-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, COIRAM03My+8WJ3gfAqc86r1ofVHJcdUYKsdaJ8Yw/QZB8C3qP+xwuqLWsRi50Bx +pGMBcg76lWmNEgbP5TUUw== 0000914121-05-000915.txt : 20050506 0000914121-05-000915.hdr.sgml : 20050506 20050505173153 ACCESSION NUMBER: 0000914121-05-000915 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 21 CONFORMED PERIOD OF REPORT: 20050331 FILED AS OF DATE: 20050506 DATE AS OF CHANGE: 20050505 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN HOME MORTGAGE INVESTMENT CORP CENTRAL INDEX KEY: 0001256536 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 200103914 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-31916 FILM NUMBER: 05804789 MAIL ADDRESS: STREET 1: 520 BROADHOLLOW ROAD CITY: MELVILLE STATE: NY ZIP: 11747 10-Q 1 am033105-10q.txt QUARTER REPORT UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 2005. OR [_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ___________ to ___________. Commission File Number: 001-31916 AMERICAN HOME MORTGAGE INVESTMENT CORP. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) Maryland 20-0103914 - -------------------------------------------------------------------------------- (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 538 Broadhollow Road, Melville, New York 11747 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (516) 949-3900 - -------------------------------------------------------------------------------- (Registrant's telephone number, including area code) - -------------------------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [_] Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes [X] No [ ] As of April 29, 2005, there were 40,353,512 shares of the registrant's common stock, par value $0.01 per share, outstanding. AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES TABLE OF CONTENTS PART I-FINANCIAL INFORMATION
Page Item 1. Financial Statements (Unaudited) Consolidated Balance Sheets as of March 31, 2005 and December 31, 2004........................................1 Consolidated Statements of Income for the Three Months Ended March 31, 2005 and 2004..........................2 Consolidated Statements of Stockholders' Equity for the Three Months Ended March 31, 2005 and 2004...........3 Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2005 and 2004......................4 Notes to Consolidated Financial Statements ...................................................................5 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations........................23 Item 3. Quantitative and Qualitative Disclosures About Market Risk ..................................................44 Item 4. Controls and Procedures......................................................................................46 PART II-OTHER INFORMATION Item 1. Legal Proceedings............................................................................................47 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds..................................................47 Item 3. Defaults Upon Senior Securities..............................................................................47 Item 4. Submission of Matters to a Vote of Security Holders..........................................................47 Item 5. Other Information............................................................................................47 Item 6. Exhibits ....................................................................................................47
SIGNATURES INDEX TO EXHIBITS PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (Unaudited) (Dollars in thousands, except per share amounts)
March 31, December 31, 2005 2004 -------------------------------- Assets: Cash and cash equivalents $ 162,762 $ 192,821 Accounts receivable and servicing advances 103,295 116,978 Mortgage-backed securities (including securities pledged of $6,956,681 as of March 31, 2005 and $5,968,969 as of December 31, 2004) 7,181,170 6,016,866 Mortgage loans held for sale, net 1,627,891 4,853,394 Derivative assets 73,383 24,803 Mortgage servicing rights, net 228,412 151,436 Premises and equipment, net 55,986 51,576 Goodwill 92,745 90,877 Other assets 49,332 57,046 ------------ ------------ Total assets $ 9,574,976 $ 11,555,797 ============ ============ Liabilities and Stockholders' Equity: Liabilities: Warehouse lines of credit $ 658,686 $ 735,783 Drafts payable 28,391 26,200 Commercial paper 858,382 529,790 Reverse repurchase agreements 6,720,167 7,071,168 Collateralized debt obligations -- 2,022,218 Derivative liabilities 1,945 1,860 Accrued expenses and other liabilities 176,859 152,413 Notes payable 159,339 135,761 Income taxes payable 54,250 54,342 ------------ ------------ Total liabilities 8,658,019 10,729,535 ------------ ------------ Commitments and contingencies Stockholders' Equity: Preferred Stock, par value $0.01 per share, 10,000,000 shares authorized: 9.75% Series A Cumulative Redeemable, 2,150,000 shares issued and outstanding as of March 31, 2005 and December 31, 2004, respectively 50,857 50,857 9.25% Series B Cumulative Redeemable, 3,450,000 shares issued and outstanding as of March 31, 2005 and December 31, 2004, respectively 83,183 83,183 Common stock, par value $0.01 per share, 100,000,000 shares authorized, 40,335,255 and 40,288,077 shares issued and outstanding as of March 31, 2005 and December 31, 2004, respectively 403 403 Additional paid-in capital 632,828 631,530 Retained earnings 193,064 99,628 Accumulated other comprehensive loss (43,378) (39,339) ------------ ------------ Total stockholders' equity 916,957 826,262 ------------ ------------ Total liabilities and stockholders' equity $ 9,574,976 $ 11,555,797 ============ ============
See notes to consolidated financial statements. -1- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Unaudited) (In thousands, except per share amounts)
Three Months Ended March 31, ---------------------------------- 2005 2004 ------------ ------------ Net interest income: Interest income $ 146,894 $ 34,050 Interest expense (88,091) (21,278) ------------ ------------ Total net interest income 58,803 12,772 ------------ ------------ Non-interest income: Gain on sales of mortgage loans 35,253 52,581 Gain on securitizations of mortgage loans 69,919 1,856 Gain on sales of mortgage-backed securities and derivatives 6,132 6,632 Unrealized gain on mortgage-backed securities and derivatives 57,499 18,909 Loan servicing fees 11,312 10,318 Amortization of mortgage servicing rights (8,501) (7,346) Impairment recovery (provision) of mortgage servicing rights 3,419 (12,584) ------------ ------------ Net loan servicing fees (loss) 6,230 (9,612) ------------ ------------ Other non-interest income 1,466 978 ------------ ------------ Total non-interest income 176,499 71,344 ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 68,475 39,627 Occupancy and equipment 12,671 8,094 Data processing and communications 5,950 3,213 Office supplies and expenses 4,429 3,118 Marketing and promotion 4,130 2,212 Travel and entertainment 3,928 2,577 Professional fees 3,470 2,428 Other 6,869 5,438 ------------ ------------ Total non-interest expenses 109,922 66,707 ------------ ------------ Net income before income tax benefit 125,380 17,409 Income tax benefit -- (3,814) ------------ ------------ Net income $ 125,380 $ 21,223 ============ ============ Dividends on preferred stock 3,305 -- ------------ ------------ Net income available to common shareholders $ 122,075 $ 21,223 ============ ============ Per share data: Basic $ 3.03 $ 0.71 Diluted $ 2.99 $ 0.70 Weighted average number of shares - basic 40,308 30,030 Weighted average number of shares - diluted 40,811 30,508
See notes to consolidated financial statements -2- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (Unaudited) THREE MONTHS ENDED MARCH 31, 2005 AND 2004
- ------------------------------------------------------------------------------------------------------------------------------------ Accumulated Additional Other Total Preferred Common Paid-in Retained Comprehensive Stockholders' (Dollars in thousands) Stock Stock Capital Earnings Loss Equity - ------------------------------------------------------------------------------------------------------------------------------------ Balance at January 1, 2004 $ -- $ 252 $ 281,432 $ 121,029 $ (4,743) $ 397,970 --------- --------- --------- --------- --------- --------- Comprehensive income: Net income -- -- -- 21,223 -- 21,223 Net change in unrealized gain on mortgage-backed securities available for sale -- -- -- -- 10,221 10,221 Net change in unrealized loss on cash flow hedges, net of amortization -- -- -- -- (14,153) (14,153) --------- Comprehensive income 17,291 Issuance of common stock - offering -- 144 339,647 -- -- 339,791 Issuance of common stock - earnouts -- -- 109 -- -- 109 Issuance of common stock, 1999 Omnibus Stock Incentive Plan -- 3 1,166 -- -- 1,169 Tax benefit from stock options exercised -- -- 1,599 -- -- 1,599 Dividends declared on common stock -- -- -- (16,748) -- (16,748) --------- --------- --------- --------- --------- --------- Balance at March 31, 2004 $ -- $ 399 $ 623,953 $ 125,504 $ (8,675) $ 741,181 ========= ========= ========= ========= ========= ========= Balance at January 1, 2005 $ 134,040 $ 403 $ 631,530 $ 99,628 $ (39,339) $ 826,262 --------- --------- --------- --------- --------- --------- Comprehensive income: Net income -- -- -- 125,380 -- 125,380 Net change in unrealized loss on mortgage-backed securities available for sale -- -- -- -- (24,435) (24,435) Net change in unrealized gain on cash flow hedges, net of amortization -- -- -- -- 20,396 20,396 --------- Comprehensive income 121,341 Issuance of common stock - earnouts -- -- 846 -- -- 846 Issuance of common stock, 1999 Omnibus Stock Incentive Plan -- -- 452 -- -- 452 Dividends declared on Series A preferred stock -- -- -- (1,310) -- (1,310) Dividends declared on Series B preferred stock -- -- -- (1,995) -- (1,995) Dividends declared on common stock -- -- -- (28,639) -- (28,639) --------- --------- --------- --------- --------- --------- Balance at March 31, 2005 $ 134,040 $ 403 $ 632,828 $ 193,064 $ (43,378) $ 916,957 ========= ========= ========= ========= ========= =========
See notes to consolidated financial statements. -3- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) (In thousands)
Three Months Ended March 31, ------------------------------ 2005 2004 ------------ ------------ Cash flows from operating activities: Net income $ 125,380 $ 21,223 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation and amortization 2,439 1,977 Amortization and impairment of mortgage servicing rights 5,082 19,930 Amortization of mortgage-backed securities premiums, net 4,593 2,952 Deferred cash flow hedge gain, net of amortization 17,052 415 Loss (gain) on sales of mortgage-backed securities and derivatives 3,336 (6,705) Unrealized loss (gain) on mortgage-backed securities 51,003 (10,217) Unrealized gain on free standing derivatives (40,312) -- Additions to mortgage servicing rights on securitized loans (79,711) (9,863) Additions to mortgage servicing rights on sold loans (2,347) (5,802) Decrease (increase) in interest rate lock commitments 210 (9,990) Decrease (increase) in deferred origination costs 26,025 (884) Decrease in SFAS No. 133 basis adjustments 4,929 5,524 Other 1,177 (2,504) Decrease in operating assets: Accounts receivable and servicing advances 13,683 3,885 Other assets 7,714 1,703 Increase (decrease) in operating liabilities: Accrued expenses and other liabilities 21,432 (8,092) Income taxes payable (92) (13,113) Forward delivery contracts (9,595) (5,809) Origination of mortgage loans held for sale (7,255,400) (4,413,174) Proceeds from sales and repayments of mortgage loans 3,080,795 3,292,010 Proceeds from securitizations and repayments of mortgage loans 7,336,612 969,436 Additions to mortgage-backed securities (2,840,259) (897,322) Proceeds from sales of mortgage-backed securities -- 23,861 Principal repayments of mortgage-backed securities 124,959 13,734 ------------ ------------ Net cash provided by (used in) operating activities 598,705 (1,026,825) ------------ ------------ Cash flows from investing activities: Purchases of premises and equipment (6,849) (1,473) Purchases of mortgage-backed securities -- (2,094,101) Proceeds from sales of mortgage-backed securities 1,133,989 697,268 Principal repayments of mortgage-backed securities 368,671 49,985 Other -- (353) ------------ ------------ Net cash provided by (used in) investing activities 1,495,811 (1,348,674) ------------ ------------ Cash flows from financing activities: (Decrease) increase in warehouse lines of credit, net (77,097) 130,085 (Decrease) increase in reverse repurchase agreements, net (351,001) 2,050,614 Decrease in collateralized debt obligations (2,022,218) -- Decrease in payable for securities purchased -- (125,054) Increase in commercial paper, net 328,592 -- Increase in drafts payable, net 2,191 38,685 Proceeds from issuance of common stock 311 341,882 Dividends paid (28,931) (23,072) Increase in notes payable, net 23,578 6,768 ------------ ------------ Net cash (used in) provided by financing activities (2,124,575) 2,419,908 ------------ ------------ Net (decrease) increase in cash and cash equivalents (30,059) 44,409 Cash and cash equivalents, beginning of period 192,821 53,148 ------------ ------------ Cash and cash equivalents, end of period $ 162,762 $ 97,557 ============ ============ Supplemental disclosure of cash flow information: Interest paid $ 79,937 $ 13,254 Income taxes paid 115 6,361
See notes to consolidated financial statements. -4- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) - -------------------------------------------------------------------------------- NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Organization - On December 3, 2003, American Home Mortgage Investment Corp. ("AHM Investment") completed its merger with Apex Mortgage Capital, Inc. ("Apex"), a Maryland corporation that operated and elected to be treated as a real estate investment trust, or REIT. Under the terms of the transaction, American Home Mortgage Holdings, Inc. ("AHM Holdings") reorganized through a reverse triangular merger that caused AHM Investment, a newly formed Maryland corporation that operates and has elected to be treated as a REIT for federal income tax purposes, to become AHM Holdings' parent. AHM Investment was formed to combine the net assets of Apex, consisting primarily of mortgage-backed securities, with the mortgage origination and servicing businesses of AHM Holdings. As used herein, references to the "Company," "American Home," "we," "our" and "us" refer to AHM Investment collectively with its subsidiaries. AHM Investment is a mortgage REIT focused on earning net interest income from purchased and self-originated mortgage-backed securities, and through its taxable subsidiaries, on earning income from originating and selling mortgage loans and servicing mortgage loans for institutional investors. Mortgages are originated through a network of loan origination offices as well as through mortgage brokers and are serviced at the Company's Irving, Texas servicing center. Basis of Presentation - The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company's estimates and assumptions primarily arise from risks and uncertainties associated with interest rate volatility, prepayment volatility, credit exposure and regulatory changes. Although management is not currently aware of any factors that would significantly change its estimates and assumptions in the near term, future changes in market trends and conditions may occur which could cause actual results to differ materially. When necessary, certain reclassifications of prior year financial statement amounts have been made to conform to the current year presentation. The unaudited consolidated financial statements included herein have been prepared in conformity with generally accepted accounting principles ("GAAP") for interim financial information. Accordingly, they do not include all of the information and notes required by GAAP for complete financial statements. Management believes all adjustments considered necessary for a fair presentation have been included. The consolidated financial statements should be read in conjunction with the Company's audited consolidated financial statements and notes thereto included in the Company's Form 10-K/A for the year ended December 31, 2004. Due to the Company's exercising significant influence on the operations of its joint ventures, their balances and operations have been fully consolidated in the accompanying consolidated financial statements and all intercompany accounts and transactions have been eliminated. Cash and Cash Equivalents - Cash and cash equivalents include cash on hand, amounts due from banks and overnight deposits. The carrying amount of cash and cash equivalents approximates its fair value. Mortgage-backed Securities - Mortgage-backed securities are classified as either trading or available for sale. Trading securities are reported at fair value, and changes in fair value are reported in unrealized gain on mortgage-backed securities and derivatives in the consolidated statements of income. Available for sale securities are reported at fair value, with unrealized gains and losses excluded from earnings and reported in accumulated other comprehensive income (loss). Realized gains and losses on sales of available for sale securities are determined on an average cost basis and included in gain on sales of mortgage-backed securities and derivatives. When the fair value of an available for sale security is less than amortized cost, management considers whether there is an other-than-temporary impairment in the value of the security (e.g., whether the security is likely to be sold prior to the recovery of fair value) based on estimated credit losses, prepayment speeds and the length of time in an unrealized loss position. If, in management's judgment, an other-than-temporary impairment exists, the cost basis of the security is written down to the then-current fair value, and the unrealized loss is transferred from accumulated other comprehensive income as an immediate reduction of current earnings (i.e., as if the loss had been realized in the period of impairment). Premiums and discounts on the Company's mortgage-backed securities held in available for sale are amortized to interest income using the level yield method over the estimated life of the security. Mortgage Loans Held for Sale - Mortgage loans held for sale are carried at the lower of cost or aggregate market value. The cost basis includes the capitalized value of the prior interest rate lock commitments ("IRLCs") related to the mortgage loans and any net deferred origination costs. For mortgage loans held for sale that are hedged with forward sale commitments, if the Company meets hedge accounting -5- requirements, the carrying value is adjusted for the change in market during the time the hedge was deemed to be highly effective. The market value is determined by outstanding commitments from investors or current investor yield requirements calculated on the aggregate basis. Mortgage Servicing Rights - Mortgage servicing rights ("MSRs") are carried at the lower of cost or fair value, based on defined interest rate risk strata, and are amortized in proportion to and over the period of estimated net servicing income. When the Company sells certain loans and retains the servicing rights, it allocates the cost basis of the loans between the assets sold and the MSRs based on their relative fair values on the date of sale. The Company estimates the fair value of its MSRs by obtaining market information from one of the primary MSR brokers. When the book value of capitalized MSRs exceeds its fair value, impairment is recognized through a valuation allowance. In determining impairment, our mortgage servicing portfolio is stratified by the predominant risk characteristic of the underlying mortgage loans. The Company has determined that the predominant risk characteristic is the interest rate on the underlying loans. The Company measures impairment for each stratum by comparing the estimated fair value to the recorded book value. Temporary impairment is recorded through a valuation allowance and amortization expense in the period of occurrence. In addition, the Company periodically evaluates its MSRs for other than temporary impairment to determine if the carrying value before the application of the valuation allowance is recoverable. The Company receives a sensitivity analysis of the estimated fair value of its MSRs assuming a 200-basis-point instantaneous increase in interest rates from an independent MSR broker. The fair value estimate includes changes in market assumptions that would be expected given the increase in mortgage rates (e.g., prepayment speeds would be lower). The Company believes this 200-basis-point increase in mortgage rates to be an appropriate threshold for determining the recoverability of the temporary impairment because that size rate increase is foreseeable and consistent with historical mortgage rate fluctuations. When using this instantaneous change in rates, if the fair value of the strata of MSRs is estimated to increase to a point where all of the impairment would be recovered, the impairment is considered to be temporary. When the Company determines that a portion of the MSRs is not recoverable, the related MSRs and the previously established valuation allowance are correspondingly reduced to reflect other than temporary impairment. Premises and Equipment - Premises and equipment is stated at cost less accumulated depreciation and amortization. Depreciation is provided using the straight-line method over the estimated service lives of the premises and equipment. Leasehold improvements are amortized over the lesser of the life of the lease or service lives of the improvements using the straight-line method. Depreciation and amortization are recorded within occupancy and equipment expense in the consolidated statements of income. Goodwill - Goodwill represents the excess purchase price over the fair value of net assets acquired from business acquisitions. The Company tests for impairment at least annually and will test for impairment more frequently if events or circumstances indicate that an asset may be impaired. The Company tests for impairment by comparing the fair value of goodwill, as determined by using a discounted cash flow method, with its carrying value. Any excess of carrying value over the fair value of the goodwill would be recognized as an impairment loss in continuing operations. The discounted cash flow calculation related to the Company's loan origination segment includes a forecast of the expected future loan originations and the related revenues and expenses. The discounted cash flow calculation related to the Company's mortgage-backed securities holdings segment includes a forecast of the expected future net interest income, gain on mortgage-backed securities and the related revenues and expenses. These cash flows are discounted using a rate that is estimated to be a weighted-average cost of capital for similar companies. We further test to ensure that the fair value of all of our business units does not exceed our total market capitalization. Reverse Repurchase Agreements - The Company has entered into reverse repurchase agreements to finance certain of its investments. These agreements are secured by a portion of the Company's investments and bear interest rates that have historically moved in close relationship to the London Inter-Bank Offer Rate ("LIBOR"). Reverse repurchase agreements are accounted for as borrowings and recorded as a liability on the consolidated balance sheet. Collateralized Debt Obligations - The Company has issued adjustable-rate collateralized debt obligations to finance certain portions of its mortgage loans held for sale. The collateralized debt obligations are collateralized by adjustable-rate mortgage ("ARM") loans held for sale that have been placed in a trust and bear interest rates that have historically moved in close relationship to the LIBOR. Collateralized debt obligations are accounted for as borrowings and recorded as a liability on the consolidated balance sheet. Commercial Paper - The Company formed a wholly owned special purpose entity for the purpose of issuing commercial paper in the form of short-term Secured Liquidity Notes ("SLNs") to finance certain portions of the Company's mortgage loans held for sale. The commercial paper is secured by the Company's loans held for sale, mortgage-backed securities and cash and bears interest at prevailing money market rates approximating LIBOR. Commercial paper is accounted for as a borrowing and recorded as a liability on the consolidated balance sheet. Drafts Payable - Drafts payable represent outstanding mortgage loan disbursements that the Company has provided to its customers for the purchase of a home. The amounts outstanding do not bear interest and are transferred into one of the warehouse facilities when they are presented to a bank. -6- Derivative Financial Instruments - The Company has developed risk management programs and processes designed to manage market risk associated with normal business activities. Interest Rate Lock Commitments. The Company's mortgage committed pipeline includes IRLCs that have been extended to borrowers who have applied for loan funding and meet certain defined credit and underwriting criteria. The Company classifies and accounts for the IRLCs associated with loans expected to be sold or securitized as free-standing derivatives. Accordingly, IRLCs are recorded at fair value with changes in fair value recorded to current earnings. The fair value of the IRLCs initiated on or before March 31, 2004 is determined by an estimate of the ultimate gain on sale of the loans, including the value of MSRs, net of estimated net costs to originate the loan. In March 2004, the Securities and Exchange Commission ("SEC") issued Staff Accounting Bulletin No. 105 ("SAB No. 105"), which provided industry guidance that changed the timing of recognition of the value of MSRs for IRLCs initiated after March 31, 2004. In SAB No. 105, the SEC stated that the value of expected future cash flows related to MSRs should be excluded when determining the fair value of derivative IRLCs. Under the new policy, the value of the expected future cash flow related to servicing rights is not recognized until the underlying loans are sold. Forward Delivery Commitments Used to Hedge IRLCs. The Company uses mortgage forward delivery contracts to economically hedge the IRLCs, which are also classified and accounted for as free-standing derivatives and thus are recorded at fair value with the changes in fair value recorded to current earnings. Forward Delivery Commitments Used to Hedge Mortgage Loans Held for Sale. The Company's risk management objective for its mortgage loans held for sale is to protect earnings from an unexpected charge due to a decline in value. The Company's strategy is to engage in a risk management program involving the use of mortgage forward delivery contracts designated as fair value hedging instruments to hedge 100% of its agency-eligible conforming loans and most of its non-conforming loans held for sale. At the inception of the hedge, to qualify for hedge accounting, the Company formally documents the relationship between the forward delivery contracts and the mortgage inventory as well as its objective and strategy for undertaking the hedge transaction. For conventional conforming fixed-rate loans, the notional amount of the forward delivery contracts, along with the underlying rate and terms of the contracts, are equivalent to the unpaid principal amount of the mortgage inventory being hedged; hence, the forward delivery contracts effectively fix the forward sales price and thereby substantially eliminate interest rate and price risk to the Company. The Company classifies and accounts for these forward delivery contracts as fair value hedges. The derivatives are carried at fair value with the changes in fair value recorded to current earnings. When the hedges are deemed highly effective, the book value of the hedged loans held for sale is adjusted for its change in fair value during the hedge period. Interest Rate Swap Agreements. The Company enters into interest rate swap agreements which require it to pay a fixed interest rate and receive a variable interest rate based on LIBOR. The fair value of interest rate swap agreements is based on the net present value of estimated future interest payments over the remaining life of the interest rate swap agreement. All changes in the unrealized gains and losses on swap agreements designated as cash flow hedges have been recorded in accumulated other comprehensive income (loss) and are reclassified to earnings as interest expense is recognized on the Company's hedged borrowings. For interest rate swap agreements accounted for as cash flow hedges, the net amount accrued for the variable interest receivable and fixed interest payable affects the amount recorded as interest expense. If it becomes probable that the forecasted transaction, which in this case refers to interest payments to be made under the Company's short-term borrowing agreements, will not occur by the end of the originally specified time period, as documented at the inception of the hedging relationship, or within an additional two-month time period thereafter, then the related gain or loss in accumulated other comprehensive income (loss) would be reclassified to income. Certain swap agreements are designated as cash flow hedges against the benchmark interest rate risk associated with the Company's borrowings. Although the terms and characteristics of the Company's swap agreements and hedged borrowings are nearly identical, due to the explicit requirements of Statement of Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging Activities," the Company does not account for these hedges under a method defined in SFAS No. 133 as the "shortcut" method, but rather the Company calculates the effectiveness of these hedges on an ongoing basis, and, to date, has calculated effectiveness of approximately 100%. The Company classifies and accounts for interest rate swap agreements that are not designated as cash flow hedges as free-standing derivatives. Accordingly, these swap agreements are recorded at fair value with changes in fair value recorded to current earnings as a component of unrealized gain on mortgage-backed securities and derivatives as they are used to offset the price change exposure of mortgage-backed securities classified as trading. For interest rate swap agreements accounted for as free-standing derivatives, the net amount accrued for the variable interest receivable and fixed interest payable is recorded in current earnings as unrealized gain on mortgage-backed securities and derivatives. Termination of Hedging Relationships. The Company employs a number of risk management monitoring procedures to ensure that the designated hedging relationships are demonstrating, and are expected to continue to demonstrate, a high level of effectiveness. Hedge accounting is discontinued on a prospective basis if it is determined that the hedging relationship is no longer highly effective or expected to be highly effective in offsetting changes in fair value of the hedged item. Additionally, the Company may elect to de-designate a hedge relationship during an interim period and re-designate upon the rebalancing of a hedge profile and the corresponding hedge relationship. When hedge accounting is discontinued, the Company continues to carry the derivative instruments at fair value with changes in their value recorded in earnings. -7- Gain on Sale of Loans - The Company recognizes gain on sale of loans for the difference between the sales price and the adjusted book value of the loans at the time of sale. The adjusted book value of the loans includes the original principal amount plus adjustments related to previously recognized income plus deferrals of fees and points received and direct loan origination costs. Loan Origination Fees and Direct Origination Costs - The Company records loan fees, discount points and certain direct origination costs as an adjustment of the cost of the loan or security and such amounts are included in revenues when the loan or security is sold. When loans are securitized and held as securities available for sale, net deferred origination costs are amortized over the life of the security using the level-yield method and such amounts are included in interest income. When loans are securitized and held as trading securities, net deferred origination costs are an adjustment to the cost of the security and such amounts affect the amount recorded as unrealized gain on mortgage-backed securities and derivatives. Gain on sales of mortgage loans and salaries, commissions and benefits have been reduced by $33.8 million and $20.7 million due to direct loan origination costs, including commission costs, incurred for the three months ended March 31, 2005 and 2004, respectively. Interest Recognition - The Company accrues interest income as it is earned. Loans are placed on a nonaccrual status when any portion of the principal or interest is 90 days past due or earlier when concern exists as to the ultimate collectibility of principal or interest. Loans return to accrual status when principal and interest become current and are anticipated to be fully collectible. Interest expense is recorded on outstanding lines of credit at a rate based on a spread to the LIBOR. The Company enters into interest rate swap agreements which require it to pay a fixed interest rate and receive a variable interest rate based on the LIBOR. For interest rate swap agreements accounted for as cash flow hedges, the net amount accrued for the variable interest receivable and fixed interest payable affects the amount recorded as interest expense. For interest rate swap agreements accounted for as free-standing derivatives, the net amount accrued for the variable interest receivable and fixed interest payable is recorded in current earnings as unrealized gain on mortgage-backed securities and derivatives. Servicing Fees - The Company recognizes servicing fees when the fees are collected. Marketing and Promotion - The Company charges the costs of marketing, promotion and advertising to expense in the period incurred. Income Taxes - The Company accounts for income taxes in conformity with SFAS No. 109, "Accounting for Income Taxes," which requires an asset and liability approach for accounting and reporting of income taxes. Deferred tax assets and liabilities are recognized for the future tax consequences ("temporary differences") attributable to the differences between the carrying amounts of assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which temporary differences are expected to be recovered or settled. A valuation allowance is provided for deferred tax assets where realization is not considered "more likely than not." The Company recognizes the effect of changes in tax laws or rates on deferred tax assets and liabilities in the period that includes the enactment date. Stock Option Plans - In 1999, the Company established the 1999 Omnibus Stock Incentive Plan, as amended (the "Plan"). The Company has elected to account for the Plan using Accounting Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to Employees," and to provide pro forma net income and pro forma earnings per share disclosures for employee stock option grants as if the fair-value based method, as required by SFAS No. 148, "Accounting for Stock-Based Compensation - Transition and Disclosure - an amendment of FASB Statement No. 123," had been applied. -8- The following table presents pro forma net income available to common shareholders, basic earnings per share and diluted earnings per share had compensation cost been determined based on the fair value at the grant dates for awards under the Plan:
Three Months Ended March 31, ------------------------------ (In thousands, except per share data) 2005 2004 ------------ ------------ Net income available to common shareholders - as reported $ 122,075 $ 21,223 Less: Total stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects (343) (187) ------------ ------------ Net income available to common shareholders - pro forma $ 121,732 $ 21,036 ============ ============ Earnings per share: Basic - as reported $ 3.03 $ 0.71 Basic - pro forma $ 3.02 $ 0.70 Diluted - as reported $ 2.99 $ 0.70 Diluted - pro forma $ 2.98 $ 0.69
In December 2004, the FASB issued SFAS 123 (Revised 2004), "Share-Based Payment" ("SFAS 123R"), SFAS 123R requires compensation cost related to share-based payments to employees to be recognized in the financial statements based on their fair value. In April 2005, the Securities and Exchange Commission issued a rule which delays the required effective date to the beginning of an entity's fiscal year which begins after June 15, 2005. Accordingly, we will adopt SFAS 123R effective January 1, 2006, using the modified prospective method of transition. This method requires the provisions of SFAS 123R be applied to new awards and awards modified, repurchased or cancelled after the effective date. The Company will adopt this statement when effective and is currently evaluating the impact. The impact, had the Company adopted the fair-value based method under existing guidance, is shown in the table above. Earnings Per Share - Basic earnings per share excludes dilution and is computed by dividing net income available to common shareholders by the weighted-average number of shares of common stock outstanding for the period. Diluted earnings per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the earnings of the Company. Cash Flows - Cash and cash equivalents are demand deposits and short-term investments with a maturity of 90 days or less. Recently Issued Accounting Standards - Emerging Issues Task Force ("EITF") Issue No. 03-1, "The Meaning of Other-Than-Temporary Impairment and its Application to Certain Investments," was ratified by the FASB in March 2004. This EITF addresses how to determine the meaning of other-than-temporary impairment and its application to investments classified as either available for sale or held to maturity under SFAS No. 115, "Accounting for Certain Investments in Debt and Equity Securities" (including individual securities and investments in mutual funds), and investments accounted for under the cost method or the equity method. In September 2004, the FASB delayed the effective date of the portion of this EITF that relates to measuring and recognizing other-than-temporary impairment until implementation guidance is finalized. This delay does not suspend the requirement to recognize other-than-temporary impairment required by existing accounting literature. -9- NOTE 2 - MORTGAGE-BACKED SECURITIES The following table presents the Company's mortgage-backed securities available for sale as of March 31, 2005 and December 31, 2004:
March 31, 2005 ----------------------------------------------------------------------------- Gross Unrealized Gross Unrealized Adjusted Cost Gains Losses Fair Value ------------- ----------------- ---------------- ------------ (In thousands) Agency securities $ 232,320 $ 6 $ (7,003) $ 225,323 Privately issued: Rated 2,448,365 514 (27,371) 2,421,508 Unrated 12,181 -- -- 12,181 ------------ ------------ ------------ ------------ Securities available for sale $ 2,692,866 $ 520 $ (34,374) $ 2,659,012 ============ ============ ============ ============
December 31, 2004 ----------------------------------------------------------------------------- Gross Unrealized Gross Unrealized Adjusted Cost Gains Losses Fair Value ------------- ----------------- ---------------- ------------ (In thousands) Agency securities $ 620,196 $ 17 $ (7,700) $ 612,513 Privately issued: Rated 3,584,211 10,791 (12,527) 3,582,475 Unrated 15,952 -- -- 15,952 ------------ ------------ ------------ ------------ Securities available for sale $ 4,220,359 $ 10,808 $ (20,227) $ 4,210,940 ============ ============ ============ ============
-10- The following table presents the Company's securities available for sale in an unrealized loss position as of March 31, 2005 and December 31, 2004:
March 31, 2005 ----------------------------------------------------------------------------------------- Less Than 12 Months 12 Months or More Total --------------------------- --------------------------- --------------------------- Gross Gross Gross Unrealized Unrealized Unrealized Fair Value Losses Fair Value Losses Fair Value Losses --------------------------- --------------------------- --------------------------- (In thousands) Agency securities $ 3,275 $ (30) $ 220,886 $ (6,973) $ 224,161 $ (7,003) Privately issued: Rated 1,733,282 (13,897) 594,551 (13,474) 2,327,833 (27,371) --------------------------- --------------------------- --------------------------- Securities available for sale $ 1,736,557 $ (13,927) $ 815,437 $ (20,447) $ 2,551,994 $ (34,374) =========================== =========================== ===========================
December 31, 2004 ----------------------------------------------------------------------------------------- Less Than 12 Months 12 Months or More Total --------------------------- --------------------------- --------------------------- Gross Gross Gross Unrealized Unrealized Unrealized Fair Value Losses Fair Value Losses Fair Value Losses --------------------------- --------------------------- --------------------------- (In thousands) Agency securities $ 608,730 $ (7,700) $ -- $ -- $ 608,730 $ (7,700) Privately issued: Rated 1,861,777 (12,527) -- -- 1,861,777 (12,527) --------------------------- --------------------------- --------------------------- Securities available for sale $ 2,470,507 $ (20,227) $ -- $ -- $ 2,470,507 $ (20,227) =========================== =========================== ===========================
The following table presents the Company's mortgage-backed trading securities as of March 31, 2005 and December 31, 2004: March 31, 2005 December 31, 2004 ----------------------------------- Fair Value Fair Value --------------- --------------- (In thousands) Privately issued: Rated $ 4,349,079 $ 1,751,335 Unrated 173,079 54,591 --------------- --------------- Trading securities $ 4,522,158 $ 1,805,926 =============== =============== During the three months ended March 31, 2005, the Company recorded $23.2 million in unrealized gains on trading securities that related to trading securities held at March 31, 2005. During the three months ended March 31, 2005, the Company sold $1.1 billion of mortgage-backed securities, excluding securities sold contemporaneously with the execution of securitization transactions, and realized $3.3 million in losses. The $1.1 billion of mortgage-backed securities sold were market-purchased. During the three months ended March 31, 2005, the Company securitized and held in its portfolio $2.8 billion of mortgage-backed securities. The Company's mortgage-backed securities held at March 31, 2005 are primarily either agency obligations or are rated AAA or AA by Standard & Poor's. -11- The Company has credit exposure on $10.7 billion of loans it has securitized privately as of March 31, 2005. The following table summarizes the loan delinquency information as of March 31, 2005 and December 31, 2004:
March 31, 2005 ----------------------------------------------------------- (Dollars in thousands) Loan Loan Percentage of Percentage of Delinquency Status Count Balance Total Portfolio Total Assets ------------------------------ ------------ ------------ --------------- ------------- 60 to 89 days 22 $ 5,622 0.05% 0.06% 90 and greater days 23 2,769 0.03% 0.03% Foreclosure 132 33,329 0.31% 0.35% ------------ ------------ ------------ ------------ 177 $ 41,720 0.39% 0.44% ============ ============ ============ ============
December 31, 2004 ----------------------------------------------------------- (Dollars in thousands) Loan Loan Percentage of Percentage of Delinquency Status Count Balance Total Portfolio Total Assets ------------------------------ ------------ ------------ --------------- ------------- 60 to 89 days 6 $ 2,018 0.05% 0.02% 90 and greater days 2 418 0.01% ---% Foreclosure 48 13,666 0.35% 0.12% ------------ ------------ ------------ ------------ 56 $ 16,102 0.41% 0.14% ============ ============ ============ ============
As of March 31, 2005, the fair value of residual assets from securitizations reported in mortgage-backed securities was $249.8 million. The significant assumptions used in estimating the fair value of residual cash flows as of March 31, 2005 were as follows: March 31, 2005 ------------------------- Weighted-average prepayment speed (CPR) 28.83% Weighted-average discount rate 17.14% Weighted-average default rate 0.54% NOTE 3 - MORTGAGE LOANS HELD FOR SALE, NET The following table presents the Company's mortgage loans held for sale, net, as of March 31, 2005 and December 31, 2004: March 31, December 31, (In thousands) 2005 2004 ------------ ------------ Mortgage loans held for sale $ 1,621,200 $ 4,815,749 SFAS No. 133 basis adjustments (4,889) 40 Deferred origination costs, net 11,580 37,605 ------------ ------------ Mortgage loans held for sale, net $ 1,627,891 $ 4,853,394 ============ ============ During the three months ended March 31, 2005, the Company securitized mortgage loans totaling $7.3 billion, of which $4.5 billion were sold, and realized $69.9 million in gains. -12- NOTE 4 - DERIVATIVE ASSETS AND LIABILITIES The following table presents the Company's derivative assets and liabilities as of March 31, 2005 and December 31, 2004:
March 31, December 31, (In thousands) 2005 2004 ------------ ------------ Derivative Assets Interest rate lock commitments $ 13,760 $ 12,025 Forward delivery contracts - Loan commitments 4,390 -- Forward delivery contracts - Loans held for sale 3,345 -- Interest rate swaps 12,474 9,192 Interest rate caps - free standing derivatives 557 1,459 Interest rate swaps - free standing derivatives 38,857 2,127 ------------ ------------ Derivative assets $ 73,383 $ 24,803 ============ ============ Derivative Liabilities Forward delivery contracts - Loan commitments $ -- $ 896 Forward delivery contracts - Loans held for sale -- 964 Interest rate swaps 1,945 -- ------------ ------------ Derivative liabilities $ 1,945 $ 1,860 ============ ============
As of March 31, 2005, the notional amount of forward delivery contracts and interest rate swap agreements amounted to approximately $1.4 billion and $5.8 billion, respectively. As of December 31, 2004, the notional amount of forward delivery contracts and interest rate swap agreements amounted to approximately $954 million and $3.4 billion, respectively. During the three months ended March 31, 2005, the Company realized $9.5 million in gains on sales of interest rate swap agreements associated with its securitizations of mortgage loans. These gains are recorded in gain on sales of mortgage-backed securities and derivatives in the consolidated statements of income. The forward delivery contracts have a high correlation to the price movement of the loans being hedged. The ineffectiveness in hedging loans held for sale recorded on the consolidated balance sheets was insignificant as of March 31, 2005 and December 31, 2004. As of March 31, 2005, the unrealized loss on interest rate swap agreements relating to cash flow hedges recorded in accumulated other comprehensive loss was a loss of $9.5 million. The Company estimates that $3.8 million of this unrealized loss will be reclassified from accumulated other comprehensive loss to interest expense for the twelve months ended March 31, 2006. -13- NOTE 5 - MORTGAGE SERVICING RIGHTS, NET The following table presents the activity in the Company's mortgage servicing rights, net, for the three months ended March 31, 2005 and 2004: Three Months Ended March 31, ---------------------------------- (In thousands) 2005 2004 --------------- --------------- Mortgage Servicing Rights: Balance at beginning of period $ 163,374 $ 121,652 Additions 82,058 15,665 Amortization (8,501) (7,346) --------------- --------------- Balance at end of period $ 236,931 $ 129,971 --------------- --------------- Impairment Allowance: Balance at beginning of period $ (11,938) $ (3,868) Impairment (provision) recovery 3,419 (12,584) --------------- --------------- Balance at end of period $ (8,519) $ (16,452) --------------- --------------- Mortgage servicing rights, net $ 228,412 $ 113,519 =============== =============== Aggregate Amortization Expense ------------------------------ Three months ended March 31, 2005 $ 8,501 Estimated Amortization Expense ------------------------------ Twelve months ended March 31, 2006 $ 46,388 Twelve months ended March 31, 2007 36,779 Twelve months ended March 31, 2008 27,370 Twelve months ended March 31, 2009 21,103 Twelve months ended March 31, 2010 17,027 Thereafter 88,264 On a quarterly basis, the Company reviews MSRs for impairment based on risk strata. The MSRs are stratified based on the predominant risk characteristics of the underlying loans. The Company's predominant risk characteristic is interest rate. A valuation allowance is recognized for MSRs that have an amortized balance in excess of the estimated fair value for the individual risk stratification. The estimated fair value of MSRs is determined by obtaining a market valuation from an independent MSR broker. To determine the market value of MSRs, the MSR broker uses a valuation model which incorporates assumptions relating to the estimate of the cost of servicing the loan, a discount rate, a float value, an inflation rate, ancillary income per loan, prepayment speeds and default rates that market participants use for similar MSRs. Market assumptions are held constant over the life of the portfolio. The significant assumptions used in estimating the fair value of MSRs at March 31, 2005 and December 31, 2004 were as follows: March 31, 2005 December 31, 2004 -------------- ----------------- Weighted-average prepayment speed (PSA) 289 316 Weighted-average discount rate 11.27% 10.37% Weighted-average default rate 2.44% 2.76% -14- The following table presents certain information regarding the Company's servicing portfolio of loans serviced for others at March 31, 2005 and December 31, 2004:
March 31, 2005 December 31, 2004 --------------- ----------------- (Dollars in thousands) Loan servicing portfolio - loans sold or securitized $ 18,237,603 $ 11,955,608 Average loan size $ 171 $ 156 Weighted-average servicing fee 0.344% 0.348% Weighted-average note rate 5.21% 5.48% Weighted-average remaining term (in months) 331 318 Weighted-average age (in months) 14 20
NOTE 6 - GOODWILL The following table presents the activity in the Company's goodwill for the three months ended March 31, 2005 and 2004:
Mortgage- Backed Loan Securities Origination Holdings (In thousands) Segment Segment Total ------------ ------------ ------------ Balance at January 1, 2004 $ 58,605 $ 24,840 $ 83,445 Earnouts from previous acquisitions 307 -- 307 ------------ ------------ ------------ Balance at March 31, 2004 $ 58,912 $ 24,840 $ 83,752 ============ ============ ============ Balance at January 1, 2005 $ 66,037 $ 24,840 $ 90,877 Earnouts from previous acquisitions 1,868 -- 1,868 ------------ ------------ ------------ Balance at March 31, 2005 $ 67,905 $ 24,840 $ 92,745 ============ ============ ============
As of December 31, 2004, the Company completed a goodwill impairment test by comparing the fair value of goodwill with its carrying value and did not recognize impairment. NOTE 7 - WAREHOUSE LINES OF CREDIT, REVERSE REPURCHASE AGREEMENTS AND COMMERCIAL PAPER Warehouse Lines of Credit - ------------------------- To originate a mortgage loan, the Company draws against a $2.0 billion Secured Liquidity Note Program, a $1.2 billion pre-purchase facility with UBS Real Estate Securities Inc. ("UBS"), a $600 million bank syndicated facility led by Bank of America (which includes a $150.0 million term loan facility which the Company uses to finance its MSRs), a $450 million facility with IXIS Real Estate Capital Inc. (formerly CDC Mortgage Capital Inc.) ("IXIS"), a facility of $350 million with Morgan Stanley Bank ("Morgan Stanley"), a facility of $250 million with Lehman Brothers, a facility of $500 million with Bear Stearns and a facility of $250 million with Calyon New York Branch ("Calyon"). The Bank of America, IXIS, Morgan Stanley and Calyon facilities are committed facilities. In addition, the Company has a gestation facility with Greenwich Capital Financial Products, Inc. ("Greenwich"). The interest rate on outstanding balances fluctuates daily based on a spread to the LIBOR and interest is paid monthly. The facilities are secured by mortgage loans and other assets of the Company. The facilities contain various covenants pertaining to maintenance of net worth, working capital and maximum leverage. At March 31, 2005, the Company was in compliance with respect to the loan covenants. -15- Included within the Bank of America line of credit, the Company has a working capital sub-limit that allows for borrowings up to $50 million at a rate based on a spread to the LIBOR that may be adjusted for earnings on compensating balances on deposit at creditors' banks. As of March 31, 2005, borrowings under the working capital line of credit were $22.1 million. The following table presents the amounts outstanding on the Company's warehouse lines of credit as of March 31, 2005 and December 31, 2004:
March 31, 2005 December 31, 2004 ---------------------------- ---------------------------- Weighted Weighted Outstanding Average Outstanding Average (Dollars in thousands) Balance Rate Balance Rate ---------------------------- ---------------------------- Calyon $ 250,322 3.46% $ 249,540 3.05% IXIS 211,391 3.66 207,841 2.81 Bank of America 182,148 4.11 244,462 3.53 Greenwich 14,825 3.34 33,400 2.89 Morgan Stanley -- -- 540 3.06 ------------ ------------ Warehouse lines of credit $ 658,686 3.70% $ 735,783 3.13% ============ ============
