $999,999 but not more than $2,500,000.
"Take-Out Commitment" means a current, valid, binding,
enforceable,
written commitment, issued by an Approved Take-Out Investor, to
purchase
Mortgage Loans from one of the Sellers from time to time at a
specified price
(or a specified spread to an agreed-upon index) which commitment is
not subject
to any term or condition (i) that is not customary in commitments
of like nature
or (ii) that, in the reasonably anticipated course of events,
cannot be fully
complied with prior to the expiration thereof in which a perfected
and
first-priority security interest has been granted by the Buyer to
the
Administrative Agent.
"Tangible Net Worth" means, with respect to any Person, the excess
of
total assets of such Person over the total liabilities of such
Person determined
in accordance with GAAP, but excluding from the determination of
total assets:
(a) all assets which would be classified as intangible assets under
GAAP,
including, without limitation, goodwill (whether representing
the
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excess cost over book value of assets acquired or otherwise),
patents,
trademarks, trade names, copyrights, franchises and deferred
charges (including,
without limitation, unamortized debt discount and expense,
organization costs
and research and product development costs), (b) loans or other
extensions of
credit to officers, employees, shareholders or Affiliates of such
Person (other
than the Servicer, the Sellers, the Performance Guarantors and
American Home
Mortgage Acceptance, Inc.) and (c) investments in Subsidiaries of
such Person
(other than the Servicer, the Sellers, the Performance Guarantors
and American
Home Mortgage Acceptance, Inc.).
"Term" means three hundred sixty-four (364) days from the date of
this
Agreement.
"Termination Date" means the earliest to occur of:
(a) November
21, 2006, or such earlier date determined in
accordance with Section 2.1(b) of the Loan Agreement, or
(b) the date
on which the Maximum Facility Amount is terminated by
the Borrower pursuant to Section 2.1(d) of the Loan Agreement,
and
(c) the date,
on or after the occurrence of an Event of Default,
determined pursuant to Section 8.2 of the Loan Agreement.
"Transaction Document" has the meaning ascribed to such term in
the
Loan Agreement.
"Transferred Mortgage Asset" means a Purchased Mortgage Asset.
"Transferred Mortgage Loan" means a Mortgage Loan included in
the
Transferred Mortgage Assets.
"UCC" means the Uniform Commercial Code as adopted in the
applicable
state, as the same may hereafter be amended.
"Underwriting Guidelines" means, with respect to each Originator,
the
Originator's Underwriting Guidelines, a copy of which has been
provided to the
Administrative Agent.
"VA" means the Department of Veterans Affairs, or any successor
thereto.
"VA Loan" means a Mortgage Loan, the payment of which is partially
or
completely guaranteed by the VA under the Servicemen's Readjustment
Act of 1944,
as amended, or Chapter 37 of Title 38 of the United States Code or
with respect
to which there is a current binding and enforceable commitment for
such a
guaranty issued by the VA.
"Wet Loans" is defined in Section 2.3(c) of the Loan Agreement.
Section 1.02. Other Terms.
All accounting terms not specifically defined herein shall be
construed
in accordance with GAAP. All terms used in Article 9 of the UCC,
and not
specifically defined herein, are used herein as defined in such
Article 9. Any
inconsistency in the definitions between this
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Agreement and the Master Repurchase Agreement shall be resolved in
favor of the
definitions in this Agreement.
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES
Section 2.01. Facility.
(a) The first
sentence of Section 1 of the Master Repurchase
Agreement is amended in its entirety by replacing it with the
following:
"From time to time prior to the occurrence and
continuance of an Event of Default and prior to the
Termination Date, any of the Sellers may present for transfer
to Buyer Mortgage Assets that are Eligible Mortgage Assets
against the transfer of funds by Buyer with a simultaneous
agreement
by Buyer to transfer to such Seller such Assets at a
date certain or on demand, against the transfer of funds by
such Seller, and at each such time of presentation Buyer will
enter into such Transaction."
(b) Section 1
is hereby further amended by adding the following at
the end thereof:
"Without limiting any rights of Buyer under this
Master Repurchase Agreement, no Trans