Reverse Repurchase Agreements - ----------------------------- The Company has arrangements to enter into reverse repurchase agreements, a form of collateralized short-term borrowing, with fourteen different financial institutions and on March 31, 2005 had borrowed funds from seven of these firms. Because the Company borrows money under these agreements based on the fair value of its mortgage-backed securities, and because changes in interest rates can negatively impact the valuation of mortgage-backed securities, the Company's borrowing ability under these agreements could be limited and lenders could initiate margin calls in the event interest rates change or the value of the Company's mortgage-backed securities declines for other reasons. As of March 31, 2005, the Company had $6.7 billion of reverse repurchase agreements outstanding with a weighted-average borrowing rate of 2.55 % and a weighted-average remaining maturity of two months. As of December 31, 2004, the Company had $7.1 billion of reverse repurchase agreements outstanding with a weighted-average borrowing rate of 2.13% and a weighted-average remaining maturity of three months. As of March 31, 2005 and December 31, 2004, the Company's reverse repurchase agreements had the following remaining maturities: March 31, December 31, 2005 2004 --------------- --------------- (In thousands) Within 30 days $ 4,254,124 $ 3,617,325 31 to 89 days 946,034 2,050,529 90 to 365 days 1,520,009 1,403,314 --------------- --------------- Reverse repurchase agreements $ 6,720,167 $ 7,071,168 =============== =============== The Company's average reverse repurchase agreements outstanding were $6.9 billion and $1.8 billion for the three months ended March 31, 2005 and 2004, respectively. Commercial Paper - ---------------- In May 2004, the Company formed a wholly owned special purpose entity for the purpose of issuing commercial paper in the form of short-term Secured Liquidity Notes ("SLNs") to finance certain portions of the Company's mortgage loans held for sale. The special purpose entity allows for issuance of short-term notes with maturities of up to 180 days, extendable up to 300 days. The SLNs bear interest at prevailing money market rates approximating the LIBOR. The SLN program capacity, based on aggregate commitments of underlying credit enhancers, was $2.0 billion at March 31, 2005. -16- As of March 31, 2005, the Company had $858.4 million of SLNs outstanding, with an average interest cost of 2.89%. The SLNs were collateralized by loans held for sale and cash with a balance of $897.5 million as of March 31, 2005. As of December 31, 2004, the Company had $529.8 million of SLNs outstanding, with an average interest cost of 2.51%. The SLNs were collateralized by loans held for sale and cash with a balance of $550.0 million as of December 31, 2004. The Company's commercial paper had the following remaining maturities as of March 31, 2005 and December 31, 2004 : March 31, December 31, 2005 2004 --------------- --------------- (In thousands) Within 30 days $ 858,382 $ 529,790 31 to 89 days -- -- --------------- --------------- Commercial paper $ 858,382 $ 529,790 =============== =============== NOTE 8 - COLLATERALIZED DEBT OBLIGATIONS In December of 2004, the Company transferred $3.5 billion of its mortgage loans held for sale to American Home Mortgage Investment Trust 2004-4 (the "Trust") in a securitization transaction. This securitization transaction was accounted for as a financing of the mortgage loans held for sale. The Company financed the transaction by issuing $2.0 billion of collateralized debt obligations, which were collateralized by loans held for sale transferred to the Trust. As of March 31, 2005, the Company had no collateralized debt obligations. As of December 31, 2004, the collateralized debt obligations had a balance of $2.0 billion and an effective interest cost of 3.16%. As of December 31, 2004, the collateralized debt obligations were collateralized by mortgage loans held for sale of $2.0 billion. NOTE 9 - COMMON STOCK AND PREFERRED STOCK Under our charter, our Board of Directors is authorized to issue 110,000,000 shares of stock, of which up to 100,000,000 shares may be common stock and up to 10,000,000 shares may be preferred stock. As of March 31, 2005, there were 40,335,255 shares of common stock issued and outstanding, 2,150,000 shares of our 9.75% Series A Cumulative Redeemable Preferred Stock issued and outstanding and 3,450,000 shares of our 9.25% Series B Cumulative Redeemable Preferred Stock issued and outstanding. During the three months ended March 31, 2005, the Company declared a dividend totaling $28.6 million, or $0.71 per common share, which was paid on April 27, 2005. During the three months ended March 31, 2004, the Company declared dividends totaling $16.7 million, or $0.55 per common share, of which $9.2 million was paid on March 10, 2004 and $7.5 million was paid on April 14, 2004. During the three months ended March 31, 2005, the Company declared a dividend of $1.3 million, or $0.609375 per Series A Preferred share, which was paid on May 2, 2005. During the three months ended March 31, 2005, the Company declared a dividend of $2.0 million, or $0.578125 per Series B Preferred share, which was paid on May 2, 2005. -17- NOTE 10 - INCOME TAXES A reconciliation of the statutory income tax provision to the effective income tax benefit is as follows:
Three Months Ended March 31, ------------------------------------------------------------------------- 2005 2004 ---------------------------------- ---------------------------------- (Dollars in thousands) Tax provision at statutory rate $ 43,880 35.0% $ 6,093 35.0% Non-taxable REIT income (43,802) (34.9) (9,356) (53.7) State and local taxes, net of federal income tax benefit (78) (0.1) (551) (3.2) --------------- --------------- --------------- --------------- Income tax benefit $ -- -% $ (3,814) (21.9%) =============== =============== =============== ===============
The major sources of temporary differences and their deferred tax effect at March 31, 2005 and December 31, 2004 are as follows:
March 31, December 31, 2005 2004 --------------- --------------- (In thousands) Deferred tax liabilities: Capitalized cost of mortgage servicing rights $ 100,422 $ 82,399 Loan origination costs 11,882 11,236 Depreciation 3,083 2,341 Deferred state income taxes 182 -- --------------- --------------- Deferred tax liabilities 115,569 95,976 --------------- --------------- Deferred tax assets: Tax loss carryforwards 45,246 36,384 Allowance for bad debts and foreclosure reserve 3,506 2,711 Mark-to-market adjustments 3,546 811 Deferred state income taxes -- 353 Broker fees 1,046 528 Accrued bonuses 4,847 -- AMT credit 1,745 -- Other 1,383 847 --------------- --------------- Deferred tax assets 61,319 41,634 --------------- --------------- Net deferred tax liabilities $ 54,250 $ 54,342 =============== ===============
AHM Holdings acquired all of the outstanding stock of American Home Mortgage Servicing, Inc. ("AHM Servicing") (formerly known as Columbia National, Incorporated). The acquisition was accounted for under the purchase method of accounting for financial statement purposes. For federal income tax purposes, the historical basis of the assets and liabilities were carried over to AHM Holdings. AHM Servicing has approximately $40 million of separate company net operating loss carryforwards which begin to expire in 2008. In addition, AHM Holdings has approximately $70 million of federal and approximately $187 million of state net operating loss carryforwards which begin to expire in 2024 and 2009, respectively. -18- At March 31, 2005 and December 31, 2004, no valuation allowance has been established against deferred tax assets since it is more likely than not that the deferred tax assets will be realized. The Company has been audited by various state tax jurisdictions which have settled with a no change decision. In addition, the Company is currently under examination by other tax jurisdictions which the Company expects to result in no material assessment. The Company regularly assesses the likelihood of additional assessments in each of the tax jurisdictions in the calculation of its provision and maintains an appropriate reserve as needed. NOTE 11 - EARNINGS PER SHARE The following is a reconciliation of the denominators used in the computations of basic and diluted earnings per share for the three months ended March 31, 2005 and 2004:
Three Months Ended March 31, --------------------------------- (Dollars in thousands, except per share amounts) 2005 2004 --------------- --------------- Numerator for basic earnings per share - Net income available to common shareholders $ 122,075 $ 21,223 =============== =============== Denominator: Denominator for basic earnings per share Weighted average number of common shares outstanding during the period 40,307,617 30,030,248 Net effect of dilutive stock options 503,082 477,570 --------------- --------------- Denominator for diluted earnings per share 40,810,699 30,507,818 =============== =============== Net income per share available to common shareholders: Basic $ 3.03 $ 0.71 =============== =============== Diluted $ 2.99 $ 0.70 =============== ===============
NOTE 12 - STOCK OPTION PLANS In 1999, the Company established the 1999 Omnibus Stock Incentive Plan, as amended (the "Plan"). Pursuant to the Plan, eligible employees, officers and directors may be offered the opportunity to acquire the Company's common stock through the grant of options and the award of restricted stock under the Plan. The total number of shares that may be optioned or awarded under the Plan is 3,000,000 shares of common stock. The Plan provides for the granting of options at the fair market value on the date of grant. The options issued primarily vest 50% on the two-year anniversary of the grant date and 50% on the three-year anniversary of the grant date, and expire ten years from the grant date. As of March 31, 2005, the Company has awarded 211,410 shares of restricted stock under the Plan. During the three months ended March 31, 2005 and 2004, the Company recognized compensation expense of $141 thousand and $188 thousand, respectively, relating to shares of restricted stock granted under the Plan. At March 31, 2005, 133,463 shares are vested. In general, unvested restricted stock is forfeited upon the recipient's termination of employment. For options granted under the Plan, there was no intrinsic value of the options when granted, as the exercise price was equal to the quoted market price at the grant date. No compensation cost has been recognized for the three months ended March 31, 2005 and 2004. Pursuant to the terms of the Company's merger with Apex, which was consummated on December 3, 2003 (following the approval of the Company's stockholders at a special meeting held on November 21, 2003), the Company assumed the Amended and Restated 1997 Stock Option Plan of Apex (the "Apex Plan"). Prior to December 3, 2003, the effective date of the merger with Apex, Apex caused all unvested options granted under the Apex Plan to become vested and exercisable, and each option granted under the Apex Plan that was not exercised as of December 3, 2003 was terminated and not assumed by the Company. -19- Prior to the Apex merger, an aggregate of one million shares of common stock were available for issuance upon exercise of stock options granted under the Apex Plan. As of the effective date of the merger, Apex had granted options to purchase 791,000 shares of common stock, which options were either (i) previously caused to become vested and exercised or (ii) unexercised as of the effective date of the merger, and therefore terminated and not assumed by the Company. Accordingly, options to purchase an aggregate of 209,000 shares of the Company's common stock remain available for grant under the Apex Plan. There were 267,419 options granted under the Plan, with a weighted-average exercise price of $32.88, in the three months ended March 31, 2005. The weighted-average fair value per share of options granted during the three months ended March 31, 2005 was $3.72. There were 173,323 options granted under the Plan, with a weighted-average exercise price of $22.52, in the three months ended March 31, 2004. The weighted-average fair value per share of options granted during the three months ended March 31, 2004 was $5.62. The fair value of the options granted is estimated using the Black-Scholes option-pricing model with the following weighted-average assumptions used for the grants: Three Months Ended March 31, ---------------------------------- 2005 2004 --------------- --------------- Dividend yield 9.1 % 7.0 % Expected volatility 28.4 % 49.0 % Risk-free interest rate 5.0 % 5.0 % Expected life 3 years 3 years NOTE 13 - ACQUISITION Valley Bancorp, Inc. - -------------------- In August 2001, AHM Holdings entered into an agreement to acquire Valley Bancorp, Inc. ("Valley Bancorp") and its wholly-owned subsidiary, Valley Bank of Maryland, a federal savings bank located in suburban Baltimore, Maryland. In 2004, subsequent to the merger with Apex and internal reorganization, AHM Investment, as successor in interest to AHM Holdings, entered into an amended and restated agreement and plan of reorganization with Valley Bancorp. Under the terms of the definitive agreement, the Company will pay $46 for each share of Valley Bancorp common stock outstanding, and will pay in cash to the holders of Valley Bancorp stock options the difference between $46 and the exercise price of such options, or an aggregate of approximately $6.3 million. The acquisition agreement between AHM Investment and Valley Bancorp has been extended through July 31, 2005. This transaction is subject to regulatory approval and no assurance can be given that such approval will be obtained or that the acquisition agreement with Valley Bancorp will be further extended if necessary. NOTE 14 - SEGMENTS AND RELATED INFORMATION The Company has three segments, the Mortgage-Backed Securities Holdings segment, the Loan Origination segment and the Loan Servicing segment. The Mortgage-Backed Securities Holdings segment uses the Company's equity capital and borrowed funds to invest in mortgage-backed securities, thereby producing net interest income. The Loan Origination segment originates mortgage loans through the Company's retail and internet branches and loans sourced through mortgage brokers (wholesale channel). The Loan Servicing segment includes investments in MSRs as well as servicing operations primarily for other financial institutions. The Mortgage-Backed Securities Holdings segment includes realized gains or losses on sales of mortgage-backed securities and unrealized mark-to-market gains or losses subsequent to the securitization date on mortgage-backed securities classified as trading securities. The Loan Origination segment includes unrealized gains or losses that exist on the date of securitization of self-originated loans that are classified as trading securities. -20-
Three Months Ended March 31, 2005 ------------------------------------------------------------- (In thousands) Mortgage- Backed Securities Loan Loan Holdings Origination Servicing Segment Segment Segment Total ------------------------------------------------------------- Net interest income: Interest income $ 58,305 $ 88,589 $ -- $ 146,894 Interest expense (38,985) (47,735) (1,371) (88,091) ------------------------------------------------------------- Total net interest income 19,320 40,854 (1,371) 58,803 ------------------------------------------------------------- Non-interest income: Gain on sales of mortgage loans -- 35,253 -- 35,253 Gain on securitizations of mortgage loans -- 69,919 -- 69,919 Loss (gain) on sales of mortgage-backed securities and derivatives (3,337) 9,469 -- 6,132 Unrealized gain on mortgage-backed securities and derivatives 16,840 40,659 -- 57,499 Loan servicing fees -- -- 11,312 11,312 Amortization of mortgage servicing rights -- -- (8,501) (8,501) Impairment recovery of mortgage servicing rights -- -- 3,419 3,419 ------------------------------------------------------------- Net loan servicing fees -- -- 6,230 6,230 Other non-interest income -- 663 803 1,466 ------------------------------------------------------------- Total non-interest income 13,503 155,963 7,033 176,499 ------------------------------------------------------------- Non-interest expenses: Salaries, commissions and benefits, net 1,076 65,604 1,795 68,475 Occupancy and equipment 2 12,542 127 12,671 Data processing and communications 22 5,814 114 5,950 Office supplies and expenses 1 4,125 303 4,429 Marketing and promotion 2 4,102 26 4,130 Travel and entertainment -- 3,843 85 3,928 Professional fees 973 2,244 253 3,470 Other 2,562 2,435 1,872 6,869 ------------------------------------------------------------- Total non-interest expenses 4,638 100,709 4,575 109,922 ------------------------------------------------------------- Net income before income tax expense (benefit) 28,185 96,108 1,087 125,380 ------------------------------------------------------------- Income tax expense (benefit) -- -- -- -- ------------------------------------------------------------- Net income $ 28,185 $ 96,108 $ 1,087 $ 125,380 ============================================================= Dividends on preferred stock 3,305 -- -- 3,305 ------------------------------------------------------------- Net income available to common shareholders $ 24,880 $ 96,108 $ 1,087 $ 122,075 ============================================================= March 31, 2005 ------------------------------------------------------------- Segment assets $ 7,354,423 $ 1,905,139 $ 315,414 $ 9,574,976 =============================================================
-21-
Three Months Ended March 31, 2004 ------------------------------------------------------------- (In thousands) Mortgage- Backed Securities Loan Loan Holdings Origination Servicing Segment Segment Segment Total ------------------------------------------------------------- Net interest income: Interest income $ 15,149 $ 18,901 $ -- $ 34,050 Interest expense (9,412) (10,962) (904) (21,278) ------------------------------------------------------------- Total net interest income 5,737 7,939 (904) 12,772 ------------------------------------------------------------- Non-interest income: Gain on sales of mortgage loans -- 52,581 -- 52,581 Gain on securitizations of mortgage loans -- 1,856 -- 1,856 Gain (loss) on sales of mortgage-backed securities and derivatives 7,510 (878) -- 6,632 Unrealized gain on mortgage-backed securities and derivatives 4,163 14,746 -- 18,909 Loan servicing fees -- -- 10,318 10,318 Amortization of mortgage servicing rights -- -- (7,346) (7,346) Impairment provision of mortgage servicing rights -- -- (12,584) (12,584) ------------------------------------------------------------- Net loan servicing loss -- -- (9,612) (9,612) Other non-interest income -- 978 -- 978 ------------------------------------------------------------- Total non-interest income 11,673 69,283 (9,612) 71,344 ------------------------------------------------------------- Non-interest expenses: Salaries, commissions and benefits, net 50 38,445 1,132 39,627 Occupancy and equipment -- 7,935 159 8,094 Data processing and communications 2 3,181 30 3,213 Office supplies and expenses -- 2,747 371 3,118 Marketing and promotion -- 2,212 -- 2,212 Travel and entertainment 2 2,462 113 2,577 Professional fees 71 2,213 144 2,428 Other 1,045 3,324 1,069 5,438 ------------------------------------------------------------- Total non-interest expenses 1,170 62,519 3,018 66,707 ------------------------------------------------------------- Net income before income tax expense (benefit) 16,240 14,703 (13,534) 17,409 ------------------------------------------------------------- Income tax expense (benefit) -- 1,735 (5,549) (3,814) ------------------------------------------------------------- Net income $ 16,240 $ 12,968 $ (7,985) $ 21,223 ============================================================= Dividends on preferred stock -- -- -- -- ------------------------------------------------------------- Net income available to common shareholders $ 16,240 $ 12,968 $ (7,985) $ 21,223 ============================================================= December 31, 2004 ------------------------------------------------------------- Segment assets $ 6,136,642 $ 5,194,387 $ 224,768 $ 11,555,797 =============================================================
-22- ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Regarding Forward-Looking Statements This report, including, but not limited to, "Management's Discussion and Analysis of Financial Condition and Results of Operations," contains certain forward-looking statements within the meaning of the federal securities laws. Some of the forward-looking statements can be identified by the use of forward-looking words. When used in this report, statements which are not historical in nature, including the words "anticipate," "may," "estimate," "should," "seek," "expect," "plan," "believe," "intend," and similar words, or the negatives of those words, are intended to identify forward-looking statements. Statements which also contain a projection of revenues, earnings (loss), capital expenditures, dividends, capital structure or other financial terms are intended to be forward-looking statements. Certain statements regarding the following particularly are forward-looking in nature: o our business strategy; o future performance, developments, market forecasts or projected dividends; o projected acquisitions or joint ventures; and o projected capital expenditures. It is important to note that the description of our business in general, and our mortgage-backed securities holdings in particular, is a statement about our operations as of a specific point in time. It is not meant to be construed as an investment policy, and the types of assets we hold, the amount of leverage we use, the liabilities we incur and other characteristics of our assets and liabilities are subject to reevaluation and change without notice. The forward-looking statements in this report are based on our management's beliefs, assumptions, and expectations of our future economic performance, taking into account the information currently available to it. These statements are not statements of historical fact. Forward-looking statements are subject to a number of factors, risks and uncertainties, some of which are not currently known to us, that may cause our actual results, performance or financial condition to be materially different from our expectations of future results, performance or financial position. These factors include, without limitation: o our limited operating history with respect to our proposed portfolio strategy; o our proposed portfolio strategy may be changed or modified by our management without advance notice to stockholders, and that we may suffer losses as a result of such modifications or changes; o our need for a significant amount of cash to operate our business; o risks associated with the use of leverage; o disruptions in the market for repurchase facilities; o failure to match the interest rates on our borrowings with the interest rates on the mortgage-backed securities we hold; o failure to maintain our status as a real estate investment trust; o changes in federal and state tax laws affecting real estate investment trusts; o general economic, political, market, financial or legal conditions; and o those risks and uncertainties discussed in our filings with the Securities and Exchange Commission. In light of these risks, uncertainties and assumptions, any forward-looking events discussed in this report might not occur, and we qualify any and all of our forward-looking statements entirely by these cautionary factors. You are cautioned not to place undue reliance on forward-looking statements. Such forward-looking statements are inherently uncertain, and actual results may differ from expectations. We are not -23- under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise. Critical Accounting Policies and Estimates Our accounting policies are described in Note 1 to the Consolidated Financial Statements. We have identified the following accounting policies that are critical to the presentation of our financial statements and that require critical accounting estimates by management. Mortgage-Backed Securities - We record our mortgage-backed securities at fair value. The fair values of our mortgage-backed securities are generally based on market prices provided by certain dealers who make markets on these financial instruments. Mortgage Loans Held for Sale - Mortgage loans held for sale are carried at the lower of cost or aggregate market value. For mortgage loans held for sale that are hedged with forward sale commitments, the carrying value is adjusted for the change in market during the time the hedge was deemed to be highly effective. The market value is determined by outstanding commitments from investors or current yield requirements calculated on an aggregate basis. Mortgage Servicing Rights ("MSRs") - When we acquire servicing assets through either purchase or origination of loans and sell or securitize those loans with servicing assets retained, the total cost of the loans is allocated to the servicing assets and the loans (without the servicing assets) based on their relative fair values. The amount attributable to the servicing assets is capitalized as MSRs on the consolidated balance sheets. The MSRs are amortized to expense in proportion to and over the period of estimated net servicing income. The MSRs are assessed for impairment based on the fair value of those assets. We estimate the fair value of the servicing assets by obtaining market information from a primary MSR broker. When the book value of capitalized servicing assets exceeds their fair value, impairment is recognized through a valuation allowance. In determining impairment, the mortgage servicing portfolio is stratified by the predominant risk characteristic of the underlying mortgage loans. We have determined that the predominant risk characteristic is the interest rate on the underlying loan. We measure impairment for each stratum by comparing the estimated fair value to the recorded book value. Temporary impairment is recorded through a valuation allowance and amortization expense in the period of occurrence. In addition, we periodically evaluate our MSRs for other than temporary impairment to determine if the carrying value before the application of the valuation allowance is recoverable. We receive a sensitivity analysis of the estimated fair value of our MSRs assuming a 200-basis-point instantaneous increase in interest rates from an independent MSR broker. The fair value estimate includes changes in market assumptions that would be expected given the increase in mortgage rates (e.g., prepayment speeds would be lower). We believe this 200-basis-point increase in mortgage rates to be an appropriate threshold for determining the recoverability of the temporary impairment because that size rate increase is foreseeable and consistent with historical mortgage rate fluctuations. When using this instantaneous change in rates, if the fair value of the strata of MSRs is estimated to increase to a point where all of the impairment would be recovered, the impairment is considered to be temporary. When we determine that a portion of the MSRs is not recoverable, the related MSRs and the previously established valuation allowance are correspondingly reduced to reflect other than temporary impairment. Derivative Assets and Derivative Liabilities - Our mortgage-committed pipeline includes interest rate lock commitments ("IRLCs") that have been extended to borrowers who have applied for loan funding and meet certain defined credit and underwriting criteria. IRLCs associated with loans expected to be sold are recorded at fair value with changes in fair value recorded to current earnings. The fair value of the IRLCs initiated on or before March 31, 2004 is determined by an estimate of the ultimate gain on sale of the loans, including the value of MSRs, net of estimated net costs remaining to originate the loan and any net deferred origination costs. In March 2004, the SEC issued Staff Accounting Bulletin No. 105 ("SAB No. 105"), which provides industry guidance which changed the timing of recognition of MSRs for IRLCs initiated after March 31, 2004. In SAB No. 105, the SEC stated that the value of expected future cash flows related to servicing rights should be excluded when determining the fair value of derivative IRLCs. Under the new policy, the value of the expected future cash flows related to servicing rights is not recognized until the underlying loans are sold. We use other derivative instruments, including mortgage forward delivery contracts and treasury futures options, to economically hedge the IRLCs, which are also classified and accounted for as free-standing derivatives and thus are recorded at fair value with the changes in fair value recorded to current earnings. We use mortgage forward delivery contracts designated as fair value hedging instruments to hedge 100% of our agency-eligible conforming fixed-rate loans and most of our non-conforming fixed-rate loans held for sale. At the inception of the hedge, we formally document the relationship between the forward delivery contracts and the mortgage inventory, as well as our objective and strategy for undertaking the hedge transactions. In the case of our conventional conforming fixed-rate loan products, the notional amount of the forward delivery contracts, along with the underlying rate and terms of the contracts, are equivalent to the unpaid principal amount of the mortgage inventory being hedged; hence, the forward delivery contracts effectively fix the forward sales price and thereby substantially eliminate interest rate and price risk to us. We classify and account for these forward delivery contracts as fair value hedges. The derivatives are carried at fair -24- value with the changes in fair value recorded to current earnings. When the hedges are deemed to be highly effective, the book value of the hedged loans held for sale is adjusted for its change in fair value during the hedge period. We enter into interest rate swap agreements to manage our interest rate exposure when financing our adjustable-rate mortgage loans and mortgage-backed securities. Certain swap agreements accounted for as cash flow hedges and certain swap agreements not designated as cash flow hedges are both carried on the balance sheet at fair value. The fair values of our swap agreements are generally based on market prices provided by certain dealers who make markets in these financial instruments or third-party pricing services. Goodwill - Goodwill represents the excess purchase price over the fair value of net assets stemming from business acquisitions, including identifiable intangibles. We test for impairment, at least annually, by comparing the fair value of goodwill, as determined by using a discounted cash flow method, with its carrying value. Any excess of carrying value over the fair value of the goodwill would be recognized as an impairment loss in continuing operations. The discounted cash flow calculation related to our loan origination segment includes a forecast of the expected future loan originations and the related revenues and expenses. The discounted cash flow calculation related to our Mortgage-Backed Securities Holdings segment includes a forecast of the expected future net interest income, gain on mortgage-backed securities and the related revenues and expenses. These cash flows are discounted using a rate that is estimated to be a weighted-average cost of capital for similar companies. We further test to ensure that the fair value of all our business units does not exceed our total market capitalization. -25- Adjusted Financial Measures The Company securitizes a substantial portion of its mortgage loans held for sale each quarter and intends for each of these transactions to qualify as a sale under Statement of Financial Accounting Standards No. 140, "Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities" ("SFAS 140"). Our December 2004 securitization ("Q4-04 Securitization") did not qualify as a sale at December 31, 2004 and was accounted for as a financing in accordance with SFAS 140 because we retained a small amount of securities which were benefited by derivative contracts embedded in the securitization trust. These securities were sold during the first quarter of 2005, qualifying the Q4-04 Securitization as a sale at March 31, 2005 in accordance with SFAS 140. The Q4-04 Securitization was originally accounted for as a sale. The subsequent discovery of the retained derivative benefit resulted in our restating our financial statements for the period ended December 31, 2004, which restated financial statements were included in our amended Annual Report on Form 10-K/A filed with the SEC on April 22, 2005. Throughout "Management's Discussion and Analysis" below, the term "as adjusted" identifies financial measures that are not prepared in accordance with generally accepted accounting principles ("GAAP"). These adjusted financial measures reflect the effect of treating the Q4-04 Securitization as a sale in the fourth quarter of 2004 rather than in the first quarter of 2005 when the transaction subsequently qualified as a sale. Since the filing of our amended Annual Report on Form 10-K/A, we have enforced our policies, procedures and controls to ensure all securitizations are accounted for in accordance with SFAS 140. The Company has been, and expects to continue to be, managed on the basis of the adjusted financial measures. The adjusted financial measures should be read in conjunction with the Company's GAAP consolidated balance sheets and consolidated statements of income. The following financial tables include GAAP, adjusted and reconciling information for the reasons and purposes described herein: -26- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (In thousands)
- ------------------------------------------------------------------------------------------------------------------------------------ March 31, December 31, December 31, December 31, 2005 2004 2004 2004 ------------ ------------ ------------ ------------ (1) (1) As GAAP Adjustments Adjusted ------------ ------------ ------------ ------------ Assets: Cash and cash equivalents $ 162,762 $ 192,821 $ -- $ 192,821 Accounts receivable and servicing advances 103,295 116,978 (11,640) 105,338 Mortgage-backed securities 7,181,170 6,016,866 1,584,927 7,601,793 Mortgage loans held for sale, net 1,627,891 4,853,394 (3,536,785) 1,316,609 Derivative assets 73,383 24,803 (1,459) 23,344 Mortgage servicing rights, net 228,412 151,436 37,793 189,229 Premises and equipment, net 55,986 51,576 -- 51,576 Goodwill 92,745 90,877 -- 90,877 Other assets 49,332 57,046 (10,490) 46,556 ------------ ------------ ------------ ------------ Total assets $ 9,574,976 $ 11,555,797 $ (1,937,654) $ 9,618,143 ============ ============ ============ ============ Liabilities and Stockholders' Equity: Liabilities: Warehouse lines of credit $ 658,686 $ 735,783 $ -- $ 735,783 Drafts payable 28,391 26,200 -- 26,200 Commercial paper 858,382 529,790 -- 529,790 Reverse repurchase agreements 6,720,167 7,071,168 -- 7,071,168 Collateralized debt obligations -- 2,022,218 (2,022,218) -- Derivative liabilities 1,945 1,860 -- 1,860 Accrued expenses and other liabilities 176,859 152,413 13,213 165,626 Notes payable 159,339 135,761 -- 135,761 Income taxes payable 54,250 54,342 -- 54,342 ------------ ------------ ------------ ------------ Total liabilities 8,658,019 10,729,535 (2,009,005) 8,720,530 ------------ ------------ ------------ ------------ Stockholders' Equity: Preferred Stock 134,040 134,040 -- 134,040 Common stock 403 403 -- 403 Additional paid-in capital 632,828 631,530 -- 631,530 Retained earnings 193,064 99,628 71,351 170,979 Accumulated other comprehensive loss (43,378) (39,339) -- (39,339) ------------ ------------ ------------ ------------ Total stockholders' equity 916,957 826,262 71,351 897,613 ------------ ------------ ------------ ------------ Total liabilities and stockholders' equity $ 9,574,976 $ 11,555,797 $ (1,937,654) $ 9,618,143 ============ ============ ============ ============
Note: (1) - Adjustments reflect the net effect on the period presented to reconcile the Company's operating statistics, results of operations and financial condition prepared in accordance with GAAP to the amounts adjusted as if the Company's fourth quarter 2004 securitization had qualified for SFAS 140 sale accounting treatment in the fourth quarter of 2004. - -------------------------------------------------------------------------------- -27- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (In thousands, except per share amounts)
Three Months Ended March 31, ------------------------------------------------------------ 2005 2005 2005 2004 ------------ ------------ ------------ ------------ (1) (1) As GAAP Adjustments Adjusted ------------ ------------ ------------ ------------ Net interest income: Interest income $ 146,894 $ (26,925) $ 119,969 $ 34,050 Interest expense (88,091) 16,766 (71,325) (21,278) ------------ ------------ ------------ ------------ Net interest income 58,803 (10,159) 48,644 12,772 ------------ ------------ ------------ ------------ Non-interest income: Gain on sales of mortgage loans 35,253 -- 35,253 52,581 Gain on securitizations of mortgage loans 69,919 (25,258) 44,661 1,856 Gain on sales of mortgage-backed securities and derivatives 6,132 (1,400) 4,732 6,632 Unrealized gain on mortgage-backed securities and derivatives 57,499 (37,263) 20,236 18,909 Loan servicing fees 11,312 2,851 14,163 10,318 Amortization (8,501) (2,170) (10,671) (7,346) Impairment reserve recovery (provision) 3,419 2,048 5,467 (12,584) ------------ ------------ ------------ ------------ Net loan servicing fees (loss) 6,230 2,729 8,959 (9,612) ------------ ------------ ------------ ------------ Other non-interest income 1,466 -- 1,466 978 ------------ ------------ ------------ ------------ Non-interest income 176,499 (61,192) 115,307 71,344 ------------ ------------ ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 68,475 -- 68,475 39,627 Occupancy and equipment 12,671 -- 12,671 8,094 Data processing and communications 5,950 -- 5,950 3,213 Office supplies and expenses 4,429 -- 4,429 3,118 Marketing and promotion 4,130 -- 4,130 2,212 Travel and entertainment 3,928 -- 3,928 2,577 Professional fees 3,470 -- 3,470 2,428 Other 6,869 -- 6,869 5,438 ------------ ------------ ------------ ------------ Non-interest expenses 109,922 -- 109,922 66,707 ------------ ------------ ------------ ------------ Net income before income tax benefit 125,380 (71,351) 54,029 17,409 Income tax benefit -- -- -- (3,814) ------------ ------------ ------------ ------------ Net income $ 125,380 $ (71,351) $ 54,029 $ 21,223 ============ ============ ============ ============ Dividends on preferred stock 3,305 -- 3,305 -- ------------ ------------ ------------ ------------ Net income available to common shareholders $ 122,075 $ (71,351) $ 50,724 $ 21,223 ============ ============ ============ ============ Per share data: Basic $ 3.03 $ (1.77) $ 1.26 $ 0.71 Diluted $ 2.99 $ (1.75) $ 1.24 $ 0.70 Weighted average number of shares - basic 40,308 40,308 40,308 30,030 Weighted average number of shares - diluted 40,811 40,811 40,811 30,508
Note: (1) - Adjustments reflect the net effect on the period presented to reconcile the Company's operating statistics, results of operations and financial condition prepared in accordance with GAAP to the amounts adjusted as if the Company's fourth quarter 2004 securitization had qualified for SFAS 140 sale accounting treatment in the fourth quarter of 2004. -28- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME MORTGAGE-BACKED SECURITIES HOLDINGS SEGMENT (In thousands)
Three Months Ended March 31, ----------------------------------------------------------- 2005 2005 2005 2004 ------------ ------------ ------------ ----------- (1) (1) As GAAP Adjustments Adjusted ------------ ------------ ------------ ----------- Net interest income: Interest income $ 58,305 $ 19,968 $ 78,273 $ 15,149 Interest expense (38,985) -- (38,985) (9,412) ------------ ------------ ------------ ----------- Net interest income 19,320 19,968 39,288 5,737 ------------ ------------ ------------ ----------- Non-interest income: Gain on sales of mortgage loans -- -- -- -- Gain on securitizations of mortgage loans -- -- -- -- (Loss) gain on sales of mortgage-backed securities and derivatives (3,337) (1,400) (4,737) 7,510 Unrealized gain (loss) on mortgage-backed securities and derivatives 16,840 (19,083) (2,243) 4,163 Loan servicing fees -- -- -- -- Amortization -- -- -- -- Impairment reserve recovery (provision) -- -- -- -- ------------ ------------ ------------ ----------- Net loan servicing fees (loss) -- -- -- -- ------------ ------------ ------------ ----------- Other non-interest income -- -- -- -- ------------ ------------ ------------ ----------- Non-interest income 13,503 (20,483) (6,980) 11,673 ------------ ------------ ------------ ----------- Non-interest expenses: Salaries, commissions and benefits, net 1,076 -- 1,076 50 Occupancy and equipment 2 -- 2 -- Data processing and communications 22 -- 22 2 Office supplies and expenses 1 -- 1 -- Marketing and promotion 2 -- 2 -- Travel and entertainment -- -- -- 2 Professional fees 973 -- 973 71 Other 2,562 -- 2,562 1,045 ------------ ------------ ------------ ----------- Non-interest expenses 4,638 -- 4,638 1,170 ------------ ------------ ------------ ----------- Net income before income tax expense (benefit) 28,185 (515) 27,670 16,240 Income tax expense (benefit) -- -- -- -- ------------ ------------ ------------ ----------- Net income $ 28,185 $ (515) $ 27,670 $ 16,240 ============ ============ ============ ===========
Note: (1) - Adjustments reflect the net effect on the period presented to reconcile the Company's operating statistics, results of operations and financial condition prepared in accordance with GAAP to the amounts adjusted as if the Company's fourth quarter 2004 securitization had qualified for SFAS 140 sale accounting treatment in the fourth quarter of 2004. -29- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME LOAN ORIGINATION SEGMENT (In thousands)
Three Months Ended March 31, ------------------------------------------------------------ 2005 2005 2005 2004 ------------ ------------ ------------ ------------ (1) (1) As GAAP Adjustments Adjusted ------------ ------------ ------------ ------------ Net interest income: Interest income $ 88,589 $ (46,893) $ 41,696 $ 18,901 Interest expense (47,735) 16,766 (30,969) (10,962) ------------ ------------ ------------ ------------ Net interest income 40,854 (30,127) 10,727 7,939 ------------ ------------ ------------ ------------ Non-interest income: Gain on sales of mortgage loans 35,253 -- 35,253 52,581 Gain on securitizations of mortgage loans 69,919 (25,258) 44,661 1,856 Gain (loss) on sales of mortgage-backed securities and derivatives 9,469 -- 9,469 (878) Unrealized gain on mortgage-backed securities and derivatives 40,659 (18,180) 22,479 14,746 Loan servicing fees -- -- -- -- Amortization -- -- -- -- Impairment reserve recovery (provision) -- -- -- -- ------------ ------------ ------------ ------------ Net loan servicing fees (loss) -- -- -- -- ------------ ------------ ------------ ------------ Other non-interest income 663 -- 663 978 ------------ ------------ ------------ ------------ Non-interest income 155,963 (43,438) 112,525 69,283 ------------ ------------ ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 65,604 -- 65,604 38,445 Occupancy and equipment 12,542 -- 12,542 7,935 Data processing and communications 5,814 -- 5,814 3,181 Office supplies and expenses 4,125 -- 4,125 2,747 Marketing and promotion 4,102 -- 4,102 2,212 Travel and entertainment 3,843 -- 3,843 2,462 Professional fees 2,244 -- 2,244 2,213 Other 2,435 -- 2,435 3,324 ------------ ------------ ------------ ------------ Non-interest expenses 100,709 -- 100,709 62,519 ------------ ------------ ------------ ------------ Net income before income tax expense 96,108 (73,565) 22,543 14,703 Income tax expense -- -- -- 1,735 ------------ ------------ ------------ ------------ Net income $ 96,108 $ (73,565) $ 22,543 $ 12,968 ============ ============ ============ ============
Note: (1) - Adjustments reflect the net effect on the period presented to reconcile the Company's operating statistics, results of operations and financial condition prepared in accordance with GAAP to the amounts adjusted as if the Company's fourth quarter 2004 securitization had qualified for SFAS 140 sale accounting treatment in the fourth quarter of 2004. -30- AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME LOAN SERVICING SEGMENT (In thousands)
Three Months Ended March 31, ----------------------------------------------------------- 2005 2005 2005 2004 ------------ ------------ ------------ ----------- (1) (1) As GAAP Adjustments Adjusted ------------ ------------ ------------ ----------- Net interest income: Interest income $ -- $ -- $ -- $ -- Interest expense (1,371) -- (1,371) (904) ------------ ------------ ------------ ----------- Net interest income (1,371) -- (1,371) (904) ------------ ------------ ------------ ----------- Non-interest income: Gain on sales of mortgage loans -- -- -- -- Gain on securitizations of mortgage loans -- -- -- -- Gain (loss) on sales of mortgage-backed securities and derivatives -- -- -- -- Unrealized gain (loss) on mortgage-backed securities and derivatives -- -- -- -- Loan servicing fees 11,312 2,851 14,163 10,318 Amortization (8,501) (2,170) (10,671) (7,346) Impairment reserve recovery (provision) 3,419 2,048 5,467 (12,584) ------------ ------------ ------------ ----------- Net loan servicing fees (loss) 6,230 2,729 8,959 (9,612) ------------ ------------ ------------ ----------- Other non-interest income 803 -- 803 -- ------------ ------------ ------------ ----------- Non-interest income 7,033 2,729 9,762 (9,612) ------------ ------------ ------------ ----------- Non-interest expenses: Salaries, commissions and benefits, net 1,795 -- 1,795 1,132 Occupancy and equipment 127 -- 127 159 Data processing and communications 114 -- 114 30 Office supplies and expenses 303 -- 303 371 Marketing and promotion 26 -- 26 -- Travel and entertainment 85 -- 85 113 Professional fees 253 -- 253 144 Other 1,872 -- 1,872 1,069 ------------ ------------ ------------ ----------- Non-interest expenses 4,575 -- 4,575 3,018 ------------ ------------ ------------ ----------- Net income before income tax benefit 1,087 2,729 3,816 (13,534) Income tax benefit -- -- -- (5,549) ------------ ------------ ------------ ----------- Net income $ 1,087 $ 2,729 $ 3,816 $ (7,985) ============ ============ ============ ===========
Note: (1) - Adjustments reflect the net effect on the period presented to reconcile the Company's operating statistics, results of operations and financial condition prepared in accordance with GAAP to the amounts adjusted as if the Company's fourth quarter 2004 securitization had qualified for SFAS 140 sale accounting treatment in the fourth quarter of 2004. -31- Financial Condition Total assets at March 31, 2005 were $9.6 billion, a $2.0 billion decrease from $11.6 billion at December 31, 2004 and flat to the $9.6 billion of total assets as adjusted at December 31, 2004. The decrease in total assets primarily reflects a decrease in mortgage loans held for sale of $3.2 billion, partly offset by an increase in mortgage-backed securities of $1.2 billion. Total assets at December 31, 2004 includes the full $3.5 billion amount of the loans held for sale in the Q4-04 Securitization and excludes $1.5 billion of mortgage-backed securities that the Company retained in connection with the transaction. At March 31, 2005, 75.0% of our total assets were mortgage-backed securities and 17.0% were mortgage loans held for sale, compared to 52.1% and 42.0%, respectively, at December 31, 2004 and 79.0% and 13.7%, respectively, at December 31, 2004 as adjusted. The following table summarizes our mortgage-backed securities owned at March 31, 2005, December 31, 2004 and December 31, 2004 as adjusted, classified by type of issuer and by ratings categories:
March 31, 2005 ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Agency securities $ -- --% $ 225,323 8.5% $ 225,323 3.1% Privately issued: AAA 4,161,411 92.1 2,387,208 89.8 6,548,619 91.2 AA -- -- 14,234 0.5 14,234 0.2 A 77,111 1.7 13,424 0.5 90,535 1.3 BBB 110,557 2.4 6,642 0.2 117,199 1.6 Unrated 173,079 3.8 12,181 0.5 185,260 2.6 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 4,522,158 100.0% $ 2,659,012 100.0% $ 7,181,170 100.0% ============ ============ ============ ============ ============ ============
December 31, 2004 ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Agency securities $ -- --% $ 612,513 14.5% $ 612,513 10.2% Privately issued: AAA 1,634,702 90.6 3,542,772 84.1 5,177,474 86.0 AA -- -- 16,043 0.4 16,043 0.3 A 58,480 3.2 15,750 0.4 74,230 1.2 BBB 58,153 3.2 7,910 0.2 66,063 1.1 Unrated 54,591 3.0 15,952 0.4 70,543 1.2 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 1,805,926 100.0% $ 4,210,940 100.0% $ 6,016,866 100.0% ============ ============ ============ ============ ============ ============
-32-
December 31, 2004 (as adjusted) ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Agency securities $ -- --% $ 612,513 14.5% $ 612,513 8.1% Privately issued: AAA 3,025,975 89.3 3,542,772 84.1 6,568,747 86.4 AA -- -- 16,043 0.4 16,043 0.2 A 129,840 3.8 15,750 0.4 145,590 1.9 BBB 105,567 3.1 7,910 0.2 113,477 1.5 Unrated 129,471 3.8 15,952 0.4 145,423 1.9 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 3,390,853 100.0% $ 4,210,940 100.0% $ 7,601,793 100.0% ============ ============ ============ ============ ============ ============
The following table classifies our mortgage-backed securities portfolio by type of interest rate index at March 31, 2005, December 31, 2004 and December 31, 2004 as adjusted:
March 31, 2005 ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Index: One-month LIBOR $ 202,677 4.5% $ 103,144 3.9% $ 305,821 4.3% Six-month LIBOR 3,474,690 76.8 1,668,785 62.7 5,143,475 71.6 One-year LIBOR 836,972 18.5 712,289 26.8 1,549,261 21.6 One-year constant maturity treasury 7,819 0.2 174,794 6.6 182,613 2.5 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 4,522,158 100.0% $ 2,659,012 100.0% $ 7,181,170 100.0% ============ ============ ============ ============ ============ ============
December 31, 2004 ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Index: One-month LIBOR $ 86,199 4.8% $ 114,149 2.7% $ 200,348 3.3% Six-month LIBOR 829,413 45.9 2,385,582 56.7 3,214,995 53.4 One-year LIBOR 890,314 49.3 1,231,392 29.2 2,121,706 35.3 One-year constant maturity treasury -- -- 479,817 11.4 479,817 8.0 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 1,805,926 100.0% $ 4,210,940 100.0% $ 6,016,866 100.0% ============ ============ ============ ============ ============ ============
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December 31, 2004 (as adjusted) ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Index: One-month LIBOR $ 198,201 5.8% $ 114,149 2.7% $ 312,350 4.1% Six-month LIBOR 2,266,802 66.9 2,385,582 56.7 4,652,384 61.2 One-year LIBOR 925,850 27.3 1,231,392 29.2 2,157,242 28.4 One-year constant maturity treasury -- -- 479,817 11.4 479,817 6.3 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 3,390,853 100.0% $ 4,210,940 100.0% $ 7,601,793 100.0% ============ ============ ============ ============ ============ ============
The following table classifies our mortgage-backed securities portfolio by product type at March 31, 2005, December 31, 2004 and December 31, 2004 as adjusted:
March 31, 2005 ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Product: ARMs less than 3 years $ 338,472 7.5% $ 805,680 30.3% $ 1,144,152 15.9% 3/1 Hybrid ARM 373,221 8.3 423,996 15.9 797,217 11.1 5/1 Hybrid ARM 3,810,465 84.2 1,429,336 53.8 5,239,801 73.0 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 4,522,158 100.0% $ 2,659,012 100.0% $ 7,181,170 100.0% ============ ============ ============ ============ ============ ============
December 31, 2004 ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Product: ARMs less than 3 years $ 149,040 8.3% $ 954,794 22.7% $ 1,103,834 18.3% 3/1 Hybrid ARM 381,831 21.1 488,696 11.6 870,527 14.5 5/1 Hybrid ARM 1,275,055 70.6 2,767,450 65.7 4,042,505 67.2 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 1,805,926 100.0% $ 4,210,940 100.0% $ 6,016,866 100.0% ============ ============ ============ ============ ============ ============
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December 31, 2004 (as adjusted) ----------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total --------------------------- ----------------------------- --------------------------- Carrying Portfolio Carrying Portfolio Carrying Portfolio Value Mix Value Mix Value Mix ------------ ------------ ------------ ------------ ------------ ------------ (Dollars in thousands) Product: ARMs less than 3 years $ 342,694 10.1% $ 954,794 22.7% $ 1,297,488 17.1% 3/1 Hybrid ARM 381,831 11.3 488,696 11.6 870,527 11.5 5/1 Hybrid ARM 2,666,328 78.6 2,767,450 65.7 5,433,778 71.4 ------------ ------------ ------------ ------------ ------------ ------------ Total $ 3,390,853 100.0% $ 4,210,940 100.0% $ 7,601,793 100.0% ============ ============ ============ ============ ============ ============
During the three months ended March 31, 2005, we added $2.8 billion of self-originated mortgage-backed securities to our portfolio including $1.5 billion from the Q4-04 Securitization. During the three months ended March 31, 2005, we sold $1.1 billion of mortgage-backed securities. The average cost basis of our available for sale mortgage-backed securities, excluding unrealized gains and losses, was 102.1% of par as of March 31, 2005 and 101.7% of par as of December 31, 2004. Results of Operations - Comparison of the Three Months Ended March 31, 2005 and 2004 Overview Net income for the three months ended March 31, 2005 was $125.4 million compared to $21.2 million for the three months ended March 31, 2004, an increase of $104.2 million, or 490.8%. Net income for the three months ended March 31, 2005 includes approximately $71.4 million of revenues related to the delay in recognizing the Q4-04 Securitization as a sale into the first quarter of 2005. The increase in net income was the result of a $105.2 million increase in non-interest income and a $46.0 million increase in net interest income, partly offset by a $43.2 million increase in non-interest expenses and a $3.8 million decrease in income tax benefit. The $105.2 million increase in non-interest income consists of a $68.1 million increase in gain on securitizations of mortgage loans, a $38.1 million increase in realized and unrealized gains on mortgage-backed securities and derivatives, a $15.8 million increase in net loan servicing fees and a $0.5 million increase in other non-interest income partly offset by a $17.3 million decrease in gain on sales of mortgage loans in the three months ended March 31, 2005 versus the three months ended March 31, 2004. Management believes that the generally higher revenues in the first quarter of 2005 due solely to the recognition of two securitization transactions as sales are not recurring and expects that the Company's revenues from securitization activities in future quarterly periods will generally reflect related mortgage securitization volumes in those periods and will not include significant benefits from prior periods. Net income as adjusted for the three months ended March 31, 2005 was $54.0 million, an increase of $32.8 million, or 154.6%, over net income for the three months ended March 31, 2004. The increase in net income as adjusted was the result of a $43.9 million increase in non-interest income as adjusted and a $35.9 million increase in net interest income as adjusted, partly offset by a $43.2 million increase in non-interest expenses and $3.8 million decrease in income tax benefit. The $43.9 million increase in non-interest income as adjusted consists of a $42.8 million increase in gain on securitizations of mortgage loans as adjusted, an $18.6 million increase in net loan servicing fees as adjusted and a $0.4 million increase in other non-interest income, partly offset by a $17.3 million decrease in gain on sales of mortgage loans and by a $0.6 million decrease in realized and unrealized gains on mortgage-backed securities and derivatives as adjusted in the three months ended March 31, 2005 versus the three months ended March 31, 2004. Net Interest Income The following tables present the average balances for our interest-earning assets, interest-bearing liabilities, corresponding annualized effective rates of interest and the related interest income or expense for the three months ended March 31, 2005 compared to the three months ended March 31, 2004 and for the three months ended March 31, 2005 as adjusted compared to the three months ended March 31, 2004: -35-
(Dollars in thousands) Three Months Ended March 31, ----------------------------------------------------------------------------------------- 2005 2004 ------------------------------------------- ------------------------------------------ Average Average Average Average Balance Interest Yield/Cost Balance Interest Yield/Cost ------------ ------------ ------------ ------------ ------------ ------------ Interest earning assets: Mortgage-backed securities, net (1) $ 5,853,318 $ 58,305 3.98% $ 1,958,339 $ 15,149 3.09% Mortgage loans held for sale 6,239,851 88,589 5.68% 1,439,469 18,901 5.25% ------------ ------------ ------------ ------------ 12,093,169 146,894 4.86% 3,397,808 34,050 4.01% ------------ ------------ ------------ ------------ Interest bearing liabilities: Warehouse lines of credit (2) 1,490,755 16,956 4.55% 1,289,570 10,760 3.34% Commercial paper 1,184,803 6,058 2.05% -- -- -- Reverse repurchase agreements (3) 6,898,461 46,724 2.71% 1,795,332 9,412 2.10% Collateralized debt obligations 1,987,085 16,766 3.37% -- -- -- Notes payable 150,167 1,587 4.23% 106,021 1,106 4.17% ------------ ------------ ------------ ------------ 11,711,271 88,091 3.01% 3,190,923 21,278 2.67% ------------ ------------ ------------ ------------ Net interest income $ 58,803 $ 12,772 ============ ============ Interest rate spread 1.85% 1.34% ============ ============= Net interest margin 1.94% 1.50% ============ =============
(1) The average yield does not give effect to changes in the fair value that are reflected as a component of stockholders' equity. (2) Includes $2.7 million and $1.1 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. (3) Includes $6.0 million and $3.6 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively.
(Dollars in thousands) Three Months Ended March 31, ----------------------------------------------------------------------------------------- 2005 (As Adjusted) 2004 ------------------------------------------- ------------------------------------------ Average Average Average Average Balance Interest Yield/Cost Balance Interest Yield/Cost ------------ ------------ ------------ ------------ ------------ ------------ Interest earning assets: Mortgage-backed securities, net (1) $ 7,406,545 $ 78,273 4.23% $ 1,958,339 $ 15,149 3.09% Mortgage loans held for sale 2,792,467 41,696 5.97% 1,439,469 18,901 5.25% ------------ ------------ ------------ ------------ 10,199,012 119,969 4.71% 3,397,808 34,050 4.01% ------------ ------------ ------------ ------------ Interest bearing liabilities: Warehouse lines of credit (2) 1,490,755 16,956 4.55% 1,289,570 10,760 3.34% Commercial paper 1,184,803 6,058 2.05% -- -- -- Reverse repurchase agreements (3) 6,898,461 46,724 2.71% 1,795,332 9,412 2.10% Notes payable 150,167 1,587 4.23% 106,021 1,106 4.17% ------------ ------------ ------------ ------------ 9,724,186 71,325 2.93% 3,190,923 21,278 2.67% ------------ ------------ ------------ ------------ Net interest income $ 48,644 $ 12,772 ============ ============ Interest rate spread 1.78% 1.34% ============ ============ Net interest margin 1.91% 1.50% ============ ============
(1) The average yield does not give effect to changes in the fair value that are reflected as a component of stockholders' equity. (2) Includes $2.7 million and $1.1 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. (3) Includes $6.0 million and $3.6 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. -36- The following tables present the effects of changes in interest rates and changes in volume of interest-earning assets and interest-bearing liabilities on our interest income and interest expense for the three months ended March 31, 2005 compared to the three months ended March 31, 2004 and for the three months ended March 31, 2005 as adjusted compared to the three months ended March 31, 2004:
Three Months Ended March 31, 2005 Compared to (In thousands) Three Months Ended March 31, 2004 --------------------------------------------------- Average Average Rate Volume Total ------------ ------------ ------------ Mortgage-backed securities, net $ 5,453 $ 37,703 $ 43,156 Mortgage loans held for sale 1,657 68,031 69,688 ------------ ------------ ------------ Interest income 7,110 105,734 112,844 ------------ ------------ ------------ Warehouse lines of credit 4,335 1,861 6,196 Commercial paper -- 6,058 6,058 Reverse repurchase agreements 3,476 33,836 37,312 Collateralized debt obligations -- 16,766 16,766 Notes payable 15 466 481 ------------ ------------ ------------ Interest expense 7,826 58,987 66,813 ------------ ------------ ------------ Net interest income $ (716) $ 46,747 $ 46,031 ============ ============ ============
Three Months Ended March 31, 2005 (As Adjusted) Compared to (In thousands) Three Months Ended March 31, 2004 --------------------------------------------------- Average Average Rate Volume Total ------------ ------------ ------------ Mortgage-backed securities, net $ 7,341 $ 55,783 $ 63,124 Mortgage loans held for sale 2,904 19,891 22,795 ------------ ------------ ------------ Interest income 10,245 75,674 85,919 ------------ ------------ ------------ Warehouse lines of credit 4,335 1,861 6,196 Commercial paper -- 6,058 6,058 Reverse repurchase agreements 3,476 33,836 37,312 Notes payable 15 466 481 ------------ ------------ ------------ Interest expense 7,826 42,221 50,047 ------------ ------------ ------------ Net interest income $ 2,419 $ 33,453 $ 35,872 ============ ============ ============ - ------------------------------------------------------------------------------------------------------------------------------------
Interest Income: Interest income on mortgage-backed securities for the three months ended March 31, 2005 was $58.3 million, compared to $15.1 million for the three months ended March 31, 2004, a $43.2 million, or 284.9%, increase. This increase reflects primarily the growth of our mortgage-backed securities portfolio over the past twelve months. -37- Interest income on mortgage-backed securities as adjusted for the three months ended March 31, 2005 was $78.2 million compared to interest income on mortgage-backed securities of $15.1 million for the three months ended March 31, 2004, a $63.1 million, or 416.7% increase. This increase reflects primarily the growth of our mortgage-backed securities portfolio over the past twelve months. Interest income on our mortgage loans held for sale for the three months ended March 31, 2005 was $88.6 million compared to $18.9 million for the three months ended March 31, 2004, an increase of $69.7 million, or 368.7%. The increase in interest income on loans held for sale was primarily the result of an increase in average volume in 2005 versus 2004 due to accounting for the Q4-04 Securitization as a financing for most of the first quarter of 2005 and higher mortgage origination volume. Interest income on our mortgage loans held for sale as adjusted for the three months ended March 31, 2005 was $41.7 million compared to $18.9 million for the three months ended March 31, 2004, an increase of $22.8 million, or 120.6%. The increase in loans held for sale interest income was primarily the result of an increase in average volume in 2005 versus 2004 due to higher mortgage origination volume. Interest Expense: We fund our loan inventory primarily through borrowing facilities with several mortgage warehouse lenders and through a $2.0 billion commercial paper, or secured liquidity note ("SLN"), program. Interest expense on warehouse lines of credit for the three months ended March 31, 2005 was $17.0 million, compared to interest expense for the three months ended March 31, 2004 of $10.8 million, a $6.2 million increase. The increase in warehouse lines of credit interest expense was primarily the result of an increase in average volume due to higher mortgage origination volume and an increase in average rate due to the generally higher interest rate environment in 2005 versus 2004. In May 2004, we formed a wholly-owned special purpose entity for the purpose of issuing commercial paper in the form of SLNs to finance certain portions of our mortgage loans held for sale. Interest expense on commercial paper for the three months ended March 31, 2005 was $6.1 million. By funding a portion of our loan inventory through the commercial paper program, we were able to reduce our average funding cost versus borrowing exclusively through warehouse lenders. We have borrowed funds under reverse repurchase agreements, a form of collateralized short-term borrowing, with fourteen different financial institutions as of March 31, 2005. We borrow funds under these arrangements based on the fair value of our mortgage-backed securities. Total interest expense on reverse repurchase agreements for the three months ended March 31, 2005 was $46.7 million, compared to interest expense for the three months ended March 31, 2004 of $9.4 million, a $37.3 million increase. The increase in reverse repurchase agreements interest expense in 2005 versus 2004 was primarily the result of an increase in borrowings used to fund the growth of our mortgage-backed securities portfolio. For the three months ended March 31, 2005, we recognized $16.8 million of interest expense on collateralized debt obligations related to accounting for the Q4-04 Securitization as a financing for most of the first quarter of 2005. Management believes that this expense is non-recurring. Gain on Mortgage Loans, Mortgage-Backed Securities and Derivatives - ------------------------------------------------------------------ Gain on Sales and Securitizations of Mortgage Loans: Gain on sales and securitizations of mortgage loans in our Loan Origination segment during the three months ended March 31, 2005 totaled $155.3 million including $43.4 million recognized in connection with the Q4-04 Securitization. Gain on sales and securitizations of mortgage loans in our Loan Origination segment, as adjusted, during the three months ended March 31, 2005 were $111.9 million, or 1.62%, of mortgage loans sold or securitized, as adjusted, compared to $68.3 million, or 1.58%, of mortgage loans sold or securitized during the three months ended March 31, 2004. The increase primarily reflects a $2.6 billion increase in mortgage loans sold or securitized, as adjusted, to $6.9 billion, as adjusted, in the first quarter of 2005 from $4.3 billion in the first quarter of 2004. The following table presents the components of gain on sales and securitizations of mortgage loans in our Loan Origination segment during the three months ended March 31, 2005 and 2004: -38- Gains on Sales and Securitizations of Mortgage Loans
Three Months Ended March 31, ------------------------------------------------------------ 2005 2005 2005 2004 ------------ ----------- ----------- ----------- GAAP Adjustments As Adjusted ------------ ----------- ----------- ----------- (Dollars in thousands) Gain on sales of mortgage loans $35,253 $ -- $35,253 $52,581 Gain on securitizations of mortgage loans 69,919 (25,258) 44,661 1,856 Gain (loss) on sales of free standing derivatives 9,469 -- 9,469 (878) Unrealized gain on self-originated mortgage-backed securities retained in period 41,709 (18,180) 23,529 14,746 Unrealized loss on free standing derivatives (1,050) -- (1,050) -- ------------ ----------- ----------- ----------- Total gain on sales and securitizations of mortgage loans $155,300 $(43,438) $111,862 $68,305 ============ =========== =========== =========== Total mortgage loans sold or securitized $10,430,630 $(3,526,123) $6,904,507 $4,333,865 ============ =========== =========== =========== Total gain on sales and securitizations of mortgage loans as a % of total mortgage loans sold or securitized 1.49% 1.62% 1.58%
Portfolio Gains and Losses: During the three months ended March 31, 2005, portfolio gains and losses in our Mortgage-Backed Securities Holdings segment, as adjusted, were a portfolio loss of $7.0 million compared to a portfolio gain of $11.7 million during the three months ended March 31, 2004. The decrease in portfolio gains in the first quarter of 2005 compared to the first quarter of 2004 was the result of a $12.2 million decrease in gain on sales of mortgage-backed securities, as adjusted, a $5.0 million increase in interest carry expense on free standing derivatives, and a $1.4 million net decrease in unrealized gain on mortgage-backed securities and free standing derivatives, as adjusted, excluding interest carry expense. For interest rate swap agreements accounted for as free standing derivatives, the interest carry expense is the net amount accrued for the variable interest receivable and fixed interest payable recorded in current earnings in unrealized gain on mortgage-backed securities and derivatives. The following table presents the components of portfolio gains and losses in our Mortgage-Backed Securities Holdings segment during the three months ended March 31, 2005 and 2004: Portfolio Gains and Losses
Three Months Ended March 31, --------------------------------------------------------- 2005 2005 2005 2004 ------------ ----------- ----------- ----------- GAAP Adjustments As Adjusted ------------ ----------- ----------- ----------- (In thousands) (Loss) gain on sales of mortgage-backed securities $(3,337) $(1,400) $(4,737) $7,510 Unrealized (loss) gain on mortgage-backed securities (18,460) (19,083) (37,543) 4,163 Unrealized gain on free standing derivatives 40,312 -- 40,312 -- ------------ ----------- ----------- ----------- Net unrealized gain on mortgage-backed securities and free standing derivatives excluding interest carry expense 21,852 (19,083) 2,769 4,163 Interest carry expense on free standing derivatives included in unrealized gain (5,012) -- (5,012) -- ------------ ----------- ----------- ----------- Total portfolio gain (loss) $13,503 $(20,483) $(6,980) $11,673 ============ =========== =========== ===========
-39- The following table presents the components of gain on sales of mortgage-backed securities and derivatives shown in the Company's consolidated statements of income: Components of Gain on Sales of Mortgage-backed Securities and Derivatives
Three Months Ended March 31, --------------------------------------------------------- 2005 2005 2005 2004 ------------ ----------- ----------- ----------- GAAP Adjustments As Adjusted ------------ ----------- ----------- ----------- (In thousands) Gain (loss) on sales of mortgage-backed securities $(3,337) $(1,400) $(4,737) $7,510 Gain (loss) on sales of free standing interest rate swap derivatives 9,469 -- 9,469 (878) ------------ ----------- ----------- ----------- Gain on sales of mortgage-backed securities and derivatives $6,132 $(1,400) $4,732 $6,632 ============ =========== =========== ===========
The following table presents the components of unrealized gain on mortgage-backed securities and derivatives shown in the Company's consolidated statements of income: Components of Unrealized Gain on Mortgage-backed Securities and Derivatives
Three Months Ended March 31, --------------------------------------------------------- 2005 2005 2005 2004 ------------ ----------- ----------- ----------- GAAP Adjustments As Adjusted ------------ ----------- ----------- ----------- (In thousands) Unrealized gain on self-originated mortgage-backed securities retained in period $41,709 $(18,180) $23,529 $14,746 Unrealized (loss) gain on mortgage-backed securities (18,460) (19,083) (37,543) 4,163 Unrealized gain on free standing derivatives 39,262 -- 39,262 -- Unrealized loss on free standing derivatives - interest carry (5,012) -- (5,012) -- ------------ ----------- ----------- ----------- Unrealized gain on mortgage-backed securities and derivatives $57,499 $(37,263) $20,236 $18,909 ============ =========== =========== ===========
Net Loan Servicing Fees - ----------------------- Net loan servicing fees were a gain of $6.2 million for the three months ended March 31, 2005 compared to a loss of $9.6 million for the three months ended March 31, 2004. Loan Servicing Fees: Loan servicing fees increased to $11.3 million for the three months ended March 31, 2005 from $10.3 million for the three months ended March 31, 2004, an increase of $1.0 million, or 9.6%. Included in loan servicing fees are gains on Ginnie Mae early buy-out sales of $0.4 million for the three months ended March 31, 2005 compared to $2.4 million for the three months ended March 31, 2004, a decrease of $2.0 million, or 83.3%. This decrease partly offset the increase in loan servicing fees in the first quarter of 2005 versus the first quarter of 2004 as a result of an increase in loans serviced for others. Amortization of MSRs: Amortization of MSRs increased to $8.5 million for the three months ended March 31, 2005 from $7.3 million for the three months ended March 31, 2004, an increase of $1.2 million, or 15.7%. The increase in amortization was due to a higher average servicing portfolio in the first quarter of 2005 versus the first quarter of 2004. Impairment (Provision) Recovery of MSRs: We recognized a temporary impairment recovery of $3.4 million for the three months ended March 31, 2005 versus a temporary impairment provision of $12.6 million for the three months ended March 31, 2004, resulting in an increase in net loan servicing fees of $16.0 million. The decrease in impairment provision in the three months ended March 31, 2005 was due to an increase in the fair value of MSRs, which was attributable to a subsequent decrease in estimated future prepayment speeds versus the initial estimated future prepayment speeds used to value the MSR upon securitization. -40- The following table presents GAAP, as adjusted and reconciling adjustments to net loan servicing fees for the three months ended March 31, 2005 and 2004:
Three Months Ended March 31, --------------------------------------------------------------- 2005 2005 2005 2004 ------------ ------------ ------------ ------------ As GAAP Adjustments Adjusted ------------ ------------ ------------ ------------ (In thousands) Loan servicing fees $ 11,312 $ 2,851 $ 14,163 $ 10,318 Amortization (8,501) (2,170) (10,671) (7,346) Impairment reserve recovery (provision) 3,419 2,048 5,467 (12,584) ------------ ------------ ------------ ------------ Net loan servicing fees (loss) $ 6,230 $ 2,729 $ 8,959 $ (9,612) ============ ============ ============ ============
Other Non-Interest Income - ------------------------- Other non-interest income totaled $1.5 million for the three months ended March 31, 2005 compared to $1.0 million for the three months ended March 31, 2004. For the three months ended March 31, 2005, other non-interest income primarily includes reinsurance premiums earned totaling approximately $0.8 million, rental income of $0.4 million and revenue from title services of $0.2 million. For the three months ended March 31, 2004, other non-interest income primarily includes rental income of $0.6 million, revenue from title services of $0.2 million and reinsurance premiums earned totaling approximately $0.1 million. Non-Interest Expenses - --------------------- Our non-interest expenses for the three months ended March 31, 2005 were $109.9 million compared to $66.7 million for the three months ended March 31, 2004, an increase of $43.2 million, or 64.8%. The increase primarily reflects a $38.2 million rise in our Loan Origination segment non-interest expenses to $100.7 million, or 1.39%, of total loan originations in the first quarter of 2005 from $62.5 million, or 1.42%, of total loan originations in the first quarter of 2004. Our operating expenses represent costs that are not eligible to be added to the book value of the loans because they are not considered to be certain direct origination costs under the rules of Statement of Financial Accounting Standards ("SFAS") No. 91, "Accounting for Nonrefundable Fees and Costs Associated with Originating or Acquiring Loans and Initial Costs of Leases." Direct origination costs are added to the book value of loans and either reduce the gain on sale of loans if the loans are sold or are amortized over the life of the loan. Salaries, Commissions and Benefits, net: Salaries, commissions and benefits, net, for the three months ended March 31, 2005 were $68.5 million, compared to $39.6 million for the three months ended March 31, 2004, an increase of $28.9 million, or 72.8%. The increase in expenses reflects higher origination volume and a resulting increase in employees to 5,489 at March 31, 2005 from 3,814 at March 31, 2004. Other Operating Expenses: Operating expenses, excluding salaries, commissions and benefits, were $41.4 million for the three months ended March 31, 2005 compared to $27.1 million for the three months ended March 31, 2004, an increase of $14.3 million, or 53.1%. The increase in operating expenses in the first quarter of 2005 versus the first quarter of 2004 includes a $4.6 million increase in occupancy and equipment expense. The operating expenses in the three months ended March 31, 2005 include lease obligations and certain fixed asset expenses relating to our acquisition of certain residential home loan centers and associated satellite offices of Washington Mutual, Inc. in August of 2004. Income Tax (Benefit) Expense - ---------------------------- No income tax expense or benefit was recognized for the three months ended March 31, 2005, compared to a benefit of $3.8 million for the three months ended March 31, 2004. The decrease in income tax benefit in the first quarter of 2005 versus the first quarter of 2004 reflects an increase in income before income taxes relating to our taxable REIT subsidiary ("TRS"). Loan Originations - ----------------- We originate and sell or securitize one-to-four family residential mortgage loans. Total loan originations for the three months ended March 31, 2005 were $7.3 billion compared to $4.4 billion for the three months ended March 31, 2004, a 65.9% increase. Our retail originations, which are conducted through our community loan production offices and Internet call center, were 49% of our loan originations in the three months ended March 31, 2005 compared to 45% of our originations in the three months ended March 31, 2004. Mortgage brokers accounted -41- for 51% of our loan originations in the three months ended March 31, 2005 compared to 55% of our originations in the three months ended March 31, 2004. Liquidity and Capital Resources We have arrangements to enter into reverse repurchase agreements, a form of collateralized short-term borrowing, with fourteen different financial institutions and on March 31, 2005 had borrowed funds from seven of these firms. Because we borrow money under these agreements based on the fair value of our mortgage-backed securities, and because changes in interest rates can negatively impact the valuation of mortgage-backed securities, our borrowing ability under these agreements could be limited and lenders could initiate margin calls in the event interest rates change or the value of our mortgage-backed securities declines for other reasons. As of March 31, 2005, we had $6.7 billion of reverse repurchase agreements outstanding with a weighted-average borrowing rate of 2.55% before the impact of interest rate swaps and a weighted-average remaining maturity of two months. To originate a mortgage loan, we draw against a $2.0 billion commercial paper program, $1.2 billion pre-purchase facility with UBS Real Estate Securities Inc. ("UBS"), a $600 million bank syndicated facility led by Bank of America (which includes a $150.0 million term loan facility which we use to finance our MSRs), a facility of $500 million with Bear Stearns, a $450 million facility with IXIS Real Estate Capital Inc. (formerly CDC Mortgage Capital Inc.) ("IXIS"), a facility of $350 million with Morgan Stanley Bank ("Morgan Stanley"), a facility of $250 million with Lehman Brothers and a facility of $250 million with Calyon New York Branch (Calyon). In addition, the Company has a gestation facility with Greenwich Capital Financial Products, Inc ("Greenwich"). These facilities are secured by the mortgages owned by us and by certain of our other assets. Advances drawn under the facilities bear interest at rates that vary depending on the type of mortgages securing the advances. These loans are subject to sublimits, advance rates and terms that vary depending on the type of securing mortgages and the ratio of our liabilities to our tangible net worth. At April 29, 2005, the aggregate outstanding balance under the commercial paper program was $1.8 billion, the aggregate outstanding balance under the warehouse facilities was $1.6 billion, the aggregate outstanding balance in drafts payable was $18.8 million and the aggregate maximum amount available for additional borrowings was $2.6 billion. The documents governing our warehouse facilities contain a number of compensating balance requirements and restrictive financial and other covenants that, among other things, require us to adhere to a maximum ratio of total liabilities to tangible net worth and maintain a minimum level of tangible net worth and liquidity, as well as to comply with applicable regulatory and investor requirements. The facility agreements also contain covenants limiting the ability of our subsidiaries to transfer or sell assets other than in the ordinary course of business and to create liens on the collateral without obtaining the prior consent of the lenders, which consent may not be unreasonably withheld. In addition, under our warehouse facilities, we cannot continue to finance a mortgage loan that we hold if: o the loan is rejected as "unsatisfactory for purchase" by the ultimate investor and has exceeded its permissible 120-day warehouse period; o we fail to deliver the applicable mortgage note or other documents evidencing the loan within the requisite time period; o the underlying property that secures the loan has sustained a casualty loss in excess of 5% of its appraised value; or o the loan ceases to be an eligible loan (as determined pursuant to the applicable warehousing agreement). As of March 31, 2005, our aggregate warehouse facility borrowings were $658.7 million (including $22.1 million of borrowings under a working capital sub-limit) and our outstanding drafts payable were $28.4 million, compared to $735.8 million (including $25.5 million of borrowings under a working capital sub-limit) and our outstanding drafts payable were $26.2 million as of December 31, 2004. At March 31, 2005, our loans held for sale were $1.6 billion compared to $4.9 billion at December 31, 2004. In addition to the UBS, IXIS, Bank of America, Morgan Stanley, and Calyon warehouse facilities, we have a purchase and sale agreement with UBS and Greenwich Capital. This agreement allows us to accelerate the sale of our mortgage loan inventory, resulting in a more effective use of the warehouse facility. Amounts sold and being held under this agreement at March 31, 2005 and December 31, 2004 were $308.8 million and $443.8 million, respectively. The amount so held under this agreement at April 29, 2005 was $89.3 million. This agreement is not a committed facility and may be terminated at the discretion of the counterparty. We make certain representations and warranties under the purchase and sale agreements regarding, among other things, the loans' compliance with laws and regulations, their conformity with the ultimate investors' underwriting standards and the accuracy of information. In the event of a breach of these representations or warranties or in the event of an early payment default, we may be required to repurchase -42- the loans and indemnify the investor for damages caused by that breach. We have implemented strict procedures to ensure quality control and conformity to underwriting standards and minimize the risk of being required to repurchase loans. From time to time we have been required to repurchase loans that we sold; however, the liability for the fair value of those obligations has been immaterial. We also have a $150.0 million term loan facility with a bank syndicate led by Bank of America which we use to finance our MSRs. The term loan facility expires on December 14, 2005. Interest is based on a spread to the LIBOR and may be adjusted for earnings on escrow balances. At March 31, 2005 and December 31, 2004, borrowings under our term loan facility were $132.2 million and $108.6 million, respectively. Cash and cash equivalents decreased to $162.8 million at March 31, 2005 from $192.8 million at December 31, 2004. Our primary sources of cash and cash equivalents during the three months ended March 31, 2005, were as follows: o $7.3 billion of proceeds from securitizations and repayments of mortgage loans; o $3.1 billion of proceeds from sales and repayments of mortgage loans; and o $1.1 billion of proceeds from sales of mortgage-backed securities. Our primary uses of cash and cash equivalents during the three months ended March 31, 2005, were as follows: o $7.3 billion of origination of mortgage loans held for sale; o $2.8 billion of additions to mortgage-backed securities; and o $2.0 billion decrease in collateralized debt obligations. Commitments The Company had the following commitments (excluding derivative financial instruments) at March 31, 2005:
Less than 1 Total Year 1 - 3 Years 4 - 5 Years After 5 Years ------------ ------------ ------------ ------------ ------------- (In thousands) Warehouse liabilities $ 658,686 $ 658,686 $ -- $ -- $ -- Operating leases 77,868 23,512 36,721 16,290 1,345 Notes payable 159,339 133,574 736 831 24,198 Commercial paper 858,382 858,382 -- -- -- Reverse repurchase agreements 6,720,167 6,720,167 -- -- --
-43- ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Movements in interest rates can pose a major risk to the Company in either a rising or declining interest rate environment. The Company depends on substantial borrowings to conduct its business. These borrowings are all done at variable interest rate terms which will increase as short-term interest rates rise. Additionally, when interest rates rise, loans held for sale and any applications in process with locked-in rates decrease in value. To preserve the value of such fixed-rate loans or applications in process with locked-in rates, agreements are executed for mandatory loan sales to be settled at future dates with fixed prices. These sales take the form of forward sales of mortgage-backed securities. When interest rates decline, fallout may occur as a result of customers withdrawing their applications. In those instances, the Company may be required to purchase loans at current market prices to fulfill existing mandatory loan sale agreements, thereby incurring losses upon sale. The Company uses an interest rate hedging program to manage these risks. Through this program, mortgage-backed securities are purchased and sold forward and options are acquired on treasury futures contracts. In the event that the Company does not deliver into the forward delivery commitments or exercise its option contracts, the instruments can be settled on a net basis. Net settlement entails paying or receiving cash based upon the change in market value of the existing instrument. All forward delivery commitments and option contracts to buy securities are to be contractually settled within nine months of the balance sheet date. The Company's hedging program contains an element of risk because the counterparties to its mortgage and treasury securities transactions may be unable to meet their obligations. While the Company does not anticipate nonperformance by any counterparty, it is exposed to potential credit losses in the event the counterparty fails to perform. The Company's exposure to credit risk in the event of default by a counterparty is the difference between the contract and the current market price. The Company minimizes its credit risk exposure by limiting the counterparties to well-capitalized banks and securities dealers who meet established credit and capital guidelines. Movements in interest rates also impact the value of MSRs. When interest rates decline, the loans underlying the MSRs are generally expected to prepay faster, which reduces the market value of the MSRs. The Company considers the expected increase in loan origination volumes and the resulting additional origination related income as a natural hedge against the expected change in the value of MSRs. Lower mortgage rates generally reduce the fair value of the MSRs, as increased prepayment speeds are highly correlated with lower levels of mortgage interest rates. The Company enters into interest rate swap agreements ("Swap Agreements") to manage its interest rate exposure when financing its ARM loans and its mortgage-backed securities. The Company generally borrows money based on short-term interest rates, by entering into borrowings with maturity terms of less than one year, and frequently nine to twelve months. The Company's ARM loans and mortgage-backed securities financing vehicles generally have an interest rate that reprices based on frequency terms of one to twelve months. The Company's mortgage-backed securities have an initial fixed interest rate period of three to five years. When the Company enters into a Swap Agreement, it generally agrees to pay a fixed rate of interest and to receive a variable interest rate, generally based on LIBOR. These Swap Agreements have the effect of converting the Company's variable-rate debt into fixed-rate debt over the life of the Swap Agreements. These instruments are used as a cost-effective way to lengthen the average repricing period of the Company's variable-rate and short-term borrowings such that the average repricing of the borrowings more closely matches the average repricing of the Company's mortgage-backed securities. The Company's duration gap was less than one month on March 31, 2005. -44- The following table summarizes the Company's interest rate sensitive instruments as of March 31, 2005 and December 31, 2004: March 31, 2005 -------------------------------------- Carrying Estimated Amount Fair Value ------------ ------------ Assets: Mortgage-backed securities $ 7,181,170 $ 7,181,170 Derivative assets (1) 73,383 108,958 Mortgage loans held for sale, net 1,627,891 1,666,689 Mortgage servicing rights, net 228,412 233,564 Liabilities: Reverse repurchase agreements $ 6,720,167 $ 6,718,357 Derivative liabilities 1,945 1,945 December 31, 2004 -------------------------------------- Carrying Estimated Amount Fair Value ------------ ------------ Assets: Mortgage-backed securities $ 6,016,866 $ 6,016,866 Derivative assets (1) 24,803 30,838 Mortgage loans held for sale, net 4,853,394 4,931,366 Mortgage servicing rights, net 151,436 152,467 Liabilities: Reverse repurchase agreements $ 7,071,168 $ 7,065,072 Collateralized debt obligations 2,022,218 2,022,218 Derivative liabilities 1,860 1,860 (1) Derivative assets consist of interest rate lock commitments ("IRLCs") to fund mortgage loans. The carrying value excludes the value of the mortgage servicing rights ("MSRs") attached to the IRLCs in accordance with SEC Staff Accounting Bulletin No. 105. The fair value includes the value of MSRs. The Company had total commitments to lend at March 31, 2005 and December 31, 2004 of $8.4 billion and $6.2 billion, respectively. -45- ITEM 4. CONTROLS AND PROCEDURES Remediation Efforts related to the Material Weakness in Internal Control over Financial Reporting The Company previously disclosed in its Annual Report on Form 10-K/A for the year ended December 31, 2004 material weaknesses related to the operating efficiencies of certain controls over financial reporting. The Company is enforcing the appropriate policies, procedures and controls over these areas to ensure that they are operating effectively. -46- PART II-OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS None. ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS The following is a description of the Company's securities that were not registered under the Securities Act of 1933, as amended (the "Securities Act"), which were sold during the quarter ended March 31, 2005. The Company acquired First Home Mortgage Corp. ("First Home") on June 30, 2000. In addition to the shares paid to former First Home shareholders as initial consideration, the Company is required to issue unregistered shares of common stock to the former shareholders as additional consideration under the earnout provisions of the merger agreement. Pursuant to these earnout provisions, on January 1, 2005, February 15, 2005, and March 14, 2005, the Company issued an aggregate of 1,542, 2,385 and 23,078 restricted shares of common stock, respectively, to such stockholders as additional consideration. These securities were exempt from registration under Section 4(2) of the Securities Act because they were issued pursuant to the terms of a private transaction rather than through a public offering. ITEM 3. DEFAULTS UPON SENIOR SECURITIES None. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None. ITEM 5. OTHER INFORMATION None. ITEM 6. EXHIBITS The following exhibits are filed with this Quarterly Report on Form 10-Q: Exhibit No. Description - ------------ ------------------------------------------------------------- 10.1 -- Employment Agreement, dated as of January 1, 2005, by and between American Home Mortgage Holdings, Inc. and Richard Loeffler. 10.2 -- Amended and Restated Employment Agreement, dated as of December 14, 2004, by and between American Home Mortgage Holdings, Inc. and John A. Manglardi. -47- 10.3.1 -- First Omnibus Amendment, dated as of December 10, 2004, by and among Calyon New York Branch (successor in interest to Credit Lyonnais New York Branch), Deutsche Bank National Trust Company, American Home Mortgage Corp., AHM SPV I, LLC, and American Home Mortgage Servicing, Inc. 10.3.2 -- Amended and Restated Originator Performance Guaranty, dated as of December 10, 2004, by American Home Mortgage Holdings, Inc. and American Home Mortgage Investment Corp. in favor of AHM SPV I, LLC. 10.3.3 -- Amended and Restated Servicer Performance Guaranty, dated as of December 10, 2004, by American Home Mortgage Holdings, Inc. and American Home Mortgage Investment Corp. in favor of Calyon New York Branch. 10.4.1 -- Amendment No. 1, dated as of May 28, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated, the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.2 -- Amendment No. 2, dated as of June 23, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated, the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.3 -- Amendment No. 3, dated as of July 30, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.4 -- Amendment No. 4, dated as of August 13, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. -48- 10.4.5 -- Amendment No. 5, dated as of September 15, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.6 -- Amendment No. 7, dated as of November 17, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.7 -- Amendment No. 2, dated as of October 21, 2004, to the Amended and Restated Custodial Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., Deutsche Bank National Trust Company, and Morgan Stanley Bank. 10.4.8 -- Fifth Amended and Restated Promissory Note, dated as of November 17, 2004, made by American Home Mortgage Corp., American Home Mortgage Investment Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc. in favor of Morgan Stanley Bank. 10.5.1 -- Mortgage Loan Purchase and Sale Agreement, dated as of January 1, 2004, by and among Greenwich Capital Financial Products, Inc., American Home Mortgage Corp., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated. 10.5.2 -- Custodial Agreement, dated as of January 1, 2004, by and among Greenwich Capital Financial Products, Inc., Deutsche Bank National Trust Company, American Home Mortgage Corp., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated. 10.6 -- Guaranty, dated as of December 3, 2004, by American Home Mortgage Investment Corp. in favor of Lehman Brothers Inc. and Lehman Commercial Paper Inc. 31.1 -- Certification of Chief Executive Officer pursuant to Rule 13a-14(a) or 15(d)-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 -- Certification of Chief Financial Officer pursuant to Rule 13a-14(a) or 15(d)-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1 -- Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 32.2 -- Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. -49- SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. AMERICAN HOME MORTGAGE INVESTMENT CORP. (Registrant) Date: May 5, 2005 By: /s/ Michael Strauss ----------------------------------- Michael Strauss Chairman, Chief Executive Officer and President Date: May 5, 2005 By: /s/ Stephen A. Hozie ----------------------------------- Stephen A. Hozie Executive Vice President and Chief Financial Officer (Principal Financial Officer) -50- INDEX TO EXHIBITS ----------------- Exhibit No. Description - ------------ ------------------------------------------------------------- 10.1 -- Employment Agreement, dated as of January 1, 2005, by and between American Home Mortgage Holdings, Inc. and Richard Loeffler. 10.2 -- Amended and Restated Employment Agreement, dated as of December 14, 2004, by and between American Home Mortgage Holdings, Inc. and John A. Manglardi. 10.3.1 -- First Omnibus Amendment, dated as of December 10, 2004, by and among Calyon New York Branch (successor in interest to Credit Lyonnais New York Branch), Deutsche Bank National Trust Company, American Home Mortgage Corp., AHM SPV I, LLC, and American Home Mortgage Servicing, Inc. 10.3.2 -- Amended and Restated Originator Performance Guaranty, dated as of December 10, 2004, by American Home Mortgage Holdings, Inc. and American Home Mortgage Investment Corp. in favor of AHM SPV I, LLC. 10.3.3 -- Amended and Restated Servicer Performance Guaranty, dated as of December 10, 2004, by American Home Mortgage Holdings, Inc. and American Home Mortgage Investment Corp. in favor of Calyon New York Branch. 10.4.1 -- Amendment No. 1, dated as of May 28, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated, the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.2 -- Amendment No. 2, dated as of June 23, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated, the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.3 -- Amendment No. 3, dated as of July 30, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.4 -- Amendment No. 4, dated as of August 13, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.5 -- Amendment No. 5, dated as of September 15, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. Exhibit No. Description - ------------ ------------------------------------------------------------- 10.4.6 -- Amendment No. 7, dated as of November 17, 2004, to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., the Lenders from time to time party thereto, and Morgan Stanley Bank. 10.4.7 -- Amendment No. 2, dated as of October 21, 2004, to the Amended and Restated Custodial Agreement, dated as of November 26, 2003, by and among American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc., Deutsche Bank National Trust Company, and Morgan Stanley Bank. 10.4.8 -- Fifth Amended and Restated Promissory Note, dated as of November 17, 2004, made by American Home Mortgage Corp., American Home Mortgage Investment Corp., American Home Mortgage Acceptance, Inc., American Home Mortgage Holdings, Inc., and American Home Mortgage Servicing, Inc. in favor of Morgan Stanley Bank. 10.5.1 -- Mortgage Loan Purchase and Sale Agreement, dated as of January 1, 2004, by and among Greenwich Capital Financial Products, Inc., American Home Mortgage Corp., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated. 10.5.2 -- Custodial Agreement, dated as of January 1, 2004, by and among Greenwich Capital Financial Products, Inc., Deutsche Bank National Trust Company, American Home Mortgage Corp., and American Home Mortgage Servicing, Inc. f/k/a Columbia National, Incorporated. 10.6 -- Guaranty, dated as of December 3, 2004, by American Home Mortgage Investment Corp. in favor of Lehman Brothers Inc. and Lehman Commercial Paper Inc. 31.1 -- Certification of Chief Executive Officer pursuant to Rule 13a-14(a) or 15(d)-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 -- Certification of Chief Financial Officer pursuant to Rule 13a-14(a) or 15(d)-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1 -- Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 32.2 -- Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. EX-10.1 2 am033105-ex10_1.txt EMPLOYMENT AGREEMENT EXHIBIT 10.1 EMPLOYMENT AGREEMENT This Employment Agreement, dated as of January 1, 2005 (this "Agreement"), is by and between American Home Mortgage Holdings, a Maryland corporation having a place of business at 538 Broadhollow Road, Melville, NY (the "Company"), and Richard Loeffler, [ ] (the "Executive"). Whereas the Company wishes to assure itself of the services of the Executive, and the Executive desires to be employed by the Company, upon the terms and conditions hereinafter set forth. Now, Therefore, the Company and the Executive hereby agree as follows: 1. Employment. The Company agrees to employ the Executive, and the Executive hereby accepts such employment by the Company during the term set forth in Section 2 and on the other terms and conditions of this Agreement. 2. Term. The term of this Agreement shall commence as of January 1, 2005, and shall continue until four weeks after the resignation or discharge of the Executive. 3. Position, Duties and Responsibilities, Rights (a) During the term of this Agreement, the Executive shall serve as, and be elected to and hold the office and title of Chief Administrative Officer of the Company. As such, the Executive shall report to the Chief Executive Officer of the Company (the "CEO") or such officer as is designated by the CEO, and shall have all of the powers and duties usually incident to the office of Chief Administrative Officer of the Company. In addition, the Executive shall serve as the Chief Administrative Officer of subsidiaries of the Company if and when requested to do so by the CEO. (b) During the term of this Agreement, the Executive agrees to devote substantially all the Executive's time, efforts and skills to the affairs of the Company during the Company's normal business hours, except for vacations, illness and incapacity, but nothing in this Agreement shall preclude the Executive from devoting reasonable periods to (i) manage the Executive's personal investments, (ii) participate in professional, educational, public interest, charitable, civic or community activities, including activities sponsored by trade organizations, and (iii) serve as a director or member of an advisory committee of any corporation not in competition with the Company or any of its subsidiaries, or as an officer, trustee or director of any charitable, educational, philanthropic, civic, social or industry organizations, or as a speaker or arbitrator; provided, however, that the performance of the Executive's duties or responsibilities in any of such capacities does not materially interfere with the regular performance of the Executive's duties and responsibilities hereunder. 4. Place of Performance. In connection with the Executive's employment by the Company, the Executive shall be based at its principal executive offices which are currently located in Melville, NY, and shall not be required to be absent therefrom on travel status or otherwise for more than a reasonable time each year as necessary or appropriate for the performance of the Executive's duties hereunder. 5. Compensation. (a) During the term of this Agreement, the Company shall pay the Executive, and the Executive agrees to accept a base salary at the rate of not less than $600,000.00 per year (the annual base salary as increased from time to time during the term of this Agreement being hereinafter referred to as the "Base Salary"). The Base Salary shall be paid in installments no less frequently than monthly. Any increase in Base Salary or other compensation shall not limit or reduce any other obligation of the Company hereunder, and once established at an increased specified rate, the Executive's Base Salary hereunder shall not thereafter be reduced. (b) During the term of this Agreement, the Company shall, after the close of each calendar year, pay the Executive a targeted bonus of 50% of base salary, the amount of which may be greater or lesser as determined by the CEO. The bonus will be comprised of an objective achievement bonus, a management evaluation bonus, and a company performance award. To determine the amount of the objective achievement bonus for a given year, the CEO will consider whether the Executive achieved the objectives set forth in the Executive's business plan for that calendar year. If the CEO determines that all of the objectives were achieved, the CEO will award the Executive an objective achievement bonus. If some, but not all of the objectives were achieved, the CEO will award a lesser objective achievement bonus. Commencing for the year beginning January 1, 2005, and for each subsequent year during the term of this agreement, the Company shall pay the Executive, a management evaluation bonus the amount of which will be determined by the CEO. The CEO will determine the actual amount of the management evaluation bonus for a given year based on the CEO's evaluation of the Executive's overall performance during the year. Commencing for the year beginning January 1, 2005, and for each subsequent year during the term of this agreement, the Company shall, after the close of each calendar year, pay the Executive a company performance award the amount of which will be determined by the CEO. To determine the amount of the company performance award for a given year, the CEO will consider whether the company achieved the objectives set forth in the Company's business plan for that calendar year. If the CEO determines that all of the objectives were achieved, the CEO will award the Executive a company performance bonus. If some, but not all of the objectives were achieved, the CEO will award a lesser company performance bonus. The bonus for a given year will be paid no later than the last day of February of the succeeding year. (c) The Executive will not be entitled to any unpaid bonuses if this Agreement is terminated as described in Section 6. Notwithstanding anything to the contrary, the Executive will not be entitled to any unpaid bonuses if he is no longer an employee of the Company on the bonus payment date. (d) During the term of this Agreement, the Executive shall be entitled to fringe benefits, in each case at least equal to and on the same terms and conditions as those attached to the Executive's office on the date hereof, as the same may be improved from time to time during the term of this Agreement, as well as to reimbursement, upon proper accounting, of all reasonable expenses and disbursements incurred by the Executive in the course of the Executive's duties. 6. Termination of Employment. The employment created hereby is at will. The Company may terminate this Agreement by discharging the Executive. The Executive may terminate this Agreement by resigning. Discharge or resignation may be for any reason or for no reason. If the company chooses to discharge the Executive, it will deliver a letter of discharge pursuant to the notice provisions of section 10. If the Executive chooses to resign, the Executive will deliver a letter of resignation pursuant to the notice provisions of section 10. 7. Entire Agreement: Amendment. (a) This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all other agreements between the parties, their predecessors and affiliates, except as specified in section 5(h), above. (b) Any amendment of this Agreement shall not be binding unless in writing and signed by both (i) the CEO and (ii) the Executive. 9. Enforceability. In the event that any provision of this Agreement is determined to be invalid or unenforceable, the remaining terms and conditions of this Agreement shall be unaffected and shall remain in full force and effect, and any such determination of invalidity or enforceability shall not affect the validity or enforceability of any other provision of this Agreement. 10. Notice. All notices which may be necessary or proper for either the Company or the Executive to give to the other shall be in writing and shall be sent by hand delivery, registered or certified mail, return receipt requested or overnight courier, if to the Executive, to him at [ ] and, if to the Company, to it at its principal executive offices at 538 Broadhollow Road, Melville, NY 11747, Attention: Chief Executive Officer, with a copy to 538 Broadhollow Road, Melville, NY 11747, Attention: General Counsel, and shall be deemed given when sent. Either party may by like notice to the other party change the address at which it is to receive notices hereunder. 11. Non-Disparagement, Non-Solicitation, Confidential Information. The Company and the Executive agree that neither will disparage the other and that their representatives will not disparage either party hereto. The Executive agrees that for a period of six months following the termination of this Agreement, the Executive will not solicit any employee of the Company to leave the Company or hire any employee of the Company. The Company and the Executive agree to keep the terms of this Agreement confidential except that the Executive may divulge the terms of this Agreement to the Executive's spouse, attorney, financial advisor and accountant provided they agree to keep the terms of this Agreement confidential. The Executive agrees to protect, not disclose, and not use for the Executive's benefit any confidential information or trade secrets belonging to the Company, including information regarding proprietary procedures and techniques, accounts, or personnel (excepting information that was already disclosed by the Company or otherwise was made public other than by breach of this Agreement by the Executive). The preceding two sentences shall not apply to disclosures required due to the laws or regulations of governments, or the orders of courts having jurisdiction over the Company and the Executive. This section 11 shall survive the termination of this Agreement. 12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE ENFORCEABLE IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above. American Home Mortgage Holdings, Inc. By: /s/ Michael Strauss ----------------------------------------- Name: Michael Strauss Title: President /s/ Richard Loeffler ----------------------------------------- Richard Loeffler EX-10.2 3 am033105-ex10_2.txt EMPLOYMENT AGREEMENT EXHIBIT 10.2 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement (this "Agreement") is made and entered into this 14th day of December, 2004, effective as of as of July 1, 2003 (the "Effective Date"), by and between American Home Mortgage Holdings, Inc., a Delaware corporation (the "Company"), and John A. Manglardi (the "Executive"). WHEREAS, reference is made to that certain Agreement and Plan of Merger, dated as of January 17, 2000, by and among the Company, American Home Mortgage Sub II, Inc., First Home Mortgage Corp. ("First Home") and the stockholders of First Home listed on the signature pages thereto (as amended from time to time, the "Merger Agreement"); WHEREAS, in connection with the Merger Agreement, the Company and the Executive previously entered into that certain Employment Agreement, dated as of January 17, 2000 (the "Original Employment Agreement"), by and between the Company and the Executive, and that certain Non-Competition Agreement, dated as of January 17, 2000 (the "Non-Competition Agreement"), by and between the Company and the Executive; WHEREAS, the Company desires to continue to assure itself of the services of the Executive, upon the terms and conditions hereinafter set forth; WHEREAS, the Executive desires to continue to be employed by the Company, upon the terms and conditions hereinafter set forth; and WHEREAS, it is the intention of the Company and the Executive that, as of the Effective Date (as hereinafter defined), this Agreement shall supersede and replace in full any and all other agreements between the parties with respect to the subject matter hereof, including, but not limited to, the Original Employment Agreement and the Non-Competition Agreement; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Executive hereby agree as follows: 1. Definitions. Unless defined elsewhere in this Agreement, capitalized terms contained herein shall have the meanings set forth or incorporated by reference in Section 18 hereof. 2. Employment. The Company agrees to employ the Executive, and the Executive hereby accepts such employment by the Company and/or any subsidiary or affiliate of the Company, during the term set forth in Section 3 hereof and upon the other terms and conditions of this Agreement. 3. Term. (a) The term of this Agreement shall commence as of July 1, 2003 (the "Effective Date"), and, subject to Section 3(b) hereof, shall terminate at the close of business on the fifth anniversary of such date (the "Fifth Anniversary"). (b) The term of this Agreement set forth in Section 3(a) hereof shall be extended or further extended, as the case may be, without any action by the Company or the Executive, on the Fifth Anniversary and on each subsequent anniversary of the date thereof, for an additional period of one year, until either party gives a Notice of Termination (as defined in Section 7(g) hereof) to the other party six (6) months in advance of any such anniversary of the Effective Date, in the manner set forth in Section 15 hereof, that the term in effect when such notice is given is not to be extended or further extended, as the case may be, beyond the next anniversary of the Effective Date. If the Executive shall continue in the full-time employment of the Company after the Fifth Anniversary, such continued employment shall be subject to the terms and conditions of this Agreement, including, without limitation, the continuation of the Executive's compensation hereunder, except to the extent that the parties hereto mutually agree in writing to revise any of the terms hereof. 4. Position, Duties and Responsibilities, Rights. (a) From the Effective Date until the Fifth Anniversary, the Executive shall serve as, and be elected to and hold the office and title of, President, Eastern Division, of the Company. As such, the Executive shall report only to the Chief Executive Officer of the Company, and shall have all of the powers and duties usually incident to the office of President of the Eastern Division of the Company, and shall have powers to perform such other reasonable additional duties as may from time to time be lawfully assigned to the Executive by the Chief Executive Officer of the Company. Among other duties, the Executive shall be responsible for profit and loss and sales management for the Company's Eastern Division. (b) During the term of this Agreement, the Executive agrees to devote substantially all of the Executive's time, efforts and skills to the affairs of the Company during the Company's normal business hours, except for vacations, illness and incapacity, but nothing in this Agreement shall preclude the Executive from devoting reasonable periods to (i) manage the Executive's personal investments, (ii) participate in professional, educational, public interest, charitable, civic or community activities, including activities sponsored by trade organizations, (iii) serve as a director or member of an advisory committee of any corporation not in competition with the Company or any of its subsidiaries or affiliates, or as an officer, trustee or director of any charitable, educational, philanthropic, civic, social or industry organizations, or as a speaker or arbitrator, or engage in the following business activities or businesses: (A) serve as a member of the board of directors of a bank, provided the bank is not significantly engaged in mortgage lending activities; (B) insurance brokerage; (C) real estate brokerage; (D) title insurance; (E) real estate development; (F) real estate investment; (G) credit bureau services; or (H) making or participating in making fewer than fifty (50) high-cost non-conforming mortgage loans per year, or, only with the express approval of the Company, more than fifty (50) such loans per year; provided, however, that the performance of the Executive's duties or -2- responsibilities in any of such capacities does not materially interfere with the regular performance of the Executive's duties and responsibilities hereunder. 5. Place of Performance. In connection with the Executive's employment by the Company, the Executive shall be based at a location designated by the Company in the Chicagoland area as the principal executive offices of the Company's Eastern Division, and shall not be required to be absent therefrom on travel status or otherwise for more than a reasonable time each year as necessary or appropriate for the performance of the Executive's duties hereunder. 6. Compensation. During the term of this Agreement, the Executive shall be compensated by the Company as follows: (a) Base Salary. The Company shall pay the Executive, and the Executive agrees to accept, an annual base salary in the amount of (i) from the Effective Date to July 1, 2004, not less than $183,500, and (ii) on or after July 1, 2004, not less than $400,000, which annual base salary may be increased by the Company in its sole discretion (the annual base salary as may be increased from time to time during the term of this Agreement being hereinafter referred to as the "Base Salary"). The Base Salary shall be paid in 24 equal semi-monthly installments; provided, however, in the event that the Company changes its normal payroll cycle, such payment installments will be adjusted accordingly, but in no event will the Base Salary be paid less frequently than monthly. Any and all Base Salary due the Executive as of the date of the execution of this Agreement, but not previously paid, shall be paid to the Executive in a lump sum no later than 10 days after the date of execution of this Agreement. (b) Performance-Based Compensation. (i) Volume Override Payment. For each fiscal quarter of the Company during the term of this Agreement, the Executive shall receive in cash an amount equal to one-quarter (0.25) of a basis point of Origination Volume of loan production of the Eastern Division (the "Volume Override Payment"). (ii) Profit Participation Payment. For each fiscal year of the Company during the term of this Agreement, the Executive shall receive three and one-quarter percent (3.25%) of the difference between any Profits of the Eastern Division less the amount of the Invested Capital Charge (the "Profit Participation Payment"). (iii) Payment of Volume Override Payment and Profit Participation Payment. The Company shall pay any Volume Override Payment due the Executive on a quarterly basis in a lump sum no later than 30 days after the end of each fiscal quarter to which the Volume Override Payment relates. The Company shall pay any Profit Participation Payment due the Executive on an annual basis in a lump sum no later than March 31st of the fiscal year that immediately follows the fiscal year to which the Profit Participation Payment relates. (iv) Determination of Volume Override Payment and Profit Participation Payment. Within 10 days after the end of each fiscal quarter during the term of this Agreement, the Company shall determine the amount of any Volume -3- Override Payment due to the Executive (a "Volume Override Payment Determination") and furnish the Volume Override Payment Determination to the Executive together with information reflecting the basis for the determination. Within 60 days after the end of each fiscal year during the term of this Agreement, the Company shall determine the amount of any Profit Participation Payment due to the Executive (a "Profit Participation Payment Determination") and furnish the Profit Participation Payment Determination to the Executive together with information reflecting the basis for such determination. After receipt of any Volume Override Payment Determination or Profit Participation Payment Determination, the Executive may request from the Company an audit of the determination (a "Payment Audit"), which Payment Audit shall be performed by the Company's independent public accountants at such time. Any request by the Executive for a Payment Audit must be in writing and must be received by the Company within 30 days of the Executive's receipt of the Volume Override Payment Determination or Profit Participation Payment Determination to which the request for a Payment Audit relates. The Company shall bear the cost of any Payment Audit requested by the Executive under this Section 6(c)(iv); provided, however, that if the Volume Override Payment or Profit Participation Payment determined by the Company's independent public accountants after conducting the Payment Audit is not more than one percent (1%) greater than amount of the Volume Override Payment or Profit Participation Payment in the Volume Override Payment Determination or Profit Participation Payment Determination, as the case may be, the Executive shall bear the full cost of the Payment Audit. (v) Stock Option Award. For 2004, the Executive shall be awarded a grant ------------------- of 37,500 stock options as of the date of the execution of this Agreement, in accordance with the American Home Mortgage Investment Corp. 1999 Omnibus Stock Incentive Plan (the "Plan"), subject to the execution by the Executive and the Company of a Non-Qualified Stock Option Grant Agreement pursuant to the Plan (the "Option Agreement"). Said stock options shall vest fifty percent (50%) two (2) years from the grant date, and fifty percent (50%) three (3) years from the grant date, in accordance with and subject to the terms and conditions of the Plan and Option Agreement. ----------------------- (c) Payments under the Merger Agreement. The Company shall continue to pay the Executive all amounts, if any, due to the Executive under Sections 2.4(c) and 2.4(e) of the Merger Agreement, upon the terms and conditions set forth in the Merger Agreement, and until such provisions have terminated in accordance with the terms of the Merger Agreement. Except as set forth in the preceding sentence, as of the Effective Date of this Agreement, the Company shall not be obligated to make any other payments, or fulfill any other obligations, to the Executive under the Merger Agreement. (d) Perquisites and Reimbursement of Expenses. During the term of this Agreement, the Executive shall be entitled to (i) perquisites, including, without limitation, an office and secretarial and clerical staff, and (ii) fringe benefits, including, without limitation, health insurance, in each case at least equal to, and on the same terms and conditions as, those attached to the Executive's office on the date hereof, as the same may be improved from time to time during the term of this Agreement, as well as to reimbursement, upon proper accounting, of all reasonable expenses and disbursements incurred by the Executive in the course of the Executive's duties. -4- (e) Dependents and Beneficiaries. The Executive and the Executive's dependents and beneficiaries shall be entitled to all benefits and service credit for benefits during the term of this Agreement to which senior officers of the Company and their dependents and beneficiaries are entitled as the result of the employment of such officers during the term of this Agreement under the terms of employee plans and practices of the Company and its subsidiaries and affiliates, including, without limitation, any pension plans, profit sharing plans, any non-qualified deferred compensation plans and related "rabbi" trusts, the Company's life insurance plans, its disability benefit plans, its vacation and holiday pay plans, its medical, dental and welfare plans, and other present or successor plans and practices of the Company and its subsidiaries and affiliates for which senior officers, their dependents and beneficiaries are eligible, and to all payments and other benefits under any such plan or practice subsequent to the term of this Agreement as a result of participation in such plan or practice during the term of this Agreement. 7. Termination of Employment. (a) The term of this Agreement shall terminate upon the death of the Executive. (b) The Company may terminate the Executive's employment during the term of this Agreement for Cause as provided in Section 7(b)(i) hereof or in the event of Disability as provided in Section 7(b)(ii) hereof. (i) This Agreement shall be considered terminated for "Cause" only: (A) if the Executive willfully fails to substantially perform the duties reasonably assigned to him by the Chief Executive Officer, other than by reason of a Disability; (B) if the Executive is grossly negligent or engages in gross misconduct in the performance of the Executive's duties hereunder; (C) if the Executive knowingly engages in an act of dishonesty, an act of fraud or embezzlement, or any conduct resulting in a felony conviction; or (D) if the Executive violates the provisions of Section 9 hereof, and, in the case of each of clauses (A), (B) (C) and (D) above, the applicable conditions set forth in Section 7(f) hereof are satisfied. Anything in this Section 7(b) to the contrary notwithstanding, the Executive's employment shall in no event be considered terminated by the Company for Cause if termination takes place as the result of bad judgment or negligence on the part of the Executive other than gross negligence or willful or reckless misconduct. (ii) The term "Disability" as used in this Agreement means an accident or physical or mental illness which prevents the Executive from substantially performing -5- the Executive's duties hereunder for six consecutive months. The term of this Agreement shall end as of the close of business on the last day of such six-month period but without prejudice to any payments due to the Executive in respect of disability under this Agreement or any plan or practice of the Company. (c) The Executive may terminate the Executive's employment during the term of this Agreement for Good Reason. For purposes of this Agreement, "Good Reason" shall mean (i) a reduction of the Executive's rate of compensation or any other failure by the Company to comply with Section 6 hereof; (ii) failure by the Company to comply with Section 5 hereof; (iii) failure by the Company to obtain the assumption of, and the agreement to perform, this Agreement by any successor as contemplated in Section 11(a) hereof; or (iv) in the event of a Change in Control; except that, the Executive may not terminate his employment hereunder for Good Reason unless the Company fails to cure such Good Reason within thirty (30) days of receipt of written notice from the Executive pursuant to Section 7(d). For purposes of this section, a Change in Control shall occur if, within ten (10) years of the date of this Agreement, any person or entity other than, individually or collectively, the Board of Directors of American Home Mortgage Investment Corp. ("AHMIC") as constituted as of the date of this Agreement, obtains control of more than fifty percent (50%) of the voting securities of AHMIC or of the Company (except, in the case of the Company, as the result of an internal reorganization of AHMIC), and, as a result thereof, the Executive is discharged, or there is a diminution or other adverse change in the Executive's job description, responsibilities, working conditions or authority and the Executive consequently resigns. (d) Any termination by the Company pursuant to Section 7(b) hereof, by the Executive pursuant to Section 7(c) hereof, or by the Company or the Executive pursuant to Section 3(b) hereof, shall be communicated by a Notice of Termination to the other party hereto. For purposes of this Agreement, "Notice of Termination" shall mean (i) with respect to termination pursuant to Sections 7(b) or 7(c) hereof, a written notice which indicates the specific termination provision(s) in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision(s) so indicated. (e) Notwithstanding anything to the contrary set forth herein, the Company shall have the right to terminate the Executive's employment for any reason other than Cause at any time, subject to the consequences of such termination as set forth in Section 8 hereof. (f) In no event shall the Company be entitled to terminate the Executive's employment during the term of this Agreement for Cause pursuant to Section 7(b) hereof, unless and until all of the following take place, provided that Sections 7(f)(i) through (iii) shall not apply to any termination for Cause pursuant to Section 7(b)(i)(C): (i) the Secretary of the Company gives written notice to the Executive (the "Warning Notice") setting forth (A) the specific provision(s) of this Agreement that the Executive is alleged to have failed to satisfy, (B) the acts or omissions alleged to constitute such failure, (C) the date on which the Executive shall be given a reasonable opportunity to appear before and be heard by the Board of Directors of the Company concerning the allegations, which date shall be not less than 30, nor more than 90, days -6- after the Executive's receipt of the Warning Notice, and (D) the loss of rights under this Agreement that shall occur unless the Executive diligently and in good faith takes reasonable steps to remedy such failure within 30 days after the Executive's receipt of the Warning Notice; (ii) the Executive does not diligently and in good faith take all reasonable steps to remedy such failure within 30 days after the Executive's receipt of the Warning Notice; and (iii) the Executive is given a reasonable opportunity to appear before and be heard by the Board of Directors of the Company concerning the allegations, in accordance with the Warning Notice. (g) "Date of Termination" shall mean (i) if the Executive's employment is terminated by the Executive's death, the date of the Executive's death, (ii) if the Executive's employment is terminated pursuant to Section 7(b)(ii) hereof, 30 days after Notice of Termination is given (provided that the Executive shall not have returned to the performance of the Executive's duties on a full-time basis during such 30-day period), and (iii) if the Executive's employment is terminated for any other reason, the date on which Notice of Termination is given. 8. Compensation on Termination. The parties recognize and agree that, if the Company terminates the Executive's employment during the term of this Agreement other than pursuant to Section 7(b) hereof, or if the Executive terminates the Executive's employment during the term of this Agreement for Good Reason pursuant to Section 7(c) hereof, the actual damages to the Executive would be difficult if not impossible to ascertain and agree that the Executive's sole remedy shall be a right to receive amounts determined and paid in accordance with the provisions of this Section 8. The Executive shall not be required to mitigate the amount of any payment provided for in this Section 8 by seeking other employment or otherwise, nor shall any compensation earned by the Executive in other employment or otherwise reduce the amount of any payment provided for in this Section 8. (a) If the Company shall terminate the Executive's employment during the term of this Agreement other than pursuant to Section 7(b) hereof, or if the Executive shall terminate the Executive's employment during the term of this Agreement for Good Reason pursuant to Section 7(c) hereof, or if the Executive's employment shall terminate by reason of the Company electing not to extend or further extend the term of this Agreement pursuant to Section 3(b) hereof, then, as severance pay or liquidated damages or both: (i) the Company shall pay to the Executive the Executive's Base Salary at the rate in effect at the time Notice of Termination is given for a period of three (3) years from the Date of Termination, together with any other amounts payable to the Executive under Section 6 hereof for periods prior to the Date of Termination (the Base Salary payable to the Executive after termination of employment under this Section 8(a)(i) shall be paid in 24 equal semi-monthly installments per year, in accordance with the Company's normal payroll cycle; provided, however, in the event that the Company changes its normal payroll cycle, such payment installments will be adjusted accordingly, but in no event will the Base Salary be paid less frequently than monthly); -7- (ii) the Company shall make any payments if and when due to the Executive under Section 6(c) hereof; and (iii) for a period of three (3) years from the Date of Termination, the Executive and his dependents and beneficiaries shall be entitled to receive health insurance from the Company on substantially the same terms and conditions as the Executive's health insurance in effect at the time Notice of Termination is given. (b) If the Executive's employment terminates under any circumstance that does not entitle the Executive to payments under Section 8(a) hereof (including a termination by reason of the death or Disability of the Executive, or by reason of the Executive electing not to extend or further extend the term of this Agreement pursuant to Sections 3(b) and 7(d) hereof), the Executive (i) shall not be entitled to receive any compensation under Section 6 accruing after the date of such termination (other than any payments due under Section 6(c) hereof), and (ii) shall be (x) subject to the Non-Competition Restrictions (as defined in Section 9 hereof) for a period of three (3) years from the Date of Termination and (y) subject to the Non-Solicitation Restrictions (as defined in Section 9 hereof) for a period of eight (8) years from the Date of Termination. 9. Non-Competition; Non-Solicitation. (a) The Executive agrees that for the period ending on the Fifth Anniversary or for such longer period of time if the Executive is employed by the Company in accordance with Section 3(b) hereof or as may be extended under this Section 9, or as otherwise set forth in this Agreement (the "Non-Competition Period"), the Executive shall not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary, affiliate or employee acting as nominee or agent): (i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the AHM Business (as hereinafter defined) within the United States; (ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the AHM Business; (iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or (iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company. The restrictions set forth in paragraphs (i) through (iv) of this Section 9(a) shall be collectively referred to herein as the "Non-Competition Restrictions." For purposes of this Agreement, the term "AHM Business" shall mean the residential mortgage lending or residential -8- mortgage brokerage business as conducted by the Company and any business involving the supply of services substantially similar to services provided by the Company at the time of the termination of the Executive's employment. (b) The Executive agrees that for the period ending on the Fifth Anniversary or for such longer period of time if the Executive is employed by the Company in accordance with Section 3(b) hereof or as may be extended under this Section 9, or as otherwise set forth in this Agreement (the "Non-Solicitation Period"), the Executive shall not, whether for the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company or any subsidiary or affiliate of the Company during the Non-Solicitation Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business; except, the Executive may hire up to two (2) employees of the Company who reported directly to the Executive at the Company, who, at no time while employed by the Company, individually earned in excess of $100,000.00 in any calendar year, and so long as such employees, prior to terminating their employment with the Company, execute non-solicitation and non-hire agreements with the Company in a form deemed acceptable by the Company. The restrictions set forth in this Section 9(b) shall be collectively referred to herein as the "Non-Solicitation Restrictions." (c) Notwithstanding anything herein to the contrary, the restrictive provisions hereof shall not prohibit the Executive from (i) engaging in any of the business activities or businesses described in Section 4(b) hereof during the term of this Agreement and/or during the Non-Competition Period, (ii) having an equity interest in the securities of any entity engaged in the AHM Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market, to the extent that such interest does not exceed one percent (1%) of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person. (d) The Executive agrees that the covenants and restrictions contained in this Section 9 are reasonable covenants and restrictions under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable, including, but not limited to, the right, power and authority to reduce the periods during which the Executive is subject to the restrictions set forth in this Section 9, and to enforce the remainder thereof as so amended. (e) Notwithstanding anything in this Agreement to the contrary, if either the Executive or the Company shall terminate the Executive's employment during the term of this Agreement for any reason, including, but not limited to, the election by the Company or the Executive not to extend or further extend the term of this Agreement pursuant to Sections 3(b) and 7(d) hereof, the Executive shall be subject to the Non-Competition Restrictions set forth in this Section 9 for a period of three (3) years from the Date of Termination -9- (f) Notwithstanding anything in this Agreement to the contrary, if either the Executive or the Company shall terminate the Executive's employment during the term of this Agreement for any reason, including, but not limited to, the election by the Company or the Executive not to extend or further extend the term of this Agreement pursuant to Sections 3(b) and 7(d) hereof, the Executive shall be subject to the Non-Solicitation Restrictions set forth in this Section 9 for a period of eight (8) years from the Date of Termination. (g) The Non-Competition Agreement shall be terminated as of the Effective Date of this Agreement. 10. Indemnification. The Company shall indemnify the Executive to the fullest extent permitted by the General Corporation Law of the State of Delaware, as amended from time to time. 11. Successors; Binding Agreement. (a) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the extent that the Company would be required to perform it if no such succession had taken place; provided, however, that no such agreement with a successor shall release the Company without the Executive's express written consent. Failure of the Company to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Company in the same amount and on the same terms as the Executive would be entitled to hereunder if the Executive's employment were terminated by the Company other than pursuant to Section 7(b) hereof, except that the Non-Competition Restrictions and the Non-Solicitation Restrictions set forth in section 9 of this Agreement shall remain in full force and effect for a period of three (3) years from the Date of Termination, and that, for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. (b) If the Executive should die while any amounts are due and payable to the Executive hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Agreement to the Executive's devisees, legatee or other designee or, if there be no such designee, to the Executive's estate. (c) Except as to withholding of any tax under the laws of the United States or any state or locality, neither this Agreement nor any right or interest hereunder nor any amount payable at any time hereunder shall be subject in any manner to alienation, sale, transfer, assignment, pledge, attachment or other legal process, or encumbrance of any kind by the Executive or the beneficiaries of the Executive or by legal representatives without the Company's prior written consent, nor shall there be any right of set-off or counterclaim in respect of any debts or liabilities of the Executive, the Executive's beneficiaries or legal representatives against any right or interest hereunder or any amount payable at any time hereunder to the Executive, the Executive's beneficiaries or legal representatives; provided, however, that nothing in this Section 11 shall preclude the Executive from designating a beneficiary to receive any benefit payable on the Executive's death, or the legal representatives -10- of the Executive from assigning any rights hereunder to the Person or Persons entitled thereto under the Executive's will or, in case of intestacy, to the Person or Persons entitled thereto under the laws of intestacy applicable to the Executive's estate. 12. Parties. This Agreement shall be binding upon and shall inure to the benefit of the Company and the Executive, the Executive's heirs, beneficiaries and legal representatives. 13. Entire Agreement; Amendment. (a) This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all other agreements between the parties with respect to the subject matter hereof, including, but not limited to, the Original Employment Agreement and the Non-Competition Agreement. (b) Any amendment of this Agreement shall not be binding unless in writing and signed by both (i) an officer or director of the Company duly authorized to do so and (ii) the Executive. 14. Enforceability. In the event that any provision of this Agreement is determined to be invalid or unenforceable, the remaining terms and conditions of this Agreement shall be unaffected and shall remain in full force and effect, and any such determination of invalidity or enforceability shall not affect the validity or enforceability of any other provision of this Agreement. 15. Notices. All notices which may be necessary or proper for either the Company or the Executive to give to the other shall be in writing and shall be sent by hand delivery, registered or certified mail, return receipt requested, overnight courier or facsimile, if to the Executive, to him at [ ], and, if to the Company, to it at its principal executive offices at 538 Broadhollow Road, Melville, New York 11747, Attention: General Counsel, Facsimile: (800) 209-7276, with a copy to the Company, to it at its principal executive offices at 538 Broadhollow Road, Melville, New York, 11747, Attention: Director of Human Resources,, and shall be deemed given when sent, provided that any Notice of Termination or other notice given pursuant to Section 7 shall be deemed given only when received. Either party may by like notice to the other party change the address at which the Executive or it is to receive notices hereunder. 16. Governing Law. THIS AGREEMENT IS EXECUTED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY, AND BE ENFORCEABLE IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. 17. Effective Date. This Agreement shall become effective as of July 1, 2003. 18. Definitions. The following terms, when capitalized in this Agreement, shall have the meanings set forth or incorporated by reference in this Section 18. (a) "Alt-A Loans" shall mean alternate "A" mortgage loans. -11- (b) "Applicable Reference Price" shall mean (i) with respect to loans (other than HELOC Loans) that will be sold to a third party and not held, in securitized or whole-loan form, by AHMIC or any affiliate or subsidiary thereof, the highest price quoted by any one of the Reference Banks (expressed as a percentage of par) for best efforts delivery and a delivery window not less than, but closest to, the lock-in period granted by the secondary marketing desk of AHMIC (or its affiliate or subsidiary, as the case may be) at the time the loan is locked; (ii) with respect to loans that will be held by AHMIC or any affiliate or subsidiary thereof (other than loans designated by the Company as Alt-A Loans and subprime loans), including loans held in securitized or whole-loan form, the price posted by AHMIC (or its affiliate or subsidiary, as the case may be) with respect to each such loan; (iii) with respect to loans that have been designated by the Company as Alt-A Loans or subprime loans and will be held by AHMIC or any affiliate or subsidiary thereof, in securitized or whole-loan form, the price posted by AHMIC (or its affiliate or subsidiary, as the case may be) with respect to each such loan, plus 0.375% of the principal amount of such loan; and (iv) with respect to all HELOC Loans, whether or not such loans are sold to a third party or held, in securitized or whole-loan form, by AHMIC or any affiliate or subsidiary thereof, 100.625% of the original funded balance at the time of the closing of such loan. (c) "AHMIC" means American Home Mortgage Investment Corp., a Maryland corporation and the parent company of the Company. (d) "Base Salary" shall have the meaning set forth in Section 6(a) hereof. (e) "Borrower Price" with respect to a loan shall mean (i) with respect to all loans other than HELOC Loans, 100% of the principal amount of such loan, minus any points, whether denominated as origination fees or discounts, paid by the borrower in connection with such loan, and (ii) with respect to HELOC Loans, 100% of the original funded balance at the time of the closing of such loan, minus any points, whether denominated as origination fees or discounts, paid by the borrower in connection with such loan. (f) "Cause" shall have the meaning set forth in Section 7(b)(i) hereof. (g) "Company" means American Home Mortgage Holdings, Inc., a Delaware corporation, and any successors to its business and/or assets, which executes and delivers an agreement provided for in Section 11(a) or which otherwise becomes bound by all the terms and conditions of this Agreement by operation of law. (h) "Credit Loss" shall mean the Company's good faith estimate of the loss it incurs if the Company is forced to repurchase a loan or the Company is forced to indemnify a loan. The sum of the losses for such repurchased and indemnified loans at the end of the applicable time period will be equal to the credit losses for such period. (i) "Date of Termination" shall have the meaning set forth in Section 7(h) hereof. (j) "Disability" shall have the meaning set forth in Section 7(b)(ii) hereof. -12- (k) "Eastern Division" shall include all of the Company's retail channel branches and retail channel sales personnel designated by the Chief Executive Officer as part of the Eastern Division of the Company; provided, however, that the Eastern Division shall not include MortgageSelect, American Brokers Conduit or any other unit or division of the Company that reports to the Company's Alternative Division; and provided, further, that the Eastern Division may from time to time be expanded or reduced (by state or otherwise) by the Chief Executive Officer to reflect the operational needs of the Company; and provided, further, that for purposes of determining any compensation due the Executive under Section 6 hereof, the term "Eastern Division" shall not include the retail channel branches and retail channel sales personnel acquired in connection with any Excluded Acquisition. (l) "Eastern Division Acquisition" means any acquisition, except for an Excluded Acquisition, by the Company of any company, business, mortgage origination pipeline, group of employees or other assets, whether by merger, acquisition, asset purchase or any other transaction, that is designated by the Chief Executive Officer as an Eastern Division Acquisition. (m) "Excluded Acquisition" shall mean any Eastern Division Acquisition proposed by the Company which the Executive believes is not in his best interests, and with respect to which the Executive, as soon as practicable prior to the Company's completion of such acquisition, notifies the Company in writing that such acquisition should not be treated as an Eastern Division Acquisition for purposes of this Agreement. With respect to an Excluded Acquisition, (i) the Invested Capital Charge shall not be increased to take into account any capital outlays incurred by the Company in connection with such Excluded Acquisition, and (ii) the retail sales channel branches and retail channel sales personnel acquired in connection with such Excluded Acquisition shall not be included in the term "Eastern Division" for purposes of determining any compensation due the Executive under Section 6 hereof. (n) "Expenses" shall include all direct and allocated costs charged to the Eastern Division, including, but not limited to, (i) employment costs, such as wages, salaries, commissions, overrides, profit participation and profit-sharing type costs (including, but not limited to, the Profit Participation Payment payable to the Executive hereunder), payroll taxes, employee benefits and all other employment expenses; (ii) Credit Losses; (iii) costs to determine a borrower's eligibility for a loan, including appraisals, credit reports, automated underwriting fees, social security checks and other investigation fees; (iv) costs of marketing, including advertising, promotion and public relations; (v) other costs for loan origination and processing, including copying, messenger and overnight delivery and office consumables; (vi) costs of running branches and offices, including rent, insurance, utilities, office maintenance and upkeep and depreciation; (vii) allocated costs for corporate overhead not to exceed $585 per loan, provided, however, that if a loan is a second lien that is closed concurrently with a first lien, such corporate overhead costs shall not exceed $195 per loan; and (viii) Invested Capital Charges; and all of such Expenses shall be calculated according to the Company's standard practices as may be amended from time to time. (o) "Good Reason" shall have the meaning set forth in Section 7(c) hereof. (p) "HELOC Loan" shall mean a home equity line of credit. -13- (q) "Invested Capital Charge" initially shall equal the amount of $6,000,000, but shall be adjusted in the event that the Company engages in one or more Eastern Division Acquisitions during a given fiscal year, such that the Invested Capital Charge shall be increased to take into account any capital outlays incurred by the Company in connection with such Eastern Division Acquisition(s), with any such increase in the Invested Capital Charge to be determined in good faith by the Chief Executive Officer prior to the consummation of such Eastern Division Acquisition(s); provided, however, that the Invested Capital Charge shall not include any capital outlays incurred by the Company in connection with an Excluded Acquisition. (r) "Merger Agreement" shall have the meaning set forth in the recitals. (s) "Net Interest Income" shall mean (i) for the eighteen months ending December 31, 2004, 16 basis points per loan, and (ii) for all subsequent fiscal years, an amount determined in good faith by the Chief Executive Officer. (t) "Non-Competition Agreement" shall have the meaning set forth in the recitals. (u) "Non-Competition Period" shall have the meaning set forth in Section 9(a) hereof. (v) "Non-Competition Restrictions" shall have the meaning set forth in Section 9(a) hereof. (w) "Non-Solicitation Period" shall have the meaning set forth in Section 9(b) hereof. (x) "Non-Solicitation Restrictions" shall have the meaning set forth in Section 9(b) hereof. (y) "Notice of Termination" shall have the meaning set forth in Section 7(g) hereof. (z) "Original Employment Agreement" shall have the meaning set forth in the recitals. (aa) "Origination Volume" shall mean the dollar volume of Eastern Division loan originations. (bb) "Payment Audit" shall have the meaning set forth in Section 6(b)(iv) hereof. (cc) "Payment Determination" shall have the meaning set forth in Section 6(b)(iv) hereof. (dd) "Per Loan Revenue" for each loan shall be the sum of (i) the product of the difference between the Applicable Reference Price for the loan (expressed as a percentage of -14- par) less the Borrower Price for such loan (expressed as a percentage of par) and (x) with respect to all loans other than HELOC Loans, the loan's principal amount, and (y) with respect to HELOC Loans, the original funded balance at the time of the closing of such loan, all at the time such loan is last locked; (ii) all fees (excluding points included in the price paid by the borrower that are included in (i) above) charged the borrower by the Company in connection with the borrower's loan application and loan closing (but excluding fees associated with the Company's ongoing ownership of the borrower's loan after the closing of the loan) including, but not limited to, servicing of the borrower's loan, or delivery of any services or financing or products for the borrower; (iii) fees earned from brokering loan applications to outside companies; (iv) the Secondary Allocation; and (v) Net Interest Income on loans held for sale. (ee) "Person" means any individual, corporation, partnership, limited liability company, limited duration company, trust or other entity of any nature whatsoever. (ff) "Profit Participation Payment" shall have the meaning set forth in Section 6(b)(ii) hereof. (gg) "Profits" means, with respect to the Eastern Division, for any measurement period, the sum of the Per Loan Revenue for all loans that were funded by the Company during the measurement period, or were brokered by the Company and closed by another lender during the measurement period, and in all cases, were originated by the Eastern Division, minus Expenses. (hh) "Reference Banks" shall mean Chase Manhattan Mortgage, Citicorp Mortgage, Countrywide Credit Corp., Washington Mutual and Wells Fargo Mortgage. (ii) "Reference Price Verification" shall have the meaning set forth in Section 19 hereof. (jj) "Secondary Allocation" shall mean (i) for the eighteen months ending December 31, 2004, 20 basis points per loan, and (ii) for all subsequent fiscal years, an amount determined in good faith by the Chief Executive Officer. (kk) "Volume Override Payment" shall have the meaning set forth in Section 6(b)(i) hereof. 19. Reference Price Verification. Not more than twelve times in any year during the term of this Agreement, the Executive shall be entitled to request information from the Company in order to verify the Applicable Reference Price with respect to a given loan (a "Reference Price Verification"). The Executive shall send any request for a Reference Price Verification to the Company in writing. Upon receipt of such request, the Company's capital markets group shall furnish information to the Executive in order to verify that the Applicable Reference Price with respect to such loan was established in accordance with the terms of this Agreement. [Signature Page to Follow] -15- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Michael Strauss -------------------------------------- Name: Michael Strauss Title: Chief Executive Officer and President EXECUTIVE /s/ John A. Manglardi --------------------------------------- John A. Manglardi EX-10.3.1 4 am033105-ex1031.txt EXHIBIT 10.3.1. FIRST OMNIBUS AMENDMENT THIS FIRST OMNIBUS AMENDMENT (this "Amendment"), dated as of December 10, 2004, is entered into by and among CALYON NEW YORK BRANCH (successor in interest to Credit Lyonnais New York Branch) (together with its successors and assigns, "Calyon New York"), as the Administrative Agent and as a Bank, DEUTSCHE BANK NATIONAL TRUST COMPANY (together with its successors and assigns, "Deutsche Bank"), as Collateral Agent, AMERICAN HOME MORTGAGE CORP. ("AHMC"), as the Servicer, an Originator and a Seller, AHM SPV I, LLC, as the Borrower and the Buyer, and AMERICAN HOME MORTGAGE SERVICING, INC. ("AHMS") (formerly known as Columbia National, Incorporated), as an Originator and a Seller. Capitalized terms used and not otherwise defined herein are used as defined in the related Operative Documents (as defined below). RECITALS WHEREAS, AHMC and AHMS, as Sellers, and AHM SPV I, LLC, as the Buyer, entered into that certain Master Repurchase Agreement and Addendum to the Master Repurchase Agreement incorporated therein, dated as of August 8, 2003 (as the same may be amended, restated, supplemented or modified from time to time, the "Repurchase Agreement"); WHEREAS, the Borrower, the Administrative Agent, the Servicer and the Collateral Agent entered into that certain Collateral Agency Agreement, dated as of August 8, 2003 (as the same may be amended, restated, supplemented or modified from time to time, the "Collateral Agency Agreement"); WHEREAS, the Borrower, the Servicer, La Fayette Asset Securitization LLC, as an Issuer, and Calyon New York, as a Bank and as Administrative Agent, entered into that certain Loan Agreement dated as of August 8, 2003 (as the same may be amended, restated, supplemented or modified from time to time, the "Loan Agreement" and, collectively with the Repurchase Agreement and the Collateral Agency Agreement, the "Operative Documents"); WHEREAS, the parties hereto that are parties to the Operative Documents desire to amend the Operative Documents as hereinafter set forth in this Amendment; NOW, THEREFORE, the parties agree as follows with respect to the Operative Documents to which each party hereto is a party: 1 Section 1. Amendments to the Loan Agreement. (a) The definition of "Annual Extension Date" in Section 1.1 of the Loan Agreement is hereby amended by deleting the words "August 6, 2004" in clause (i) thereof and replacing them with the words "August 5, 2005". (b) Section 1.1 of the Loan Agreement is hereby amended by adding the following definition of "Adjusted Consolidated Funded Debt" immediately after the definition of "Accepted Servicing Standards": "Adjusted Consolidated Funded Debt" means, on any date of determination, the sum of (a) the Consolidated Funded Debt of American Home Mortgage Investment Corp. and any other Person which would be reflected on the consolidated balance sheet of American Home Mortgage Investment Corp. 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. "Subordinated Debt" means the Debt of American Home Mortgage Investment Corp. and its Subsidiaries subordinated to the Obligations in the manner and to the extent required by the Bank of America, N.A., as administrative agent under the Credit Agreement, pursuant to written subordination agreements satisfactory in form and substance to the Bank of America, N.A., as administrative agent under the Credit Agreement. "Obligations" mean any and all debts, obligations and liabilities of the Sellers, the Servicer, the Performance Guarantor and American Home Mortgage Acceptance, Inc. to Bank of America, N.A. as administrative agent under the Credit Agreement and the lenders from time to time party thereto (whether now existing or hereafter arising, voluntary or involuntary, whether or not jointly owed with others, direct or indirect, absolute or contingent, liquidated or unliquidated, and whether or not from time to time decreased or extinguished and later increased, created or incurred), arising out of or related to the Loan Documents (as defined in the Credit Agreement). (c) Section 1.1 of the Loan Agreement is hereby amended by adding the following definition of "Aggregate Collateral Value" immediately after the definition of "Agent's Account": "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 American Home Mortgage 2 Investment Corp. 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 (the "Credit Agreement"), dated as of August 30, 2004, by and among the Sellers, American Home Mortgage Acceptance, Inc., certain Lenders from time to time party thereto, and Bank of America, N.A., times the percentage multiplier for each such class set forth on such calculation schedule. (d) Section 1.1 of the Loan Agreement is hereby amended by adding the following definition of "Consolidated Funded Debt" immediately after the definition of "Consequential Loss": "Consolidated Funded Debt" means, with respect to any Person and on any date of determination, Indebtedness in any of the following categories: (i) Debt for borrowed money, including the Obligations; (ii) Debt constituting an obligation to pay the deferred purchase price of property; (iii) Debt evidenced by a bond, debenture, note or similar instrument; (iv) Debt constituting, as of any date, any lease of property, real or personal, which would be capitalized on a balance sheet of the lessee prepared as of such date in accordance with GAAP, together with any other lease by such lessee which is in substance a financing lease, including, without limitation, any lease under which (i) such lessee has or will have an option to purchase the property subject thereto at a nominal amount or an amount less than a reasonable estimate of the fair market value of such property as of the date such lease is entered into, or (ii) the term of the lease approximates or exceeds the expected useful life of the property leased thereunder. (v) Debt constituting a non-contingent obligation to reimburse the issuer of any letter of credit or any guarantor or surety for payments made by such issuer, guarantor or surety; and (vi) Any obligation under any guaranty with respect to Debt of any other Person of the types described in clauses (i) through (v) above. 3 (e) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Hedge Report" in its entirety and replacing it with the following definition: "Hedge Report" means, with respect to any Conforming Loans included in the Eligible Mortgage Collateral with respect to which there is no loan-specific Take-Out Commitment, a report prepared by the Servicer prepared pursuant to Section 3.6 hereof, showing, as of the close of business on the previous Business Day, all Take-Out Commitments 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 with respect to such trades including information as the Administrative Agent may request, in the form of Exhibit K hereto. Each such Take-Out Commitment shall have been pledged to the Administrative Agent; provided, however, that such Take-Out Commitments may have been pledged previously or may be pledged in the future by the Originators. (f) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Maximum Facility Amount" in its entirety and replacing it with the following definition: "Maximum Facility Amount" means $250,000,000, as such amount may be reduced pursuant to Section 2.1(c) of this Agreement. (g) Section 1.1 of the Loan Agreement is hereby amended by adding the following definition of "Net Cash Proceeds" immediately after the definition of "Multiemployer Plan": "Net Cash Proceeds" means, with respect to the issuance of any capital stock by American Home Mortgage Investment Corp., the amount of cash received by American Home Mortgage Investment Corp. in connection with such transaction after deducting therefrom all fees (including, without limitation, investment banking fees), commissions, costs and other expenses to the extent attributable to such transaction. (h) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Originator Performance Guaranty" in its entirety and replacing it with the following: "Originator Performance Guaranty" means the Amended and Restated Originator Performance Guaranty, in the form attached hereto as Exhibit G-2, made by the Performance Guarantor in favor of the Originators, and assigned to the Administrative Agent for the benefit of the Lenders. 4 (i) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Performance Guarantor" in its entirety and replacing it with the following: "Performance Guarantor" means, together, American Home Mortgage Holdings, Inc., a Delaware corporation, and American Home Mortgage Investment Corp., a Maryland corporation, and their respective successors and assigns. (j) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Performance Guarantor Quarterly Certificate" in its entirety and replacing it with the following: "Performance Guarantor Quarterly Certificate" means the forms of certificate attached hereto as Exhibit H-3 and Exhibit H-4. (k) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Servicer Default" in its entirety and replacing it with the following: "Servicer Default" means (a) any Event of Default, to the extent relating to the Servicer, arising under Sections 8.1(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (u), (v), (w), (x) or (cc)in each case, without giving effect to any provisions in such sections that make such sections applicable only so long as the Servicer is one of the Originators, (b) if the Servicer is one of the Originators, American Home Mortgage Holdings, Inc., as a Performance Guarantor, shall cease to own directly 100% of all of the stock of the Servicer, or (c) if the Servicer is one of the Originators, (i) the Servicer's Tangible Net Worth shall be less than $21,000,000 or (ii) the Servicer's Tangible Net Worth, combined with the Tangible Net Worth of AHMS and American Mortgage Acceptance, Inc., shall be less than $147,000,000. (l) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Servicer Performance Guaranty" in its entirety and replacing it with the following: "Servicer Performance Guaranty" means the Amended and Restated Servicer Performance Guaranty, in the form attached hereto as Exhibit G-1, made by the Performance Guarantor in favor of the Originators, and assigned to the Administrative Agent for the benefit of the Lenders. (m) Section 1.1 of the Loan Agreement is hereby amended by deleting the definition of "Tangible Net Worth" in its entirety and replacing it with the following: 5 "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 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 Guarantor and American Home Mortgage Acceptance, Inc.) and (c) investments in Subsidiaries of such Person (other than the Servicer, the Sellers, the Performance Guarantor and American Home Mortgage Acceptance, Inc.). (n) The second paragraph of Section 3.6(a) of the Loan Agreement is hereby amended by (A) deleting the words "no later than 10:00 a.m. (eastern time) (i) on the tenth Business Day after delivery of such Assignment relating to such Mortgage Loan, and (ii) if any changes would be reflected since the last Hedge Report, on each subsequent Business Day" in the first sentence thereof and replacing them with the words "no later than 10:00 a.m. (eastern time) (i) on each Business Day, and (ii) if any changes would be reflected since the last Hedge Report, on each subsequent Business Day" and (B) deleting the words "tenth Business Day" in the second sentence thereof and replacing them with the words "subsequent Business Day". (o) Clause (c) of Section 3.6(a) of the Loan Agreement is hereby amended by deleting the words "Upon request of the Administrative Agent at any time" and replacing them with the words "On each Business Day". (p) The Loan Agreement is hereby amended by adding the following Section 3.9 immediately after Section 3.8: Section 3.9. Approved Investor Reporting. No later than 10:00 a.m. (Eastern time) on the 15th day of each month (or, if such day is not a Business Day, the next Business Day), the Borrower shall furnish to the Administrative Agent (by facsimile or electronic transmission (a hard copy of which shall not subsequently be mailed, sent or delivered to the Administrative Agent, unless so requested by the Administrative Agent) a report which shall provide as of the last day of the previous month (i) a list of Approved Investors that committed to purchase one or more Mortgage Loans 6 from one of the Originators during such previous month and (ii) the percentage of the Mortgage Loans each such Approved Investor committed to purchase either in the form of loan-specific Take-Out Commitments or forward purchase commitments obtained to hedge Mortgage Loans. (q) Section 4.1(t) of the Loan Agreement is hereby deleted in its entirety and replaced with the following Section 4.1(t): (t) each of the Performance Guarantor Quarterly Certificates, substantially in the forms of Exhibit H-3 and Exhibit H-4, respectively. (r) Section 4.2(h) of the Loan Agreement is hereby deleted in its entirety and replaced with the following Section 4.2(h): (h) the most recently due Performance Guarantor Quarterly Certificate, substantially in the forms of Exhibit H-3 and Exhibit H-4, respectively, shall have been delivered previously to the Administrative Agent. (s) Section 7.10 of the Loan Agreement is hereby deleted in its entirety and replaced with the word "[Reserved]." (t) Section 7.16 of the Loan Agreement is hereby deleted in its entirety and replaced with the following Section 7.16: Section 7.16. Minimum Tangible Net Worth. (i) American Home Mortgage Investment Corp. shall not nor shall it permit any Subsidiary to, at any time, directly or indirectly permit at any time its Tangible Net Worth to be less than $530,000,000, plus 75% of the Net Cash Proceeds of any capital stock (including preferred stock) issued by American Home Mortgage Investment Corp. after June 30, 2004. (ii) The Servicer shall not nor shall it permit any Subsidiary to, at any time, directly or indirectly a) Permit at any time the Tangible Net Worth of AHMS to be less than $30,000,000. b) Permit at any time the Tangible Net Worth of AHMC to be less than $21,000,000. 7 c) Permit at any time the Tangible Net Worth of American Home Mortgage Acceptance, Inc. to be less than $41,000,000; or d) Permit at any time the Tangible Net Worth of the Sellers and American Home Mortgage Acceptance, Inc., on a combined basis, to be less than $147,000,000. (u) The Loan Agreement is hereby amended by adding the following Section 7.19 immediately after Section 7.18: 7.19. Collateral Value to Adjusted Consolidated Funded Debt Ratio. American Home Mortgage Investment Corp. shall not permit at any time the ratio of its Aggregate Collateral Value to its Adjusted Consolidated Funded Debt to be less than 1.00 to 1.00. (v) Exhibit G-1 to the Loan Agreement is hereby deleted in its entirety and replaced with Annex A attached hereto. (w) Exhibit G-2 to the Loan Agreement is hereby deleted in its entirety and replaced with Annex B attached hereto. (x) Exhibit H-1 to the Loan Agreement is hereby deleted in its entirety and replaced with Annex C attached hereto. (y) The Loan Agreement is hereby amended by adding Annex D attached hereto as Exhibit H-4 to the Loan Agreement. (z) Exhibit F to the Loan Agreement is hereby deleted in its entirety and replaced with Annex E attached hereto. (aa) Schedule I to the Loan Agreement is hereby deleted in its entirety and replaced with Annex F attached hereto. Section 2. Amendments to the Repurchase Agreement. (a) Section 1.01 of the Repurchase Agreement is hereby amended by adding the following definition of "Adjusted Consolidated Funded Debt" immediately before the definition of "Administrative Agent": "Adjusted Consolidated Funded Debt" means, on any date of determination, the sum of (a) the Consolidated Funded Debt of American Home Mortgage Investment Corp. and any other Person which would be reflected on the consolidated balance sheet of 8 American Home Mortgage Investment Corp. 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. "Subordinated Debt" means the Debt of American Home Mortgage Investment Corp. and its Subsidiaries subordinated to the Obligations in the manner and to the extent required by the Bank of America, N.A., as administrative agent under the Credit Agreement, pursuant to written subordination agreements satisfactory in form and substance to the Bank of America, N.A., as administrative agent under the Credit Agreement. "Obligations" mean any and all debts, obligations and liabilities of the Servicer, the Sellers, the Performance Guarantor and American Home Mortgage Acceptance, Inc. to Bank of America, N.A. as administrative agent under the Credit Agreement and the lenders from time to time party thereto (whether now existing or hereafter arising, voluntary or involuntary, whether or not jointly owed with others, direct or indirect, absolute or contingent, liquidated or unliquidated, and whether or not from time to time decreased or extinguished and later increased, created or incurred), arising out of or related to the Loan Documents (as defined in the Credit Agreement). (b) Section 1.01 of the Repurchase Agreement is hereby amended by adding the following definition of "Aggregate Collateral Value" immediately after the definition of "Affiliate": "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 American Home Mortgage Investment Corp. 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 (the "Credit Agreement"), dated as of August 30, 2004, by and among the Sellers, American Home Mortgage Acceptance, Inc., certain Lenders from time to time party thereto, and Bank of America, N.A., times the percentage multiplier for each such class set forth on such calculation schedule. (c) Section 1.01 of the Repurchase Agreement is hereby amended by adding the following definition of "Consolidated Funded Debt" immediately after the definition of "Conforming Loan": 9 "Consolidated Funded Debt" means, with respect to any Person and on any date of determination, Indebtedness in any of the following categories: (i) Debt for borrowed money, including the Obligations; (ii) Debt constituting an obligation to pay the deferred purchase price of property; (iii) Debt evidenced by a bond, debenture, note or similar instrument; (iv) Debt constituting, as of any date, any lease of property, real or personal, which would be capitalized on a balance sheet of the lessee prepared as of such date in accordance with GAAP, together with any other lease by such lessee which is in substance a financing lease, including, without limitation, any lease under which (i) such lessee has or will have an option to purchase the property subject thereto at a nominal amount or an amount less than a reasonable estimate of the fair market value of such property as of the date such lease is entered into, or (ii) the term of the lease approximates or exceeds the expected useful life of the property leased thereunder; (v) Debt constituting a non-contingent obligation to reimburse the issuer of any letter of credit or any guarantor or surety for payments made by such issuer, guarantor or surety; and (vi) Any obligation under any guaranty with respect to Debt of any other Person of the types described in clauses (i) through (v) above. (d) Section 1.01 of the Repurchase Agreement is hereby amended by deleting the definition of "Hedge Report" in its entirety and replacing it with the following: "Hedge Report" means, with respect to any Conforming Loans included in the Eligible Mortgage Collateral with respect to which there is no loan-specific Take-Out Commitment, 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 previous Business Day, all Take-Out Commitments 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 with respect to such trades including information as the Administrative Agent may request, in the form of Exhibit K of the Loan Agreement. Each such 10 Take-Out Commitment shall have been pledged to the Administrative Agent; provided, however, that such Take-Out Commitments may have been pledged previously or may be pledged in the future by the Originators. (e) Section 1.01 of the Repurchase Agreement is hereby amended by adding the following definition of "Net Cash Proceeds" immediately after the definition of "Multiemployer Plan": "Net Cash Proceeds" means, with respect to the issuance of any capital stock by American Home Mortgage Investment Corp., the amount of cash received by American Home Mortgage Investment Corp. in connection with such transaction after deducting therefrom all fees (including, without limitation, investment banking fees), commissions, costs and other expenses to the extent attributable to such transaction. (f) Section 1.01 of the Repurchase Agreement is hereby amended by deleting the definition of "Originator Performance Guaranty" in its entirety and replacing it with the following definition: "Originator Performance Guaranty" means the Amended and Restated Originator Performance Guaranty, in the form attached to the Loan Agreement as Exhibit G-2, made by the Performance Guarantor in favor of the Originators, and assigned to the Administrative Agent for the benefit of the Lenders. (g) Section 1.01 of the Repurchase Agreement is hereby amended by deleting the definition of "Performance Guarantor" in its entirety and replacing it with the following definition: "Performance Guarantor" means, together, American Home Mortgage Holdings, Inc., a Delaware corporation, and American Home Mortgage Investment Corp., a Maryland corporation, and their respective successors and assigns. (h) Section 1.01 of the Repurchase Agreement is hereby amended by deleting the definition of "Servicer Performance Guaranty" in its entirety and replacing it with the following definition: "Servicer Performance Guaranty" means the Amended and Restated Servicer Performance Guaranty, in the form attached to the Loan Agreement as Exhibit G-1, made by the Performance Guarantor in favor of the Originators, and assigned to the Administrative Agent for the benefit of the Lenders. 11 (i) Section 1.01 of the Repurchase Agreement is hereby amended by deleting the definition of "Tangible Net Worth" in its entirety and replacing it with the following definition: "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 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 Guarantor and American Home Mortgage Acceptance, Inc.) and (c) investments in Subsidiaries of such Person (other than the Servicer, the Sellers, the Performance Guarantor and American Home Mortgage Acceptance, Inc.). (j) The definition of "Termination Date" in Section 1.01 of the Repurchase Agreement is hereby amended by deleting the words "August 6, 2004" in clause (a) thereof and replacing them with the words "August 5, 2005". (k) Section 5.19 of the Repurchase Agreement is hereby amended by inserting "(a)" before the sentence therein and adding the following clause (b): (b) The Sellers shall not nor shall they permit any Subsidiary to, at any time, directly or indirectly (i) Permit at any time the Tangible Net Worth of American Home Mortgage Investment Corp. to be less than $530,000,000, plus 75% of the Net Cash Proceeds of any capital stock (including preferred stock) issued by American Home Mortgage Investment Corp. after June 30, 2004; (ii) Permit at any time the Tangible Net Worth of AHMS to be less than $30,000,000; (iii) Permit at any time the Tangible Net Worth of AHMC to be less than $21,000,000; 12 (iv) Permit at any time the Tangible Net Worth of American Home Mortgage Acceptance, Inc. to be less than $41,000,000; or (v) Permit at any time the Tangible Net Worth of the Sellers and American Home Mortgage Acceptance, Inc., on a combined basis, to be less than $147,000,000. (l) The Repurchase Agreement is hereby amended by deleting Section 5.22 in its entirety and replacing it with the word "[Reserved]." (m) The Repurchase Agreement is hereby amended by adding the following Section 5.32 immediately after Section 5.31: 7.19. Collateral Value to Adjusted Consolidated Funded Debt Ratio. American Home Mortgage Investment Corp. shall not permit at any time the ratio of its Aggregate Collateral Value to its Adjusted Consolidated Funded Debt to be less than 1.00 to 1.00. (n) The Repurchase Agreement is hereby amended by deleting Section 5.29 in its entirety and replacing it with the following Section 5.29: Section 5.29. Take-Out Commitments. Each of the Sellers shall obtain, and maintain in full force and effect, (a) Take-Out Commitments reflecting total Approved Investor obligations, as of each determination, with an aggregate purchase price at least equal to the total of the original principal balances of such Seller's entire portfolio of Mortgage Loans and the mortgage loans sold to the Buyer by such Seller, but in each case only to the extent such mortgage loans are pledged to secure a borrowing and (b) forward purchase commitments (which may include options to sell Mortgage Loans to Approved Investors, so long as the Approved Investor is bound thereby) issued by Approved Investors and obligating such Approved Investors to purchase a portion of such Seller's subsequently acquired Mortgage Loans. Each of the Take-Out Commitments specified in clause (a) above shall reflect only those terms and conditions as are permitted hereunder or are acceptable to the Administrative Agent. Section 3. Amendments to the Collateral Agency Agreement. (a) The Collateral Agency Agreement is amended by inserting the following Section 3.13 immediately after Section 3.12 therein: 13 Section 3.13. Release Letters. To the extent that the Administrative Agent's approval is required for the release of any Mortgage Loan hereunder, the Administrative Agent hereby appoints the Borrower, as agent for the Administrative Agent, its attorney in fact, with full power of substitution, for and on behalf and in the name of the Administrative Agent, to release the documents related to such Mortgage Loan to the extent permitted hereunder. The powers and authorities herein conferred on the Borrower may be exercised by the Borrower through any Person who, at the time of the execution of a particular instrument, is an authorized officer or agent of the Borrower. All Persons dealing with the Borrower, any officer thereof, or any substitute attorney, acting pursuant hereto shall be fully protected in treating the powers and authorities conferred by this Section 3.13 as existing and continuing in full force and effect until advised by the Borrower that the Obligations have been fully and finally paid and satisfied and all Bank Commitments have been terminated. (b) Exhibit D-1 to the Collateral Agency Agreement is hereby amended by deleting the definition of "Hedge Report" in its entirety and replacing it with the following definition: "Hedge Report" means, with respect to any Conforming Loans included in the Eligible Mortgage Collateral with respect to which there is no loan-specific Take-Out Commitment, 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 previous Business Day, all Take-Out Commitments 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 with respect to such trades including information as the Administrative Agent may request, in the form of Exhibit K of the Loan Agreement. Each such Take-Out Commitment shall have been pledged to the Administrative Agent; provided, however, that such Take-Out Commitments may have been pledged previously or may be pledged in the future by the Originators. (c) The definition of "Mortgage Assets" in Exhibit D-2 to the Collateral Agency Agreement is hereby amended by deleting clause (d) in its entirety and replacing it with the following definition: 14 (d) (i) any and all Take-Out Commitments, to the extent pledged to the Administrative Agent hereunder or pursuant to another lending arrangement (and which may have been pledged previously or may be pledged in the future by the Originators), whether or not such Take-Out Commitments pertain to Mortgage Loans that are pledged and assigned to the Secured Party, for the benefit of the holders of the Obligations, as collateral for the Obligations, or in which the Secured Party has a security interest to secure the Obligations and (ii) Closing Protection Rights, to the extent pledged to the Administrative Agent, that pertain to Mortgage Loans that are pledged and assigned to the Secured Party, for the benefit of the holders of the Obligations, as collateral for the Obligations, or in which the Secured Party has a security interest to secure the Obligations; (d) Exhibit D-1 to the Collateral Agency Agreement is hereby amended by deleting the definition of "Maximum Facility Amount" in its entirety and replacing it with the following definition: "Maximum Facility Amount" means $250,000,000, as such amount may be reduced pursuant to Section 2.1(c) of the Loan Agreement. (e) Exhibit D-1 to the Collateral Agency Agreement is hereby amended by deleting the definition of "Performance Guarantor" in its entirety and replacing it with the following definition: "Performance Guarantor" means, together, American Home Mortgage Holdings, Inc., a Delaware corporation, and American Home Mortgage Investment Corp., a Maryland corporation, and their respective successors and assigns. (f) The definition of "Termination Date" in Exhibit D-1 to the Collateral Agency Agreement is hereby amended by deleting the words "August 6, 2004" in clause (a) thereof and replacing them with the words "August 5, 2005". Section 4. Amendments to All of the Operative Documents. (a) Each reference to "Columbia National, Incorporated" in each of the Operative Documents, including, without limitation any and all schedules and exhibits to any of the Operative Documents, shall be deemed to refer to "American Home Mortgage Servicing, Inc." (b) Each reference to "Maximum Facility Amount" or "Termination Date" in each of the Operative Documents, including, without limitation, any and all schedules and exhibits to any of the Operative Documents, shall be deemed to refer to the Maximum Facility 15 Amount or Termination Date, respectively, as such terms are defined in this Amendment for each respective Operative Document. Section 5. Operative Documents in Full Force and Effect as Amended Except as specifically amended hereby, all of the provisions of the Operative Documents and all of the provisions of all other documentation required to be delivered with respect thereto shall remain in full force and effect from and after the date hereof. Section 6. Miscellaneous (a) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall not constitute a novation of any Operative Document, but shall constitute an amendment thereof. The parties hereto agree to be bound by the terms and conditions of each Operative Document, as amended by this Amendment, as though such terms and conditions were set forth herein. (b) The descriptive headings of the various sections of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof. (c) This Amendment may not be amended or otherwise modified except as provided in each respective Operative Agreement. (d) This Amendment and the rights and obligations of the parties under this Amendment shall be governed by, and construed in accordance with, the laws of the state of New York (without giving effect to the conflict of laws principles thereof, other than Section 5-1401 of the New York General Obligations Law, which shall apply hereto). The remainder of this page is intentionally left blank. 16 IN WITNESS WHEREOF, the parties have agreed to and caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written. ADMINISTRATIVE AGENT AND BANK AGREED: CALYON NEW YORK BRANCH By: /s/ David C. Fink -------------------------------------- Name: David C. Fink Title: Managing Director By: /s/ Kostantina Kourmpetis -------------------------------------- Name: Kostantina Kourmpetis Title: Managing Director ORIGINATOR, SERVICER AND SELLER AGREED: AMERICAN HOME MORTGAGE CORP. By: /s/ Alan B. Horn ----------------------------------- Name: Alan B. Horn Title: Executive Vice President and General Counsel ORIGINATOR AND SELLER AGREED: AMERICAN HOME MORTGAGE SERVICING, INC. By: /s/ Alan B. Horn ----------------------------------- Name: Alan B. Horn Title: Executive Vice President and General Counsel BORROWER AND BUYER AGREED: AHM SPV I, LLC By: /s/ Alan B. Horn ----------------------------------- Name: Alan B. Horn Title: Manager COLLATERAL AGENT AGREED: DEUTSCHE BANK NATIONAL TRUST COMPANY By: /s/ Andrew Hays -------------------------------------- Name: Andrew Hays Title: Associate ANNEX A Exhibit G-1 ANNEX B Exhibit G-2 ANNEX F SCHEDULE I BANK COMMITMENTS AND PERCENTAGES Bank Commitment Bank Bank Commitment Percentage ---- --------------- --------------- CALYON NEW YORK BRANCH $250,000,000 100% EX-10.3.2 5 am033105-ex1032.txt EXHIBIT 10.3.2 AMENDED AND RESTATED ORIGINATOR PERFORMANCE GUARANTY This Amended and Restated Originator Performance Guaranty (the "Guaranty"), dated as of December 10, 2004, is executed by American Home Mortgage Holdings, Inc., a Delaware corporation, and American Home Mortgage Investment Corp., a Maryland corporation (each, a "Performance Guarantor" and together, the "Performance Guarantors"), in favor of AHM SPV I, LLC, a Delaware limited liability company ("SPV"). WHEREAS, SPV has entered into an Addendum to Master Repurchase Agreement dated as of August 8, 2003 (as amended, restated, supplemented or otherwise modified from time to time, the "Repurchase Agreement"), with American Home Mortgage Corp., a New York corporation, and American Home Mortgage Servicing, Inc. (formerly known as Columbia National, Incorporated), a Maryland corporation (collectively, the "Originators"), pursuant to which SPV has agreed to purchase from time to time certain Mortgage Assets from the Originators; WHEREAS, as an inducement for SPV to purchase Mortgage Assets pursuant to the Repurchase Agreement, the Performance Guarantors have agreed to guaranty the due and punctual performance of the Originators' obligations under the Repurchase Agreement, including any obligation to repurchase Mortgage Assets as a result of a breach pursuant to Section 2.05 of the Addendum to the Repurchase Agreement, provided that the Performance Guarantors shall not guaranty the Originators' obligations to repurchase Mortgage Assets on the Repurchase Date pursuant to Sections 3(b) and 3(c) of the Repurchase Agreement; WHEREAS, it is a condition precedent to SPV agreeing to purchase Mortgage Assets pursuant to the Repurchase Agreement that the Performance Guarantors execute and deliver to SPV a performance guaranty substantially in the form hereof; and WHEREAS, the Performance Guarantors wish to guaranty the due and punctual performance of the Originators' obligations to SPV under or in respect of the Repurchase Agreement as provided herein, and the Performance Guarantors, as the owners, directly or indirectly, of all of the outstanding shares of capital stock of the Originators, will derive substantial benefit from the transactions contemplated under the Repurchase Agreement; NOW, THEREFORE, the each of the Performance Guarantors hereby agrees with SPV as follows: Section 1. Definitions. As used herein: "Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. Sections 101 et seq., as amended. "Obligations" means, collectively, all covenants, agreements, terms, conditions and indemnities to be performed and observed by the Originators under and pursuant to 1 the Repurchase Agreement and each other document executed and delivered by the Originators pursuant to the Repurchase Agreement (other than the Loan Agreement), except for the Originators' obligation to repurchase Mortgage Assets on the Repurchase Date pursuant to Sections 3(b) and 3(c) of the Repurchase Agreement, including, without limitation, the due and punctual payment of all sums which are or may become due and owing by the Originators under the Repurchase Agreement whether for repurchase prices for repurchases pursuant to Section 2.05 of the Addendum to the Repurchase Agreement, fees, expenses (including counsel fees), indemnified amounts or otherwise, whether upon any termination or for any other reason, including any renewals, extensions and modifications thereof. "Loan Agreement" means that certain Loan Agreement dated as of August 8, 2003 by and among SPV, certain Issuers party thereto, certain Banks parties thereto, Calyon New York Branch, as administrative agent for the Issuer and the Banks, and American Home Mortgage Corp., as the servicer thereunder, as the same may be amended, restated, supplemented or otherwise modified from time to time. "AHM Entities" means, collectively, the Performance Guarantors, the Originators, and SPV. All capitalized terms used herein, and not otherwise herein defined shall have their respective meanings as defined in the Repurchase Agreement. Section 2. Guaranty of Performance of Obligations. Each of the Performance Guarantors hereby, jointly and severally, unconditionally guarantees to SPV the full and punctual payment and performance by the Originators of the Obligations. This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual performance of all of the Obligations and is in no way conditioned upon any requirement that SPV first take any action against the Originators with respect to the Obligations or attempt to collect any of the amounts owing by the Originators to SPV from the Originators or resort to any collateral security, any balance of any deposit account or credit on the books of SPV in favor of the Originators, any guarantor of the Obligations or any other Person. Should the Originators default in the payment or performance of any of the Obligations, SPV may cause the immediate performance by either of the Performance Guarantors of the Obligations and cause any payment Obligations to become forthwith due and payable to SPV, without demand or notice of any nature (other than as expressly provided herein), all of which are expressly waived by each of the Performance Guarantors. Each of the Performance Guarantor's liability under this Guaranty shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of the Repurchase Agreement, the Loan Agreement or any other document executed in connection therewith or delivered thereunder, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from the Repurchase Agreement, the Loan Agreement or any other document executed in connection therewith or delivered thereunder, (iii) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of or consent to 2 departure from any other guaranty, for all or any of the Obligations, (iv) any law, regulation or order of any jurisdiction affecting any term of all or any Obligations or the rights of SPV, (v) any manner of application of collateral, or proceeds thereof, to all or any of the Obligations, or any manner of sale or other disposition of any collateral for all or any of the Obligations or any other assets of the Originators, (vi) any change, restructuring or termination of the corporate structure or existence of the Originators, or (vii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Originators or a guarantor. In the event that performance of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Originators, or for any other reason, all such Obligations shall be immediately performed by the Performance Guarantors. Section 3. Performance Guarantors' Further Agreements to Pay. Each of the Performance Guarantors further agrees, in the event the Performance Guarantors fail to perform their obligations under this Guaranty, to pay to SPV, forthwith upon demand all reasonable costs and expenses (including court costs and legal expenses) incurred or expended by SPV in connection with the enforcement of this Guaranty. Section 4. Waivers by Performance Guarantors; SPV's Freedom to Act. Each of the Performance Guarantors waives notice of (a) acceptance of this Guaranty, (b) any action taken or omitted by SPV in reliance on this Guaranty, and (c) any requirement that SPV be diligent or prompt in making demands under this Guaranty, giving notice of any Default, Event of Default, default or omission by the Originators or asserting any other rights of SPV under this Guaranty. To the maximum extent permitted by applicable law, each of the Performance Guarantors also irrevocably waives all defenses that at any time may be available in respect of the Obligations by virtue of any statute of limitations, valuation, stay, moratorium law or other similar law now or thereafter in effect. SPV shall be at liberty, without giving notice to or obtaining the assent of the Performance Guarantors and without relieving either of the Performance Guarantors of any liability under this Guaranty, to deal with the Originators and with each other party who now is or after the date hereof becomes liable in any manner for any of the Obligations, in such manner as SPV in its sole discretion deems fit, and to this end each of the Performance Guarantors agrees that the validity and enforceability of this Guaranty, including without limitation, the provisions of Section 8 hereof, shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or indulgence with respect to, or substitutions for, the Obligations or any part thereof or any agreement relating thereto at any time; (b) any failure or omission to enforce any right, power or remedy with respect to the Obligations or any part thereof or any agreement relating thereto, or any collateral securing the Obligations or any part thereof; (c) any waiver of any right, power or remedy or of any Default, Event of Default, default with respect to the Obligations or any part thereof or any agreement relating thereto; (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any other obligation of any person or entity with respect to the Obligations or any part thereof; (e) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to the Obligations or any part thereof; (f) the application of payments received from any source to the payment of any payment Obligations of the Originators, any part thereof or amounts which are not covered by this Guaranty even though SPV might lawfully have elected to apply such payments to any part 3 or all of the payment Obligations of the Originators or to amounts which are not covered by this Guaranty; (g) the existence of any claim, setoff or other rights which such Performance Guarantor may have at any time against the Originators in connection herewith or any unrelated transaction; (h) any assignment or transfer of the Obligations or any part thereof; or (i) any failure on the part of the Originators to perform or comply with any term of the Repurchase Agreement or any other document executed in connection therewith or delivered thereunder, all whether or not such Performance Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (i) of this Section. Section 5. Unenforceability of Obligations Against the Originators. Notwithstanding (a) any change of ownership of either of the Originators or the insolvency, bankruptcy or any other change in the legal status of either of the Originators; (b) the change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Obligations; (c) the failure of either of the Originators or either of the Performance Guarantors to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Obligations or this Guaranty, or to take any other action required in connection with the performance of all obligations pursuant to the Obligations or this Guaranty; or (d) if any of the moneys included in the Obligations have become unrecoverable from either of the Originators for any reason other than final payment in full of the payment Obligations in accordance with their terms, this Guaranty shall nevertheless be binding on each of the Performance Guarantors. This Guaranty shall be in addition to any other guaranty or other security for the Obligations, and it shall not be rendered unenforceable by the invalidity of any such other guaranty or security. Section 6. Representations and Warranties. Section 6.1. Existence and Standing. Each of the Performance Guarantors is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate authority to conduct its business in each jurisdiction in which its business is conducted. Section 6.2. Authorization; Validity. Each of the Performance Guarantors has the corporate power and authority to execute and deliver this Guaranty, perform its obligations hereunder and consummate the transactions herein contemplated. The execution and delivery by each of the Performance Guarantors of this Guaranty, the performance of its obligations and consummation of the transactions contemplated hereunder have been duly authorized by proper corporate proceedings, and this Guaranty constitutes the legal, valid and binding obligation of each of the Performance Guarantors enforceable against such Performance Guarantor in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and by general equity principles (whether considered as a proceeding at law or in equity). Section 6.3. No Conflict; Government Consent. Neither the execution and delivery by either of the Performance Guarantors of this Guaranty, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof will contravene or conflict with any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on such 4 Performance Guarantor or any of the other AHM Entities, except where such contravention or conflict would reasonably be expected to have a Material Adverse Effect, or such Performance Guarantor's certificate of incorporation or by-laws or the provisions of any indenture, instrument or agreement to which such Performance Guarantor is a party or is subject, or by which it, or its property, is bound, except where such contravention or conflict would not reasonably be expected to have a Material Adverse Effect, or result in the creation or imposition of any Lien in, of or on the property of such Performance Guarantor or any of its Subsidiaries pursuant to the terms of any such indenture, instrument or agreement. Section 6.4. Financial Statements. The consolidated financial statements of American Home Mortgage Investment Corp. and its Subsidiaries, heretofore delivered to SPV as required by the Loan Agreement, were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of American Home Mortgage Investment Corp. and its Subsidiaries at such date and the consolidated results of their operations for the period then ended. Section 6.5. Material Adverse Change. Since September 30, 2004, there has been no change in the business, properties, financial condition or results of operations of either of the Performance Guarantors and its Subsidiaries which is reasonably likely to have a Material Adverse Effect on (i) the business, properties, financial condition or results of operations of such Performance Guarantor and its subsidiaries taken as a whole, (ii) the ability of such Performance Guarantor to perform its obligations under this Guaranty, or (iii) the validity or enforceability of any portion of this Guaranty or the rights or remedies of SPV hereunder. Section 6.6. Taxes. Each of the Performance Guarantors and the other AHM Entities have filed all United States federal tax returns and all other tax returns which are required to be filed, except where the failure to file would not reasonably be expected to have a Material Adverse Effect, and have paid all taxes due pursuant to said returns or pursuant to any assessment received by such Performance Guarantor or any of the other AHM Entities, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. No tax liens have been filed which are reasonably likely to have a Material Adverse Effect on (i) the business, properties, financial condition or results of operations of either of the Performance Guarantors and the other AHM Entities taken as a whole, (ii) the ability of either of the Performance Guarantors to perform its obligations under this Guaranty, or (iii) the validity or enforceability of any portion of this Guaranty or the rights or remedies of SPV hereunder, and no claims are being asserted in writing with respect to any such taxes. The charges, accruals and reserves on the books of each of the Performance Guarantors and the other AHM Entities in respect of any taxes or other governmental charges are adequate. Section 6.7. Litigation and Contingent Obligations. There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or affecting either of the Performance Guarantors or its Subsidiaries which is reasonably likely to have a Material Adverse Effect on (i) the business, properties, financial condition or results of operations of such Performance Guarantor and the other AHM Entities taken as a whole, (ii) the ability of such Performance Guarantor to perform its obligations under this Guaranty, or (iii) the validity or enforceability of any of this Guaranty or 5 the rights or remedies of SPV hereunder. Neither of the Performance Guarantors has any material contingent obligations not provided for or disclosed in the financial statements referred to in Section 6.4. Section 7. Covenants. Each of the Performance Guarantors hereby covenants and agrees for the benefit of SPV, until the Obligations have been satisfied in full and the Repurchase Agreement and the Loan Agreement have been terminated, as follows: (a) to promptly notify SPV upon (i) any dispute between such Performance Guarantor and any Governmental Authority or any other Person that, if adversely determined, would have a Material Adverse Effect; (ii) any material adverse change in the business, operations or financial condition of such Performance Guarantor, including, without limitation, such Performance Guarantor's insolvency; (iii) any event or condition known to it that, if adversely determined, would have a Material Adverse Effect; and (iv) the receipt of any notice of any final judgment or order for payment of money applicable to such Performance Guarantor in excess of $10,000,000; (b) to comply with (a) all applicable laws, rules, regulations and orders, and (b) material agreements, indentures, mortgages and corporate documents, except to the extent that the failure so to comply would not be reasonably expected to have a Material Adverse Effect; (c) to maintain its corporate existence, rights and franchises; (d) observe and comply in all material respects with all Governmental Requirements; and (e) promptly and in any event within 60 days after the end of each of the first three (3) quarters in each fiscal year of such Performance Guarantor, and within 120 days after the close of such Performance Guarantor's fiscal year, completed officer's certificates in the form of Exhibit H-3 and Exhibit H-4, respectively, attached to the Loan Agreement, executed by the treasurer or other Financial Officer of such Performance Guarantor. Section 8. Subrogation; Subordination. Neither of the Performance Guarantors shall enforce or otherwise exercise any right of subrogation to any of the rights of SPV against the Originators, until the Obligations have been indefeasibly paid in full; notwithstanding anything to the contrary contained herein, until the Obligations have been indefeasibly paid in full, each of the Performance Guarantors hereby waives all rights of subrogation (whether contractual, under Section 509 of the United States Bankruptcy Code, at law or in equity or otherwise) to the claims of SPV against the Originators and all contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and "claims" (as that term is defined in the United States Bankruptcy Code) which such Performance Guarantor might now have or hereafter acquire against the Originators that arises from the existence or performance of such Performance Guarantor's obligations hereunder; such Performance Guarantor will not claim any setoff, recoupment or counterclaim against the Originators in respect of any liability of the Performance Guarantor to the Originators, until any of the Obligations have been indefeasibly paid in full; and such Performance Guarantor waives any benefit of and any right to participate in any collateral security which may be held by SPV. Unless otherwise provided for in the 6 Subordination Agreement, the payment of any amounts due with respect to any indebtedness for borrowed money of the Originators now or thereafter owed to either of the Performance Guarantors is hereby subordinated to the prior payment in full of all the Obligations. Each of the Performance Guarantors agrees that, after the occurrence, and during the continuation, of any default in the payment or performance of any of the Obligations, such Performance Guarantor will not demand, sue for or otherwise attempt to collect any such indebtedness of the Originators to such Performance Guarantor until all of the Obligations shall have been paid and performed in full. If, notwithstanding the foregoing sentence, either of the Performance Guarantors shall collect, enforce or receive any amounts in respect of such indebtedness while any Obligations are still unperformed or outstanding, such amounts shall be collected, enforced and received by such Performance Guarantor as trustee for SPV and be paid over to SPV on account of the Obligations without affecting in any manner the liability of such Performance Guarantor under the other provisions of this Guaranty. The provisions of this Section 8 shall be supplemental to and not in derogation of any rights and remedies of SPV under any separate subordination agreement that SPV may at any time and from time to time enter into with either of the Performance Guarantors. Section 9. Termination of Guaranty. Each of the Performance Guarantors' obligations hereunder shall continue in full force and effect until all Obligations are finally paid and satisfied in full and the Repurchase Agreement and Loan Agreement are terminated; provided, however, that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time payment or other satisfaction of any of the Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of either of the Originators, or otherwise, as though such payment had not been made or other satisfaction occurred, whether or not SPV is in possession of this Guaranty. No invalidity, irregularity or unenforceability by reason of the Bankruptcy Code or any insolvency or other similar law, or any law or order of any government or agency thereof purporting to reduce, amend or otherwise affect the Obligations shall impair, affect, be a defense to or claim against the obligations of the Performance Guarantors under this Guaranty. Section 10. Effect of Bankruptcy. This Guaranty shall survive the insolvency of either of the Originators and the commencement of any case or proceeding by or against either of the Originators under the federal Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes. No automatic stay under the federal Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which either of the Originators is subject shall postpone the obligations of either of the Performance Guarantors under this Guaranty. Section 11. Setoff. SPV is not authorized at any time to set off and apply any deposits or other sums against the obligations of either of the Performance Guarantors under this Guaranty. Section 12. Taxes. All payments to be made by each of the Performance Guarantors hereunder shall be made free and clear of any deduction or withholding. If either of the Performance Guarantors is required by law to make any deduction or withholding on account of tax or otherwise from any such payment, the sum due from it in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or 7 withholding, SPV receives a net sum equal to the sum which it would have received had no deduction or withholding been made. Section 13. Further Assurances. Each of the Performance Guarantors agrees that it will permit SPV or any of its duly authorized representatives, during normal business hours, and upon reasonable notice to consult and discuss with such Performance Guarantor's Treasurer or Controller, with respect to such Performance Guarantor's business, finances, accounts and affairs. Each of the Performance Guarantors agree that it will, from time to time, at the request of SPV, provide to SPV information relating to the business and affairs of such Performance Guarantor as SPV may reasonably request. Each of the Performance Guarantors also agrees to do all such things and execute all such documents as SPV may reasonably consider necessary or desirable to give full effect to this Guaranty and to perfect and preserve the rights and powers of SPV hereunder. Section 14. Successors and Assigns. This Guaranty shall be binding upon each of the Performance Guarantors, its successors and assigns, and shall inure to the benefit of and be enforceable by SPV and its successors, transferees and assigns. Neither of the Performance Guarantors may assign or transfer any of its obligations hereunder without the prior written consent of SPV and any attempted assignment shall be null and void. SPV (and any assignee of SPV) may at any time assign any and all of its rights hereunder to any other person or entity without the consent of the Performance Guarantors or the Originators, whereupon (i) each reference herein to SPV shall mean and be a reference to such assignee and (ii) such assignee may enforce the Guaranty to the fullest extent as if it were a named party hereto. Without limiting the generality of the foregoing, each of the Performance Guarantors acknowledges and consents to the assignment by SPV, under and in connection with the Loan Agreement, of all of SPV's right, title and interest in, to and under this Guaranty to the Administrative Agent for the benefit of the Lenders, and each of the Performance Guarantors agrees that at all times that the Loan Agreement shall be in effect (i) any claim made by SPV hereunder shall be deemed made for the benefit of the Administrative Agent and Lenders and (ii) any payment or remittance to be made hereunder by such Performance Guarantor in respect of any claim being made by or in respect of SPV or SPV's interest under the Repurchase Agreement shall be paid or remitted to the Administrative Agent for the benefit of the Lenders. Section 15. Amendments and Waivers. No amendment or waiver of any provision of this Guaranty nor consent to any departure by either of the Performance Guarantors therefrom shall be effective unless the same shall be in writing and signed by SPV and the Performance Guarantors. No failure on the part of SPV to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. Section 16. Notices. All notices and other communications called for hereunder shall be made in writing and, unless otherwise specifically provided herein, shall be deemed to have been duly made or given when delivered by hand or mailed first class, postage prepaid, or, in the case of telegraphic, telecopied or telexed notice, when transmitted, answer back received, addressed as follows: if to the Performance Guarantors, at the address set forth beneath their 8 respective signatures hereto, and if to SPV at its address specified in the Repurchase Agreement, or at such other address as either party may designate in writing to the other. Section 17. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO). Section 18. CONSENT TO JURISDICTION. EACH OF THE PERFORMANCE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, THE REPURCHASE AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER AND EACH OF THE PERFORMANCE GUARANTORS HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF SPV OR ANY OF ITS ASSIGNS TO BRING PROCEEDINGS AGAINST EITHER OF THE PERFORMANCE GUARANTORS IN THE COURTS OF ANY OTHER JURISDICTION. Section 19. Miscellaneous. This Guaranty constitutes the entire agreement of the Performance Guarantors with respect to the matters set forth herein. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement, and this Guaranty shall be in addition to any other guaranty of or collateral security for any of the Obligations. The provisions of this Guaranty are severable, and in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of either of the Performance Guarantors hereunder would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Performance Guarantor's liability under this Guaranty, then, notwithstanding any other provision of this Guaranty to the contrary, the amount of such liability shall, without any further action by such Performance Guarantor or SPV, be automatically limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding. The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions. Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined. 9 IN WITNESS WHEREOF, the Performance Guarantors have caused this Guaranty to be executed and delivered as of the date first above written. AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President and General Counsel Address: 538 Broadhollow Road Melville, NY 11747 AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President and General Counsel Address: 538 Broadhollow Road Melville, NY 11747 10 ASSIGNMENT OF AMENDED AND RESTATED ORIGINATOR PERFORMANCE GUARANTY The undersigned hereby assigns all of its right, title and interest in and to the foregoing Amended and Restated Originator Performance Guaranty to Calyon New York Branch, in its capacity as administrative agent (the "Administrative Agent") for the "Lenders" under and as defined in that certain Loan Agreement dated as of August 8, 2003 by and among AHM SPV I, LLC ("SPV"), certain parties thereto, the Administrative Agent and American Home Mortgage Corp., as servicer thereunder, as the same may be amended, restated, supplemented or otherwise modified from time to time. Each of American Home Mortgage Holdings, Inc. ("AHMI") and American Home Mortgage Investment Corp. ("AHMIC") acknowledges such assignment, and agrees that the Administrative Agent may further assign, without notice, its right, title and interest in and to the Amended and Restated Originator Performance Guaranty without the consent of any person or entity. The Administrative Agent, as the assignee of SPV, shall have the right to enforce the Amended and Restated Originator Performance Guaranty and to directly exercise all of SPV's rights and remedies under the Amended and Restated Originator Performance Guaranty, and each of AHMI and AHMIC agrees to cooperate fully with the Administrative Agent in the exercise of such rights and remedies thereunder. Each of AHMI and AHMIC further agrees to give the Administrative Agent copies of all notices it is required to give to SPV under the Amended and Restated Originator Performance Guaranty. Dated: December 10, 2004 AHM SPV I, LLC By: --------------------------------- Name: Title: Acknowledged and agreed to this 10th day of December, 2004: AMERICAN HOME MORTGAGE HOLDINGS, INC. By: --------------------------- Name: Title: AMERICAN HOME MORTGAGE INVESTMENT CORP. By: --------------------------- Name: Title: 11 EX-10.3.3 6 am033105-ex1033.txt EXHIBIT 10.3.3 AMENDED AND RESTATED SERVICER PERFORMANCE GUARANTY This Amended and Restated Servicer Performance Guaranty (the "Guaranty"), dated as of December 10, 2004, is executed by American Home Mortgage Holdings, Inc., a Delaware corporation, and American Home Mortgage Investment Corp., a Maryland corporation (each, a "Performance Guarantor" and together, the "Performance Guarantors"), in favor of Calyon New York Branch, as administrative agent for the Lenders party to the Loan Agreement referred to below (the "Administrative Agent") and the Lenders. WHEREAS, American Home Mortgage Corp., a New York corporation, and American Home Mortgage Servicing, Inc. (formerly known as Columbia National, Incorporated), a Maryland corporation (collectively, the "Originators") have entered into an Addendum to Master Repurchase Agreement with AHM SPV I, LLC, a Delaware limited liability company ("SPV"), dated as of August 8, 2003 (the "Repurchase Agreement "), pursuant to which the Originators, subject to the terms and conditions therein, have agreed to sell certain Mortgage Assets to SPV, subject to the right and obligation of the Originators to repurchase such Mortgage Assets. WHEREAS, SPV has entered into a Loan Agreement dated as of August 8, 2003 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement") by and among SPV, the Issuers party thereto, certain Banks parties thereto, the Administrative Agent and American Home Mortgage Corp., a New York corporation, as the servicer thereunder (in such capacity, the "Servicer"), pursuant to which (x) the Lenders, subject to the terms and conditions contained therein, have agreed to make certain revolving loans to SPV and (y) Servicer, pursuant to the terms and conditions contained therein, has agreed to perform the duties and obligations as "Servicer" thereunder either directly or through an Affiliate of the Servicer; WHEREAS, as an inducement for the Lenders to make revolving loans to SPV pursuant to the Loan Agreement, which in turn will enable SPV to purchase the Mortgage Assets from the Servicer, the Performance Guarantors have agreed to guaranty the due and punctual performance of the Servicer as "Servicer" either directly or through an Affiliate of the Servicer under the Loan Agreement; WHEREAS, it is a condition precedent to the Lenders agreeing to make revolving loans pursuant to the Loan Agreement that the Performance Guarantors execute and deliver to the Administrative Agent a performance guaranty substantially in the form hereof; and WHEREAS, the Performance Guarantors wish to guaranty the due and punctual performance of the Servicer's obligations as "Servicer" to the Administrative Agent and the Lenders under or in respect of the Loan Agreement as provided herein, and the Performance Guarantors, as the owners, directly or indirectly, of all of the outstanding shares of capital stock of the Servicer, will derive substantial benefit from the transactions contemplated under the Loan Agreement; NOW, THEREFORE, each of the Performance Guarantors hereby agrees with the Administrative Agent and the Lenders as follows: 1 Section 1. Definitions. As used herein: "Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. Sections 101 et seq., as amended. "Obligations" means, collectively, all covenants, agreements, terms, conditions and indemnities to be performed and observed by the Servicer solely in its capacity as "Servicer" under and pursuant to the Loan Agreement and each other document executed and delivered by the Servicer as "Servicer" pursuant to the Loan Agreement, including, without limitation, the due and punctual payment of all sums which are or may become due and owing by the Servicer as "Servicer" under the Loan Agreement, whether for the deposit of collections received by it or for fees, expenses (including counsel fees), indemnified amounts or otherwise, whether upon any termination or for any other reason, including any renewals, extensions and modifications thereof. "AHM Entities" means, collectively, the Performance Guarantors, the Servicer, the Originators, and the SPV. All capitalized terms used herein, and not otherwise herein defined shall have their respective meanings as defined in the Loan Agreement. Section 2. Guaranty of Performance of Obligations. Each of the Performance Guarantors, jointly and severally, hereby unconditionally guarantees to the Administrative Agent and the Lenders, the full and punctual payment and performance by the Servicer of the Obligations. This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual performance of all of the Obligations and is in no way conditioned upon any requirement that the Administrative Agent or the Lenders first take any action against the Servicer with respect to the Obligations or attempt to collect any of the amounts owing by the Servicer to the Lenders from the Servicer or resort to any collateral security, any balance of any deposit account or credit on the books of any Lenders in favor of the Servicer, any guarantor of the Obligations or any other Person. Should the Servicer default in the payment or performance of any of the Obligations, the Administrative Agent or the Majority Banks may cause the immediate performance by each of the Performance Guarantors of the Obligations and cause any payment Obligations to become forthwith due and payable to the Administrative Agent and the Lenders, without demand or notice of any nature (other than as expressly provided herein), all of which are expressly waived by each of the Performance Guarantors. Each of the Performance Guarantor's liability under this Guaranty shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of the Loan Agreement or any other document executed in connection therewith or delivered thereunder, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from the Loan Agreement or any other document executed in connection therewith or delivered thereunder, (iii) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or 2 waiver of or consent to departure from any other guaranty, for all or any of the Obligations, (iv) any law, regulation or order of any jurisdiction affecting any term of all or any Obligations or the rights of the Administrative Agent or any of the Lenders, (v) any manner of application of collateral, or proceeds thereof, to all or any of the Obligations, or any manner of sale or other disposition of any collateral for all or any of the Obligations or any other assets of the Servicer, (vi) any change, restructuring or termination of the corporate structure or existence of the Servicer, or (vii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Servicer or a guarantor. In the event that performance of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Servicer, or for any other reason, all such Obligations shall be immediately performed by the Performance Guarantors. Section 3. Performance Guarantors' Further Agreements to Pay. Each of the Performance Guarantors further agrees, jointly and severally, in the event the Performance Guarantors fail to perform their obligations under this Guaranty, to pay to the Administrative Agent and the Lenders, forthwith upon demand all reasonable costs and expenses (including court costs and legal expenses) incurred or expended by the Administrative Agent and the Lenders in connection with the enforcement of this Guaranty. Section 4. Waivers by Performance Guarantors; Administrative Agent's and Lenders' Freedom to Act. Each of the Performance Guarantors waives notice of (a) acceptance of this Guaranty, (b) any action taken or omitted by the Administrative Agent or any Lender in reliance on this Guaranty, and (c) any requirement that the Administrative Agent or the Lenders be diligent or prompt in making demands under this Guaranty, giving notice of any Default, Event of Default or Servicer Default, default or omission by the Servicer or asserting any other rights of the Administrative Agent or any Lender under this Guaranty. To the maximum extent permitted by applicable law, each of the Performance Guarantors also irrevocably waives all defenses that at any time may be available in respect of the Obligations by virtue of any statute of limitations, valuation, stay, moratorium law or other similar law now or thereafter in effect. The Administrative Agent shall be at liberty, upon its own initiative or at the request of the Majority Banks, without giving notice to or obtaining the assent of the Performance Guarantors and without relieving either of the Performance Guarantors of any liability under this Guaranty, to deal with the Servicer and with each other party who now is or after the date hereof becomes liable in any manner for any of the Obligations, in such manner as the Administrative Agent in its sole discretion deems fit or the Majority Banks in their sole discretion deem fit, and to this end each of the Performance Guarantors agrees that the validity and enforceability of this Guaranty, including without limitation, the provisions of Section 8 hereof, shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or indulgence with respect to, or substitutions for, the Obligations or any part thereof or any agreement relating thereto at any time; (b) any failure or omission to enforce any right, power or remedy with respect to the Obligations or any part thereof or any agreement relating thereto, or any collateral securing the Obligations or any part thereof; (c) any waiver of any right, power or remedy or of any Default, Event of Default, Servicer Default or default with respect to the Obligations or any part thereof or any agreement relating thereto; (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any other obligation of any person or entity with respect to the Obligations or any part thereof; (e) the 3 enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to the Obligations or any part thereof; (f) the application of payments received from any source to the payment of any payment Obligations of the Servicer, any part thereof or amounts which are not covered by this Guaranty even though the Administrative Agent or the Lenders might lawfully have elected to apply such payments to any part or all of the payment Obligations of the Servicer or to amounts which are not covered by this Guaranty; (g) the existence of any claim, setoff or other rights which either of the Performance Guarantors may have at any time against the Servicer in connection herewith or any unrelated transaction; (h) any assignment or transfer of the Obligations or any part thereof; or (i) any failure on the part of the Servicer to perform or comply with any term of the Loan Agreement or any other document executed in connection therewith or delivered thereunder, all whether or not the Performance Guarantors shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (i) of this Section. Section 5. Unenforceability of Obligations Against the Servicer. Notwithstanding (a) any change of ownership of the Servicer or the insolvency, bankruptcy or any other change in the legal status of the Servicer; (b) the change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Obligations; (c) the failure of the Servicer or either of the Performance Guarantors to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Obligations or this Guaranty, or to take any other action required in connection with the performance of all obligations pursuant to the Obligations or this Guaranty; or (d) if any of the moneys included in the Obligations have become unrecoverable from the Servicer for any reason other than final payment in full of the payment Obligations in accordance with their terms, this Guaranty shall nevertheless be binding on each of the Performance Guarantors. This Guaranty shall be in addition to any other guaranty or other security for the Obligations, and it shall not be rendered unenforceable by the invalidity of any such other guaranty or security. Section 6. Representations and Warranties. Section 6.1. Existence and Standing. Each of the Performance Guarantors is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate authority to conduct its business in each jurisdiction in which its business is conducted. Section 6.2. Authorization; Validity. Each of the Performance Guarantors has the corporate power and authority to execute and deliver this Guaranty, perform its obligations hereunder and consummate the transactions herein contemplated. The execution and delivery by each of the Performance Guarantors of this Guaranty, the performance of its obligations and consummation of the transactions contemplated hereunder have been duly authorized by proper corporate proceedings, and this Guaranty constitutes the legal, valid and binding obligation of each of the Performance Guarantors, enforceable against such Performance Guarantor in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and by general equity principles (whether considered as a proceeding at law or in equity). 4 Section 6.3. No Conflict; Government Consent. Neither the execution and delivery by either of the Performance Guarantors of this Guaranty, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof will contravene or conflict with any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on such Performance Guarantor or any of the other AHM Entities, except where such contravention or conflict would not reasonably be expected to have a Material Adverse Effect, or such Performance Guarantor's certificate of incorporation or by-laws or the provisions of any indenture, instrument or agreement to which such Performance Guarantor is a party or is subject, or by which it, or its property, is bound, except where such contravention or conflict would not reasonably be expected to have a Material Adverse Effect, or result in the creation or imposition of any Lien in, of or on the property of such Performance Guarantor or any of its subsidiaries pursuant to the terms of any such indenture, instrument or agreement. Section 6.4. Financial Statements. The consolidated financial statements of American Home Mortgage Investment Corp. and its Subsidiaries, heretofore delivered to the Lenders as required by the Loan Agreement, were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of American Home Mortgage Investment Corp. and its Subsidiaries at such date and the consolidated results of their operations for the period then ended. Section 6.5. Material Adverse Change. Since September 30, 2004, there has been no change in the business, properties, financial condition or results of operations of either of the Performance Guarantors and its Subsidiaries which is reasonably likely to have a Material Adverse Effect on (i) the business, properties, financial condition or results of operations of such Performance Guarantor and the other AHM Entities taken as a whole, (ii) the ability of such Performance Guarantor to perform its obligations under this Guaranty, or (iii) the validity or enforceability of any portion of this Guaranty or the rights or remedies of the Administrative Agent or the Lenders hereunder. Section 6.6. Taxes. Each of the Performance Guarantors and the other AHM Entities have filed all United States federal tax returns and all other tax returns which are required to be filed, except where the failure to file would not reasonably be expected to have a Material Adverse Effect, and have paid all taxes due pursuant to said returns or pursuant to any assessment received by either of the Performance Guarantors or any of the other AHM Entities, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. No tax liens have been filed which are reasonably likely to have a Material Adverse Effect on (i) the business, properties, financial condition or results of operations of the Performance Guarantors and the other AHM Entities taken as a whole, (ii) the ability of either of the Performance Guarantors to perform its obligations under this Guaranty, or (iii) the validity or enforceability of any portion of this Guaranty or the rights or remedies of the Administrative Agent or the Lenders hereunder, and no claims are being asserted in writing with respect to any such taxes. The charges, accruals and reserves on the books of each of the Performance Guarantors and the other AHM Entities in respect of any taxes or other governmental charges are adequate. 5 Section 6.7. Litigation and Contingent Obligations. There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or affecting either Performance Guarantor or its Subsidiaries which is reasonably likely to have a Material Adverse Effect on (i) the business, properties, financial condition or results of operations of such Performance Guarantor and the other AHM Entities taken as a whole, (ii) the ability of such Performance Guarantor to perform its obligations under this Guaranty, or (iii) the validity or enforceability of any portion of this Guaranty or the rights or remedies of the Administrative Agent or the Lenders hereunder. Neither of the Performance Guarantors have any material contingent obligations not provided for or disclosed in the financial statements referred to in Section 6.4. Section 7. Covenants. Each of the Performance Guarantors hereby covenants and agrees, jointly and severally, for the benefit of the Administrative Agent and the Lenders, until the Obligations have been satisfied in full and the Loan Agreement has been terminated, as follows: (a) to promptly notify SPV upon (i) any dispute between such Performance Guarantor and any Governmental Authority or any other Person that, if adversely determined, would have a Material Adverse Effect; (ii) any material adverse change in the business, operations or financial condition of such Performance Guarantor, including, without limitation, such Performance Guarantor's insolvency; (iii) any event or condition known to it that, if adversely determined, would have a Material Adverse Effect; and (iv) the receipt of any notice of any final judgment or order for payment of money applicable to such Performance Guarantor in excess of $10,000,000; (b) to pay and discharge promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income or upon any of its Property as well as all claims of any kind (including claims for labor, materials, supplies and rent) that, if unpaid, might become a Lien upon any or all of its Property; provided, however, such Performance Guarantor shall not be required to pay any such tax, assessment, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings diligently conducted by it or on its behalf and if it shall have set up reserves therefor adequate under GAAP; (c) to maintain its corporate existence, rights and franchises; and (d) to observe and comply in all material respects with all Governmental Requirements; and (e) promptly and in any event within 60 days after the end of each of the first three (3) quarters in each fiscal year of such Performance Guarantor, and within 120 days after the close of such Performance Guarantor's fiscal year, completed officer's certificates in the forms of Exhibit H-3 and Exhibit H-4, respectively, attached to the Loan Agreement, executed by the treasurer or other Financial Officer of such Performance Guarantor. Section 8. Subrogation; Subordination. Each of the Performance Guarantors shall not enforce or otherwise exercise any right of subrogation to any of the rights of the 6 Administrative Agent or the Lenders against the Servicer, until the Obligations have been indefeasibly paid in full; notwithstanding anything to the contrary contained herein, until the Obligations have been indefeasibly paid in full, each of the Performance Guarantors hereby waives all rights of subrogation (whether contractual, under Section 509 of the United States Bankruptcy Code, at law or in equity or otherwise) to the claims of the Administrative Agent or any Lender against the Servicer and all contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and "claims" (as that term is defined in the United States Bankruptcy Code) which such Performance Guarantor might now have or hereafter acquire against the Servicer that arises from the existence or performance of the Servicer' obligations hereunder; until the Obligations have been indefeasibly paid in full, neither Performance Guarantor will claim any setoff, recoupment or counterclaim against the Servicer in respect of any liability of such Performance Guarantor to the Servicer; and such Performance Guarantor waives any benefit of and any right to participate in any collateral security which may be held by the Administrative Agent or any Lender. Unless otherwise provided for in the Subordination Agreement, the payment of any amounts due with respect to any indebtedness for borrowed money of the Servicer now or thereafter owed to either of the Performance Guarantors is hereby subordinated to the prior payment in full of all of the Obligations. Each of the Performance Guarantors agrees that, after the occurrence, and during the continuation, of any default in the payment or performance of any of the Obligations, such Performance Guarantor will not demand, sue for or otherwise attempt to collect any such indebtedness of the Servicer to such Performance Guarantor until all of the Obligations shall have been paid and performed in full. If, notwithstanding the foregoing sentence, either of the Performance Guarantors shall collect, enforce or receive any amounts in respect of such indebtedness while any Obligations are still unperformed or outstanding, such amounts shall be collected, enforced and received by such Performance Guarantor as trustee for the Lenders and be paid over to the Administrative Agent on account of the Obligations without affecting in any manner the liability of such Performance Guarantor under the other provisions of this Guaranty. The provisions of this Section 8 shall be supplemental to and not in derogation of any rights and remedies of the Administrative Agent and the Lenders under any separate subordination agreement which the Administrative Agent and the Lenders may at any time and from time to time enter into with either of the Performance Guarantors. Section 9. Termination of Guaranty. Each of the Performance Guarantor's obligations hereunder shall continue in full force and effect until all Obligations are finally paid and satisfied in full and the Loan Agreement is terminated; provided, however, that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time payment or other satisfaction of any of the Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of the Servicer, or otherwise, as though such payment had not been made or other satisfaction occurred, whether or not the Administrative Agent is in possession of this Guaranty. No invalidity, irregularity or unenforceability by reason of the Bankruptcy Code or any insolvency or other similar law, or any law or order of any government or agency thereof purporting to reduce, amend or otherwise affect the Obligations shall impair, affect, be a defense to or claim against the obligations of each of the Performance Guarantors under this Guaranty. Section 10. Effect of Bankruptcy. This Guaranty shall survive the insolvency of the Servicer and the commencement of any case or proceeding by or against the Servicer under the 7 federal Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes. No automatic stay under the federal Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which the Servicer is subject shall postpone the obligations of the Performance Guarantors under this Guaranty. Section 11. Setoff. Regardless of the other means of obtaining payment of any of the Obligations, each of the Administrative Agent and the Lenders is hereby authorized at any time and from time to time during the existence of a Servicer Default, without notice to the Performance Guarantors (any such notice being expressly waived by the Performance Guarantors) and to the fullest extent permitted by law, to set off and apply such deposits and other sums against the obligations of each of the Performance Guarantors under this Guaranty, whether or not the Administrative Agent and the Lenders shall have made any demand under this Guaranty and although such obligations may be contingent or unmatured. Section 12. Taxes. All payments to be made by each of the Performance Guarantors hereunder shall be made free and clear of any deduction or withholding. If either of the Performance Guarantors is required by law to make any deduction or withholding on account of tax or otherwise from any such payment, the sum due from it in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Administrative Agent and the Lenders receive a net sum equal to the sum which they would have received had no deduction or withholding been made. Section 13. Further Assurances. Each of the Performance Guarantors agrees that it will permit the Administrative Agent and the Lenders or any of their duly authorized representatives, during normal business hours, and upon reasonable notice to consult and discuss with such Performance Guarantor's Treasurer or Controller, with respect to such Performance Guarantor's business, finances, accounts and affairs. Each of the Performance Guarantor agrees that it will, from time to time, at the request of the Administrative Agent and the Lenders, provide to the Administrative Agent and the Lenders information relating to the business and affairs of such Performance Guarantor as the Administrative Agent and the Lenders may reasonably request. Each of the Performance Guarantors also agrees to do all such things and execute all such documents as the Administrative Agent and the Lenders may reasonably consider necessary or desirable to give full effect to this Guaranty and to perfect and preserve the rights and powers of the Administrative Agent and the Lenders hereunder. Section 14. Successors and Assigns. This Guaranty shall be binding upon each of the Performance Guarantors, its successors and assigns, and shall inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their successors, transferees and assigns. Neither of the Performance Guarantors may assign or transfer any of its obligations hereunder without the prior written consent of each of the Lenders and any attempted assignment shall be null and void. Section 15. Amendments and Waivers. No amendment or waiver of any provision of this Guaranty nor consent to any departure by either of the Performance Guarantors therefrom shall be effective unless the same shall be in writing and signed by the Administrative Agent and the Performance Guarantors. No failure on the part of the Administrative Agent or any Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor 8 shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. Section 16. Notices. All notices and other communications called for hereunder shall be made in writing and, unless otherwise specifically provided herein, shall be deemed to have been duly made or given when delivered by hand or mailed first class, postage prepaid, or, in the case of telegraphic, telecopied or telexed notice, when transmitted, answer back received, addressed as follows: if to the Performance Guarantors, at the address set forth beneath their respective signatures hereto, and if to the Administrative Agent and the Lenders at its address specified in the Loan Agreement, or at such other address as either party may designate in writing to the other. Section 17. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO). Section 18. CONSENT TO JURISDICTION. EACH OF THE PERFORMANCE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, THE LOAN AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER AND EACH OF THE PERFORMANCE GUARANTORS HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY MANAGING AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST EITHER OF THE PERFORMANCE GUARANTORS IN THE COURTS OF ANY OTHER JURISDICTION. Section 19. Miscellaneous. This Guaranty constitutes the entire agreement of the Performance Guarantors with respect to the matters set forth herein. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement, and this Guaranty shall be in addition to any other guaranty of or collateral security for any of the Obligations. The provisions of this Guaranty are severable, and in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of either of the Performance Guarantors hereunder would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Performance Guarantor's liability under this Guaranty, then, notwithstanding any other provision of this Guaranty to the contrary, the amount of such liability shall, without any further action by such Performance Guarantor, the Administrative Agent or any Lender, be automatically limited and reduced to the 9 highest amount that is valid and enforceable as determined in such action or proceeding. The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions. Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined. [Signatures Follow] 10 IN WITNESS WHEREOF, the Performance Guarantors have caused this Guaranty to be executed and delivered as of the date first above written. AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn ----------------------------------- Name: Alan B. Horn Title: Executive Vice President and General Counsel Address: 538 Broadhollow Road Melville, NY 11747 AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn ----------------------------------- Name: Alan B. Horn Title: Executive Vice President and General Counsel Address: 538 Broadhollow Road Melville, NY 11747 11 EX-10.4.1 7 am033105-ex1041.txt EXHIBIT 10.4.1 AMENDMENT NO. 1 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 1, dated as of May 28, 2004 (this "Amendment"), to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, supplemented or otherwise modified prior to the date hereof, the "Existing Loan Agreement"; as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHM"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS, INC. ("AHM Holdings") and COLUMBIA NATIONAL, INCORPORATED ("CNI" and together with AHM, AHM Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers", each, a "Borrower"), the lenders from time to time parties thereto (the "Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Loan Agreement. RECITALS The Borrowers have requested that the Lenders agree to amend the Existing Loan Agreement to extend the Termination Date. The Lenders are willing to agree to such amendment, but only on the terms and subject to the conditions set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows: SECTION 1. Amendments. (a) Section 1.01 of the Existing Loan Agreement is hereby amended by deleting the definition of "Termination Date" in its entirety and substituting in lieu thereof the following new definition: "Termination Date" shall mean June 30, 2004 or such earlier date on which this Loan Agreement shall terminate in accordance with the provisions hereof or by operation of law. (b) Section 1.01 of the Existing Loan Agreement is hereby amended by inserting in proper alphabetical order the following new defined term: "First Amendment" shall mean that certain Amendment No. 1, dated as of May 28, 2004, to the Loan Agreement by and among the Borrowers, the Lenders and the Agent. (c) Section 7.06 of the Existing Loan Agreement is hereby deleted in its entirety and the following new Section 7.06 is inserted in lieu thereof: "7.06 Notices. The Borrowers shall give notice to the Agent: (a) promptly upon receipt of notice or knowledge of the occurrence of any Default or Event of Default; (b) with respect to any Mortgage Loan pledged to the Agent hereunder, immediately upon receipt of any principal prepayment (in full or partial) of such pledged Mortgage Loan; (c) with respect to any Mortgage Loan pledged to the Agent hereunder, immediately upon receipt of notice or knowledge that the underlying Mortgaged Property has been damaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or otherwise damaged so as to affect adversely the Collateral Value of such pledged Mortgage Loan; (d) promptly upon receipt of notice or knowledge of (i) any default related to any Collateral, (ii) any Lien or security interest (other than security interests created hereby or by the other Loan Documents) on, or claim asserted against, any of the Collateral or (iii) any event or change in circumstances which could reasonably be expected to have a Material Adverse Effect; (e) promptly upon any material change in the market value of any or all of the Borrowers' assets; and (f) promptly upon the execution of any Guarantee by any Borrower from and after the Amendment Effective Date as defined in the First Amendment. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of each Borrower setting forth details of the occurrence referred to therein and stating what action such Borrower has taken or proposes to take with respect thereto." (d) Section 7.12 of the Existing Loan Agreement is hereby deleted in its entirety and the following new Section 7.12 is inserted in lieu thereof: "7.12 Limitation on Guarantees. The Borrowers shall not create, incur, assume or suffer to exist any Guarantees, except for Guarantees from time to time disclosed to the Agent and solely to the extent such Guarantees are (i) given only in respect of Indebtedness of a Person which is a consolidated Subsidiary of AHM Investment, (ii) not secured by any assets other than the collateral, if any, pledged by the primary obligor which obligations are guaranteed as security for such primary obligor's Indebtedness and (iii) promptly, and in any event within 10 days after the incurrence thereof, disclosed in writing to the Agent." -2- SECTION 2. Conditions Precedent. This Amendment shall become effective on the first date (the "Amendment Effective Date") on which all of the following conditions precedent shall have been satisfied: 2.1 Delivered Documents. On the Amendment Effective Date, the Agent shall have received the following documents, each of which shall be satisfactory to the Agent in form and substance: (a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Lenders and the Agent; and (b) Other Documents. Such other documents as the Agent or counsel to the Agent may reasonably request. 2.2 No Default. On the Amendment Effective Date, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Loan Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default or Event of Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. Each Borrower hereby represents and warrants to the Lenders that it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default or Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 6 of the Loan Agreement. SECTION 4. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Loan Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date, all references therein and herein to the "Loan Documents" shall be deemed to include, in any event, (i) the Existing Loan Agreement, (ii) this Amendment, (iii) the Notes, (iv) the Custodial Agreement, and (v) the Electronic Tracking Agreement. Each reference to the Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Loan Agreement as amended hereby. -3- SECTION 5. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Amendment. SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURES FOLLOW] -4- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Craig Pino ------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Craig Pino ------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Craig Pino ------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Craig Pino ------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer COLUMBIA NATIONAL, INCORPORATED By: /s/ Craig Pino ------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer MORGAN STANLEY BANK, as Agent and Lender By: /s/ Paul Najarian -------------------------------- Name: Paul Najarian Title: Vice President EX-10.4.2 8 am033105-ex1042.txt EXHIBIT 10.4.2 AMENDMENT NO. 2 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 2, dated as of June 23, 2004 (this "Amendment"), to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, supplemented or otherwise modified prior to the date hereof, the "Existing Loan Agreement"; as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHM"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS, INC. ("AHM Holdings") and COLUMBIA NATIONAL, INCORPORATED ("CNI" and together with AHM, AHM Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers", each, a "Borrower"), the lenders from time to time parties thereto (the "Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Loan Agreement. RECITALS The Borrowers have requested that the Lenders agree to amend the Existing Loan Agreement to extend the Termination Date from June 30, 2004 to July 30, 2004. The Lenders are willing to agree to such amendment, but only on the terms and subject to the conditions set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows: SECTION 1. Amendment. Section 1.01 of the Existing Loan Agreement is hereby amended by deleting the definition of "Termination Date" in its entirety and substituting in lieu thereof the following new definition: "Termination Date" shall mean July 30, 2004 or such earlier date on which this Loan Agreement shall terminate in accordance with the provisions hereof or by operation of law. SECTION 2. Conditions Precedent. This Amendment shall become effective on the first date (the "Amendment Effective Date") on which all of the following conditions precedent shall have been satisfied: 2.1 Delivered Documents. On the Amendment Effective Date, the Agent shall have received the following documents, each of which shall be satisfactory to the Agent in form and substance: a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Lenders and the Agent; and (b) Other Documents. Such other documents as the Agent or counsel to the Agent may reasonably request. 2.2 No Default. On the Amendment Effective Date, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Loan Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default or Event of Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. Each Borrower hereby represents and warrants to the Agent and the Lenders that it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default or Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 6 of the Loan Agreement. SECTION 4. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Loan Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date, all references therein and herein to the "Loan Documents" shall be deemed to include, in any event, this Amendment. Each reference to the Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Loan Agreement as amended hereby. SECTION 5. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Amendment. SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURES FOLLOW] -2- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Stephen A. Hozie -------------------------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Stephen A. Hozie -------------------------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Stephen A. Hozie -------------------------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Stephen A. Hozie -------------------------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer COLUMBIA NATIONAL, INCORPORATED By: /s/ Stephen A. Hozie -------------------------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer MORGAN STANLEY BANK, as Agent and Lender By: /s/ Paul Najarian -------------------------------- Name: Paul Najarian Title: Vice President EX-10.4.3 9 am033105-ex1043.txt EXHIBIT 10.4.3 AMENDMENT NO. 3 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 3, dated as of July 30, 2004 (this "Amendment"), to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, supplemented or otherwise modified prior to the date hereof, the "Existing Loan Agreement"; as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHM"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS, INC. ("AHM Holdings") and AMERICAN HOME MORTGAGE SERVICING, INC., formerly known as Columbia National, Incorporated ("AHM Servicing" and together with AHM, AHM Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers", each, a "Borrower"), the lenders from time to time parties thereto (the "Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Loan Agreement. RECITALS The Borrowers have requested that the Lenders agree to amend the Existing Loan Agreement to extend the Termination Date from July 30, 2004 to August 13, 2004. The Lenders are willing to agree to such amendment, but only on the terms and subject to the conditions set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows: SECTION 1. Amendment. Section 1.01 of the Existing Loan Agreement is hereby amended by deleting the definition of "Termination Date" in its entirety and substituting in lieu thereof the following new definition: "Termination Date" shall mean August 13, 2004 or such earlier date on which this Loan Agreement shall terminate in accordance with the provisions hereof or by operation of law. SECTION 2. Conditions Precedent. This Amendment shall become effective on the first date (the "Amendment Effective Date") on which all of the following conditions precedent shall have been satisfied: 2.1 Delivered Documents. On the Amendment Effective Date, the Agent shall have received the following documents, each of which shall be satisfactory to the Agent in form and substance: (a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Lenders and the Agent; and (b) Other Documents. Such other documents as the Agent or counsel to the Agent may reasonably request. 2.2 No Default. On the Amendment Effective Date, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Loan Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default or Event of Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. Each Borrower hereby represents and warrants to the Agent and the Lenders that it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default or Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 6 of the Loan Agreement. SECTION 4. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Loan Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date, all references therein and herein to the "Loan Documents" shall be deemed to include, in any event, this Amendment. Each reference to the Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Loan Agreement as amended hereby SECTION 5. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Amendment. SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURES FOLLOW] -2- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary MORGAN STANLEY BANK, as Agent and Lender By: /s/ Paul Najarian --------------------------------------- Name: Paul Najarian Title: Vice President EX-10.4.4 10 am033105-ex1044.txt EXHIBIT 10.4.4 AMENDMENT NO. 4 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 4, dated as of August 13, 2004 (this "Amendment"), to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, supplemented or otherwise modified prior to the date hereof, the "Existing Loan Agreement"; as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHMC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS, INC. ("AHM Holdings") and AMERICAN HOME MORTGAGE SERVICING, INC., formerly known as Columbia National, Incorporated ("AHM Servicing" and together with AHMC, AHM Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers", each, a "Borrower"), the lenders from time to time parties thereto (the "Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Loan Agreement. RECITALS The Borrowers have requested that the Lenders agree to amend the Existing Loan Agreement to extend the Termination Date from August 13, 2004 to September 15, 2004. The Lenders are willing to agree to such amendment, but only on the terms and subject to the conditions set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows: SECTION 1. Amendment. Section 1.01 of the Existing Loan Agreement is hereby amended by deleting the definition of "Termination Date" in its entirety and substituting in lieu thereof the following new definition: "Termination Date" shall mean September 15, 2004 or such earlier date on which this Loan Agreement shall terminate in accordance with the provisions hereof or by operation of law. SECTION 2. Conditions Precedent. This Amendment shall become effective on the first date (the "Amendment Effective Date") on which all of the following conditions precedent shall have been satisfied: 2.1 Delivered Documents. On the Amendment Effective Date, the Agent shall have received the following documents, each of which shall be satisfactory to the Agent in form and substance: (a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Lenders and the Agent; and (b) Other Documents. Such other documents as the Agent or counsel to the Agent may reasonably request. 2.2 No Default. On the Amendment Effective Date, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Loan Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default or Event of Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. Each Borrower hereby represents and warrants to the Agent and the Lenders that it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default or Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 6 of the Loan Agreement. SECTION 4. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Loan Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date, all references therein and herein to the "Loan Documents" shall be deemed to include, in any event, this Amendment. Each reference to the Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Loan Agreement as amended hereby. SECTION 5. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Amendment. SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURES FOLLOW] -2- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Alan B. Horn --------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary MORGAN STANLEY BANK, as Agent and Lender By: /s/ Paul Najarian -------------------------------------- Name: Paul Najarian Title: Vice President EX-10.4.5 11 am033105-ex1045.txt EXHIBIT 10.4.5 AMENDMENT NO. 5 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 5, dated as of September 15, 2004 (this "Amendment"), to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, supplemented or otherwise modified prior to the date hereof, the "Existing Loan Agreement"; as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHMC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS, INC. ("AHM Holdings") and AMERICAN HOME MORTGAGE SERVICING, INC., formerly known as Columbia National, Incorporated ("AHM Servicing" and together with AHMC, AHM Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers", each, a "Borrower"), the lenders from time to time parties thereto (the "Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Loan Agreement. RECITALS The Borrowers have requested that the Lenders agree to amend the Existing Loan Agreement to extend the Termination Date from September 15, 2004 to September 30, 2004. The Lenders are willing to agree to such amendment, but only on the terms and subject to the conditions set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows: SECTION 1. Amendment. Section 1.01 of the Existing Loan Agreement is hereby amended by deleting the definition of "Termination Date" in its entirety and substituting in lieu thereof the following new definition: "Termination Date" shall mean September 30, 2004 or such earlier date on which this Loan Agreement shall terminate in accordance with the provisions hereof or by operation of law. SECTION 2. Conditions Precedent. This Amendment shall become effective on the first date (the "Amendment Effective Date") on which all of the following conditions precedent shall have been satisfied: 2.1 Delivered Documents. On the Amendment Effective Date, the Agent shall have received the following documents, each of which shall be satisfactory to the Agent in form and substance: (a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Lenders and the Agent; and (b) Other Documents. Such other documents as the Agent or counsel to the Agent may reasonably request. 2.2 No Default. On the Amendment Effective Date, except as has been disclosed to the Agent in writing, including via Internet e-mail, on or before the Amendment Effective Date, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Loan Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default or Event of Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. Each Borrower hereby represents and warrants to the Agent and the Lenders that, except as has been disclosed to the Agent in writing, including via Internet e-mail, on or before the Amendment Effective Date, it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default or Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 6 of the Loan Agreement. SECTION 4. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Loan Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date, all references therein and herein to the "Loan Documents" shall be deemed to include, in any event, this Amendment. Each reference to the Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Loan Agreement as amended hereby. SECTION 5. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Amendment. SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURES FOLLOW] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary MORGAN STANLEY BANK, as Agent and Lender By: /s/ Paul Najarian ----------------------------------------- Name: Paul Najarian Title: Vice President EX-10.4.6 12 am033105-ex1046.txt EXHIBIT 10.4.6 AMENDMENT NO. 7 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 7, dated as of November 17, 2004 (this "Amendment"), to the Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, supplemented or otherwise modified prior to the date hereof, the "Existing Loan Agreement"; as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHMC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS, INC. ("AHM Holdings") and AMERICAN HOME MORTGAGE SERVICING, INC., formerly known as Columbia National, Incorporated ("AHM Servicing" and together with AHMC, AHM Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers", each, a "Borrower"), the lenders from time to time parties thereto (the "Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Loan Agreement. RECITALS The Borrowers, the Lenders and the Agent are parties to the Existing Loan Agreement, pursuant to which the Existing Lender has agreed to make and to permit to remain outstanding certain extensions of credit on the terms and subject to the conditions of the Existing Loan Agreement. The Borrowers, the Lenders and the Agent have agreed, subject to the terms and conditions hereof, that the Existing Loan Agreement shall be modified to provide for a temporary increase in the amount of the Maximum Credit and to effect certain other changes as set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows: SECTION 1. Amendments. (a) Section 1.01 of the Existing Loan Agreement is hereby amended by inserting in proper alphabetical order the following new defined terms: "Increase Period" shall mean the period from and including the Seventh Amendment Effective Date through and including December 31, 2004. "Seventh Amendment" shall mean that certain Amendment No. 7 and Agreement, dated as of November 17, 2004, by and among the Borrowers, the Lender and the Agent. "Seventh Amendment Effective Date" shall mean the "Amendment Effective Date", as defined in the Seventh Amendment. (b) Subclauses (ii) through (iv) of the definition of "Collateral Value" set forth in Section 1.01 of the Existing Loan Agreement shall be deleted in their entirety and the following new subclauses shall be inserted in lieu thereof: "(ii) The aggregate Collateral Value of all California Program Mortgage Loans included in the Borrowing Base at any time shall not exceed 5.71% of the Maximum Credit at such time; (iii) The aggregate Collateral Value of all Interest-Only Mortgage Loans with an LTV greater than 80% and less than or equal to 95% included in the Borrowing Base at any time shall not exceed 14.29% of the Maximum Credit at such time; (iv) The aggregate Collateral Value of all Jumbo Mortgage Loans which have an original principal value greater than $1,000,000 included in the Borrowing Base at any time shall not exceed 20% of the Maximum Credit at such time;" (c) The definition of "Maximum Credit" set forth in Section 1.01 of the Existing Loan Agreement shall be deleted in its entirety and the following new definition shall be inserted in lieu thereof: "Maximum Credit" shall mean (a) solely during the Increase Period, an amount equal to $500,000,000 and (b) following the Increase Period, an amount equal to $350,000,000. (d) Solely during the Increase Period, Schedule 6 to the Existing Loan Agreement (the "Existing Schedule") shall be superceded and replaced in its entirety by the document attached hereto as Schedule 6 (the "Temporary Schedule"). Upon termination of the Increase Period, the Temporary Schedule shall be deleted in its entirety and the Existing Schedule shall be reinstated in its entirety as Schedule 6 to the Loan Agreement. SECTION 2. Conditions Precedent. This Amendment shall become effective on the first date (the "Amendment Effective Date") on which all of the following conditions precedent shall have been satisfied: 2.1 Delivered Documents. On the Amendment Effective Date, the Agent shall have received the following documents, each of which shall be satisfactory to the Agent in form and substance: (a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Lenders and the Agent; (b) Note. For the account of MSMCI, a Promissory Note, substantially in the form of Exhibit A hereto, executed and delivered by a duly authorized officer of the Borrower; (c) Resolutions. True, correct and complete copies of the resolutions of the Sole Director of each of AHMC, AHM Acceptance, AHM Holdings and AHM Servicing, certified by the Secretary or Assistant Secretary of each such Borrower, in form and substance satisfactory to the Agent, authorizing (i) the execution, delivery and performance of this Amendment, and (ii) the borrowings contemplated under the Loan Agreement; and (d) Other Documents. Such other documents as the Agent or counsel to the Agent may reasonably request. 2.2 No Default. On the Amendment Effective Date, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Loan Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default or Event of Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. Each Borrower hereby represents and warrants to the Agent and the Lenders that it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default or Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 6 of the Loan Agreement. SECTION 4. Resolutions of AHM Investment. Each Borrower hereby covenants and agrees that on or before November 24, 2004 (or such later date as the Agent may agree in writing, the "Delivery Date"), the Agent shall have received a true, correct and complete copy of the resolutions of the Board of Directors of AHM Investment, certified by the Secretary or Assistant Secretary of AHM Investment, authorizing (i) the execution, delivery and performance of this Amendment, and (ii) the borrowings contemplated under the Loan Agreement, and such resolutions shall be satisfactory to the Agent in form and substance satisfactory. From and after the Amendment Effective Date, until such resolutions have been received by the Agent, no Loans shall be available to be made to AHM Investment and if the Agent shall not have received such resolutions as of the Delivery Date, an Event of Default shall be deemed to have occurred under the Loan Agreement. SECTION 5. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Loan Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that upon the Amendment Effective Date, all references therein and herein to the "Loan Documents" shall be deemed to include, in any event, this Amendment. Each reference to the Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Loan Agreement as amended hereby. SECTION 6. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Amendment. SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURES FOLLOW] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Alan B. Horn ------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn ------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn ------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan B. Horn ------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Alan B. Horn ------------------------------------- Name: Alan B. Horn Title: Executive Vice President MORGAN STANLEY BANK, as Agent and Lender By: /s/ Paul Najarian -------------------------------- Name: Paul Najarian Title: Vice President Schedule 6 COMMITMENTS Lender Commitment ------ ---------- Morgan Stanley Bank $ 500,000,000 Total $ 500,000,000 Exhibit A FIFTH AMENDED AND RESTATED PROMISSORY NOTE $500,000,000 August 2, 2002 amended and restated November ___, 2004 New York, New York FOR VALUE RECEIVED, each of American Home Mortgage Corp., a New York corporation, 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 American Home Mortgage Servicing, Inc., formerly known as Columbia National, Incorporated, a Maryland corporation, (each a "Borrower", collectively the "Borrowers"), hereby promises to pay, jointly and severally, to the order of MORGAN STANLEY BANK (the "Lender"), at the principal office of the Lender at 2500 Lake Park Boulevard, West Valley City, Utah 84120, in lawful money of the United States, and in immediately available funds, the principal sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Loans made by the Lender to the Borrowers under the Loan Agreement referred to below), on the dates and in the principal amounts provided in the Loan Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Loan Agreement. The date, amount and interest rate of each Loan made by the Lender to the Borrowers, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books and, prior to any transfer of this Note, endorsed by the Lender on the schedule attached hereto or any continuation thereof; provided, that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrowers to make a payment when due of any amount owing under the Loan Agreement or hereunder in respect of the Loans made by the Lender. This Fifth Amended and Restated Promissory Note is one of the "Notes" referred to in the Master Loan and Security Agreement, dated as of August 2, 2002, which was amended and restated in its entirety by that certain Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), among the Borrowers, the Lenders from time to time parties thereto and the Morgan Stanley Bank, as Agent for the Lenders, and evidences the Loans made thereunder by the Lender to the Borrowers. Terms used but not defined in this Note have the respective meanings assigned to them in the Loan Agreement. The Borrowers agree, jointly and severally, to pay all the Lender's costs of collection and enforcement (including reasonable attorneys' fees and disbursements of Lender's counsel) in respect of this Note when incurred, including, without limitation, reasonable attorneys' fees through appellate proceedings. Notwithstanding the pledge of the Collateral, each Borrower hereby acknowledges, admits and agrees that the Borrowers' obligations under this Note are recourse obligations of the Borrowers to which each Borrower pledges its full faith and credit. Each Borrower, and any endorsers or guarantors hereof, (a) severally waive diligence, presentment, protest and demand and also notice of protest, demand, dishonor and nonpayments of this Note, (b) expressly agree that this Note, or any payment hereunder, may be extended from time to time, and consent to the acceptance of further Collateral, the release of any Collateral for this Note, the release of any party primarily or secondarily liable hereon, and (c) expressly agree that it will not be necessary for the Lender, in order to enforce payment of this Note, to first institute or exhaust the Lender's remedies against the Borrowers or any other party liable hereon or against any Collateral for this Note. No extension of time for the payment of this Note, or any installment hereof, made by agreement by the Lender with any person now or hereafter liable for the payment of this Note, shall affect the liability under this Note of any Borrower, even if such Borrower is not a party to such agreement; provided, however, that the Lender and each Borrower, by written agreement between them, may affect the liability of the Borrowers. This Fifth Amended and Restated Promissory note amends and restates in its entirety the Fourth Amended and Restated Promissory Note, dated as of November 26, 2003, made by the Borrowers in favor of the Lender in the maximum principal sum of $350,000,000 (the "Existing Promissory Note") and is given as a continuation, rearrangement and extension, and not a novation, release or satisfaction of the Existing Promissory Note. Each Borrower hereby acknowledges and agrees that simultaneously with the Borrowers' execution and delivery of this Fifth Amended and Restated Promissory Note to the Lender, the Lender has delivered to American Home Mortgage Corp. the Existing Promissory Note. Any reference herein to the Lender shall be deemed to include and apply to every subsequent holder of this Note. Reference is made to the Loan Agreement for provisions concerning optional and mandatory prepayments, Collateral, acceleration and other material terms affecting this Note. Each Borrower hereby acknowledges and agrees that such Borrower shall be jointly and severally liable to the maximum extent permitted by applicable law for all representations, warranties, covenants, obligations and indemnities of the Borrowers under the Loan Documents. This Fifth Amended and Restated Promissory Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, whose laws each Borrower expressly elects to apply to this Note. Each Borrower agrees that any action or proceeding brought to enforce or arising out of this Note may be commenced in the Supreme Court of the State of New York, Borough of Manhattan, or in the District Court of the United States for the Southern District of New York. [SIGNATURES FOLLOW] AMERICAN HOME MORTGAGE CORP., as a Borrower By: ------------------------------------ Name: Title: AMERICAN HOME MORTGAGE INVESTMENT CORP., as a Borrower By: ------------------------------------ Name: Title: AMERICAN HOME MORTGAGE HOLDINGS, INC., as a Borrower By: ------------------------------------ Name: Title: AMERICAN HOME MORTGAGE ACCEPTANCE, INC., as a Borrower v AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated), as a Borrower By: ------------------------------------ Name: Title: SCHEDULE OF LOANS This Note evidences Loans made under the within-described Loan Agreement to the Borrowers, on the dates, in the principal amounts and bearing interest at the rates set forth below, and subject to the payments and prepayments of principal set forth below:
Principal Amount Interest Amount Paid Unpaid Principal Notation Date Made of Loan Rate or Prepaid Amount Made by - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- -------------- - ------------------ ----------------------- ---------------- ------------------- ----------------------- --------------
EX-10.4.7 13 am033105-ex1047.txt EXHIBIT 10.4.7 AMENDMENT NO. 2 TO THE AMENDED AND RESTATED CUSTODIAL AGREEMENT AMENDMENT NO. 2, dated as of October 21, 2004 (this "Amendment"), to the Amended and Restated Custodial Agreement, dated as of November 26, 2003 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the "Existing Custodial Agreement", a as amended, hereby and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the "Custodial Agreement"), by and among AMERICAN HOME MORTGAGE CORP., a New York corporation, 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 AMERICAN HOME MORTGAGE SERVICING, INC., a Maryland corporation (formerly known as Columbia National, Incorporated) (each a "Borrower", collectively the "Borrowers"), DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian (in such capacity, the "Custodian"), and MORGAN STANLEY BANK (the "Lender Agent"). RECITALS The Borrowers, the Lender Agent and the Custodian are parties to the Existing Custodial Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Custodial Agreement. The Borrowers, the Lender Agent and the Custodian have agreed, subject to the terms and conditions of this Amendment, that the Existing Custodial Agreement be amended to revise Annex I of the Existing Custodial Agreement. Accordingly, the Borrowers, the Lender Agent and the Custodian hereby agree, in consideration of the mutual premises and mutual obligations set forth herein, that the Existing Custodial Agreement is hereby amended as follows: SECTION 1. Amendments. 1.1 The Existing Custodial Agreement is hereby amended by deleting Annex I to the Existing Custodial Agreement in its entirety and substituting in lieu thereof the Annex I attached hereto. 1.2 Annex 4 paragraph 11 of the Existing Loan Agreement is hereby deleted in its entirety and the following shall be inserted in lieu thereof: "11 based upon a review of the Mortgage Note, items (d), (f), (g), (h), (m), (p), (bb), (hh), (jj), (fff) and (ppp) of Annex 1 as set forth in the Mortgage Loan Schedule delivered by the applicable Borrower to the Custodian are correct;" SECTION 2. Conditions Precedent. This Amendment and its provisions shall become effective on the date (the "Amendment Effective Date") on which the following conditions precedent shall have been satisfied, and upon satisfaction of such conditions precedent the Amendment Effective Date shall be the date of this Amendment: 2.1 Delivered Documents. On or before the Amendment Effective Date, the Lender Agent shall have received the following documents, each of which shall be satisfactory to the Lender Agent in form and substance: (a) Amendment. This Amendment, executed and delivered by a duly authorized officer of each of the Borrowers, the Custodian, and the Lender Agent; and (b) Other Documents. Such other documents as the Lender Agent or counsel to the Lender may reasonably request. 2.2 No Default. On the Amendment Effective Date, after giving effect to the Sixth Amendment, (i) each Borrower shall be in compliance with all the terms and provisions set forth in the Existing Custodial Agreement on its part to be observed or performed, (ii) the representations and warranties made and restated by each Borrower pursuant to Section 3 of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date, and (iii) no Default shall have occurred and be continuing on such date. SECTION 3. Representations and Warranties. After giving effect to the Sixth Amendment, each Borrower hereby represents and warrants to the Lender Agent and the Custodian that it is in compliance with all the terms and provisions set forth in the Loan Documents on its part to be observed or performed, and that no Default has occurred or is continuing, and hereby confirms and reaffirms its representations and warranties contained in Section 10 of the Existing Custodial Agreement. SECTION 4. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Custodial Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms; provided, however, that reference therein and herein to the "Loan Documents" shall be deemed to include, in any event, this Amendment. Each reference to the Custodial Agreement in any of the Loan Documents shall be deemed to be a reference to the Custodial Agreement as amended hereby. The execution of this Amendment by the Lender or Custodian shall not operate as a waiver of any of their rights, powers or privileges under the Custodial Agreement or under any of the other Loan Documents except as expressly set forth herein. SECTION 5. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart thereof. SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written. BORROWERS AMERICAN HOME MORTGAGE CORP. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Alan B. Horn ----------------------------------------- Name: Alan B. Horn Title: Executive Vice President, General Counsel, and Secretary LENDER AGENT MORGAN STANLEY BANK By: /s/ Paul Najarian ---------------------------------------- Name: Paul Najarian Title: Vice President CUSTODIAN DEUTSCHE BANK NATIONAL TRUST COMPANY By: /s/ Christopher Corcoran ---------------------------------------- Name: Christopher Corcoran Title: Assistant Vice President By: /s/ Carlos Falconi ---------------------------------------- Name: Carlos Falconi Title: Associate Annex 1 to Custodial Agreement INFORMATION TO BE PROVIDED WITH RESPECT TO ELIGIBLE MORTGAGE LOANS For each Mortgage Loan, the applicable Borrower shall provide the following information: (a) Number of Times Delinquent 30 days in last 12 months; (b) Number of Times Delinquent 60 days in last 12 months; (c) Number of Times Delinquent 90+ days in last 12 months; (d) Address City; (e) Address County; (f) Address State; (g) Address Street; (h) Address Zipcode; (i) Amort Type (Fixed or ARM); (j) Backend Debt Ratio (all debt/income);1 (k) Balance Appraisal; (l) Balance Current; (m) Balance Original; (n) Balance Senior; (o) Balloon; (p) Borrower Name; (q) CLTV Original; (r) Co-Borrower's Credit Score (if applicable); (s) Co-Borrower's Name (if applicable); - -------- 1 Not required on No Doc and Stated Income Doc Loans Annex 1-1 (t) Commitment Expiration; (u) Convertible; (v) Coupon Current; (w) Coupon Init Per Cap; (x) Coupon IO; (y) Coupon Life Cap; (z) Coupon Max; (aa) Coupon Min; (bb) Coupon Original; (cc) Coupon Periodic Cap; (dd) Coupon Periodic Floor; (ee) Credit Score (FICO); (ff) Credit Score Type (Beacon, Equifax, TransUnion or Merge); (gg) Date First Cpn Change; (hh) Date First Payment; (ii) Date First Pmt Change; (jj) Date Maturity; (kk) Date Next Coupon Change; (ll) Date Next Due; (mm) Date Next Pay Change; (nn) Date Orig; (oo) Date Paid Thru; (pp) Day Count; (qq) Delinq Status; (rr) Documentation Type; Annex 1-2 (ss) Eligible Group (tt) Escrow Flag (Yes or No); (uu) Forclosure/REO/Bankruptcy Status; (vv) Freq Coupon Adj; (ww) Freq Payment Adj; (xx) Frequency Pmt; (yy) Frontend Debt Ratio (mortgage debt/income);2 (zz) Fund Date; (aaa) Index (for ARMs); (bbb) IO Flag (Yes or No); (ccc) Lien Status; (ddd) Loan Purpose; (eee) Loan Type (residential, etc..); (fff) Loan Id Number; (ggg) LTV Current; (hhh) LTV Original; (iii) Margin; (jjj) MERS Loan Flag (kkk) MERS Loan Number (lll) Number of Units; (mmm) Occupancy; (nnn) Ownership Type (Leasehold, Fee Simple, etc...); (ooo) P&I Current; - -------- 2 Not required on No Doc and Stated Income Doc Loans Annex 1-3 (ppp) P&I Original; (qqq) PMI (Yes or No); (rrr) PMI Percentage (if applicable); (sss) PMI Provider (if applicable); (ttt) Prepayment Penalty (Yes or No); (uuu) Prepayment Penalty Description; (vvv) Prepayment Penalty Term (Months Freely Prepayable); (www) Product Type; (xxx) Property Purchase Amount/Sales Price; (yyy) Property Type; (zzz) Rating; (aaaa) Rounding Factor; (bbbb) S&P Appraisal Type; (cccc) S&P Document Type; (dddd) Section 32 Flag; (eeee) Service Fee Amount; (ffff) Social Security Number; (gggg) Takeout Investor; (hhhh) Takeout Price; (iiii) Term Amort Original; (jjjj) Term Coupon Teaser; (kkkk) Term IO Original; (llll) Term Original; (mmmm) Term PNI Teaser; (nnnn) Warehouse Amount; and Annex 1-4 (oooo) Warehouse Bank. Annex 1-5 EX-10.4.8 14 am033105-ex1048.txt EXHIBIT 10.4.8 FIFTH AMENDED AND RESTATED PROMISSORY NOTE $500,000,000 August 2, 2002 amended and restated November ___, 2004 New York, New York FOR VALUE RECEIVED, each of American Home Mortgage Corp., a New York corporation, 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 American Home Mortgage Servicing, Inc., formerly known as Columbia National, Incorporated, a Maryland corporation, (each a "Borrower", collectively the "Borrowers"), hereby promises to pay, jointly and severally, to the order of MORGAN STANLEY BANK (the "Lender"), at the principal office of the Lender at 2500 Lake Park Boulevard, West Valley City, Utah 84120, in lawful money of the United States, and in immediately available funds, the principal sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Loans made by the Lender to the Borrowers under the Loan Agreement referred to below), on the dates and in the principal amounts provided in the Loan Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Loan Agreement. The date, amount and interest rate of each Loan made by the Lender to the Borrowers, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books and, prior to any transfer of this Note, endorsed by the Lender on the schedule attached hereto or any continuation thereof; provided, that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrowers to make a payment when due of any amount owing under the Loan Agreement or hereunder in respect of the Loans made by the Lender. This Fifth Amended and Restated Promissory Note is one of the "Notes" referred to in the Master Loan and Security Agreement, dated as of August 2, 2002, which was amended and restated in its entirety by that certain Amended and Restated Master Loan and Security Agreement, dated as of November 26, 2003 (as amended, restated, supplemented or otherwise modified and in effect from time to time, the "Loan Agreement"), among the Borrowers, the Lenders from time to time parties thereto and the Morgan Stanley Bank, as Agent for the Lenders, and evidences the Loans made thereunder by the Lender to the Borrowers. Terms used but not defined in this Note have the respective meanings assigned to them in the Loan Agreement. The Borrowers agree, jointly and severally, to pay all the Lender's costs of collection and enforcement (including reasonable attorneys' fees and disbursements of Lender's counsel) in respect of this Note when incurred, including, without limitation, reasonable attorneys' fees through appellate proceedings. Notwithstanding the pledge of the Collateral, each Borrower hereby acknowledges, admits and agrees that the Borrowers' obligations under this Note are recourse obligations of the Borrowers to which each Borrower pledges its full faith and credit. Each Borrower, and any endorsers or guarantors hereof, (a) severally waive diligence, presentment, protest and demand and also notice of protest, demand, dishonor and nonpayments of this Note, (b) expressly agree that this Note, or any payment hereunder, may be extended from time to time, and consent to the acceptance of further Collateral, the release of any Collateral for this Note, the release of any party primarily or secondarily liable hereon, and (c) expressly agree that it will not be necessary for the Lender, in order to enforce payment of this Note, to first institute or exhaust the Lender's remedies against the Borrowers or any other party liable hereon or against any Collateral for this Note. No extension of time for the payment of this Note, or any installment hereof, made by agreement by the Lender with any person now or hereafter liable for the payment of this Note, shall affect the liability under this Note of any Borrower, even if such Borrower is not a party to such agreement; provided, however, that the Lender and each Borrower, by written agreement between them, may affect the liability of the Borrowers. This Fifth Amended and Restated Promissory note amends and restates in its entirety the Fourth Amended and Restated Promissory Note, dated as of November 26, 2003, made by the Borrowers in favor of the Lender in the maximum principal sum of $350,000,000 (the "Existing Promissory Note") and is given as a continuation, rearrangement and extension, and not a novation, release or satisfaction of the Existing Promissory Note. Each Borrower hereby acknowledges and agrees that simultaneously with the Borrowers' execution and delivery of this Fifth Amended and Restated Promissory Note to the Lender, the Lender has delivered to American Home Mortgage Corp. the Existing Promissory Note. Any reference herein to the Lender shall be deemed to include and apply to every subsequent holder of this Note. Reference is made to the Loan Agreement for provisions concerning optional and mandatory prepayments, Collateral, acceleration and other material terms affecting this Note. Each Borrower hereby acknowledges and agrees that such Borrower shall be jointly and severally liable to the maximum extent permitted by applicable law for all representations, warranties, covenants, obligations and indemnities of the Borrowers under the Loan Documents. This Fifth Amended and Restated Promissory Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, whose laws each Borrower expressly elects to apply to this Note. Each Borrower agrees that any action or proceeding brought to enforce or arising out of this Note may be commenced in the Supreme Court of the State of New York, Borough of Manhattan, or in the District Court of the United States for the Southern District of New York. [SIGNATURES FOLLOW] AMERICAN HOME MORTGAGE CORP., as a Borrower By: /s/ Alan B. Horn -------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE INVESTMENT CORP., as a Borrower By: /s/ Alan B. Horn -------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE HOLDINGS, INC., as a Borrower By: /s/ Alan B. Horn -------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE ACCEPTANCE, INC., as a Borrower By: /s/ Alan B. Horn -------------------------------------- Name: Alan B. Horn Title: Executive Vice President AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated), as a Borrower By: /s/ Alan B. Horn -------------------------------------- Name: Alan B. Horn Title: Executive Vice President EX-10.5.1 15 am033105-ex1051.txt EXHIBIT 10.5.1 WHOLE LOAN PURCHASE AND SALE AGREEMENT MORTGAGE LOAN PURCHASE AND SALE AGREEMENT ----------------------------------------- among AMERICAN HOME MORTGAGE CORP. Seller, COLUMBIA NATIONAL, INCORPORATED Seller and GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Purchaser DATED AS OF January 1, 2004 TABLE OF CONTENTS Page ---- Section 1. Definitions..............................................-1- Section 2. Procedures for Purchases of Mortgage Loans...............-8- Section 3. Sale of Mortgage Loans to Takeout Investor...............-8- Section 4. Completion Fee..........................................-11- Section 5. Servicing of the Mortgage Loans.........................-12- Section 6. Trade Assignments.......................................-13- Section 7. Transfers of Beneficial Interest in Mortgage Loans by Purchaser......................................-13- Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest.......................................-13- Section 9. Representations and Warranties..........................-14- Section 10. Covenants of Sellers....................................-21- Section 11. Term....................................................-24- Section 12. Exclusive Benefit of Parties; Assignment................-24- Section 13. Amendments; Waivers; Cumulative Rights..................-24- Section 14. Execution in Counterparts...............................-24- Section 15. Effect of Invalidity of Provisions......................-24- Section 16. Governing Law...........................................-25- Section 17. Notices.................................................-25- Section 18. Entire Agreement........................................-25- Section 19. Costs of Enforcement....................................-25- Section 20. Consent to Service......................................-25- Section 21. Submission to Jurisdiction..............................-25- Section 22. Jurisdiction Not Exclusive..............................-25- Section 23. WAIVER OF JURY TRIAL....................................-25- Section 24. Construction............................................-26- Section 25. Further Assurances......................................-26- Section 26. Joint and Several Liability.............................-27- EXHIBITS Exhibit A Trust Receipt Exhibit B-1 Warehouse Lender's Release Exhibit B-2 Warehouse Lender's Wire Instructions Exhibit C-1 Seller's Release Exhibit C-2 Seller's Wire Instructions Exhibit D-1 Trade Assignment Exhibit D-2 Trade Assignment (Blanket) Exhibit E Purchaser's Wire Instructions Exhibit F Form of Confirmation Exhibit G Notice of Rejection of Trade Assignment Exhibit H Settlement Modification Letter Exhibit I Seller's Officer's Certificate Exhibit J Seller's Officer's Certificate Exhibit K List of Conduits Exhibit L Mortgage Loan Schedule MORTGAGE LOAN PURCHASE AND SALE AGREEMENT This Mortgage Loan Purchase and Sale Agreement ("Agreement"), dated as of the date set forth on the cover page hereof, is by and between Greenwich Capital Financial Products, Inc., having an address at 600 Steamboat Road, Greenwich, Connecticut 06830 ("Purchaser") and American Home Mortgage Corp., having an address at 520 Broadhollow Road, Melville, New York 11747 ("AHMC") and Columbia National, Incorporated, having an address at 7142 Columbia Gateway Drive, Columbia, MD 21046 ("CNI" and together with AHMC, each individually, a "Seller" and together, the "Sellers"). PRELIMINARY STATEMENT Sellers may, in their sole discretion, offer to sell to Purchaser from time to time a 100% undivided ownership interest in certain Mortgage Loans, and Purchaser, in its sole discretion, may agree to purchase such Mortgage Loans from Sellers on a servicing-released basis in accordance with the terms and conditions set forth in this Agreement. The related Seller, subject to the terms hereof, will cause each Mortgage Loan to be purchased by Takeout Investor. During the period from the purchase of a Mortgage Loan to the sale of the Mortgage Loan to Takeout Investor, the related Seller shall interim service such Mortgage Loan for the benefit of Purchaser pursuant to the terms of this Agreement. The parties hereto hereby agree as follows: Section 1. Definitions. Capitalized terms used but not defined herein shall have the meanings set forth in the related Custodial Agreement. As used in this Agreement, the following terms shall have the following meanings: "Act of Insolvency": With respect to Sellers, (i) the filing of a petition, commencing, or authorizing the commencement of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation or similar law relating to the protection of creditors, or suffering any such petition or proceeding to be commenced by another; (ii) seeking the appointment of a receiver, trustee, custodian or similar official for either Seller or an Affiliate or any substantial part of the property of either, (iii) the appointment of a receiver, conservator, or manager for either Seller or an Affiliate by any governmental agency or authority having the jurisdiction to do so; (iv) the making or offering by either Seller or an Affiliate of a concession with its creditors or a general assignment for the benefit of creditors, (v) the admission by either Seller or an Affiliate of either Seller's or such Affiliate's inability to pay its debts or discharge its obligations as they become due or mature; or (vi) any governmental authority or agency or any person, agency or entity acting or purporting to act under governmental authority shall have taken any action to condemn, seize or appropriate, or to assume custody or control of, all or any substantial part of the property of either Seller or of any of its Affiliates, or shall have taken any action to displace the management of either Seller or of any of its Affiliates or to curtail its authority in the conduct of the business of either Seller or of any of its Affiliates. "Affiliate": With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, "control" means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting equity, by contract or otherwise. "Agency Guide": The FHLMC Guide, the FNMA Guide or the GNMA Guide, as applicable. -1- "Agency Program": The FHLMC Program, the FNMA Program or the GNMA Program, as applicable. "Applicable Agency": GNMA, FNMA or FHLMC, as applicable. "Appraised Value": With respect to any Mortgaged Property, the value thereof set forth in an appraisal made for the originator of the Mortgage Loan at the time of origination of the Mortgage Loan by an appraiser who met the minimum requirements of FNMA and FHLMC and which appraisal has been made in accordance with and satisfies the provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. "Assignee": As defined in Section 7. "Business Day": Any day other than (a) a Saturday, Sunday or other day on which banks located in The City of New York, New York are authorized or obligated by law or executive order to be closed or (b) any day on which Purchaser or the Custodians are authorized or obligated by law or executive order to be closed. "Cash Window Transaction": A transaction initiated by the related Seller's delivery of a Request for Certification which identifies an Agency as the Takeout Investor. "Collateral": As defined in Section 8(c). "Commitment Amount": The aggregate outstanding principal amount of Mortgage Loans to be purchased pursuant to a Takeout Commitment. If the Commitment Amount is expressed as a fixed amount plus or minus a percentage in the related Takeout Confirmation, then the amount required to be delivered by the related Seller shall be the minimum amount of such range and the amount required to be purchased by Takeout Investor shall be the maximum amount of such range. "Commitment Date": The date set forth in a Takeout Confirmation as the commitment date. "Commitment Guidelines": The guidelines, if any, issued by Takeout Investor regarding the issuance of Takeout Commitments, as amended from time to time by Takeout Investor. "Commitment Number": With respect to a Takeout Commitment, the number identified on the Takeout Confirmation as the commitment number. "Completion Fee": With respect to each Mortgage Loan Pool, an amount equal to the Discount plus the Net Carry Adjustment, less any reduction pursuant to Section 4(c), which amount shall be payable to the related Seller by Purchaser as compensation to the related Seller for its services hereunder in connection with the purchase of a Mortgage Loan Pool. "Conduit": The list of investors attached hereto as Exhibit K, which may be modified from time to time by Purchaser in its sole discretion and which list shall be delivered to the Sellers promptly after each such modification. "Conduit Transactions": A transaction initiated by the related Seller's delivery of a Request for Certification which identifies a Conduit as the Takeout Investor. -2- "Confirmation": A written confirmation of Purchaser's intent to purchase a Mortgage Loan Pool, which written confirmation shall be delivered to the related Seller substantially in the form attached hereto as Exhibit F. "Credit File": All Mortgage Loan papers and documents required to be maintained pursuant to the Sale Agreement, and all other papers and records of whatever kind or description whether developed or originated by Sellers or others, required to document or service the Mortgage Loan; provided, however, that such Mortgage Loan papers, documents and records shall not include any Mortgage Loan papers, documents or records which are contained in the Custodial File. "Cure Date": With respect to a Mortgage Loan, the date occurring 15 Business Days after the expiration of the Takeout Commitment. "Custodial Account": As defined in Section 5(b). "Custodial Agreements": The custodial agreement, dated as of January 1, 2004, among Sellers, Purchaser and Residential Funding Corporation and the custodial agreement, dated as of January 1, 2004, among Sellers, Purchaser and Deutsche Bank National Trust Company. "Custodial File": With respect to each Mortgage Loan, the documents that are required to be delivered to the related Custodian pursuant to the related Custodial Agreement. "Custodian": The Custodian whose name is set forth on the cover page of the related Custodial Agreement and its permitted successors thereunder. "Cut-off Date": With respect to a Mortgage Loan, the last day of a month on which the Settlement Date can occur if accrued interest for such month is to be collected by Takeout Investor. "Defective Mortgage Loan": With respect to any Mortgage Loan, either (i) the Document File does not contain a document required to be contained therein, (ii) a document within a Document File is, in the reasonable judgment of Purchaser or Takeout Investor, defective or inaccurate in any material respect, as determined upon evaluation of the Document File against the requirements of the Sale Agreement,(iii) a document in the Document File is not legal, valid and binding, or (iv) as to such Mortgage Loan, one of the representations and warranties in Section 9 hereof has been breached and such breach materially and adversely affects the value of such Mortgage Loan or Purchaser's interest in such Mortgage Loan. "Discount": With respect to Mortgage Loan Pool sold by the related Seller to Purchaser, the amount set forth on the related Confirmation as the Discount. "Document File": The Credit File and the Custodial File. "Due Date": The day of the month on which the Monthly Payment is due on a Mortgage Loan. "Electronic Agent": Shall have the meaning assigned to such term in Section 2 of the Electronic Tracking Agreement. -3- "Electronic Tracking Agreement": The Electronic Tracking Agreement, dated as of the date hereof, among the Purchaser, the Sellers, the Electronic Agent and MERS, as the same shall be amended, supplemented or otherwise modified from time to time in accordance with its terms. "Exhibit B-1 Letter": As defined in Section 2(a). "Exhibit C-1 Letter": As defined in Section 2(a). "Expiration Date": With respect to any Takeout Commitment, the expiration date thereof. "FDIC": Federal Deposit Insurance Corporation or any successor thereto. "FHLMC": Freddie Mac or any successor thereto. "FNMA": Fannie Mae or any successor thereto. "GAAP": Generally accepted accounting principles as in effect from time to time in the United States of America. "GNMA": Government National Mortgage Association or any successor thereto. "HUD": United States Department of Housing and Urban Development or any successor thereto. "Indebtedness" shall mean, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 90 days of the date the respective goods are delivered or the respective services are rendered; (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such Person; (e) all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP; (f) obligations of such Person under repurchase agreements or like arrangements; (g) Indebtedness of others guaranteed by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (i) Indebtedness of general partnerships of which such Person is a general partner; and (j) any other indebtedness of such Person by a note, bond, debenture or similar instrument. "Losses": Any and all actual losses, claims, damages, liabilities or expenses (including lost interest and reasonable attorney's fees) incurred by any Person specified. "MERS": Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or any successor in interest thereto. -4- "MERS Mortgage Loan": Any Mortgage Loan as to which the related Mortgage or assignment of Mortgage has been recorded in the name of MERS, as agent for the holder from time to time of the Mortgage Note and which is identified as a MERS Mortgage Loan on the related schedule attached to the related Participation Certificate. "MERS System": The system of recording transfers of Mortgages electronically maintained by MERS. "MIN": The mortgage identification number of Mortgage Loans registered with MERS on the MERS System. "Monthly Payment": The scheduled monthly payment of principal and interest on a Mortgage Loan. "Mortgage": The mortgage, deed of trust or other instrument creating a first lien on an estate in fee simple in real property securing a Mortgage Note. "Mortgage Interest Rate": The annual rate of interest borne on a Mortgage Note. "Mortgage Loan": A mortgage loan which is subject to this Agreement, and which satisfies the requirements of the Sale Agreement as the same may be modified from time to time. "Mortgage Loan Pool": A group of Mortgage Loans purchased by Purchaser hereunder and subject to a single Confirmation. "Mortgage Loan Schedule": The schedule of Mortgage Loans, attached hereto as Exhibit L, delivered to Purchaser by the related Seller on each Purchase Date in a form, and containing information, acceptable to Purchaser. "Mortgage Note": The note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage. "Mortgaged Property": The property subject to the lien of the Mortgage securing a Mortgage Note. "Mortgagor": The obligor on a Mortgage Note. "NCUA": National Credit Union Administration, or any successor thereto. "Net Carry Adjustment": As defined in Section 4(b). "Net Worth" shall mean, with respect to any Person, the excess of total assets of such Person, over total liabilities of such Person, determined in accordance with GAAP. "Notice of Rejection of Trade Assignment": With respect to any Mortgage Loan that Purchaser elects not to purchase, a notification by Purchaser to Takeout Investor in the form of Exhibit G. -5- "OTS": Office of Thrift Supervision or any successor thereto. "Parent Company": A corporation or other entity owning at least 50% of the outstanding shares of voting stock of either Seller. "Pass-Through Rate": With respect to each Mortgage Loan Pool purchased by Purchaser hereunder, the rate at which interest from the Mortgage is passed through to Purchaser which initially shall be the rate of interest specified in the related Confirmation as the Pass-Through Rate, subject to adjustment in the manner agreed to by Purchaser and the related Seller. "Person": Any individual, corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, unincorporated association or government (or any agency, instrumentality or political subdivision thereof). "Price Adjustment": With respect to a Takeout Commitment, the incremental percentage by which the Trade Price is adjusted by applying the appropriate formula set forth in a Price Adjustment summary sheet delivered by Purchaser to the related Seller which Price Adjustment summary sheet may be amended from time to time by Purchaser's delivery to the related Seller of a new Price Adjustment summary sheet. "Purchase Date": With respect to any Mortgage Loan Pool purchased by Purchaser hereunder, the date of payment thereof by Purchaser to the related Seller of the Purchase Price. "Purchase Price": With respect to each Mortgage Loan Pool purchased by Purchaser hereunder, an amount equal to the Trade Principal less an amount equal to the product of the Trade Principal multiplied by the Discount. "Purchaser": Greenwich Capital Financial Products, Inc. and its successors in interest, including, but not limited to, a party to whom a Trust Receipt is assigned as provided hereunder and in the related Custodial Agreement. "Purchaser's Wire Instructions": The wire instructions set forth in a letter in the form of Exhibit E. "Sale Agreement": The agreement providing for the purchase by Takeout Investor of Mortgage Loans from the related Seller. "SEC": The Securities and Exchange Commission or any successor thereto. "Sellers": The Sellers whose names are set forth on the cover page hereof and their permitted successors hereunder. "Seller's Wire Instructions": The wire instructions set forth in a letter in the form of Exhibit C-2. "Settlement Date": With respect to any Mortgage Loan, the date of payment thereof by Takeout Investor to Purchaser of the Takeout Proceeds. "Settlement Modification Letter": A letter in the form of Exhibit H. -6- "Security": A GNMA Security, a FNMA Security or a FHLMC Security. "Successor Servicer": An entity designated by Purchaser, with notice provided in conformity with Section 17, to replace the related Seller as issuer and servicer, mortgagee or the seller/servicer of the Mortgage Loans evidenced by a Trust Receipt. "Takeout Commitment": A commitment of the related Seller to sell one or more Mortgage Loans to Takeout Investor and of Takeout Investor to purchase one or more Mortgage Loans from the related Seller. "Takeout Confirmation": The written notification to the related Seller from Takeout Investor containing all of the relevant details of the Takeout Commitment, which notification may take the form of a trade confirmation. "Takeout Investor": An Agency or a Conduit, as applicable. "Takeout Proceeds": With respect to any Mortgage Loan Pool, the related Trade Principal plus accrued interest as calculated in accordance with Section 4(c), as amended by any related Settlement Modification Letter accepted by Purchaser. "Tangible Net Worth" shall mean, with respect to any Person, as of any date of determination, the consolidated Net Worth of such Person and its subsidiaries, less the consolidated net book value of all assets of such Person and its subsidiaries (to the extent reflected as an asset in the balance sheet of such Person or any subsidiary at such date) which will be treated as intangibles under GAAP, including, without limitation, such items as deferred financing expenses, net leasehold improvements, good will, trademarks, trade names, service marks, copyrights, patents, licenses and unamortized debt discount and expense. "Third Party Underwriter": Any third party, including but not limited to a mortgage loan pool insurer, who underwrites the Mortgage Loan(s) prior to the purchase by Purchaser of the related Mortgage Loan Pool. "Third Party Underwriter's Certificate": A certificate issued by a Third Party Underwriter with respect to a Mortgage Loan, certifying that such Mortgage Loan complies with its underwriting requirements. "Total Indebtedness" shall mean with respect to any Person, for any period, the aggregate Indebtedness of such Person and its subsidiaries during such period, less the amount of any nonspecific consolidated balance sheet reserves maintained in accordance with GAAP. "Trade Assignment": The assignment by the related Seller to Purchaser of the related Seller's rights under a specific Takeout Commitment, in the form of Exhibit D-1, or of the related Seller's rights under all Takeout Commitments, in the form of Exhibit D-2. "Trade Price": The trade price set forth on a Takeout Commitment less any applicable Price Adjustment. "Trade Principal": With respect to any Mortgage Loan Pool, the aggregate outstanding principal balance of such Mortgage Loan multiplied by a percentage equal to the Trade Price. -7- "Trust Receipt": A trust receipt issued by the related Custodian evidencing the Mortgage Loan Pool it holds, in the form attached hereto as Exhibit A, and delivered to Purchaser by such Custodian in accordance with Section 2 hereof. "Warehouse Lender": Any lender providing financing to the related Seller for the purpose of originating or purchasing Mortgage Loans which prior to the Purchase Date has a security interest in such Mortgage Loans as collateral for the obligations of the related Seller to such lender. "Warehouse Lender's Wire Instructions": The wire instructions set forth in a letter in the form of Exhibit B-2. Section 2. Procedures for Purchases of Mortgage Loans. (a) Purchaser may, in its sole discretion, from time to time, purchase one or more Mortgage Loan Pools from Sellers. Prior to Purchaser's actual purchase of any Mortgage Loan Pool, Purchaser shall have received from the related Custodian (i) by facsimile, a Notice of Intent to Issue Trust Receipt, (ii) by facsimile, the Trust Receipt covering all Mortgage Loans (including the Mortgage Loan Pool being purchased) relating to Cash Window Transactions or Conduit Transactions, as applicable, fully completed and authenticated by the related Custodian, with the original Trust Receipt sent by overnight mail to arrive on the Business Day after the day it is sent by facsimile, (iii) a copy of the Takeout Confirmation related to the Mortgage Loan(s) in such Mortgage Loan Pool, together with a Trade Assignment in the form of Exhibit D-1 or Exhibit D-2, executed by the related Seller and Takeout Investor and (iv) an original letter in the form of Exhibit B-1 (an "Exhibit B-1 Letter") from the applicable Warehouse Lender (if any), or an original letter in the form of Exhibit C-1 (an "Exhibit C-1 Letter") in the event that there is no Warehouse Lender. (b) Simultaneously with the payment by Purchaser of the Purchase Price, in accordance with the Warehouse Lender's Wire Instructions or the related Seller's Wire Instructions, as applicable, with respect to a Mortgage Loan Pool, the related Seller hereby conveys to Purchaser all of the related Seller's right, title and interest in and to the related Mortgage Loan(s) free and clear of any lien, claim or encumbrance. Notwithstanding the satisfaction by the related Seller of the conditions specified in this Section 2, Purchaser is not obligated to purchase any Mortgage Loans offered to it hereunder. (c) If Purchaser elects to purchase any Mortgage Loan Pool, Purchaser shall pay the amount of the Purchase Price for such Mortgage Loan Pool by wire transfer of immediately available funds in accordance with the Warehouse Lender's Wire Instructions or if there is no Warehouse Lender, the related Seller's Wire Instructions. Upon such payment and not otherwise, Purchaser shall be deemed to have accepted the related Trade Assignment. Sellers shall not offer for sale to Purchaser any Mortgage Loan as to which the Expiration Date of the related Takeout Commitment is two (2) Business Days or less following the Purchase Date. (d) In the event that Purchaser rejects a Mortgage Loan for purchase for any reason and/or does not transmit the applicable Purchase Price, (i) the Trust Receipt delivered by the related Custodian to Purchaser in anticipation of such purchase shall automatically be null and void and the previously existing Trust Receipt for that type of transaction shall be in full force and effect, (ii) Purchaser shall not consummate the transactions contemplated in the applicable Takeout Confirmation and shall promptly deliver to Takeout Investor (with a copy to the related Seller and the related Custodian) a Notice of Rejection of Trade Assignment, provided, however, that failure of Purchaser to give such notice shall not affect the rejection by Purchaser of the Trade Assignment, and (iii) if Purchaser shall nevertheless receive any portion of the related -8- Takeout Proceeds, Purchaser shall promptly pay such Takeout Proceeds to the related Seller in accordance with the related Seller's Wire Instructions. (e) The terms and conditions of the purchase of each Mortgage Loan Pool shall be as set forth in this Agreement. Section 3. Sale of Mortgage Loans to Takeout Investor. (a) With respect to Mortgage Loan(s) that Purchaser has elected to purchase, Purchaser may, at its option, either (i) instruct the related Custodian to deliver to Takeout Investor, in accordance with Takeout Investor's instructions, the Custodial File in respect of such Mortgage Loans, in the manner and at the time set forth in the related Custodial Agreement, or (ii) provide for the delivery of the Custodial File through an escrow arrangement satisfactory to Purchaser and Takeout Investor. The related Seller shall, within ten (10) Business Days following the Purchase Date, but in no event later than two (2) Business Days prior to the related Expiration Date, deliver to Takeout Investor the related Credit File and thereafter any and all additional documents reasonably requested by Takeout Investor to enable Takeout Investor to purchase such Mortgage Loan(s) on or before the related Expiration Date. (b) Except when Purchaser has accepted a Settlement Modification Letter, unless the Takeout Proceeds are received by Purchaser (in immediately available funds in accordance with Purchaser's Wire Instructions) with respect to the Mortgage Loans in a Mortgage Pool, on or before the related Cure Date, the Completion Fee relating to such Mortgage Pool shall not be payable until the earlier to occur of (1) the date of receipt by Purchaser of the Takeout Proceeds and, (2) the satisfaction by the related Seller of its obligations pursuant to the exercise by Purchaser of any remedial election authorized by this Section 3. Upon receipt by Purchaser, prior to the Cure Date, of a Settlement Modification Letter, duly executed by Takeout Investor and the related Seller, Purchaser may, at its election, agree to the postponement of the Settlement Date and such other matters as are set forth in the Settlement Modification Letter. If Purchaser elects to accept a Settlement Modification Letter, Purchaser shall, not later than two (2) Business Days after receipt of such Settlement Modification Letter execute the Settlement Modification Letter and send, via facsimile, copies of such fully executed Settlement Modification Letter to the related Seller and Takeout Investor. Upon execution by Purchaser of a Settlement Modification Letter, Purchaser shall recalculate the amount of the Completion Fee, if any, due to the related Seller using the new terms included in the Settlement Modification Letter and shall pay to the related Seller, not later than two (2) Business Days after Takeout Investor's purchase of the related Mortgage Loans pursuant to such Settlement Modification Letter, the amount of such recalculated Completion Fee. (c)(1) If a breach by Sellers of this Agreement results in any Mortgage Loan being a Defective Mortgage Loan at the time of the delivery of the related Trust Receipt to Purchaser and in Purchaser's sole judgment the defects in such Mortgage Loan will not be cured (or in fact are not cured) by the related Seller prior to the Cure Date, or in the event that the first Monthly Payment due on the Mortgage Loan following the Purchase Date is not made within 30 days of its Due Date, Purchaser, at its election, may require that the related Seller, upon receipt of notice from Purchaser of its exercise of such right, either (i) repurchase Purchaser's ownership interest in such Mortgage Loan by remitting to Purchaser within one (1) Business Day thereafter (in immediately available funds in accordance with Purchaser's Wire Instructions) the amount paid by Purchaser for such Mortgage Loan plus interest at the Pass-Through Rate on the principal amount thereof from the date of Purchaser's purchase of the related Mortgage Loan Pool to the date of such repurchase or (ii) deliver to the related Custodian a Mortgage Loan in exchange for such Mortgage Loan, which newly delivered Mortgage Loan shall be in all respects acceptable to Purchaser in Purchaser's reasonable discretion. If the aggregate principal balance of all Mortgage Loan(s) that are accepted by Purchaser pursuant to clause (ii) of -9- the immediately preceding sentence is less than the aggregate principal balance of all Mortgage Loan(s) that are being replaced by such Mortgage Loan(s), the related Seller shall remit with such Mortgage Loan to Purchaser an amount equal to the difference between the aggregate principal balance of the new Mortgage Loan(s) accepted by Purchaser and the aggregate principal balance of the Mortgage Loan(s) being replaced thereby. (c)(2) The related Seller's rights and obligations to interim service each Mortgage Loan as provided in this Agreement, shall terminate on the earlier of the related Settlement Date or the date which is thirty days following the related Purchase Date; provided that, Purchaser may in its sole discretion extend such 30 day interim servicing period by one or more additional 30 day periods by providing written notice to the related Seller prior to the termination of such interim servicing period. If an Act of Insolvency or any material default hereunder by either Seller occurs at any time, the Sellers' rights and obligations to service the Mortgage Loan(s), as provided in this Agreement, shall terminate immediately, without any notice or action by Purchaser. Upon any such termination, Purchaser is hereby authorized and empowered to sell and transfer such rights to service the Mortgage Loan(s) for such price and on such terms and conditions as Purchaser shall reasonably determine, and Sellers shall have no right to attempt to sell or transfer such rights to service. The related Seller shall perform all acts and take all actions so that the Mortgage Loan(s) and all files and documents relating to such Mortgage Loan(s) held by the related Seller, together with all escrow amounts relating to such Mortgage Loan(s), are delivered to Successor Servicer. To the extent that the approval of any Third Party Underwriter or any other insurer or guarantor is required for any such sale or transfer, the related Seller shall fully cooperate with Purchaser to obtain such approval. All amounts paid by any purchaser of such rights to service the Mortgage Loan(s) shall be the property of Purchaser. Upon exercise by Purchaser of its remedies under this Section 3(c)(2), Purchaser's obligation to pay and the related Seller's right to receive any portion of the Completion Fee relating to such Mortgage Loan(s) shall automatically be canceled and become null and void, provided that such cancellation shall in no way relieve the related Seller or otherwise affect the obligation of the related Seller to indemnify and hold Purchaser harmless as specified in Section 3(e). (d) Each Mortgage Loan delivered to Purchaser hereunder shall be delivered on a servicing released basis free of any servicing rights in favor of the related Seller and free of any title, interest, lien, encumbrance or claim of any kind of the related Seller and Sellers hereby waives their right to assert any interest, lien, encumbrance or claim of any kind. Upon transfer of such servicing rights to any Successor Servicer, the related Seller shall deliver or cause to be delivered all files and documents relating to each Mortgage Loan held by the related Seller to Successor Servicer. The related Seller shall promptly take such actions and furnish to Purchaser such documents that Purchaser deems reasonably necessary or reasonably appropriate to enable Purchaser to cure any defect in each such Mortgage Loan or to enforce such Mortgage Loans, as appropriate. (e) In the event that a Mortgage Loan or Mortgage Pool is not purchased by a Takeout Investor on or before the Cure Date, upon not less than five (5) days notice from Purchaser to the related Seller, the related Seller shall use commercially reasonable efforts to obtain a Commitment from another Takeout Investor to purchase such Mortgage Loan or Mortgage Pool. (f) Sellers agree to indemnify and hold Purchaser and its assigns harmless from and against all Losses resulting from or relating to any breach or failure to perform by Sellers of any representation, warranty, covenant, term or condition made or to be performed by Sellers under this Agreement. -10- (g) No exercise by Purchaser of its rights under this Section 3 shall relieve Sellers of responsibility or liability for any breach of this Agreement; but in no event shall Sellers be deemed to have waived any defense to any claim made by Purchaser against Sellers (h) In addition to any rights and remedies of Purchaser provided by this Agreement and by law, Purchaser shall have the right, without prior notice to the Sellers, any such notice being expressly waived by Sellers to the extent permitted by applicable law, upon any amount becoming due and payable by Sellers hereunder to set-off and appropriate and apply against such amount any and all Property and deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Purchaser or any Affiliate thereof to or for the credit or the account of the Sellers (including, without limitation, the amount of any accrued and unpaid Completion Fees). Purchaser may also set-off cash and all other sums or obligations owed by Purchaser or its Affiliates to the Sellers (whether under this Agreement or under any other agreement between the parties or between the Sellers and any Affiliate of Purchaser) against all of the Sellers' obligations to Purchaser or its Affiliates (whether under this Agreement or under any other agreement between the parties or between the Sellers and any Affiliate of Purchaser), whether or not such obligations are then due. The exercise of any such right of set-off shall be without prejudice to Purchaser's or its Affiliate's right to recover any deficiency. (i) Sellers agree that, with respect to any Mortgage Loan Pool purchased by Purchaser, the related Takeout Commitment shall have an Expiration Date which is not later than 45 calendar days after the related Purchase Date. Sellers further agree that any additional Takeout Commitment that they obtain with respect to such Mortgage Loan Pool if the initial Takeout Investor does not perform under such Takeout Commitment shall have an Expiration Date which is not later than 60 calendar days after the related Purchase Date. Seller have not and will not take any action, or fail to act where action is required, the result of which would be to impair any Trade Assignment. (j) Sellers shall notify and provide Purchaser with copies of any changes made to the Sale Agreement or any other correspondent agreements between Sellers and any Takeout Investor within 2 Business Days of such change. Section 4. Completion Fee. (a) With respect to each Mortgage Loan Pool that Purchaser elects to purchase hereunder, Purchaser shall pay to the related Seller a Completion Fee subject to the terms of this Agreement. The Completion Fee shall be payable by Purchaser as provided in subsection (d) below. (b) For purposes of calculating that portion of the Completion Fee composed of the "Net Carry Adjustment", the Net Carry Adjustment shall be an amount (which may be a negative number) equal to (A) the product obtained by multiplying the number of days in the period beginning on the Purchase Date to but not including the Settlement Date and the difference between (i) the product of the rate of interest to be borne by the related Mortgage Loans in the Mortgage Pool and the aggregate principal amount of such Mortgage Loans and (ii) the daily application of the applicable Pass-Through Rate to the Purchase Price; divided by (B) 360. (c) If a Mortgage Loan Pool is purchased by Purchaser in the month prior to the month in which the related Settlement Date occurs, (A) all interest which accrues on the related Mortgage Loans, on and after the Purchase Date, through the last day of any month prior to the month in which such Settlement Date -11- occurs, shall be paid to Purchaser by the related Seller, as interim servicer, on a monthly basis on the earlier of (i) the second Business Day of the month following the month such interest accrued or (ii) related Settlement Date and (B) all interest which accrues on the Mortgage Loans in such Mortgage Loan Pool on and after the first day of the month in which such Settlement Date occurs, through the day immediately prior to such Settlement Date, will be paid to Purchaser by Takeout Investor on such Settlement Date unless such Settlement Date occurs after the Cut-off Date of such month in which event the related Seller, as interim servicer, shall pay such amount to Purchaser on such Settlement Date. If a Mortgage Loan Pool is purchased by Purchaser in the same month in which the related Settlement Date occurs, (A) all interest, if any, which accrues on such Mortgage Loan(s) from the first day of such month to but not including the related Purchase Date shall be paid by Purchaser to the related Seller on such Settlement Date, and (B) all interest which accrues on such Mortgage Loan(s), on and after the Purchase Date to but not including the Settlement Date will be paid to Purchaser by Takeout Investor on the Settlement Date unless such Settlement Date occurs after the Cut-off Date or in a month in which interest has been prepaid by the Mortgagor in either of which events the related Seller, as interim servicer, shall pay such amount to Purchaser on such Settlement Date. For purposes of this paragraph all interest payments shall be deemed to accrue at the applicable rate set forth in the related Takeout Commitment. (d) The Completion Fee relating to each Mortgage Loan Pool is payable on the date of receipt by Purchaser of the Trade Price, provided that to the extent such Trade Price is not received on or before the Cure Date, the Purchaser shall have no obligation to pay the Completion Fee. Section 5. Servicing of the Mortgage Loans. (a) Upon payment of the Purchase Price, Purchaser shall own all source files, documents, agreements and papers related to servicing the Mortgage Loans and shall own all derivative information created by the related Seller or other third party used or useful in servicing the Mortgage Loans. The related Seller shall interim service and administer the Mortgage Loan(s) on behalf of Purchaser in accordance with prudent mortgage loan servicing standards and procedures generally accepted by prudent lenders in the mortgage banking industry and in accordance with the requirements of Takeout Investor, provided that the related Seller shall at all times comply with applicable law and the terms of the related Mortgage Loan Documents, and the requirements of any applicable insurer or guarantor including, without limitation, any Third Party Underwriter, so that the insurance in respect of any Mortgage Loan is not voided or reduced. The related Seller shall at all times maintain accurate and complete records of its interim servicing of each Mortgage Loan, and Purchaser may, at any time during the related Seller's business hours on reasonable advance notice, examine and make copies of such records. At the request and in accordance with the directions of Purchaser, the related Seller shall deliver to Purchaser copies of any Credit Files within 3 Business Days of such request by Purchaser. In addition, upon not less than 2 Business Days advance notice to the related Seller, Purchaser shall have the right to perform a due diligence review of the related Seller, including the related Seller's servicing capabilities. If a Mortgage Loan is not purchased by Takeout Investor on or before the Cure Date, the related Seller shall at Purchaser's written request deliver to Purchaser monthly reports regarding the status of such Mortgage Loan, which reports shall include, but shall not be limited to, a description of each Mortgage Loan in default for more than thirty (30) days, and such other circumstances with respect to any Mortgage Loan (whether or not such Mortgage Loan is included in the foregoing list) that could materially adversely affect any such Mortgage Loan, Purchaser's ownership of any such Mortgage Loan or the collateral securing any such Mortgage Loan. The related Seller shall deliver such a report to Purchaser every thirty (30) days until -12- (i) the purchase by Takeout Investor of such Mortgage Loan pursuant to the related Takeout Commitment or (ii) the exercise by Purchaser of any remedial election pursuant to Section 3. (b) Each Seller shall establish and maintain a separate custodial account (the "Custodial Account") entitled "[Name of the related Seller], in trust for Greenwich Capital Financial Products, Inc. and its assignees under the Mortgage Loan Purchase and Sale Agreement dated [the date of this Agreement]" and shall promptly deposit into such account in the form received with any necessary endorsements all collections received in respect of each Mortgage Loan that are payable to Purchaser as the owner of each such Mortgage Loan pursuant to this Agreement. (c) Amounts deposited in the Custodial Account with respect to any Mortgage Loan shall be held in trust for Purchaser as the owner of such Mortgage Loan and shall be released only as follows: (1) Except as otherwise provided in Section 5(c)(2), following receipt by Purchaser or its designee of the Takeout Proceeds for such Mortgage Loan from Takeout Investor, amounts deposited in the Custodial Account related to such Mortgage Loan not otherwise subject to setoff as provided hereunder shall be released to the related Seller. The amounts paid to the related Seller (if any) pursuant to this Section 5(c)(1) shall constitute the related Seller's sole compensation for interim servicing the Mortgage Loans as provided in this Section 5. (2) If Successor Servicer takes delivery of such Mortgage Loan (either under the circumstances set forth in Section 3 or otherwise), all amounts deposited in the Custodial Account shall be paid to Purchaser promptly upon such delivery. (3) If a Mortgage Loan is not purchased by Takeout Investor on or before the Cure Date, during the period thereafter that the related Seller remains as interim servicer, all amounts deposited in the Custodial Account shall be released only in accordance with Purchaser's written instructions. Section 6. Trade Assignments. The related Seller hereby assigns to Purchaser, free of any security interest, lien, claim or encumbrance of any kind, the related Seller's rights, under each Takeout Commitment as to which Takeout Investor has consented to assignment, to deliver the Mortgage Loan(s) specified therein to the related Takeout Investor and to receive the Takeout Proceeds therefor from such Takeout Investor. Purchaser shall not be deemed to have accepted any Trade Assignment unless and until it purchases the related Mortgage Loans, and nothing set forth herein shall be deemed to impair Purchaser's right to reject any Mortgage Loan for any reason, in its sole discretion. Section 7. Transfers of Beneficial Interest in Mortgage Loans by Purchaser. Purchaser may, in its sole discretion, assign all of its right, title and interest in or grant a security interest in any Mortgage Loan purchased by Purchaser hereunder and all rights of Purchaser under this Agreement and the Custodial Agreements, in respect of such Mortgage Loan to a third party (each, an "Assignee"). It is anticipated that such assignment to an Assignee will be made by Purchaser, and Sellers hereby irrevocably consent to such assignment. No notice of such assignment shall be given by Purchaser to the related Seller or Takeout Investor. Assignment by Purchaser of the Mortgage Loans as provided in this Section 7 shall not release Purchaser from its obligations otherwise under this Agreement. Without limitation of the foregoing, an assignment of the Mortgage Loans to an Assignee, as described in this Section 7, shall be effective upon delivery to the Assignee of a duly executed and authenticated Trust Receipt. -13- Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest. (a) From and after the issuance and delivery of the related Trust Receipt, and subject to the remedies of Purchaser in Section 3, the related Seller may remain the last named payee or endorsee of each Mortgage Note and (except with respect to any MERS Mortgage Loan) the mortgagee or assignee of record of each Mortgage in trust for the benefit of Purchaser, for the sole purpose of facilitating the servicing of such Mortgage Loan. Notwithstanding the foregoing, beneficial ownership of each Mortgage and the related Mortgage Note shall be vested solely in Purchaser or the appropriate designee of Purchaser, as the case may be. All rights arising out of the Mortgage Loans including, but not limited to, all funds received by the related Seller after the related Purchase Date on or in connection with a Mortgage Loan shall be vested in Purchaser or one or more designees of Purchaser. (b) Sellers shall maintain a complete set of books and records for each Mortgage Loan which shall be clearly marked to reflect the ownership interest in each Mortgage Loan of the holder of the related Trust Receipt. Upon the written request of Purchaser, the related Seller shall prepare and deliver to MERS an assignment of Mortgage from MERS to Purchaser or its designee. The related Seller shall cause such assignment of Mortgage to be recorded in the public land records upon written request of Purchaser. At any time during the term of this Agreement, Purchaser or the Takeout Investor, as the case may be, may direct the related Seller to cause any MERS Mortgage Loan to be deactivated from the MERS system. In connection with such deactivation, the related Seller shall notify MERS and prepare an assignment of Mortgage from MERS to Purchaser or its designee. In the event that Purchaser specifies that any such assignment be made to the related Seller, such assignment shall be for the sole purpose of facilitating the servicing of such Mortgage Loan and the related Seller shall also prepare an assignment of Mortgage in recordable form from the related Seller to Purchaser or its designee and deliver such unrecorded assignment of Mortgage to the related Custodian pursuant to the terms and conditions of the related Custodial Agreement. (c) Purchaser and Sellers confirm that the transactions contemplated herein are intended to be sales of the Mortgage Loans by Sellers to Purchaser rather than borrowings secured by the Mortgage Loans. In the event, for any reason, any transaction is construed by any court or regulatory authority as a borrowing rather than as a sale, the Sellers and Purchaser intend that Purchaser or its Assignee, as the case may be, shall have a perfected first priority security interest in the Mortgage Loans, the servicing rights appurtenant to the Mortgage Loans, the Custodial Account, and all proceeds thereof, the Takeout Commitments and the proceeds of any and all of the foregoing (collectively, the "Collateral"), free and clear of adverse claims. In such case, the related Seller shall be deemed to have hereby granted to Purchaser or Assignee, as the case may be, a first priority security interest in and lien upon the Collateral, free and clear of adverse claims. In such event, this Agreement shall constitute a security agreement, the related Custodian shall be deemed to be an independent custodian for purposes of perfection of the security interest granted to Purchaser or Assignee, as the case may be, and Purchaser or Assignee, as the case may be, shall have all of the rights of a secured party under applicable law. Section 9. Representations and Warranties. (a) Sellers hereby represent and warrant to Purchaser as of the date hereof and as of the date of each issuance and delivery of a Trust Receipt that: (i) Each Seller is duly organized, validly existing and in good standing under the laws of the state of its organization and has all licenses necessary to carry on its business as -14- now being conducted and is licensed, qualified and in good standing in the state where the Mortgaged Property is located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by each Seller. Each Seller has all requisite power and authority (including, if applicable, corporate power) to execute and deliver this Agreement and to perform in accordance herewith; the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by each Seller and the consummation of the transactions contemplated hereby have been duly and validly authorized; this Agreement, the Custodial Agreements and every other document executed by each Seller pursuant to this Agreement evidences the valid, binding and enforceable obligation of each Seller, except as the enforcement thereof may be limited by applicable receivership, conservatorship ro similar debtor relief laws and except for certain equitable remedies that my not be available regardless of whether enforcement is sought in equity or law; and all requisite action (including, if applicable, corporate action) has been taken by each Seller to make this Agreement valid and binding upon each Seller in accordance with its terms; (ii) No approval of the transactions contemplated by this Agreement from the OTS, the NCUA, the FDIC or any similar federal or state regulatory authority having jurisdiction over each Seller is required, or if required, such approval has been obtained. There are no actions or proceedings pending or affecting each Seller which would adversely and materially affect its ability to perform hereunder. The transfers, assignments and conveyances provided for herein are not subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction; (iii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of each Seller and will not result in the breach of any term or provision of the charter or by-laws of each Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any agreement, indenture or loan or credit agreement or other instrument to which each Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which each Seller or its property is subject; (iv) No consents or approvals are required to be obtained by each Seller or its Parent Company, if any, for the execution, delivery and performance of this Agreement or the Custodial Agreements by each Seller; (v) Each Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Mortgage Loan sold hereunder to any person other than Purchaser, and upon delivery of a related Trust Receipt to Purchaser, Purchaser will be the sole owner thereof, free and clear of any lien, claim or encumbrance; (vi) Neither this Agreement nor any information relating to Sellers that Sellers have delivered or caused to be delivered to Purchaser, including, but not limited to, this Agreement, the Custodial Agreements or Sellers' financial statements, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made therein or herein in light of the circumstances under which they were made, not misleading. Since the furnishing of such documents or information, there has been no -15- change, nor any development or event involving a prospective change that would render any of such documents or information untrue or misleading in any material respect; (vii) There is no pending or to the knowledge of Sellers, threatened action, suit, proceeding, inquiry or investigation, at law or in equity or before or by any court, administrative body or other tribunal (A) that might reasonably prohibit each Seller entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or (C) that might reasonably prohibit or materially and adversely affect the performance by each Seller of its obligations under, or validity or enforceability of, this Agreement; and (viii) The Sellers' aggregate Tangible Net Worth is not less than $100,000,000.00. The ratio of the Sellers' aggregate Total Indebtedness to aggregate Tangible Net Worth is not greater than 13:1. (b) The related Seller hereby represents and warrants to Purchaser as of the date hereof, as of the date of delivery of each Mortgage Pool and as of each Purchase Date that each Custodian is an eligible custodian as determined by FNMA, FHLMC and GNMA, and is not an Affiliate of Sellers. (c) The related Seller hereby represents and warrants to Purchaser with respect to each Mortgage Loan as of each Purchase Date of the related Mortgage Loan that: (i) The Mortgage Loan conforms in all respects to the requirements of this Agreement, the Sale Agreement, the Commitment Guidelines, MERS, if applicable, the Takeout Investor and the requirements of the related Third Party Underwriter's Certificate; (ii) The related Seller is the sole owner and holder of the Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement; (iii) No servicing agreement has been entered into with respect to the Mortgage Loan, or any such servicing agreement has been terminated and there are no restrictions, contractual or governmental, which would impair the ability of Purchaser or Purchaser's designees from servicing the Mortgage Loan; (iv) The Mortgage is a valid and subsisting first lien on the property therein described, as specified on the Mortgage Loan Schedule and the Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage except for liens for real estate taxes and special assessments not yet due and payable. Any pledge account, security agreement, chattel mortgage or equivalent document related to, and delivered to Purchaser with the Mortgage, establishes in the related Seller a valid and subsisting lien on the property described and the priority provided therein, and the related Seller has full right to sell and assign the same to Purchaser; (v) Neither the related Seller nor any prior holder of the Mortgage has modified the Mortgage in any material respect; satisfied, canceled or subordinated the Mortgage in whole or in part; released the Mortgaged Property in whole or in part from the lien of the -16- Mortgage; or executed any instrument of release, cancellation, modification or satisfaction unless such release, cancellation, modification or satisfaction does not adversely affect the value of the Mortgage Loan and is contained in the related Document File; (vi) The Mortgage Loan is not in default, and all Monthly Payments due prior to the Purchase Date and all applicable taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents due prior to the Purchase Date have been paid. Sellers have not advanced funds, or induced or solicited any advance of funds by a party other than the Mortgagor directly or indirectly, for the payment of any amount required by the Mortgage Loan. The collection practices used by the related Seller to service the Mortgage Loan have been in all respects legal, proper, prudent, and customary in the mortgage servicing business. With respect to escrow deposits and payments in those instances where such were required, there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made and no escrow deposits or payments or other charges or payments have been capitalized under any Mortgage or the related Mortgage Note; (vii) There is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace of cure period, would constitute a default, breach, violation or event of acceleration; and Sellers have not waived any default, breach, violation or event of acceleration; (viii) The Mortgage Loan is not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (ix) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms. All parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (x) The Mortgage Loan meets, or is exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury, and the Mortgage Loan is not usurious; (xi) Any and all requirements of any federal, state or local law including, without limitation, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to the Mortgage Loan have been complied with, and Sellers shall deliver to Purchaser upon written demand, evidence of compliance with all such requirements; -17- (xii) Either: (A) the related Seller and every other holder of the Mortgage, if any, were authorized to transact and do business in the jurisdiction in which the Mortgaged Property is located at all times when such party held the Mortgage; or (B) if the related Seller and any other holder of the Mortgage was not authorized to transact business in such jurisdiction, the loan of mortgage funds, the acquisition of the Mortgage (if the related Seller was not the original lender), the holding of the Mortgage and the transfer of the Mortgage did not constitute the transaction of business or the doing of business in such jurisdiction; (xiii) The proceeds of the Mortgage Loan have been fully disbursed, there is no requirement for future advances thereunder and any and all requirements as to completion of any on site or off-site improvements and as to disbursements of any escrow funds, therefor, have been complied with. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loans were paid; (xiv) The related Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including, (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. There is no homestead or other exemption available to the Mortgagor which would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage; (xv) The Mortgage Loan was originated free of any "original issue discount" with respect to which the owner of the Mortgage Loan could be deemed to have income pursuant to Sections 1271 et seq. of the Internal Revenue Code; (xvi) Each Mortgage Loan was originated by an institution described in Section 3(a)(41)(A)(ii) of the Securities Exchange Act of 1934, as amended; (xvii) At origination, the Mortgaged Property was free and clear of all mechanics' and materialmen's liens or liens in the nature thereof which are or could be prior to the Mortgage lien, and no rights are outstanding that under law could give rise to any such lien; (xviii) All of the improvements which are included for the purpose of determining the Appraised Value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property; (xix) No improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation and all inspections, licenses and certificates required to be made or issued with respect to all occupied portions of the Mortgaged Property, and with respect to the use and occupancy of the same, including but not limited to certificates of occupancy and fire underwriting certificates, had been made or obtained from the appropriate authorities and the Mortgaged Property was lawfully occupied under applicable law. No improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation and all inspections, licenses and certificates required to be made or issued with respect to the Mortgaged Property, and with respect to the use and occupancy of the same, including but not limited to certificates of -18- occupancy and fire underwriting certificates, have been made or obtained from the appropriate authorities and the Mortgaged Property is lawfully occupied under applicable law; (xx) There is no proceeding pending for the total or partial condemnation of the Mortgaged Property and said property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other similar casualty; (xxi) The Custodial File contains and the Credit File contains or shall contain prior to the Cure Date each of the documents and instruments specified to be included therein duly executed and in due and proper form and each such document or instrument is either in form acceptable to the Applicable Agency or is a uniform instrument. Each Mortgage Note and Mortgage are on forms approved by the Applicable Agency with such riders as have been approved by the Applicable Agency; the related Seller is currently in possession of the Custodial File for each Mortgage Loan and is in possession or shall be prior to the Expiration Date of the Credit File for each Mortgage Loan and there are no custodial agreements in effect adversely affecting the rights of the related Seller to make the deliveries required within the required time. The related Seller shall not deliver a Credit File to Takeout Investor prior to the related Commitment Date; (xxii) The lien of each Mortgage Loan securing the consolidated principal amount thereof is expressly insured as having first lien priority or is covered by an attorney's opinion of title acceptable to GNMA, FNMA or FHLMC, as applicable, if customarily provided in the jurisdiction in which the related Mortgaged Property is located, or a mortgage title insurance policy acceptable to FNMA, issued by, and the valid and binding obligation of, a title insurer acceptable to FNMA and qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the related Seller, its successors and assigns, as to the validity and appropriate priority of the lien created by the Mortgage in the original principal amount of the Mortgage Loan. The related Seller is the named insured and the sole insured of such mortgage title insurance policy, and the assignment to Purchaser of the related Seller's interest in such mortgage title insurance policy does not require the consent of or notification to the insurer, such mortgage title insurance policy is in full force and effect and will be in full force and effect and inure to the benefit of Purchaser upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such mortgage title insurance policy and no prior holder of the related Mortgage, including the related Seller, has done, by act or omission, anything which would impair the coverage of such mortgage title insurance policy; (xxiii) All buildings upon the Mortgaged Property are insured against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Mortgaged Property is located, pursuant to fire and hazard insurance policies with extended coverage or other insurance required by the Sale Agreement by insurance companies reasonably acceptable to Purchaser, in an amount at least equal to the lesser of (i) the outstanding principal balance of the Mortgage Loan or (ii) the maximum insurable value (replacement cost without deduction for depreciation) of the improvements constituting the Mortgaged Property. If applicable laws limit the amount of such insurance to the replacement cost of the improvements constituting the Mortgaged Property or to some other amount, then such insurance is in an amount equal to the maximum allowed by such laws. Such insurance amount is sufficient to prevent the Mortgagor or the loss payee under the policy from -19- becoming a co-insurer. The insurer issuing such insurance is acceptable pursuant to the Sale Agreement. All individual insurance policies contain a standard mortgagee clause naming the related Seller, its successors and assigns, as mortgagee and all premiums thereon have been paid and providing that such policy may not be canceled without prior notice to the related Seller. Any proceeds of such insurance shall be held in trust for the benefit of Purchaser. Each Mortgage obligates the Mortgagor thereunder to maintain all such insurance at Mortgagor's cost and expense, and upon the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor. Any flood insurance required by applicable law has been obtained; (xxiv) The original principal amount of the related Mortgage Note either (a) was not more than 80% of the lesser of (i) the purchase price of the Mortgaged Property paid by the Mortgagor at the origination of the Mortgage Loan and (ii) the Appraised Value of the Mortgaged Property, such Appraised Value being, for the purposes hereof, the amount set forth in an appraisal made in connection with the origination of such Mortgage Loan, or (b) is and will be insured as to payment defaults by a policy of primary mortgage guaranty insurance in accordance with the Sale Agreement and all provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage Loan subject to any such policy of primary mortgage guaranty insurance obligates the Mortgagor thereunder to maintain such insurance and pay all premiums and charges in connection therewith. The original principal amount of each Mortgage Note was not more than 100% of the lesser of the Appraised Value or the purchase price of the related Mortgaged Property paid by the Mortgagor at the origination of the Mortgage Loan. No action, event or state of facts exists or has existed which, because of its involving or arising from any dishonest, fraudulent, criminal, negligent or knowingly wrongful act, error or omission by the Mortgagor or the originator or servicer of the Mortgage Loan, would result in the exclusion from, denial of, or defense to coverage which otherwise would be provided by such insurance; (xxv) At the time that the related Mortgage Loan was made the Mortgagor represented that the Mortgagor would occupy such Mortgaged Property as Mortgagor's primary residence; (xxvi) The Mortgaged Property consists of a single parcel of real property; (xxvii) There are no circumstances or conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that can be reasonably expected to (A) cause private institutional investors to regard the Mortgage Loan as an unacceptable investment, (B) cause the Mortgage Loan to become delinquent or (C) adversely affect the value or marketability of the Mortgage Loan; (xxviii) Such Mortgage Loan was, immediately prior to its purchase by Purchaser of the related Mortgage Loan Pool, owned solely by the related Seller, is not subject to any lien, claim or encumbrance, including, without limitation, any such interest pursuant to a loan or credit agreement for warehousing mortgage loans, and was originated and serviced in accordance with all applicable law and regulations, including without limitation the Federal Truth-in-Lending Act, the Real Estate Settlement Procedures Act, regulations issued pursuant -20- to any of the aforesaid, and any and all rules, requirements, guidelines and announcements of the Applicable Agency, and, as applicable, the FHA and VA, as the same may be amended from time to time; (xxix) To the extent applicable, such Mortgage Loan is either insured by the FHA under the National Housing Act, guaranteed by the VA under the Servicemen's Readjustment Act of 1944 or is otherwise insured or guaranteed in accordance with the requirements of the GNMA, FNMA or FHLMC Program, as applicable, and is not subject to any defect that would prevent recovery in full or in part against the FHA, VA or other insurer or guarantor, as the case may be; (xxx) Such Mortgage Loan is in strict compliance with the requirements and specifications (including, without limitation, all representations and warranties required in respect thereof) set forth in the GNMA Guide, FNMA Guide or FHLMC Guide, or the guide or agreements entered into with any Conduit, as applicable; (xxxi) To the extent applicable, each Mortgage Loan is being serviced by a mortgage sub-servicer having all Approvals necessary to make such Mortgage Loan eligible to back a GNMA, FNMA or FHLMC Security, as applicable; (xxxii) The Mortgage Note, the Mortgage, an assignment of Mortgage from the related Seller in blank (except with respect to MERS Mortgage Loans), and any other documents required to be delivered with respect to each Mortgage Loan pursuant to the related Custodial Agreement, have been delivered to the related Custodian all in compliance with the specific requirements of the related Custodial Agreement; (xxxiii) The Mortgage Loan is subject to a valid and enforceable Takeout Commitment and the related Seller has no knowledge that Takeout Investor will not be able to perform under the terms of such Takeout Commitment; (xxxiv) With respect to each MERS Mortgage Loan, a Mortgage Identification Number has been assigned by MERS and such Mortgage Identification Number is accurately provided on the Mortgage Loan Schedule. The related Assignment of Mortgage to MERS has been duly and properly recorded; (xxxv) With respect to each MERS Mortgage Loan, Sellers have not received any notice of liens or legal actions with respect to such Mortgage Loan and no such notices have been electronically posted by MERS; and (xxxvi) With respect to any MERS Mortgage Loan, the related Takeout Investor has been notified that the mortgagee of record is MERS and has consented to such assignment of such MERS Mortgage Loan. The representations and warranties of Sellers in this Section 9 are unaffected by and supersede any provision in any endorsement of any Mortgage Loan or in any assignment with respect to such Mortgage Loan to the effect that such endorsement or assignment is without recourse or without representation or warranty. -21- Section 10. Covenants of Sellers. Sellers hereby covenant and agree with Purchaser as follows: (a) The Sellers shall deliver (or make available via one or more publicly accessible Internet websites): (i) Within ninety (90) days after the end of each fiscal year of each Seller, the consolidated balance sheets of each Seller and its consolidated subsidiaries, which will be in conformity with GAAP, and the related consolidated statements of income showing the financial condition of each Seller and its consolidated subsidiaries as of the close of such fiscal year, and the results of operations during such year, and a consolidated statement of cash flows, as of the close of such fiscal year, setting forth, in each case, in comparative form the corresponding figures for the preceding year. The foregoing consolidated financial statements are to be reported on by, and to carry the report (in accordance with generally accepted accounting principles) of an independent public accountant of national standing acceptable to Purchaser and are to be accompanied by a letter of management in form and substance reasonably acceptable to Purchaser; (ii) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of each Seller, unaudited consolidated balance sheets and consolidated statements of income, all to be in a form acceptable to Purchaser, showing the financial condition and results of operations of each Seller and its consolidated subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, setting forth, in each case, in comparative form the corresponding figures for the corresponding periods of the preceding fiscal year, certified by a financial officer of each Seller (reasonably acceptable to Purchaser) as presenting fairly the financial position and results of operations of each Seller and its consolidated subsidiaries and as having been prepared in accordance with GAAP consistently applied, in each case, subject to normal year-end audit adjustments; (iii) Promptly after receipt thereof, a copy of each other report submitted to each Seller by its independent public accountants in connection with any annual, interim or special audit of each Seller; (iv) Promptly after becoming aware thereof, notice of (1) the commencement of, or any determination in, any legal, judicial or regulatory proceedings, (2) any dispute between each Seller or its Parent Company and any governmental or regulatory body, (3) any event or condition, which, in any case of (1) or (2) if adversely determined, would have a material adverse effect on (A) the validity or enforceability of this Agreement, (B) the financial condition or business operations of each Seller, or (C) the ability of each Seller to fulfill its obligations under this Agreement or (4) any material adverse change in the business, operations, prospects or financial condition of each Seller, including, without limitation, the insolvency of each Seller or its Parent Company; (v) Promptly after becoming available, copies of all financial statements, reports, notices and proxy statements sent by its Parent Company, each Seller or any of each Seller's consolidated subsidiaries in a general mailing to their respective stockholders and of all reports and other material (including copies of all registration statements under the Securities -22- Act of 1933, as amended) filed by any of them with any securities exchange or with the Securities and Exchange Commission or any governmental authority succeeding to any or all of the functions of said Commission; (vi) Promptly after becoming available, copies of any press releases issued by its Parent Company or each Seller and copies of any annual and quarterly financial reports and any reports on Form H-(b)12 which its Parent Company or each Seller may be required to file with the OTS, SEC, FDIC or comparable reports which a Parent Company or each Seller may be required to file with the OTS, SEC, FDIC or any other federal banking agency containing such financial statements and other information concerning such Parent Company's or each Seller's business and affairs as is required to be included in such reports in accordance with the rules and regulations of the SEC, OTS, FDIC or such other banking agency, as may be promulgated from time to time; (vii) Prior to the first Purchase Date hereunder and at the written request of Purchaser at any time thereafter, a copy of an Officer's Certificate in the form attached hereto as Exhibit I together with (1) the articles of incorporation of the related Seller and any amendments thereto, certified by the Secretary of State of each Seller's state of incorporation, (2) a copy of each Seller's by-laws, together with any amendments thereto, and (3) a copy of the resolutions adopted by each Seller's Board of Directors authorizing each Seller to enter into this Agreement and the Custodial Agreements and authorizing one or more of each Seller's officers to execute the documents related to this Agreement and the Custodial Agreements. In addition, on each Purchase Date hereunder, the related Seller shall provide to Purchaser an Officer's Certificate in the form attached hereto as Exhibit J; (viii) Evidence that all other actions necessary or, in the opinion of Purchaser, desirable to perfect and protect Purchaser's interest in the Mortgage Loans and other Collateral have been taken, including, without limitation, duly executed Uniform Commercial Code financing statements on Form UCC-1 made available to Purchaser; (ix) Notification of any material adverse change in any committed warehouse facility maintained by each Seller within two (2) Business days of such change; and (x) Such supplements to the aforementioned documents and such other information regarding the operations, business, affairs and financial condition of its Parent Company, each Seller or any of each Seller's consolidated subsidiaries as Purchaser may reasonably request. With the exception of subsections (iv), (viii) and (ix) of this Section 10(a), if Seller breaches any of its covenants under this Section 10(a), Seller shall have five (5) Business Days to cure such breach if such breach is susceptible to cure. (b) Neither each Seller nor any Affiliate thereof will acquire at any time any economic interest in or obligation with respect to any Mortgage Loan; (c) Under GAAP and for federal income tax purposes, each Seller will report each sale of a Mortgage Loan to the Purchaser hereunder as a sale of the ownership interest in the Mortgage Loan. Each -23- Seller has been advised by or has confirmed with its independent public accountants that the foregoing transactions will be so classified under GAAP; (d) The consideration received by the related Seller upon the sale of each Mortgage Loan Pool will constitute reasonably equivalent value and fair consideration for the ownership interest in the Mortgage Loans included therein; (e) Each Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, any sale of a Mortgage Loan to the Purchaser; (f) Each Seller will not sell any Mortgage Loan to the Purchaser with any intent to hinder, delay or defraud any of each Seller's creditors; (g) Each Seller shall comply, in all material respects, with all laws, rules and regulations to which it is or may become subject; (h) Each Seller shall, upon request of Purchaser, promptly execute and deliver to Purchaser all such other and further documents and instruments of transfer, conveyance and assignment, and shall take such other action as Purchaser may require more effectively to transfer, convey, assign to and vest in Purchaser and to put Purchaser in possession of the property to be transferred, conveyed, assigned and delivered hereunder and otherwise to carry out more effectively the intent of the provisions under this Agreement; and (i) Each Seller is a member of MERS in good standing and current in the payment of all fees and assessments imposed by MERS, and has complied with all rules and procedures of MERS. Each Seller has entered into the Electronic Tracking Agreement. In accordance with the provisions of the Electronic Tracking Agreement, each Seller shall (1) cause each Mortgage Loan that is to be sold to the Purchaser on a Purchase Date the Mortgage for which is recorded in the name of MERS to be designated a MERS Mortgage Loan and (2) cause the Purchaser to be designated an Associated Member (as defined in the Electronic Tracking Agreement) with respect to each such MERS Mortgage Loan. In connection with the assignment of any Mortgage Loan registered on the MERS System, each Seller agrees that at the request of the Purchaser it will, at each Sellers' own cost and expense, cause the MERS System to indicate that such Mortgage Loan has been transferred to the Purchaser in accordance with the terms of this Agreement by including in MERS' computer files (a) the code in the field which identifies the specific owner of the Mortgage Loans and (b) the code in the field "Pool Field" which identifies the series in which such Mortgage Loans were sold. Each Seller further agrees that it will not alter codes referenced in this paragraph with respect to any Mortgage Loan at any time that such Mortgage Loan is subject to this Agreement, and each Seller shall retain its membership in MERS at all times during the term of this Agreement. Section 11. Term. This Agreement shall continue in effect until terminated as to future transactions by written instruction signed by either the Sellers or Purchaser and delivered to the other, provided that no termination will affect the obligations hereunder as to any of the Mortgage Loans purchased hereunder. Section 12. Exclusive Benefit of Parties; Assignment. This Agreement is for the exclusive benefit of the parties hereto and their respective successors and assigns and shall not be deemed to give any legal or equitable right to any other person, including the Custodians. Except as provided in Section 7, no rights or obligations created by this Agreement may be assigned by any party hereto without the prior written consent of the other parties. -24- Any Person into which the related Seller may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which the related Seller shall be a party, or any Person succeeding to the business of the related Seller, shall be the successor of the related Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding Section 13. Amendments; Waivers; Cumulative Rights. This Agreement may be amended from time to time only by written agreement of the Sellers and Purchaser. Any forbearance, failure or delay by either party in exercising any right, power or remedy hereunder shall not be deemed to be a waiver thereof, and any single or partial exercise by Purchaser of any right, power or remedy hereunder shall not preclude the further exercise thereof. Every right, power and remedy of Purchaser shall continue in full force and effect until specifically waived by Purchaser in writing. No right, power or remedy shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred hereby or hereafter available at law or in equity or by statute or otherwise. Section 14. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Section 15. Effect of Invalidity of Provisions. In case any one or more of the provisions contained in this Agreement should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. Section 16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws rules. Section 17. Notices. Any notices, consents, elections, directions and other communications given under this Agreement shall be in writing and shall be deemed to have been duly given when telecopied or delivered by overnight courier, personally delivered, or on the third day following the placing thereof in the mail, first class postage prepaid, to the respective addresses set forth on the cover page hereof for Sellers and Purchaser, or to such other address as either party shall give notice to the other party pursuant to this Section 17. Copies of all notices to Purchaser shall be delivered to the attention of David Katze. Notices to any Assignee shall be given to such address as Assignee shall provide to Sellers in writing. Section 18. Entire Agreement. This Agreement and the Custodial Agreements contain the entire agreement between the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements between them, oral or written, of any nature whatsoever with respect to the subject matter hereof, including without limitation, a certain unconsummated Mortgage Loan Purchase and Sale Agreement, dated as of November 1, 2003, among Sellers and Purchaser. Section 19. Costs of Enforcement. In addition to any other indemnity specified in this Agreement, Sellers agree to reimburse Purchaser as and when billed by Purchaser for all Purchaser's reasonable out-of-pocket costs and expenses, including reasonable attorneys' fees and expenses of Purchaser and/or Assignee, incurred in connection with the enforcement or the preservation of Purchaser's rights under this Agreement, including any costs incurred in the event of a breach by Sellers of this Agreement, the Custodial Agreements or a Takeout Commitment. -25- Section 20. Consent to Service. Each party irrevocably consents to the service of process by registered or certified mail, postage prepaid, to it at its address given in or pursuant to Section 17. Section 21. Submission to Jurisdiction. With respect to any claim arising out of this Agreement each party (a) irrevocably submits to the nonexclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, and (b) irrevocably waives (i) any objection which it may have at any time to the laying of venue of any suit, action or proceeding arising out of or relating hereto brought in any such court, (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) the right to object, with respect to such claim, suit, action or proceeding brought in any such court, that such court does not have jurisdiction over such party. Section 22. Jurisdiction Not Exclusive. Nothing herein will be deemed to preclude either party hereto from bringing an action or proceeding in respect of this Agreement in any jurisdiction other than as set forth in Section 21. Section 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 24. Construction. The headings in this Agreement are for convenience only and are not intended to influence its construction. References to Sections, Exhibits and Annexes in this Agreement are to the Sections of and Exhibits to this Agreement. The Exhibits are part of this Agreement, and are incorporated herein by reference. The singular includes the plural, the plural the singular, and the words "and" and "or" are used in the conjunctive or disjunctive as the sense and circumstances may require. Section 25. Further Assurances. Sellers and Purchaser each agree to execute and deliver to the other such reasonable and appropriate additional documents, instruments or agreements as may be necessary or appropriate to effectuate the purposes of this Agreement. Section 26. Joint and Several Liability. The liability of the Sellers hereunder is joint and several. The Sellers hereby: (a) acknowledge and agree that the Purchaser shall have no obligation to proceed against one Seller before proceeding against the other Seller, (b) waive any defense to their obligations under this Agreement, based upon or arising out of the disability or other defense or cessation of liability of one Seller versus the other or of any other Seller, and (c) waive any right of subrogation or ability to proceed against any Person until all amounts owed to Purchaser by Sellers pursuant to this Agreement are paid in full. -26- IN WITNESS WHEREOF, Purchaser and Sellers have duly executed this Agreement as of the date and year set forth on the cover page hereof. GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: /s/ Michael Pillari ------------------------------------------- Name: Michael Pillari Title: Managing Director AMERICAN HOME MORTGAGE CORP. By: /s/ Michael Strauss ------------------------------------------- Name: Michael Strauss Title: President COLUMBIA NATIONAL, INCORPORATED By: /s/ Michael Strauss ------------------------------------------- Name: Michael Strauss Title: President -27- EXHIBIT A TRUST RECEIPT RESIDENTIAL MORTGAGE LOANS No._____ Date: [Residential Funding Corporation/Deutsche Bank National Trust Company], as custodian (the "Custodian"), certifies that Greenwich Capital Financial Products, Inc. ("Purchaser") is the registered owner of this Trust Receipt evidencing ownership of certain mortgage loans (the "Mortgage Loans") listed by identifying number on the schedule attached to this Trust Receipt and further identified in the books and records of the Custodian, owned of record and interim serviced by [American Home Mortgage Corp./Columbia National, Incorporated] (the "Seller"). The Mortgage Note and Mortgage for each Mortgage Loan are held by Custodian, pursuant to the terms and conditions of that certain Custodial Agreement dated as of January 1, 2004 (the "Agreement") among Purchaser, Seller, [American Home Mortgage Corp./Columbia National, Incorporated] and Custodian. To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Agreement. This Trust Receipt is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the holder of this Trust Receipt by virtue of the acceptance hereof assents and by which such holder is bound. This Trust Receipt supersedes any Trust Receipt bearing an earlier date. This Trust Receipt shall not be valid or become obligatory for any purpose unless and until the Certificate of Authentication appearing below has been duly executed by the Custodian. IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly executed under its official seal. [RESIDENTIAL FUNDING CORPORATION/DEUTSCHE BANK NATIONAL TRUST COMPANY], as Custodian By: ----------------------------------- Authorized Officer (Seal) Attest: By: --------------------------- Authorized Officer CERTIFICATE OF AUTHENTICATION This Trust Receipt is the Trust Receipt issued under the above-described Agreement. Dated: By: --------------------------- Authorized Officer TRUST RECEIPT NO. RESIDENTIAL MORTGAGE LOANS Following are the identifying numbers of the Mortgage Loans subject to this Trust Receipt: EXHIBIT B-1 [WAREHOUSE LENDER'S RELEASE] Greenwich Capital Financial Products, Inc. 600 Steamboat Road Steamboat, Connecticut Greenwich, Connecticut 06830 Ladies and Gentlemen: We hereby release all right, interest or claim of any kind, including any security interest or lien, with respect to the mortgage loan(s) referenced below, such release to be effective automatically without any further action by any party, upon payment, in one or more installments, by Greenwich Capital Financial Products, Inc., in accordance with the wire instructions which we delivered to you in a letter dated , ____, in immediately available funds, of an aggregate amount equal to the product of A multiplied by B (such product being rounded to the nearest $0.01) multiplied by C.* Street Loan # Mortgagor Address City State Zip Very truly yours, [WAREHOUSE LENDER] By: --------------------------------- Name: ------------------------------- Title: ------------------------------ *A = weighted average trade price B = principal amount of the mortgage loan(s) C = 1 minus the discount set forth on the related confirmation EXHIBIT B-2 [WAREHOUSE LENDER'S WIRE INSTRUCTIONS] Greenwich Capital Financial Products, Inc. 600 Steamboat Road Steamboat, Connecticut Greenwich, Connecticut 06830 Re: Greenwich Capital Financial Products, Inc. Mortgage Loan Purchase Program with [American Home Mortgage Corp./Columbia National, Incorporated] Ladies and Gentlemen: Set forth below are [Warehouse Lender's] wire instructions applicable to the above-referenced Purchase Program. Wire Instructions: - ----------------- Bank Name: City, State: ABA #: Account #: Account Name: Please acknowledge receipt of this letter in the space provided below. This letter supersedes and replaces any prior notice specifying the name of [Warehouse Lender] and setting forth wire instructions and shall remain in effect until superseded and replaced by a letter, in the form of this letter, executed by each of us and acknowledged by you. Very truly yours, [AMERICAN HOME MORTGAGE CORP./COLUMBIA NATIONAL, INCORPORATED] By: --------------------------------- Name: ------------------------------- Title: ------------------------------ [WAREHOUSE LENDER(S)]* By: --------------------------------- Name: ------------------------------- Title: ------------------------------ GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: --------------------------- Name: ------------------------- Title: ------------------------ - -------- * The authorized officer of each warehouse lender executing this letter must be the same authorized officer as signs the Exhibit B-1 Letter. Not applicable if there is no warehouse lender. EXHIBIT C-1 [SELLER'S RELEASE] Greenwich Capital Financial Products, Inc. 600 Steamboat Road Greenwich, Connecticut 06830 Ladies and Gentlemen: With respect to the mortgage loan(s) referenced below (a) we hereby certify to you that the mortgage loan(s) is not subject to a lien of any warehouse lender and (b) we hereby release all right, interest or claim of any kind with respect to such mortgage loan, such release to be effective automatically without any further action by any party upon payment from Purchaser to Seller of an aggregate amount equal to the product of A multiplied by B (such product being rounded to the newest $0.01) multiplied by C* in accordance with our wire instructions in effect on the date of such payment. Street Loan # Mortgagor Address City State Zip Very truly yours, [AMERICAN HOME MORTGAGE CORP./COLUMBIA NATIONAL, INCORPORATED] By: ----------------------------------- Name: --------------------------------- Title: -------------------------------- **Confirmed by: [WAREHOUSE LENDER] By: --------------------------- Name: ------------------------- Title: ------------------------ *A = weighted average trade price B = principal amount of the mortgage loan(s) C = 1 minus the discount set forth on the related confirmation ** If applicable. EXHIBIT C-2 [SELLER'S WIRE INSTRUCTIONS] Greenwich Capital Financial Products, Inc. 600 Steamboat Road Greenwich, Connecticut 06830 Re: Custodial Agreement dated as of January 1, 2004, among Greenwich Capital Financial Products, Inc, American Home Mortgage Corp., Columbia National, Incorporated and [Residential Funding Corporation/Deutsche Bank National Trust Company] Ladies and Gentlemen: Capitalized terms used herein and not defined herein shall have the meanings ascribed to such terms in the above-referenced Custodial Agreement. Set forth below are Seller's Wire Instructions applicable to the above-referenced Custodial Agreement. Wire Instructions: - ----------------- Bank Name: City, State: ABA #: Account #: Account Name: Please acknowledge receipt of this letter in the space provided below. This letter supersedes and replaces any prior notice specifying the name of Seller and Seller's Wire Instructions and shall remain in effect until superseded and replaced by a letter, in the form of this letter, executed by each of us and acknowledged by you. Very truly yours, [AMERICAN HOME MORTGAGE CORP./COLUMBIA NATIONAL, INCORPORATED]** By: --------------------------------- Name: ------------------------------- Title: ------------------------------ Receipt acknowledged by: GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: --------------------------- Name: ------------------------- Title: ------------------------ - -------- ** The authorized officer executing this letter must be the same authorized officer as signs the Exhibit C-1 Letter. Applicable if there is no Warehouse lender. EXHIBIT D-1 [TRADE ASSIGNMENT] ("Takeout Investor") [Address] Attention: Ladies and Gentlemen: Attached hereto is a correct and complete copy of your confirmation of commitment (the "Commitment"), trade-dated _, ____, to purchase $ of mortgage loans (the "Mortgage Loans") at a purchase price of . This is to confirm that (i) the Commitment is in full force and effect, (ii) the Commitment is hereby assigned to Greenwich Capital Financial Products, Inc. ("GCFP"), (iii) you will accept delivery of such Mortgage Loans directly from GCFP, (iv) you will pay GCFP for such Mortgage Loans, (v) upon GCFP's acceptance of this assignment, GCFP is obligated to make delivery of such Mortgage Loans to you in accordance with the attached Commitment and (vi) upon GCFP's acceptance of this assignment, you will release Seller from its obligation to deliver the Mortgage Loans to you under the Commitment. Upon GCFP's determination not to accept an assignment, GCFP will notify you that this assignment is rejected. Not later than 2:00 P.M. Eastern Standard Time one business day prior to your satisfaction of the Commitment, you shall fax a purchase confirmation to GCFP at (203) 625-2700, Attention: . Payment will be made to GCFP in immediately available funds. Very truly yours, [AMERICAN HOME MORTGAGE CORP./COLUMBIA NATIONAL, INCORPORATED] By: ----------------------------- Name: --------------------------- Title: -------------------------- Agreed to, confirmed and accepted: [TAKEOUT INVESTOR] By: --------------------------- Name: ------------------------- Title: ------------------------ EXHIBIT D-2 [TRADE ASSIGNMENT] (Blanket) ____("Takeout Investor") [Address] Attention: Ladies and Gentlemen: This is to confirm that (i) your commitments ("Commitment"), made from time to time, to purchase mortgage loans (the "Mortgage Loans") from Seller may be assigned to Greenwich Capital Financial Products, Inc. ("GCFP"), (ii) you will accept delivery of such Mortgage Loans directly from GCFP, (iii) you will pay GCFP for such Mortgage Loans, (iv) upon GCFP's acceptance of this assignment with respect to any Commitment, GCFP will be obligated to make delivery of such Mortgage Loans to you in accordance with such Commitment and (v) upon GCFP's acceptance of such assignment with respect to any Commitment, you will release Seller from its obligation to deliver the related Mortgage Loans to you under such Commitment but Seller will not be released from any of its other obligations under the Loan Purchase and Sale Agreement. Your agreement to the foregoing shall remain in effect until terminated by your giving notice of such termination to Seller in the form attached hereto as Exhibit 1. Upon GCFP's determination not to accept an assignment, GCFP will notify you that this assignment is rejected with respect to the related Commitment. Not later than 9:00 A.M. Eastern Standard Time on the business day that you purchase the Mortgage Loans, you shall fax a purchase list containing the information required by the Mortgage Loan Settlement Summary to GCFP at (203) 625-2700, Attention: . You may also transmit such information electronically by 10:00 A.M. on such business day. Payment will be made to GCFP in immediately available funds. Very truly yours, [AMERICAN HOME MORTGAGE CORP./COLUMBIA NATIONAL, INCORPORATED] By: ----------------------------- Name: --------------------------- Title: -------------------------- Agreed to, confirmed and accepted: [TAKEOUT INVESTOR] By: --------------------------- Name: ------------------------- Title: ------------------------ EXHIBIT 1 to EXHIBIT D-2 [WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT] [American Home Mortgage Corp. 520 Broadhollow Road Melville, New York 11747 ] [Columbia National, Incorporated 7142 Columbia Gateway Drive Columbia, MD 21046 ] Ladies and Gentlemen: The undersigned hereby terminates its agreement to Seller's assignment of Commitments to GCFP, which approval was given pursuant to the Trade Assignment dated _____. This termination shall be effective as of _________ but shall not affect the assignment of any Commitment which assignment was made prior to the date hereof. Capitalized terms not defined herein shall have the meanings set forth in the Trade Assignment. Very truly yours, [TAKEOUT INVESTOR] By: ----------------------------- Name: --------------------------- Title: -------------------------- Copy to: Greenwich Capital Financial Products, Inc. EXHIBIT E [PURCHASER'S WIRE INSTRUCTIONS] [Takeout Investor] [Address] Re: Custodial Agreement dated as of January 1, 2004, among Greenwich Capital Financial Products, Inc., American Home Mortgage Corp., Columbia National, Incorporated and [Residential Funding Corporation/Deutsche Bank National Trust Company] Ladies and Gentlemen: Capitalized terms used herein and not defined herein shall have the meanings ascribed to such terms in the above-referenced Custodial Agreement. Set forth below are the Purchaser's Wire Instructions applicable to the above-referenced Custodial Agreement. Wire Instructions: - ----------------- Bank Name: City, State: ABA #: Account #: Account Name: Please acknowledge receipt of this letter in the space provided below. This letter supersedes and replaces any prior notice specifying the name of Purchaser and the Purchaser's Wire Instructions and shall remain in effect until superseded and replaced by a letter, in the form of this letter, executed by each of us and acknowledged by you. Very truly yours, GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: ----------------------------- Name: --------------------------- Title: -------------------------- Receipt acknowledged by: [TAKEOUT INVESTOR] By: --------------------------- Name: ------------------------- Title: ------------------------ cc: [American Home Mortgage Corp./Columbia National, Incorporated] Residential Funding Corporation EXHIBIT F [FORM OF CONFIRMATION] TO: [American Home Mortgage Corp. 520 Broadhollow Road Melville, new York 11747 ] [Columbia National, Incorporated 7142 Columbia Gateway Drive Columbia, MD 21046 ] DATE: RE: Confirmation of Purchase of Mortgage Loans Greenwich Capital Financial Products, Inc. ("Purchaser") is pleased to confirm its agreement to purchase and your agreement to sell the Mortgage Loans relating to the pool number referred to herein, pursuant to the Mortgage Loan Purchase and Sale Agreement, dated as of January 1, 2004 (the "Mortgage Loan Purchase and Sale Agreement"), between Purchaser and Sellers, under the following terms and conditions: Pool No. Check as appropriate: Cash Window Transaction Conduit Transaction (Conduit: ) Purchase Date Settlement Date Discount Purchase Price Pass-Through Rate Total Principal Amount of the Pool Capitalized terms used and not otherwise defined herein shall have the meanings ascribed in the Mortgage Loan Purchase and Sale Agreement. Very truly yours, GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: --------------------------- Name: ------------------------- Title: ------------------------ EXHIBIT G [NOTICE OF REJECTION OF TRADE ASSIGNMENT] ____________("Takeout Investor") [Address] Attention: Ladies and Gentlemen: Greenwich Capital Financial Products, Inc. ("GCFP") hereby notifies you that it does not intend to purchase a 100% ownership interest in $ in mortgage loans (the "Mortgage Loans") that you committed to purchase from the [American Home Mortgage Corp./Columbia National, Incorporated] pursuant to your confirmation of commitment (the "Commitment") trade-dated , ____ a copy of which is attached hereto. Accordingly, the assignment of the Commitment by Seller to GCFP is hereby rejected, and GCFP shall have no obligations thereunder. Very truly yours, GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: --------------------------- Name: Title: cc: [American Home Mortgage Corp./Columbia National, Incorporated] Residential Funding Corporation EXHIBIT H [SETTLEMENT MODIFICATION LETTER] [DATE] Greenwich Capital Financial Products, Inc. 600 Steamboat Road Greenwich, Connecticut 06830 Attention: [American Home Mortgage Corp. 520 Broadhollow Road Melville, New York 11747 [Columbia National, Incorporated 7142 Columbia Gateway Drive Columbia, MD 21046 ] Re: The Attached Confirmation of Commitment Ladies and Gentlemen: Attached hereto is a correct and complete copy of our confirmation of commitment ("Commitment"). We hereby confirm that we have irrevocably approved the Mortgage Loans subject to the Commitment for purchase by us and we hereby agree to purchase such Mortgage Loan(s) from Greenwich Capital Financial Products, Inc. ("GCFP") in accordance with the terms of the Commitment or, if this letter is executed by GCFP and [American Home Mortgage Corp./Columbia National, Incorporated], in accordance with the terms of the Commitment as amended hereby. We hereby request that the Commitment be amended as follows: (i) the Settlement Date set forth in the Commitment shall be _____________ _____________; (ii) the aggregate outstanding principal balance of the Mortgage Loans shall be $_________________ ; (iii) the aggregate amount of accrued interest on the Mortgage Loans shall be $ ; (iv) the trade price shall be %; and (v) the total amount payable to GCFP shall be $ If we fail to pay you the amount set forth in clause (v) above on the amended Settlement Date, interest shall accrue on such amount at a rate equal to the weighted average of the Pass-Through Rates related to such Mortgage Loans. If the amendments to the Commitment set forth above are acceptable to you, please so indicate by executing this letter in the appropriate space provided below and return it to us via facsimile at [TAKEOUT INVESTOR] By: ---------------------- Title: Agreed to: [AMERICAN HOME MORTGAGE CORP./COLUMBIA NATIONAL, INCORPORATED] By: ---------------------------- Title: Facsimile #:. Agreed to: GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: ---------------------------- EXHIBIT I SELLER'S OFFICER'S CERTIFICATE I, ________________, hereby certify that I am the duly elected ________________ of [American Home Mortgage Corp./Columbia National, Incorporated], a ________ corporation (the "Seller"), and further certify, on behalf of the Seller as follows: 1. Attached hereto as Attachment I is a true and correct copy of the articles of incorporation and by-laws of the Seller as are in full force and effect on the date hereof. 2. Attached hereto as Attachment II is a Certificate of Good Standing of the Seller, issued by the Secretary of the State of ________ dated _____, ____. No event has occurred since _______, ____ which has affected the good standing of the Seller under the laws of the State of _______. 3. Each person who, as an officer or attorney-in-fact of the Seller, signed (a) the Mortgage Loan Purchase and Sale Agreement (the "Purchase Agreement"), dated as of January 1, 2004, by and between the Seller, [American Home Mortgage Corp./Columbia National, Incorporated] and Greenwich Capital Financial Products, Inc. (the "Purchaser"); (b) the Custodial Agreement (the "Custodial Agreement"), dated as of January 1, 2004, by and among the Seller, [American Home Mortgage Corp./Columbia National, Incorporated], the Purchaser and [Residential Funding Corporation/Deutsche Bank National Trust Company]; and (c) any other document delivered prior hereto or on the date hereof in connection with transactions contemplated in the Purchase Agreement was, at the respective times of such signing and delivery, and is as of the date hereof, duly elected or appointed, qualified and acting as such officer or attorney-in-fact, and the signatures of such persons appearing on such documents are their genuine signatures. 4. Attached hereto as Attachment III is a true and correct copy of the resolutions duly adopted by the board of directors of the Seller on __________, ____ (the "Resolutions") with respect to the authorization and approval of the transactions contemplated in the Purchase Agreement; said Resolutions have not been amended, modified, annulled or revoked and are in full force and effect on the date hereof. 5. All of the representations and warranties of the Seller contained in the Purchase Agreement were true and correct in all material respects as of the date of the Purchase Agreement and are true and correct in all material respects as of the date hereof and the Seller has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the date hereof.. 6. The Seller has performed all of its duties and has satisfied all the material conditions on its part to be performed or satisfied pursuant to the Purchase Agreement on or prior to the date hereof. 7. There are no actions, suits or proceedings pending or, to my knowledge, threatened, against or affecting the Seller which, if adversely determined either individually or in the aggregate, would adversely affect the Seller's obligations under the Purchase Agreement or the Custodial Agreement. 8. No proceedings that could result in the liquidation or dissolution of the Seller are pending or contemplated. 9. Incumbency of Officers. The below named persons have been duly elected or appointed, and have been duly qualified as officers of the Seller holding the respective office below set opposite his or her name, and the signature below set opposite his or her name is his or her genuine signature. Name Office Signature ---- ------ --------- All capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Purchase Agreement. IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the Seller. Dated: _________ __, ____ [Seal] --------------------- By: --------------------------- Name Title: I, ___________________, _________ of ______________, hereby certify that ________________ is the duly elected, qualified and acting _______________ of __________ and that the signature appearing above is the genuine signature of such person. IN WITNESS WHEREOF, I have hereunto signed my name. Dated: ____________ __, ____ [Seal] --------------------- By: --------------------------- Name: Title: EXHIBIT J SELLER'S OFFICER'S CERTIFICATE I, ________________, hereby certify that I am the duly elected ________________ of [American Home Mortgage Corp./Columbia National, Incorporated], a ________ corporation (the "Seller"), and further certify, on behalf of the Seller as follows: 1. There has been no change in the articles of incorporation and by-laws of the Seller since the date such documents were provided to the Purchaser and such documents are in full force and effect on the date hereof. 2. No event has occurred since the date of the last good standing certificate of the Seller provided to the Purchaser which has affected the good standing of the Seller under the laws of the State of _______. 3. All of the representations and warranties of the Seller contained in the Purchase Agreement, including but not limited to the representations and warranties as to the Mortgage Loans being sold to the Purchaser on the date hereof, are true and correct in all material respects as of the date hereof and the Seller has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the date hereof.. 4. The Seller has performed all of its duties and has satisfied all the material conditions on its part to be performed or satisfied pursuant to the Purchase Agreement on or prior to the date hereof. 5. There are no actions, suits or proceedings pending or, to my knowledge, threatened, against or affecting the Seller which, if adversely determined either individually or in the aggregate, would adversely affect the Seller's obligations under the Purchase Agreement or the Custodial Agreement. 6. No proceedings that could result in the liquidation or dissolution of the Seller are pending or contemplated. 7. To the best of my knowledge after due inquiry and investigation, no Event of Default has occurred prior to the date hereof or is occurring on the date hereof. 8. Under generally accepted and regulatory accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans by the Seller to the Purchaser as a sale of the Mortgage Loans. The Seller has been advised by, or has confirmed with, its independent public accountants that the foregoing transactions will be so classified. 9. Each Mortgage Loan to be sold to the Purchaser on the date hereof was originated by the Seller or purchased from an approved originator previously approved by the Purchaser not later than 60 days prior to the date hereof. No Mortgage Loan was rejected for purchase or financing by any third party. All capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Purchase Agreement. IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the Seller. Dated: _________ __, ____ [Seal] --------------------- By: --------------------------- Name Title: I, ___________________, _________ of ______________, hereby certify that ________________ is the duly elected, qualified and acting _______________ of __________ and that the signature appearing above is the genuine signature of such person. IN WITNESS WHEREOF, I have hereunto signed my name. Dated: ____________ __, _____ [Seal] --------------------- By: --------------------------- Name Title: EXHIBIT K LIST OF CONDUITS ---------------- EXHIBIT L MORTGAGE LOAN SCHEDULE ---------------------- EX-10.5.2 16 am033105-ex1052.txt EXHIBIT 10.5.2 WHOLE LOAN CUSTODIAL AGREEMENT CUSTODIAL AGREEMENT GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. Purchaser, 600 Steamboat Road Greenwich, Connecticut 06830 AMERICAN HOME MORTGAGE CORP. Seller 520 Broadhollow Road Melville, New York 11747 COLUMBIA NATIONAL, INCORPORATED Seller 7142 Columbia Gateway Drive Columbia, Maryland 21046 and DEUTSCHE BANK NATIONAL TRUST COMPANY Custodian 1761 East St. Andrew Place Santa Ana, California 92705 Attn: Mortgage Custody - AH041C Dated as of January 1, 2004 TABLE OF CONTENTS Page ---- Section 1. Definitions......................................................1 Section 2. Delivery of Documents by Seller..................................7 Section 3. Custodian as Custodian for, and Bailee of, Purchaser, Assignee and Warehouse Lender...........................................7 Section 4. Certification by Custodian; Delivery of Documents; Disbursement Account........................................................9 Section 5. [Reserved]......................................................12 Section 6. Default.........................................................12 Section 7. Access to Documents.............................................12 Section 8. Custodian's Fees and Expenses; Successor Custodian; Standard of Care..........................................................12 Section 9. Assignment by Purchaser.........................................15 Section 10. Insurance.......................................................16 Section 11. Representations, Warranties and Covenants.......................16 Section 12. No Adverse Interests............................................17 Section 13. Amendments......................................................17 Section 14. Execution in Counterparts.......................................18 Section 15. Agreement for Exclusive Benefit of Parties; Assignment..........18 Section 16. Effect of Invalidity of Provisions..............................18 Section 17. Governing Law...................................................18 Section 18. Consent to Service..............................................18 Section 19. Notices.........................................................18 Section 20. Certification...................................................18 Section 21. Construction....................................................19 Section 22. Submission to Jurisdiction......................................19 Section 23. WAIVER OF JURY TRIAL............................................19 Section 24 Joint and Several Liability.....................................18 Exhibit A-1 Cash Window Submission Package Exhibit A-2 Freddie Mac Document List Exhibit A-3 Fannie Mae Document List Exhibit A-4 Fannie Mae Master Bailee Letter Exhibit B-1.Conduit Submission Package Exhibit B-2 Conduit Master Bailee Letter Exhibit C Request for Certification Exhibit D Trust Receipt Exhibit D-1 Notice of Intent to Issue a Trust Receipt Exhibit E-1 Warehouse Lender's Release Exhibit E-2 Warehouse Lender's Wire Instructions Exhibit F-l Seller's Release Exhibit F-2 Seller's Wire Instructions Exhibit G-l Purchaser's Wire Instructions to Seller Exhibit G-2 Purchaser's Wire Instructions to Custodian Exhibit G-3 Purchaser's Delivery Instructions to Custodian Exhibit H Notice by Assignee to Custodian of Purchaser's Default Exhibit I [Reserved] Exhibit J Form of Delivery Instructions Exhibit K-1 Trade Assignment Exhibit K-2 Trade Assignment (Blanket) Schedule A List of Conduits CUSTODIAL AGREEMENT THIS CUSTODIAL AGREEMENT ("Agreement"), dated as of the date set forth on the cover page hereof (the "Effective Date"), is entered into by and among GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser"), DEUTSCHE BANK NATIONAL TRUST COMPANY, as custodian ("Custodian"), AMERICAN HOME MORTGAGE CORP. (a "Seller") and COLUMBIA NATIONAL, INCORPORATED (a "Seller", and together with American Home Mortgage Corp., the "Sellers"). PRELIMINARY STATEMENT Purchaser has agreed to purchase from Sellers, from time to time, at its sole election, certain mortgage loans pursuant to the terms and conditions of one or more Purchase Agreements between Purchaser and Sellers relating to Cash Window Transactions or Conduit Transactions. With respect to the certain mortgage loans that Purchaser elects to purchase, the related Seller is obligated to interim service the Mortgage Loans pursuant to the terms and conditions of the Purchase Agreements. Purchaser desires to have Custodian take possession of the Mortgage Notes evidencing the Mortgage Loans, along with certain other documents specified herein, as the custodian for and bailee of Purchaser or Assignee in accordance with the terms and conditions hereof. The parties hereto agree as follows: Section 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: "Agency": Freddie Mac, Fannie Mae or GNMA, as applicable. "Applicable Agency Documents": The documents listed on Exhibit A-2, Exhibit A-3 or those documents listed on Exhibit B-1 as shall apply to GNMA, as applicable. "Applicable Guide": With respect to each Takeout Investor the applicable guide published by such Takeout Investor setting forth the requirements Mortgage Loans must satisfy in order to be eligible for purchase by such Takeout Investor as amended or supplemented from time to time. "Assignee": The party identified in writing to a Seller and Custodian by Purchaser from time to time who acts as agent for certain beneficiaries pursuant to certain Repurchase Transaction Tri-Party Custody Agreements with Purchaser. "Assignment of Mortgage": An assignment of the Mortgage, notice of transfer or equivalent instrument sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect of record the sale of a Mortgage Loan. "Bailee Letter": A Fannie Mae Bailee Letter or a Conduit Bailee Letter, as applicable. "Business Day": Any day other than (a) a Saturday, Sunday or other day on which banks located in the State of New York or the State of California are authorized or obligated by law or executive order to be closed or (b) any day on which Purchaser or Custodian is authorized or obligated by law or executive order to be closed. "Cash Window Submission Package": The documents listed on Exhibit A-1, which shall be delivered by the related Seller to Custodian in connection with each Cash Window Transaction. "Cash Window Transaction": A transaction initiated by a Seller's delivery of a Request for Certification which identifies Fannie Mae or Freddie Mac as the Takeout Investor. "Commitment": A commitment executed by Takeout Investor and a Seller evidencing Takeout Investor's agreement to purchase one or more Mortgage Loans from the related Seller and the related Seller's agreement to sell one or more Mortgage Loans to Takeout Investor in a forward trade by the applicable Expiration Date. "Conduit": Any of the entities listed on Schedule A, as amended or supplemented from time to time. "Conduit Bailee Letter": The master bailee letter, in the form of Exhibit B-2, for use by Custodian in connection with the delivery of a Conduit Submission Package, for the purpose of delivering the related Conduit Submission Package, excluding (i) a copy of the Confirmation, (ii) the Warehouse Lender's Release or Seller's Release, as applicable, and (iii) the original Assignment of Mortgage, in blank, to a Conduit. "Conduit Submission Package": The documents listed on Exhibit B-1, which shall be delivered by the related Seller to Custodian in connection with each Conduit Transaction. "Conduit Transaction": A transaction initiated by a Seller's delivery of a Request for Certification which identifies a Conduit as the Takeout Investor. "Confirmation": A written confirmation as required by the Purchase Agreement of Purchaser's intent to purchase a pool of Mortgage Loans. "Custodian": The party identified on the cover page hereto and its permitted successors hereunder. "Delivery Instructions": With respect to a Mortgage Loan, instructions prepared by a Seller and transmitted electronically in an appropriate data layout no later than 11:00 a.m. -2- Eastern Time, in the form of Exhibit J indicating the address for the delivery by Custodian of the applicable portion of the related Submission Package. "Disbursement Account": shall have the meaning set forth in Section 4(a)(2) hereof. "Discount": With respect to a Mortgage Loan sold by a Seller to Purchaser, the amount set forth on the related Confirmation as the Discount. "Eastern Time": Either Eastern Standard Time or Day Light Savings Time as then in effect in New York City. "Electronic Agent": Shall have the meaning assigned to such term in Section 2 of the Electronic Tracking Agreement. "Electronic Tracking Agreement" The Electronic Tracking Agreement, dated as of the date hereof, among the Purchaser, the Sellers, the Electronic Agent and MERS, as the same shall be amended, supplemented or otherwise modified from time to time. "Expiration Date": With respect to any Commitment, the expiration date thereof. "Fannie Mae": Fannie Mae, and any successor thereto. "Fannie Mae Bailee Letter": The master bailee letter, in the form of Exhibit A-4, for use by Custodian in connection with the delivery to Fannie Mae of a Cash Window Submission Package excluding (i) the Assignment of Mortgage, in blank, (ii) the Warehouse Lender's Release or Seller's Release, as applicable, (iii) all modification agreements relating to a Mortgage, (iv) the Delivery Instructions, and (v) a copy of the Commitment. "Fannie Mae Commitment": A commitment executed by Fannie Mae and a Seller, evidencing Fannie Mae's agreement to purchase one or more Mortgage Loans from the related Seller and the related Seller's agreement to sell one or more Mortgage Loans to Fannie Mae by the applicable Expiration Date under the Applicable Guide. "Freddie Mac": Freddie Mac, and any successor thereto. "Freddie Mac Commitment": A commitment executed by Freddie Mac and a Seller evidencing Freddie Mac's agreement to purchase one or more Mortgage Loans from the related Seller and the related Seller's agreement to sell one or more Mortgage Loans to Freddie Mac by the applicable Expiration Date under the Applicable Guide. "Funding Confirmation": With respect to all Mortgage Loans purchased by Purchaser from a Seller via a single wire funds transaction on a particular Business Day, the trade confirmation from Purchaser to the related Seller confirming the terms of Purchaser's purchase of such Mortgage Loans. "GNMA": The Government National Mortgage Association and any successor thereto. -3- "HUD": United States Department of Housing and Urban Development and any successor thereto. "Loan Identification Data": The applicable information regarding a Mortgage Loan, set forth on a Request for Certification, in the form of Exhibit C, which shall include (i) Purchaser's reference number, (ii) the name of Purchaser's applicable program, (iii) the Mortgage Loan number (iv) the last name of the Mortgagor, (v) the face amount of the Mortgage Note, (vi) the original number of months to maturity of the Mortgage Loan, (vii) the original interest rate borne by the Mortgage Note, (viii) the name of the Takeout Investor, (ix) the sale price of the Mortgage Loan to the Takeout Investor, (x) the commitment number, (xi) with respect to each MERS Mortgage Loan, the MIN, (xii) the Expiration Date, (xiii) the date the Mortgage Loan is scheduled to be delivered to the Takeout Investor, (xiv) the Release Payment, (xv) the name of the Warehouse Lender, if any, and (xvi) the Purchaser's Payee Number, if applicable. "Losses": Any and all losses, claims, damages, liabilities or expenses (including lost interest and reasonable attorney's fees) incurred by any Person specified; provided, however that "Losses" shall not include losses, claims, damages, liabilities or expenses which would have been avoided had such Person taken reasonable actions to mitigate such losses, claims, damages, liabilities or expenses. "MERS": Mortgage Electronic Registration Systems, Inc., a corporation organized and existing under the laws of the State of Delaware, or any successor thereto. "MERS Mortgage Loan": Any Mortgage Loan as to which the related Mortgage or assignment of Mortgage has been recorded in the name of MERS, as agent for the holder from time to time of the Mortgage Note and which is identified as a MERS Mortgage Loan on the related Loan Identification Data." "MERS Report": The schedule listing MERS Mortgage Loans and other information prepared by the Electronic Agent with respect to such Mortgage Loan. "MERS System": The system of recording transfers of Mortgages electronically maintained by MERS. "MIN": The mortgage identification number of Mortgage Loans registered with MERS on the MERS System. "Mortgage": A mortgage, deed of trust or other security instrument creating a lien on an estate in fee simple in real property securing a Mortgage Note. "Mortgage Loan": A loan secured by a mortgage and that is subject to this Agreement. "Mortgage Note": The note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage. -4- "Mortgaged Property": The property subject to the lien of the Mortgage securing a Mortgage Note. "Mortgagor": The obligor on a Mortgage Note. "Notice of Bailment": A notice, in the form of Schedule A to Exhibit A-4 or Schedule A to Exhibit B-2, as applicable, delivered by Custodian to Takeout Investor in connection with each delivery to Takeout Investor of the applicable portion of each Submission Package. "Payee Number": The code used by Fannie Mae to indicate the wire transfer instructions that will be used by Fannie Mae to purchase a Mortgage Loan. "Person": Any individual, corporation, partnership, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof. "Primary Mortgage Insurer": Any one of GE Capital Mortgage Insurance Co., Republic Mortgage Insurance Co., Mortgage Guaranty Insurance Corp., United Guaranty Corporation or PMI Mortgage Insurance Company or any other entity approved as a primary mortgage insurer by Fannie Mae. "Purchase Agreement": Each Purchase and Sale Agreement, dated as of the date set forth on the cover page thereof, between the related Seller and Purchaser, as each is amended from time to time providing the terms of Cash Window Transactions or Conduit Transactions. "Purchase Date": With respect to a Mortgage Loan, the date on which Purchaser purchases such Mortgage Loan from the related Seller. "Purchaser": Greenwich Capital Financial Products, Inc. and its successors. "Purchaser's Payment": The amount set forth on the Request for Certification in the "RELEASE PAYMENT" column. "Purchase Price": With respect to each Mortgage Loan purchased by Purchaser, an amount equal to the Trade Principal less an amount equal to the product of the Trade Principal and the Discount (i.e., TP minus (TP times D)). "Purchaser's Wire Instructions to Custodian": Wire Instructions delivered by Purchaser to Custodian, in the form of Exhibit G-2, executed by Purchaser, receipt of which is acknowledged by Custodian specifying the wire address where all funds received in accordance with Purchaser's Wire Instructions to Sellers shall be transferred by Custodian. "Purchaser's Wire Instructions to Seller": The wire instructions, set forth on Exhibit G-1, specifying the account which shall be used for the payment of all amounts due and payable by Sellers to Purchaser hereunder. -5- "Release Payment": The funds referred to in a Warehouse Lender's Release or Seller's Release, as applicable. "Request for Certification": A report detailing Loan Identification Data supplied by the related Seller to Purchaser and Custodian in the form of Exhibit C and transmitted electronically in an appropriate data layout, regarding all Mortgage Loans being offered for sale by the related Seller to Purchaser on the Purchase Date. "Seller": With respect to any Mortgage Loan, the Sellers whose names is set forth on the cover page hereof from whom the Purchaser purchased such Mortgage Loan pursuant to the terms of the Purchase Agreement, and its permitted successors hereunder. "Seller's Release": A letter, in the form of Exhibit F-1, delivered by a Seller when no Warehouse Lender has an interest in a Mortgage Loan, conditionally releasing all of the related Seller's right, title and interest in a Mortgage Loan upon receipt of payment by the related Seller. "Seller's Wire Instructions": The wire instructions, set forth in a letter in the form of Exhibit F-2, to be used for the payment of funds to the related Seller when no Warehouse Lender has an interest in the Mortgage Loans to which such payment relates. "Submission Package": With respect to each Mortgage Loan, a Cash Window Submission Package or a Conduit Submission Package, as applicable. "Successor Servicer": An entity designated by Purchaser, in conformity with the Purchase Agreement, to replace the related Seller as servicer for Purchaser, and, with respect to Cash Window Transactions, a seller/servicer of the Mortgage Loans for the Agency. "Takeout Investor": An Agency or a Conduit as applicable. "Trade Assignment": The assignment by a Seller to Purchaser of the related Seller's rights under a specific Commitment, in the form of Exhibit K-1, or of the related Seller's rights under all Commitments, in the form of Exhibit K-2. "Trade Price": The trade price set forth on a Commitment. "Trade Principal": With respect to any Mortgage Loan, the outstanding principal balance of the Mortgage Loan multiplied by a percentage equal to the Trade Price. "Trust Receipt": A receipt of Custodian, substantially in the form of Exhibit D hereto, indicating that with respect to the Mortgage Loans listed on the attached schedule, the Custodian has performed the procedures set forth in Sections 4(a) and 4(b) hereof, that it has received the entire Cash Window Submission Package or the Conduit Submission Package, as applicable, and that it is holding such documents as bailee and custodian of Purchaser. -6- "Underwriter": Any party, including but not limited to a mortgage loan pool insurer, who underwrites a Mortgage Loan prior to its purchase by Purchaser. "Underwriter's Form": A Fannie Mae/Freddie Mac Form 1008/1077, HUD92900WS, HUD92900.4, VA Form 26-6393, VA Form 26-1866, a mortgage loan pool insurance certificate, or an underwriting approval form from a Primary Mortgage Insurer, as applicable, completed by an Underwriter with respect to a Mortgage Loan, indicating that such Mortgage Loan complies with its underwriting requirements. "Warehouse Lender": Any lender providing financing to a Seller for the purpose of originating Mortgage Loans, which lender has a security interest in such Mortgage Loans as collateral for the obligations of the related Seller to such lender. "Warehouse Lender's Release": A letter, substantially in the form of Exhibit E-1, from a Warehouse Lender to Purchaser, conditionally releasing all of Warehouse Lender's right, title and interest in certain Mortgage Loans identified therein upon payment to Warehouse Lender. "Warehouse Lender's Wire Instructions": The wire instructions, set forth in a letter in the form of Exhibit E-2, from a Warehouse Lender to Purchaser, setting forth wire instructions for all amounts due and payable to such Warehouse Lender. Section 2. Delivery of Documents by Seller. If a Seller desires to engage in Cash Window Transactions: (a) relating to a Freddie Mac Commitment, the related Seller shall deliver to Purchaser a copy of (i) Freddie Mac Form 1035 (Custodial Agreement), if applicable, duly executed by the related custodian and Freddie Mac, and (ii) Freddie Mac Form 3 (Summary Agreement) or such other equivalent agreement as is acceptable to Purchaser, duly executed by the related Seller and Freddie Mac; or (b) relating to a Fannie Mae Commitment, the related Seller shall deliver to Purchaser a copy of (i) Fannie Mae Form 2003 (Custodial Agreement) if applicable, duly executed by the related custodian and Fannie Mae, (ii) Fannie Mae Mortgage Selling and Servicing Contract, and Fannie Mae Form 482 (Designation of Payee - Wire Transfer Information). Section 3. Custodian as Custodian for, and Bailee of, Purchaser, Assignee and Warehouse Lender. (a) With respect to each Mortgage Note, each Assignment of Mortgage and all other documents constituting each Submission Package that are delivered to Custodian or that at any time come into Custodian's possession, Custodian, subject to the provisions of paragraphs (b) and (c) of this Section 3, shall act solely and exclusively in the capacity of custodian for, and bailee of, Purchaser. Custodian shall, subject to the provisions of paragraphs (b) and (c) of this Section 3 and except as otherwise required by Section 4: (i) hold all documents constituting a -7- Submission Package received by it for the exclusive use and benefit of Purchaser; (ii) make disposition thereof only in accordance with this Agreement and the directions of the Purchaser; and (iii) have no discretion or authority to act in a manner which is in any respect contrary to its role as custodian with respect to its obligations under this Agreement. Custodian shall segregate and maintain continuous custody of all documents constituting a Submission Package received by it in secure and fire resistant facilities in accordance with customary standards for such custody and shall mark its books and records to indicate that Purchaser is the owner of the Mortgage Loans and that the Submission Package is being held for Purchaser. (b) With respect to each Mortgage Loan purchased by Purchaser from a Seller, Purchaser shall have the right to assign to Assignee such Mortgage Loan as described in Section 9. If Purchaser has notified Custodian in writing of such assignment, then, upon notice in the form of Exhibit H hereto by Assignee to Custodian of Purchaser's default, Assignee may (i) require Custodian to act with respect to the related Submission Packages solely in the capacity of custodian for, and bailee of, Assignee, but nevertheless subject to and only in accordance with the terms of this Agreement, (ii) require Custodian to hold such Submission Packages for the exclusive use and benefit of Assignee, and (iii) assume the rights of Purchaser under this Agreement to furnish instructions to Custodian as to the disposition of such Submission Packages and such rights shall be exercisable solely by Assignee. Custodian shall give Assignee written acknowledgment of the receipt of such notice by signing such notice and returning a copy thereof to Assignee. In the event that, prior to receipt of such notice from Assignee, Custodian delivered any Submission Package specified in such notice to Purchaser, Takeout Investor or Purchaser's designee, Custodian shall so notify Assignee, and Custodian shall not be deemed to hold such Submission Package for Assignee unless and until such Submission Package is redelivered to Custodian. The failure of Custodian to give the written acknowledgment referred to above shall not affect the validity of such assignment, pledge or grant of a security interest from the Purchaser to its Assignee. The effects of Assignee's notice to Custodian set forth above shall continue until Custodian is otherwise notified in writing by Assignee. The terms of this Agreement shall not apply to any Submission Package delivered by Custodian to Assignee. (c) Sellers and Purchaser acknowledge that Warehouse Lender, if any, identified from time to time in each Warehouse Lender's Release to be received by Custodian pursuant to Section 4(b)(i), is a warehouse lender for the related Seller. Sellers and Purchaser acknowledge that, in accordance with the terms of each Warehouse Lender's Release to be received by the Custodian pursuant to Section 4(b)(i), pursuant to which each such Warehouse Lender conditionally releases its security interest in the Mortgage Loan referred to in the related Warehouse Lender's Release, such release shall not be effective until the Release Payment is remitted to the Warehouse Lender in accordance with the Warehouse Lender's Wire Instructions. Until remittance of a Release Payment to Warehouse Lender, the interest of the related Warehouse Lender in a Mortgage Loan shall continue and remain in full force and effect. Sellers agree that to the extent the Release Payment is greater than the Purchase Price, the related Seller shall transfer on the Purchase Date the difference between the Release Payment and the Purchase Price to the Warehouse Lender in accordance with the Warehouse Lender's Wire Instructions or as otherwise agreed by the Seller and the Warehouse Lender. -8- (d) If any additional documents relating to the Submission Package come into the Custodian's possession, the provisions of paragraphs (a), (b) and (c) of this Section 3 shall apply to such additional documents in the same manner as such provisions apply to the related Submission Package. Section 4. Certification by Custodian; Delivery of Documents; Disbursement Account. (a) (1) With respect to each Mortgage Loan being offered by a Seller for sale to Purchaser pursuant to (i) a Cash Window Transaction or (ii) a Conduit Transaction, the related Seller shall ensure that Custodian and Purchaser have each received the Loan Identification Data and Wiring Instruction Data necessary to complete a Request for Certification no later than 9:00 p.m. Eastern Time on the Business Day immediately preceding the related Purchase Date. Further, the related Seller shall ensure that Custodian shall be in possession of a Submission Package for each Mortgage Loan identified on a Request for Certification no later than 6:00 p.m. Eastern Time on the Business Day prior to the related Purchase Date and that no more than 500 loan files are to be delivered to Custodian with respect to any one Purchase Date. Upon receipt by Custodian of such Request for Certification, Custodian shall ascertain whether it is in possession of a Submission Package for each Mortgage Loan identified on a Request for Certification and shall certify in accordance with Section 20 herein, each Submission Package and, no later than 2:00 p.m. Eastern Time on the Business Day of the related Purchase Date, issue to Purchaser by facsimile a Notice of Intent to Issue a Trust Receipt substantially similar to Exhibit D-l. If Custodian is not in possession of a Submission Package relating to a Mortgage Loan identified on a Request for Certification, Custodian shall notify the related Seller and shall not include such Mortgage Loan in any Notice of Intent to Issue Trust Receipt. Not later than 3:00 p.m. Eastern Time on the Business Day of the related Purchase Date, Purchaser shall notify Custodian in writing or electronically which Mortgage Loans it does not intend to purchase as identified in the Notice of Intent to Issue Trust Receipt. Not later than 6:00 p.m. Pacific Time on the Business Day of the related Purchase Date, Custodian shall issue a cumulative Trust Receipt to Purchaser. Each Trust Receipt issued shall supersede any Trust Receipt bearing an earlier date. (2) Custodian shall establish and maintain an account (the "Disbursement Account"), entitled "Disbursement Account, Deutsche Bank National Trust Company, as Custodian for Greenwich Capital Financial Products, Inc. Account No. 40043," into which the Purchaser shall deposit the Purchase Price with Custodian. With respect to any Mortgage Loan, the Purchaser shall remit the Purchase Price to the Custodian for deposit into the Disbursement Account no later than 4:00 p.m. Eastern Time on the related Purchase Date. Any funds in the Disbursement Account shall remain uninvested. Provided that Custodian has received the related wire transfer as provided in Section 4(a)(2) above, on any related Purchase Date, the Custodian shall be permitted to disburse funds from the Disbursement Account pursuant to the Wiring Instruction Data provided by the related Seller. In no event shall Custodian be obligated to disburse funds if Custodian has not received funds pursuant to Section 4(a)(2) above. The Sellers hereby represent that they shall be solely responsible for assuring that the information provided in such Wiring Instruction Data is correct and agrees to confirm such Wiring Instruction Data by delivering to Custodian via overnight delivery a hard copy certification and confirmation of such Wiring Instruction Data -9- which is consistent in all material respects with the electronic delivery of such data (such data to be received by the Custodian no later than 4:00 p.m. Eastern Time). The certification and confirmation from the related Seller shall be signed by an authorized officer of the related Seller. Custodian shall not be authorized to disburse funds from the Disbursement Account unless and until it receives from the related Seller such written, certified Wiring Instruction Data. The Sellers shall be obligated to cover any overdrafts or shortfalls related to the Disbursement Account pursuant to the terms and conditions provided separately by a money transfer service agreement, between the Sellers and Deutsche Bank National Trust Company, to be entered into by the parties. (b) With respect to each Request for Certification, prior to the delivery of the Notice of Intent to Issue a Trust Receipt by Custodian: (i) Custodian shall review each applicable set of documents comprising the Submission Package and shall ascertain whether (A) each document required by this Agreement to be in such Submission Package is in the Custodian's possession, (B) each document in the Custodian's possession conforms to the Loan Identification Data set forth in the Request for Certification with regard to items (iii) through (vii), inclusive, (C) each document appears regular on its face, (D) each document appears on its face to conform to the requirements of Exhibit A-1 or Exhibit B-1, as applicable, (E) each Mortgage Loan is listed on a schedule attached to a Warehouse Lender's Release or a Seller's Release, as the case may be, (F) if the Release Payment is a dollar amount, the amount appearing in the "RELEASE PAYMENT" column on the Request for Certification is equal to or exceeds the Release Payment identified on the Warehouse Lenders Release or Sellers Release, (G)(l) with respect to the wire transfer instructions as set forth in Freddie Mac Form 987 (Wire Transfer Authorization for a Cash Warehouse Delivery) such wire transfer instructions are identical to Purchaser's Wire Instructions to Seller or (2) the Payee Number set forth on Fannie Mae Form 1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity Mortgage Loan Schedule) or Fannie Mae Form 1069 (Adjustable-Rate Mortgage Loan Schedule), as applicable, is identical to the Payee Number that has been identified by Purchaser in writing as Purchaser's Payee Number, and (H) with respect to each MERS Mortgage Loan and within twenty-four hours of the related funding, based solely upon a review of the MERS Report, each MERS Mortgage Loan is registered in the MERS System, the "interim funder" data field is blank with respect to each MERS Mortgage Loan and the Mortgagee, or in the case of a deed of trust, the beneficiary, is MERS and the Mortgage Loan is identified on the Loan Identification Data as a MERS Mortgage Loan. (ii) If Custodian determines that the documents in the Submission Package and the Mortgage Loan to which they relate conform in all respects with Section 4(b)(i), Custodian shall include such Mortgage Loan in the Notice of Intent to Issue Trust Receipt and, assuming Purchaser does not notify Custodian that it will not purchase a particular Mortgage Loan, in the Trust Receipt issued that day to Purchaser. If documents in the Submission Package do not conform in all respects with Section 4(b)(i) or are missing -10- and/or do not conform (except as specified in Section 4(b)(i)), Custodian shall not include such Mortgage Loan in any Notice of Intent to Issue Trust Receipt. (c) As outlined in Section 4(a), Custodian shall deliver to Purchaser, no later than 6:00 p.m. Pacific Time on the Business Day of the related Purchase Date, by facsimile transmission followed by overnight courier a cumulative Trust Receipt. Each cumulative Trust Receipt should include: (i) all Mortgage Loans that Custodian has certified on all prior Purchase Dates that Purchaser has not communicated to Custodian its release of interest in and (ii) the collateral location pursuant to the Mortgage Loan Schedule of each Mortgage Loan appearing on this cumulative Trust Receipt. Each Trust Receipt shall be deemed a certification by the Custodian that the Custodian has completed the procedures set forth in Sections 4(a) and 4(b)(i) hereof and a certification that it is holding each related Submission Package for the benefit of Purchaser in accordance with the terms hereof. (d) All documents comprising a Submission Package relating to Mortgage Loans included in a Trust Receipt shall be delivered by Custodian to the Takeout Investor specified by the related Seller via overnight courier in accordance with the Delivery Instructions and, except with respect to Mortgage Loans for which Freddie Mac or GNMA is the Takeout Investor, under cover of a fully completed Notice of Bailment prepared by Custodian in accordance with the terms of the applicable Bailee Letter. Custodian shall not deliver any Submission Package to any potential Takeout Investor unless such Takeout Investor was identified by the related Seller to Purchaser on the Purchase Date in the Loan Identification Data or as agreed to in writing by Purchaser and Custodian shall confirm prior to delivery of any documents to any Takeout Investor that such Takeout Investor has executed a Bailee Letter. In those cases where a copy of any intervening mortgage assignment, or an unrecorded original of any intervening mortgage assignment are delivered to the Custodian, the related Seller shall promptly cause the original of such instrument to be recorded. If Delivery Instructions direct Custodian to deliver any portion of a Submission Package to a location that is not the Takeout Investor's office specified on Schedule A, Custodian must receive Purchaser's written consent to deliver to such location prior to complying with such Delivery Instructions. Upon receipt of one written approval from Purchaser, such written approval shall, unless Custodian receives written or electronic notice from Purchaser to the contrary, be deemed to apply to all Delivery Instructions delivered in the future by the related Seller that list such location. Following delivery by Custodian of the Submission Package to Takeout Investor, all remaining documents, if any, not included in such Submission Package shall be held by Custodian for thirty (30) days following receipt of notification from Purchaser, at which time the Custodian shall destroy such documents or deliver the same as directed by, and at the expense of, the related Seller. (e) At any time following the delivery of a Trust Receipt, in the event Custodian becomes aware of any noncompliance in any respect with Section 4(b)(i) with respect to a related Submission Package or the related forms, including the return of documents to the Custodian from Takeout Investor due to a defect in such documents or if Takeout Investor fails to purchase any Mortgage Loan by the related Cure Date, the Custodian shall give prompt oral notice of such defect to the related Seller and Purchaser, followed by a written specification thereof to Purchaser within one Business Day. In addition, Custodian shall provide written notice in the event that any documents remain in the possession of a Takeout Investor for ten -11- days and the related Mortgage Loans have not been purchased by Takeout Investor prior to such date. Section 5. [Reserved]. Section 6. Default.If Sellers fail to fulfill any of their obligations under the Purchase Agreement or hereunder or in connection with the exercise by Purchaser of any remedy pursuant to Section 3 of the Purchase Agreement then, subject to the provisions of Section 3(b) of this Agreement, Purchaser may, by written or electronic notice to Custodian, (a) appoint Custodian as its delegate to complete the endorsements on behalf of Purchaser on the Mortgage Notes held by Custodian and to complete and record at Purchaser's expense the related blank Assignments of Mortgages relating to the affected Mortgage Loans in accordance with Purchaser's instructions and, when applicable, (b) require Custodian to deliver to Purchaser, Takeout Investor or Successor Servicer the Submission Packages (or any portion thereof specified by Purchaser) in Custodian's possession or under Custodian's control to which the failure relates. If Purchaser fails to purchase Mortgage Loans as provided for under the Purchase Agreement or hereunder, Custodian shall hold the Mortgage Loans for the benefit of the related Seller and shall act under instructions from the related Seller. Section 7. Access to Documents. Upon reasonable prior written notice to Custodian, Purchaser (and if the Mortgage Loans have been assigned, Assignee) and its agents, accountants, attorneys and auditors will be permitted during normal business hours at its office to examine and copy at their expense the Submission Packages, documents, records and other papers in possession of or under the control of Custodian relating to any or all of the Mortgage Loans in which Purchaser has an interest. Upon the written or electronic request of Purchaser (or, if applicable, Assignee) and at the cost and expense of Purchaser (or, if applicable, Assignee), Custodian shall provide such Purchaser (or, if applicable, Assignee) with copies of the Mortgage Notes, Assignments of Mortgage and other documents in Custodian's possession relating to any of the Mortgage Loans in which Purchaser (or, if applicable, Assignee) has an interest. In addition, upon the written or electronic request of Purchaser, Custodian shall provide Purchaser with an electronic transmission containing a list of all the Mortgage Loans for which the Custodian holds documents pursuant to this Custodial Agreement and a list of the documents held by Custodian with respect to each such Mortgage Loan. Section 8. Custodian's Fees and Expenses; Successor Custodian; Standard of Care. (a) Sellers agree to pay the Custodian such fees and expenses for its services under this Agreement as are set forth in a separate agreement between Custodian and Sellers (the "Sellers/Custodian Fee Agreement"), and shall further pay or reimburse the Custodian upon its request for all reasonable expenses, disbursements and advances incurred or made by the Custodian in accordance with this Agreement or any other documents executed in connection herewith (including, without limitation, attorney's fees and expenses). The payment of the Custodian's fees and expenses pursuant to the Sellers/Custodian Fee Agreement, shall be solely the obligation of Sellers. Custodian has no lien on, and shall not attempt to place a lien on, or assert an interest in, any of the Submission Package, Mortgage Loans or proceeds thereof to -12- secure the payment of its fees and expenses. The obligations of the Sellers under this Section 8 shall survive the termination of this Agreement and the resignation or removal of Custodian. (b) Custodian or any successor Custodian may resign at any time by giving sixty (60) days' prior written notice to Sellers and Purchaser. Such resignation shall take effect upon the earlier of (i) the appointment of a successor Custodian by Purchaser and delivery of all the Submission Packages and any related documents in Custodian's possession to the successor Custodian in accordance with the written or electronic direction of the Purchaser, and (ii) the delivery of all the Submission Packages and any related documents in Custodian's possession to the Purchaser or its designee pursuant to (c) below after expiration of said sixty (60) days. Sellers shall be responsible for reimbursing Custodian for its expenses associated with delivery of the Submission Packages and related documents to Purchaser. (c) In the event of any such resignation, Custodian shall promptly transfer to the successor Custodian all Submission Packages and related documents in Custodian's possession and the successor Custodian shall hold such Submission Packages and related documents in accordance with this Agreement. If Purchaser directs the removal of Custodian, Purchaser shall be responsible for all expenses associated with the transfer of the Submission Packages and any related documents in Custodian's possession and for any fee of the successor Custodian in excess of the fees of the initial Custodian hereunder. In any case, Custodian shall not be responsible for payment of fees to any successor Custodian. The Purchaser shall have sixty (60) days in which to appoint and designate an acceptable successor Custodian. If the Purchaser fails to appoint a successor Custodian within such 60-day period, then Custodian shall deliver possession and custody of the Submission Packages and any related Submission Packages in Custodian's possession to Purchaser at the address specified on the cover page hereof, or if a timely written designation is received by Custodian, to any designee of Purchaser. (d) Custodian shall have responsibility only for the Submission Packages and their contents which have been actually delivered to it and which have not been released to the related Seller, Purchaser, the Takeout Investor, Agency or Assignee or their respective agent or designee in accordance with this Agreement. The standard of care to be exercised by Custodian in the performance of its duties under this Agreement shall be to exercise the same degree of care as Custodian exercises when it holds similar mortgage loan documents as security for similar loans or warehouse loans. Custodian is an agent, bailee and custodian only and is not intended to be, nor shall it be construed to be (except only as agent, bailee and custodian), a representative, trustee or fiduciary of or for either the related Seller, the Agency, Purchaser or Assignee. With respect to its obligations under this Agreement, the Custodian shall not be bound in any way by any agreement or contract other than this Agreement and the exhibits and schedules hereto and any other agreement to which it is a party. The Custodian shall not be required to ascertain or inquire as to the performance or observance of any of the conditions or agreements to be performed or observed by any other party, except as specifically provided in this Agreement and the exhibits and schedules hereto. The Custodian disclaims any responsibility for the validity or accuracy of the recitals to this Agreement and any representations and warranties contained herein, unless specifically identified as recitals, representations or warranties of the Custodian. (i) Throughout the term of this Agreement, the Custodian shall have no responsibility for ascertaining the value, collectability, insurability, recordability, -13- enforceability, effectiveness or suitability of any Collateral, the title of any party therein, the validity or adequacy of the security afforded thereby, or the validity of this Agreement (except as to Custodian's authority to enter into this Agreement and to perform its obligations hereunder). (ii) The Custodian shall not be under any duty to determine or pass upon the genuineness, validity or legal sufficiency of any of the documents constituting part of any Submission Package, and shall be entitled to assume that all documents constituting part of such files are genuine and valid and that they are what they purport to be, and that any endorsements or assignments thereof are genuine and valid. (iii) No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights and powers, if, in its sole judgment, it shall believe that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. (iv) The Custodian is not responsible for preparing or filing any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than for the Custodian's compensation or for reimbursement of expenses. (v) In the absence of bad faith on the part of Custodian, Custodian may conclusively rely, as to the truth of the statements expressed therein, upon any certificates furnished to Custodian which conform to the requirements of this Agreement. (vi) Neither the Custodian nor any of its officers, directors, employees and agents shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Purchaser given under this Agreement. (vii) Custodian may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. (viii)Custodian may consult with counsel and the advice or any written opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. (ix) Custodian shall not invest or reinvest any cash held in the Disbursement Account in the absence of timely and specific written investment direction from the Purchaser. In no event shall Custodian be liable for the selection of investments or for investment losses incurred thereon. Custodian shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or as a result of the failure of the Purchaser to provide timely written investment direction. (x) Sellers hereby jointly and severally indemnify, defend and hold Custodian and its officers, directors, employees and agents harmless from and against any claim, -14- legal action, liability or loss that is initiated against or incurred by Custodian and its officers, directors, employees and agents, including court costs and reasonable attorney's fees and disbursements, in connection with Custodian's performance of its duties under this Agreement, including those involving ordinary negligence, but excluding only those involving gross negligence or willful misconduct of Custodian. Notwithstanding anything to the contrary contained herein, this provision shall survive the termination of this Agreement. The Custodian shall have the power to employ such agents as it may reasonably deem necessary or appropriate in the performance of its duties and the exercise of its powers under this Agreement. (e) Neither the Custodian nor any of its officers, directors, employees and agents shall incur any liability to any Person for its acts or omissions hereunder, except as may result from its negligence or willful misconduct. The parties each (for itself and any person or entity claiming though it) hereby releases, waives, discharges, exculpates and covenants not to sue the Custodian for any action taken or omitted under this Agreement except to the extent caused by the Custodian's negligence or willful misconduct. Notwithstanding anything contained herein to the contrary, the parties agree that no party hereunder nor any of its directors, officers or employees shall be liable to any other party hereunder for any special, consequential or punitive damages whatsoever. (f) Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, it being expressly understood that there are no implied duties hereunder. Whenever in the administration of the provisions of this Agreement the Custodian shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Custodian, be deemed to be conclusively proved and established by a certificate signed by one of the Purchaser's officers and delivered to the Custodian and such certificate, in the absence of negligence or bad faith on the part of the Custodian, shall be full warrant to the Custodian for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof. Section 9. Assignment by Purchaser. Purchaser may assign all of its right, title and interest in and to some or all of the Mortgage Loans purchased by Purchaser pursuant to the Purchase Agreement and all rights of Purchaser under the Purchase Agreement (and this Agreement) in respect of such Mortgage Loans represented thereby to Assignee. Purchaser shall provide written notice to Custodian of any such assignment. The failure of Purchaser to give such notice shall not affect the validity of any such assignment. If the Purchaser does, however, fail to give such notice to the Custodian, then the Assignee may give such notice to the Custodian. Sellers hereby irrevocably consent to any such assignment to the extent permitted by law. Subject to any limitations in any agreement between such Assignee and the Purchaser, such Assignee may, upon notice as provided in Section 15 hereof, directly enforce and exercise such rights under this Agreement that have been assigned to it and, until otherwise notified by such Assignee, the Purchaser shall no longer have any of such rights. In accordance with the provisions of the Electronic Tracking Agreement, the related Seller shall (1) cause each Mortgage Loan that is to be sold to the Purchaser on a Purchase Date the Mortgage for which is recorded in the name of MERS to be designated a MERS Mortgage Loan on the related Loan -15- Identification Data and (2) cause the Purchaser to be designated an Associated Member (as defined in the Electronic Tracking Agreement) with respect to each such MERS Mortgage Loan. Subject to any limitations in any agreement between Assignee and Purchaser, Assignee may, upon notice of Purchaser's default as provided in Section 3(b) hereof, directly enforce and exercise such rights under this Agreement that have been assigned or pledged to it and, until otherwise notified by Assignee, Purchaser shall no longer have any of such rights. Custodian shall assume that any assignment from Purchaser to Assignee is subject to no limitations that are not expressly set forth in this Agreement. Section 10. Insurance. Custodian shall, at its own expense, maintain at all times during the existence of this Agreement such (a) fidelity insurance, (b) theft of documents insurance, (c) forgery insurance and (d) errors and omissions insurance as Custodian deems appropriate, prudent and customary. Section 11. Representations, Warranties and Covenants. (a) By Custodian. Custodian hereby represents and warrants to, and covenants with, Sellers and Purchaser that, as of the date hereof and at all times while Custodian is performing services under this Agreement: (i) Custodian is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and fully satisfies the requirements for acting as a GNMA custodian, a Fannie Mae custodian and a Freddie Mac custodian; and (ii) Custodian has the full power and authority to hold each Mortgage Loan and to enter into and perform its duties and obligations as contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Custodian, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by applicable receivership, conservatorship or similar debtor relief laws and except that certain equitable remedies may not be available regardless of whether enforcement is sought in equity or law. (b) By Sellers. Sellers hereby represent and warrant to, and covenant with, Custodian and Purchaser that, as of the date hereof and throughout the term of this Agreement: (i) Sellers are duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; and (ii) Sellers have the full power and authority to hold each Mortgage Loan and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Sellers, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by applicable receivership, conservatorship or -16- similar debtor relief laws and except that certain equitable remedies may not be available regardless of whether enforcement is sought in equity or law. (c) By Purchaser. Purchaser hereby represents and warrants to, and covenants with, Custodian and Sellers that, as of the date hereof and throughout the term of this Agreement: (i) Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; and (ii) Purchaser has the full power and authority to hold each Mortgage Loan and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by applicable receivership, conservatorship or similar debtor relief laws and except that certain equitable remedies may not be available regardless of whether enforcement is sought in equity or law. Section 12. No Adverse Interests. By its acceptance of each Submission Package, Custodian covenants and warrants to Purchaser that: (a) as of the date of payment by Purchaser of the Purchase Price, Custodian, solely in its capacity as Custodian, (i) holds no adverse interests, by way of security or otherwise, in the related Mortgage Loan, and (ii) has no interest in or lien upon the Submission Packages which it holds as custodian for Purchaser; and (b) Custodian hereby waives and releases any such interest in such Mortgage Loan which it, acting solely in its capacity as Custodian, has or which it may thereafter acquire prior to the time of release of such Mortgage Loan from the terms of this Agreement. Section 13. Amendments. This Agreement may be amended only by written agreement of Sellers, Purchaser and Custodian except that, if this Agreement shall have been assigned by Purchaser with written notice of such assignment given to Sellers and Custodian, no amendment shall be effective unless the amendment is also signed by Assignee. Purchaser shall give at least five (5) days'prior written notice to Assignee of any proposed amendment to this Agreement and shall furnish Assignee with a copy of each such amendment within five (5) days after it is executed and delivered. This Agreement, together with the Exhibits, Schedules and other writings referred to herein or delivered pursuant hereto, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Section 14. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Section 15. Agreement for Exclusive Benefit of Parties; Assignment. This Agreement is for the exclusive benefit of the parties hereto and their respective successors and permitted assigns hereunder and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. This Agreement shall bind the parties hereto and their -17- respective successors, but, except for the assignments provided in Sections 3(b) and 9, shall not be assigned or pledged by any party without the prior written consent of the other parties. Written notice from Assignee to Custodian (with a copy to Purchaser) that Purchaser has defaulted in any material respect under any funding or loan agreement relating to the financing of Purchaser's purchase of Mortgage Loans shall be conclusive for all purposes of this Agreement. Section 16. Effect of Invalidity of Provisions. In case any one or more of the provisions contained in this Agreement are or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby, unless the remaining provisions cause this Agreement to fail its essential purpose. Section 17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws rules. Section 18. Consent to Service. Each party irrevocably consents to the service of process by registered or certified mail, postage prepaid, to it at its address given in or pursuant to Section 19. Section 19. Notices. Any notices, consents, directions and other communications given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered by facsimile or electronic transmission, or personally delivered at, or sent by overnight courier to the addresses of the parties hereto set forth on the cover page hereof or such other address as any party shall give in a notice to the other parties pursuant to this Section 19. Section 20. Certification. Custodian hereby acknowledges that each time it issues a Notice of Intent to Issue Trust Receipt and attaches a list of Mortgage Loans, it is making an express representation and warranty to Purchaser that it has reviewed each Submission Package listed on the Request for Certification as specified in Sections 4(a) and (b) with respect to the related Mortgage Loan. Section 21. Construction. The headings in this Agreement are for convenience only and are not intended to influence its construction. References to Sections and Exhibits in this Agreement are to the Sections of and Exhibits to this Agreement. The Exhibits are part of this Agreement. In this Agreement, the singular includes the plural, the plural the singular, and the words "and" and "or" are used in the conjunctive or disjunctive as the sense and circumstances may require. Section 22. Submission to Jurisdiction. With respect to any claim arising out of this Agreement each party (a) irrevocably submits to the nonexclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, and (b) irrevocably waives (i) any objection which it may have at any time to the laying of venue of any suit, action or proceeding arising out of or relating hereto brought in any such court, (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) the right to object, with respect to such claim, suit, action or proceeding brought in any such court, -18- that such court does not have jurisdiction over such party. Nothing herein will be deemed to preclude any party hereto from bringing an action or proceeding in respect of this Agreement in any jurisdiction other than as set forth in this Section 22. Section 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 24. Joint and Several Liability. The liability of the Sellers hereunder is joint and several. The Sellers hereby: (a) acknowledge and agree that the Purchaser and the Custodian shall have no obligation to proceed against one Seller before proceeding against the other Seller, (b) waive any defense to their obligations under this Agreement, based upon or arising out of the disability or other defense or cessation of liability of one Seller versus the other or of any other Seller, and (c) waive any right of subrogation or ability to proceed against any Person until all amounts owed to Purchaser and Custodian by Sellers pursuant to this Agreement are paid in full. -19- IN WITNESS WHEREOF, Sellers, Purchaser and Custodian have caused this Agreement to be duly executed as of the date and year first above written. AMERICAN HOME MORTGAGE CORP. (Seller) By: /s/ Michael Strauss ------------------------------------ Name: Michael Strauss Title: President COLUMBIA NATIONAL, INCORPORATED (Seller) By: /s/ Michael Strauss ------------------------------------ Name: Michael Strauss Title: President GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. (Purchaser) By: /s/ Michael Pillari ------------------------------------ Name: Michael Pillari Title: Managing Director DEUTSCHE BANK NATIONAL TRUST COMPANY, as Custodian By: /s/ Andrew Hays ------------------------------------ Name: Andrew Hays Title: Associate By: /s/ Aimee Kemmeter ------------------------------------ Name: Aimee Kemmeter Title: Assistant Vice President EXHIBITA-1 CASH WINDOW SUBMISSION PACKAGE With respect to each Mortgage Loan being offered by Seller for sale to Purchaser pursuant to a Cash Window Transaction, Seller shall deliver and release to Custodian the following documents: (i) The original Mortgage Note bearing all intervening endorsements from the originator to the Seller endorsed, "Pay to the order of _______, without recourse" and signed in the name of Seller by an authorized officer of Seller; (if applicable), the original assumption agreement, together with the original of any surety agreement or guaranty agreement relating to the Mortgage Note or any such assumption agreement, and if the Mortgage Note has been signed by a third party on behalf of the Mortgagor, the original power of attorney or other instrument that authorized and empowered such Person to sign or a copy of such power of attorney together with an Officer's Certificate (or a certificate from the county recorder's office) certifying that such copy presents a true and correct reproduction of the original and that such original has been duly recorded or delivered for recordation in the appropriate records of the jurisdiction in which the related Mortgaged Property is located and if Freddie Mac is the Agency for the related Mortgage Loan, the Freddie Mac loan number should appear on the top right hand corner of the Mortgage Note; (ii) A Mortgage meeting one of the following requirements: (A) The original Mortgage bearing evidence that the Mortgage has been duly recorded in the records of the jurisdiction in which the Mortgaged Property is located; or (B) A copy of the Mortgage together with either (i) an officer's certificate (which may be a blanket officer's certificate of Seller covering all such Mortgage Loans), (ii) a certificate from the county recorder's office, or (iii) a certificate from the related title company or escrowed closing agent, in such case that such copy represents a true and correct reproduction of the original Mortgage and that such original has been duly recorded or delivered for recordation in the appropriate records of the jurisdiction in which the Mortgaged Property is located; (iii) With respect to each Mortgage Loan that has been designated for sale to Fannie Mae, an original Assignment of Mortgage to Fannie Mae in recordable form but unrecorded signed in the name of Seller by an authorized officer; (iv) If Seller did not originate the Mortgage Loan, all original intervening assignments duly executed and acknowledged and in recordable form, evidencing the chain of mortgage assignments from the originator of the Mortgage Loan to Seller, and a copy of each such intervening mortgage assignment, together with an Officer's Certificate, or a certificate from the recorder's office, certifying that such copy represents a true and correct reproduction of the original of such instrument and that such original has been duly recorded or delivered for recordation in the appropriate records of the jurisdiction where the Mortgaged Property is located; (v) Except with respect to any MERS Mortgage Loan, an original Assignment of Mortgage, in blank, in recordable form but unrecorded (which Assignment of Mortgage may be in the form of a blanket assignment of two or more such Mortgages to the extent permitted by applicable law) signed in the name of Seller by an authorized officer; (vi) A Warehouse Lender's Release, from any Warehouse Lender having a security interest in the Mortgage Loans or if there is no Warehouse Lender with respect to such Mortgage Loans, a Seller's Release, from Seller, addressed to Purchaser, releasing any and all right, title and interest in such Mortgage Loans. (vii) Delivery Instructions. (viii) Originals, if any, of each modification agreement. (ix) The Applicable Agency Documents, listed on Exhibit A-2 and Exhibit A-3. (x) The original policy of title insurance, or, if the policy has not yet been issued, a written commitment or interim binder issued by the title insurance company, dated and certified as of the date the Mortgage Loan was funded, with a statement by the title insurance company or closing attorney on such binder or commitment that the priority of the lien of the related Mortgage during the period between the date of the funding of the related Mortgage Loan and the date of the related title policy (which title policy shall be dated the date of recording of the related Mortgage) is insured. (xi) with respect to each MERS Mortgage Loan, a MERS Report. (xii) A Trade Assignment in the form of Exhibit K-1 or Exhibit K-2 attached hereto, which shall be fully completed and executed by both the Takeout Investor and the Seller. All documents delivered to Custodian shall be delivered by Seller in an appropriate file folder, properly secured, and clearly marked with Seller's appropriate Freddie Mac or Fannie Mae loan number identifying such Mortgage Loan in the form and order required by the Agency. In those cases where a copy of any intervening mortgage assignment, or an unrecorded original of any intervening mortgage assignment are delivered to the Custodian with a certification by Seller that the originals are being sent for recordation, Seller shall promptly cause the original of such instrument to be recorded. EXHIBIT A-2 Freddie Mac DOCUMENT LIST (i) Freddie Mac Form 1 (Fixed-Rate Mortgage Purchase Contract Conventional Home Mortgages - Original Cash) or Freddie Mac Form 9 (Fixed-Rate Mortgage Purchase Contract Conventional Home Mortgages - Gold Cash), or Freddie Mac Form 2 (Adjustable Rate Purchase Contract Conventional Home Mortgages). (ii) Freddie Mac Form 1034 (Custodial Certification Schedule). (iii) Freddie Mac Form 996 (Warehouse Lender Release of Security Interest).1 (iv) Freddie Mac Form 987 (Wire Transfer Authorization for a Cash Warehouse Delivery). (v) Freddie Mac Form 960 (Transfer of Servicing) (if supplied by Seller) - -------- 1 Consisting either of the form submitted by Seller to Custodian naming Purchaser as Warehouse Lender or in the circumstances contemplated by Section 3(d), a substituted form completed by Custodian naming the Purchaser as Warehouse Lender. EXHIBIT A-3 Fannie Mae DOCUMENT LIST (i) Either a Standard Mandatory Delivery Commitment or a Negotiated Mandatory Delivery Commitment or a Negotiated Market-Rate Standby Commitment. (ii) Fannie Mae Form 1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity Mortgage Loan Schedule) or Fannie Mae Form 1069 (Adjustable-Rate Mortgage Loan Schedule). (iii) Fannie Mae Form 360 (Incumbency Certificate) (executed by Seller naming person authorized to instruct Fannie Mae on where to wire funds).2 (iv) All original intervening assignments (if any) duly executed and acknowledged and in recordable form, but unrecorded. - -------- 2 If applicable. EXHIBIT A-4 [LETTERHEAD OF PURCHASER] FANNIE MAE MASTER BAILEE LETTER ____________ __ , ____ [______________] Attention: Ladies and Gentlemen: In connection with its Conforming Whole Loan Purchase: Cash Window Program, the undersigned GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") shall from time to time, cause Deutsche Bank National Trust Company, as custodian ("Custodian"), to deliver to Fannie Mae original promissory notes ("Mortgage Notes") evidencing certain mortgage loans ("Mortgage Loans"), along with certain other documents comprising the related files ("Mortgage Documents"). Custodian is hereby instructed to prepare and insert a Notice of Bailment in the form of Schedule A hereto with respect to each Mortgage Loan ("Notice of Bailment"), in each file of Mortgage Documents delivered by Custodian to Fannie Mae. Except as otherwise provided herein, each Mortgage Document so delivered to Fannie Mae is to be held by Fannie Mae, as agent for Custodian, and subject to only Purchaser's direction and control. Upon Purchaser's receipt of all of the proceeds from the sale of a Mortgage Loan in accordance with the wiring instructions set forth in Fannie Mae's Form 482 or 1068 all of Purchaser's legal or equitable interest in the Mortgage Loan shall terminate. The persons listed on the attached Schedule B are the authorized representatives ("Authorized Representatives") of Purchaser. Custodian shall not honor any communication relating to a Mortgage Loan, which is not confirmed by the written or telephonic consent, confirmed in writing at the request of Custodian, of an Authorized Representative of Purchaser. 25 Please execute and return the enclosed copy of this Master Bailee Letter in the enclosed self-addressed envelope. Sincerely, GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. (Purchaser) By: ------------------------------------------ Name: Title: Agreed to: Deutsche Bank National Trust Company, as Custodian By: ------------------------------------------ Name: Title: Dated: As of the date first set forth above 26 SCHEDULE A TO EXHIBIT A-4 NOTICE OF BAILMENT [Fannie Mae Address] Re: [Insert Description of Loan, including Borrower's Name, Loan Amount and Fannie Mae's Loan Number] Ladies and Gentlemen: Pursuant to the Master Bailee Letter, dated__________, ____ (the "Master Bailee Letter"), between Greenwich Capital Financial Products, Inc. ("Purchaser") and Deutsche Bank National Trust Company (the "Custodian"), you are hereby notified that the enclosed original promissory note with respect to the referenced loan together with certain other documents comprising the related file with respect to that loan (the "Mortgage Documents") being hereby delivered to you herewith are to be held by you as agent of Custodian (which holds the Mortgage Documents as custodian and bailee for the benefit of Purchaser). Any Mortgage Documents (or portion thereof) not purchased by you in accordance with the provisions of the Applicable Guide shall be sent to the Custodian by overnight courier to: [insert address for return of documents]. The proceeds of the sale of each Mortgage Loan accepted for purchase by you must be remitted immediately upon settlement by you, by wire transfer in immediately available funds, in accordance with the following wire instructions: _____________________ _____________________ ABA #___________ A/C #___________ _____________________ Attn: ______________ You shall be responsible for making certain that all of the proceeds from the sale of the Mortgage Loan are received in accordance with the wire transfer instructions set forth above and Purchaser's interest in the Mortgage Loan shall not be released until such funds are received by Purchaser. Any questions relating to the Mortgage Documents should be referred to the Purchaser at (203) 625-2700. Sincerely, -------------------------------------- By:___________________________________ Name:_________________________________ Title:________________________________ 27 SCHEDULE B TO EXHIBIT A-4 AUTHORIZED REPRESENTATIVES OF PURCHASER Name Title Authorized Signature - ---- ----- -------------------- 28 EXHIBIT B-1 CONDUIT SUBMISSION PACKAGE With respect to each Mortgage Loan being offered by Seller for sale to Purchaser, pursuant to a Conduit Transaction, Seller shall deliver and release to Custodian the following documents: (i) The original Mortgage Note bearing all intervening endorsements from the originator to the Seller endorsed, "Pay to the order of _______, without recourse" and signed in the name of Seller by an authorized officer of Seller; (if applicable), the original assumption agreement, together with the original of any surety agreement or guaranty agreement relating to the Mortgage Note or any such assumption agreement, and if the Mortgage Note has been signed by a third party on behalf of the Mortgagor, the original power of attorney or other instrument that authorized and empowered such Person to sign or a copy of such power of attorney together with an officer's certificate from the Seller (or a certificate from the county recorder's office) certifying that such copy presents a true and correct reproduction of the original and that such original has been duly recorded or delivered for recordation in the appropriate records of the jurisdiction in which the related Mortgaged Property is located; (ii) A Mortgage meeting one of the following requirements: (A) The original Mortgage bearing evidence that the Mortgage has been duly recorded in the records of the jurisdiction in which the Mortgaged Property is located; or (B) A copy of the Mortgage together with either (i) an officer's certificate (which may be a blanket officer's certificate of Seller covering all such Mortgage Loans), (ii) a certificate from the county recorder's office, or (iii) a certificate from the related title company or escrowed closing agent, in such case that such copy represents a true and correct reproduction of the original Mortgage and that such original has been duly recorded or delivered for recordation in the appropriate records of the jurisdiction in which the Mortgaged Property is located; (iii) If Seller did not originate the Mortgage Loan, all original intervening assignments duly executed and acknowledged and in recordable form, evidencing the chain of mortgage assignments from the originator of the Mortgage Loan to Seller, and/or a copy of each such intervening mortgage assignment, together with either (i) an officer's certificate (which may be a blanket officer's certificate of Seller covering all such Mortgage Loans), (ii) a certificate from the county recorder's office, or (iii) a certificate from the related title company or escrowed closing agent, in such case that such copy represents a true and correct reproduction of the original Mortgage and that such original has been duly recorded or delivered for recordation in the appropriate records of the jurisdiction in which the Mortgaged Property is located; (iv) Except with respect to any MERS Mortgage Loan, an original Assignment of Mortgage, in blank, in recordable form but unrecorded signed in the name of Seller by an authorized officer; (v) If applicable, a Warehouse Lender's Release, from any Warehouse Lender having a security interest in the Mortgage Loans or, or if there is no Warehouse Lender with respect to such Mortgage Loans, a Seller's Release, from Seller, addressed to Purchaser, releasing any and all right, title and interest in such Mortgage Loans; (vi) Delivery Instructions; and (vii) A copy of the Commitment. EXHIBIT B-2 [LETTERHEAD OF CUSTODIAN] CONDUIT MASTER BAILEE LETTER ___________ __ , ____ [ADDRESS] [__________] Attention: Ladies and Gentlemen: The undersigned Deutsche Bank National Trust Company ("Custodian"), as custodian for GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") shall from time to time deliver to ________ ("Takeout Investor") original promissory notes ("Mortgage Notes") evidencing certain mortgage loans ("Mortgage Loans"), along with certain other documents comprising the related files ("Custodial Files") and, in each case, a Notice of Bailment in the form of Schedule A hereto with respect to each Mortgage Loan ("Notice of Bailment"), for inspection by Takeout Investor prior to the possible purchase by Takeout Investor of such Mortgage Loans pursuant to commitments ("Commitments") from certain sellers of Mortgage Loans ("Sellers"). Prior to its delivery to Takeout Investor, all of Seller's right, title and interest in each Mortgage Loan and proceeds thereof shall have been conveyed to Purchaser in accordance with each Seller's agreement with Purchaser. Except as otherwise provided herein, each Custodial File so delivered to Takeout Investor is to be held by Takeout Investor, as agent for Custodian, and subject to only Purchaser's direction and control until released as provided herein. The proceeds of the sale of each Mortgage Loan accepted for purchase by Takeout Investor must be remitted immediately upon settlement by Takeout Investor, by wire transfer in immediately available funds, in accordance with the following wire instructions: _____________________ _____________________ ABA #___________ A/C #____________ _____________________ Attn: ______________ Takeout Investor shall be responsible for making certain that all of the proceeds from the sale of each Mortgage Loan are received in accordance with the wire transfer instructions set forth on each Notice of Bailment and Purchaser's interest in the Mortgage Loans shall not be released until such funds are received by Purchaser. Upon Purchaser's receipt of all of the proceeds from the sale of a Mortgage Loan in accordance with the wiring instructions in the applicable Notice of Bailment, all of Purchaser's legal or equitable interest in the Mortgage Loan shall terminate. All Mortgage Loan documents held by Takeout Investor which are received by Takeout Investor from Custodian with respect to a Mortgage Loan that is not purchased must be returned immediately to Custodian at the address for delivery of documents set forth on the Notice of Bailment. Purchaser reserves the right at any time, until a Mortgage Loan has been purchased by Takeout Investor, to demand the return of the related Mortgage Documents to Custodian, and Takeout Investor agrees to return to Custodian the Mortgage Documents pertaining to a Mortgage Loan not purchased by Takeout Investor immediately upon such demand by Purchaser. The persons listed on the attached Schedule B are the authorized representatives ("Authorized Representatives") of Purchaser. Takeout Investor shall not honor any communication from Sellers or any third party relating to a Mortgage Loan, which is not confirmed by the written or telephonic consent of an Authorized Representative of Purchaser, or until Purchaser has received the required amount of proceeds of the sale of such Mortgage Loan. In the event Takeout Investor is not able for any reason to comply with the terms of this Bailee Letter, Takeout Investor shall immediately return the Submission Package to Custodian at the above address. Takeout Investor acknowledges that the Custodial File is being delivered in accordance with its instructions. Takeout Investor shall not deliver a Custodial File to any third party without the prior written consent of Purchaser unless such third party is a wholly owned subsidiary of Takeout Investor or a custodian and bailee of Takeout Investor who is receiving such Custodial File with written notice of the bailment created by this Master Bailee Letter. In the event Takeout Investor is not able for any reason to comply with the terms of this Master Bailee Letter, Takeout Investor shall immediately return each Custodial File in Takeout Investor's possession to Custodian at the address for delivery of documents set forth in the related Notice of Bailment. No deviation in performance of the terms of any previous bailment agreement will alter any of Takeout Investor's duties or responsibilities as provided herein. By accepting delivery of a Custodial File containing a Notice of Bailment, Takeout Investor shall be bound by the terms hereof. Please execute and return the enclosed copy of this Master Bailee Letter in the enclosed self-addressed envelope. Sincerely, Deutsche Bank National Trust Company, as Custodian By: ----------------------------------- Name: Title: Dated: As of the date first set forth above Agreed to: [CONDUIT] (Takeout Investor) By: -------------------------------- Name: Title: Dated: As of the date first set forth above SCHEDULE A TO EXHIBIT B-2 NOTICE OF BAILMENT [Conduit Address] Re: [Insert Description of Loan, including Borrower's Name, Loan Amount and Fannie Mae's Loan Number] Ladies and Gentlemen: Pursuant to the Master Bailee Letter, dated , ____ (the "Master Bailee Letter"), between you and Deutsche Bank National Trust Company (the "Custodian"), you are hereby notified that the enclosed original promissory note with respect to the referenced loan together with certain other documents comprising the related file with respect to that loan (the "Mortgage Documents") being hereby delivered to you herewith are to be held by you as agent of Custodian (which holds the Mortgage Documents as custodian and bailee for the benefit of Greenwich Capital Financial Products, Inc. ("Purchaser")). Any Mortgage Documents (or portion thereof) not purchased by you in accordance with the provisions of the Applicable Guide shall be sent to the Custodian by overnight courier to: [insert address for return of documents]. In the event you elect to purchase the Mortgages subject to the Master Bailee Letter, you shall pay the Trade Price to the Purchaser by wire transfer based upon the following instructions: _____________________ _____________________ ABA #___________ A/C #____________ _____________________ Attn: ______________ Any questions relating to the Mortgage Documents should be referred to the Purchaser at (203) 625-2700. Sincerely, By: ------------------------------------------ Name: Title: SCHEDULE B TO EXHIBIT B-2 AUTHORIZED REPRESENTATIVES OF PURCHASER Name Title Authorized Signature - ---- ----- -------------------- ___________________ ___________________ _____________________ ___________________ ___________________ _____________________ ___________________ ___________________ _____________________ ___________________ ___________________ _____________________ EXHIBIT C REQUEST FOR CERTIFICATION
- ---------------------------------- -- ------------------------------------------------------ -- ------------------------------------ Type of Transaction: (0)Cash Window Transaction (0)Conduit Transaction - ---------------------------------- -- ------------------------------------------------------ -- ------------------------------------ Mortgagor ARM data (margin, Original Loan First and Property Address (street, Original index,cap,floor,1st rate Loan # Amount Last Name city, state, zip) Loan Term Note Rate adj, max rate, 1st pay date) - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ------------ ---------------- --------------- --------------------------- -------------- ------------- ----------------------------- - ---------------------------------- ---------------------------- Type of Transaction: (0)Conduit Transaction - ---------------------------------- ---------------------------- Loan Type Original Loan (fixed or Loan # Amount Maturity Date adjustable - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------ - ------------ ---------------- -------------- ------------
EXHIBIT D TRUST RECEIPT MORTGAGE LOANS No. ____ Date: Deutsche Bank National Trust Company, as custodian (the "Custodian"), certifies that on the date of this Trust Receipt, GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") is the registered owner of this Trust Receipt evidencing ownership of certain mortgage loans (the "Mortgage Loans") listed by identifying number on the schedule attached to this Trust Receipt and further identified in the books and records of the Custodian, interim serviced by [____________] ("Seller"). The Mortgage Note and copy of the recorded Mortgage (or deed of trust) for each Mortgage Loan are held by Custodian, pursuant to the terms and conditions of that certain Custodial Agreement dated as of _____, 200_ (the "Agreement") among Purchaser, Seller and Custodian. To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Agreement. This Trust Receipt is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the holder of this Trust Receipt by virtue of the acceptance hereof assents and by which such holder is bound. Any transfer of this Trust Receipt may be registered upon presentation of this Trust Receipt by the transferee hereof, duly assigned to the transferee, at the office of the Custodian. This Trust Receipt supersedes any Trust Receipt bearing an earlier date. This Trust Receipt shall not be valid or become obligatory for any purpose unless and until the Certificate of Authentication appearing below has been duly executed by the Custodian. IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly executed. Deutsche Bank National Trust Company, as Custodian By: ---------------------------------- Authorized Officer CERTIFICATE OF AUTHENTICATION This Trust Receipt is one of the Trust Receipts issued under the above-described Agreement. Dated: By: ----------------------------- Authorized Officer TRUST RECEIPT NO. MORTGAGE LOANS Following are the identifying numbers of the Mortgage Loans subject to this Trust Receipt: EXHIBIT D-1 NOTICE OF INTENT TO ISSUE TRUST RECEIPT MORTGAGE LOANS No. ____ Date: Deutsche Bank National Trust Company as custodian (the "Custodian"), hereby notifies GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Purchaser") that Custodian shall issue a Trust Receipt certifying that Purchaser is the registered owner of certain mortgage loans (the "Mortgage Loans") listed by identifying number on the schedule attached to this Notice of Intent to Issue Trust Receipt and further identified in the books and records of the Custodian, interim serviced by __________ ("Seller"). DEUTSCHE BANK NATIONAL TRUST COMPANY as Custodian By: --------------------------------- Authorized Officer MORTGAGE LOANS Following are the identifying numbers of the Mortgage Loans subject to this Notice of Intent to Issue Trust Receipt: EXHIBIT E-1 [WAREHOUSE LENDER'S RELEASE] Greenwich Capital Financial Products, Inc. Ladies and Gentlemen: We hereby release all right, interest or claim of any kind with respect to the mortgage loan(s) referenced below, such release to be effective automatically without any further action by any party, upon payment in full, in one or more installments, from Greenwich Capital Financial Products, Inc., in accordance with the wire instructions which we delivered to you in a letter dated _______ , 200__ ,in immediately available funds, of an aggregate amount equal to the product of A multiplied by B (such product being rounded to the nearest $0.01) multiplied by C.* Loan * Mortgagor Address City State Zip - ------ --------- ------- ---- ----- --- Very truly yours, [WAREHOUSE LENDER] By: --------------------------- Name: Title: * A= weighted average trade price B = principal amount of the mortgage loans C = 1 minus the discount set forth on the related Funding Confirmation EXHIBIT E-2 Date: [WAREHOUSE LENDER'S WIRE INSTRUCTIONS] Greenwich Capital Financial Products, Inc. Re: Greenwich Capital Financial Products, Inc. Whole Loan Purchase Program with [Seller] Ladies and Gentlemen: Set forth below are [Warehouse Lender's] wire instructions applicable to the above-referenced Whole Loan Purchase Program. Wire Instructions: Bank Name: City, State: ABA#: Account #: Account Name: Please acknowledge receipt of this letter in the space provided below. This letter supersedes and replaces (i) any prior notice specifying the name of [Warehouse Lender] and setting forth wire instructions and (ii) any contrary wire instructions contained in any form of release delivered by [Warehouse Lender] to [Purchaser] shall remain in effect until superseded and replaced by a letter, in the form of this letter, executed by each of us and acknowledged by you. Very truly yours, [SELLER] By: -------------------------------- Name: Title: [WAREHOUSE LENDER(S)](3) By: -------------------------------- Name: Title: Receipt Acknowledged By: GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: -------------------------------- Name: Title: - -------- 3 The authorized officer of each Warehouse Lender executing this letter must be the same authorized officer as signs the Warehouse Lender's Release. Not applicable if there is no Warehouse Lender. EXHIBIT F-1 [SELLER'S RELEASE] Greenwich Capital Financial Products, Inc. 600 Steamboat Road Greenwich, Connecticut 06830 Ladies and Gentlemen: With respect to the mortgage loan(s) referenced below (a) we hereby certify to you that the mortgage loan(s) is not subject to a lien of any warehouse lender and (b) we hereby release all right, interest or claim of any kind with respect to such mortgage loan, such release to be effective automatically without any further action by any party upon payment from Purchaser to Seller of an aggregate amount equal to the product of A multiplied by B (such product being rounded to the nearest $0.01) multiplied by C* in accordance with our wire instructions in effect on the date of such payment. Loan Mortgagor Street Address City State Zip - ---- --------- -------------- ---- ----- --- Very truly yours, [SELLER] By: --------------------------------------- Name: Title: *A` weighted average trade price B` principal amount of the mortgage loan(s) C` 1 minus the discount set forth on the related funding confirmation EXHIBIT F-2 Date: [SELLER'S WIRE INSTRUCTIONS] Greenwich Capital Financial Products, Inc. Re: Custodial Agreement dated as of January 1, 2004, among Greenwich Capital Financial Products, Inc., American Home Mortgage Corp., Columbia National, Incorporated and Deutsche Bank National Trust Company Ladies and Gentlemen: Capitalized terms used herein and not defined herein shall have the meanings ascribed to such terms in the above-referenced Custodial Agreement. Set forth below are the Seller's Wire Instructions applicable to the above-referenced Custodial Agreement. Wire Instructions: Bank Name: City, State: ABA#: Account #: A/C Name: Please acknowledge receipt of this letter in the space provided below and return it to Seller. This letter supersedes and replaces any prior notice specifying the name of Seller and the Seller's Wire Instructions and shall remain in effect until superseded and replaced by a letter, in the form of this letter, executed by us and acknowledged by you. Very truly yours, [SELLER](4) By: -------------------------- Name: Title: Receipt acknowledged by: GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: --------------------------- Name: Title: - -------- (4) The authorized officer executing this letter must be the same authorized officer as signs the Seller's Release. Applicable only if there is no Warehouse Lender. Exhibit G-1 [PURCHASER'S WIRE INSTRUCTIONS TO SELLER] Wire Instructions: Bank Name: City, State: ABA#: Account #: A/C Name: EXHIBIT G-2 [PURCHASER'S WIRE INSTRUCTIONS TO CUSTODIAN] Date: Deutsche Bank National Trust Company 1761 St. Andrew Place Santa Ana, CA 92705 Re: Whole Loan Purchase Program Ladies and Gentlemen: Set forth below are the Purchaser's Wire Instructions to Custodian (as defined in all Conforming Custodial Agreements used in the above-referenced program). Wire Instructions: Bank Name: City, State: ABA #: Account #: Account Name: Please acknowledge receipt of this letter in the space provided below and return it to Greenwich Capital Financial Products, Inc. ("Purchaser"). This letter supersedes and replaces any prior notice specifying the name of Purchaser and the Purchaser's Wire Instructions to Custodian and shall remain in effect until superseded and replaced by a letter, in the form of this letter, executed by us and acknowledged by you. Very truly yours, GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. By: --------------------------------- Name: Title: Receipt acknowledged by: Deutsche Bank National Trust Company, as Custodian [CUSTODIAN] By: --------------------- Name: Title: EXHIBIT G-3 [PURCHASER'S DELIVERY INSTRUCTIONS TO CUSTODIAN] [CUSTODIAN] [ADDRESS] Attention: Re: Delivery of Submission Package Dear ______: Please deliver, via overnight courier, each of the Submission Packages relating to the Mortgage Loans listed below to: Very truly yours, [PURCHASER] By: --------------- Title: Initially capitalized terms are defined in the Custodial Agreement dated as of January 1, 2004, among Greenwich Capital Financial Products, Inc., American Home Mortgage Corp., Columbia National, Incorporated and Deutsche Bank National Trust Company. Very truly yours, [PURCHASER] By: --------------------- Title: EXHIBIT H [NOTICE BY ASSIGNEE TO CUSTODIAN OF PURCHASER'S DEFAULT] [Custodian] [Address] Re: Whole Loan Purchase Program Ladies and Gentlemen: Notice is hereby given that Purchaser has materially defaulted in its obligations under an agreement between Assignee and Purchaser relating to the financing by Assignee of Purchaser's purchase of Mortgage Loans described on Schedule 1 hereto. Assignee hereby (i) directs that Custodian act with respect to the related mortgage files solely in the capacity of custodian for, and bailee of, Assignee, (ii) directs that Custodian hold such mortgage files for the exclusive use and benefit of Assignee and (iii) assumes the rights of Purchaser to furnish instructions to Custodian as to the disposition of such mortgage files and such rights shall be exercisable solely by Assignee. Please acknowledge the foregoing by signing below and returning a copy of this notice to us at [address] Very truly yours, [ASSIGNEE] By: --------------------- Name: Title: RECEIPT ACKNOWLEDGED: Deutsche Bank National Trust Company, as Custodian By: Name: Title: cc: Greenwich Capital Financial Products, Inc. EXHIBIT I [RESERVED] EXHIBIT J [LETTERHEAD OF SELLER] [DATE] To: [____________] Please deliver the Submission Package(s) as indicated on the attached list, in accordance with the terms of the agreement, to the following: Company Name: Address: City, State, Zip: Attn: [LETTERHEAD OF SELLER] [DATE] LOANS TO BE DELIVERED BY CUSTODIAN FOR [SELLER] Loan #: Borrower's Name: Loan Amount: ------- ---------------- ------------ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. EXHIBIT K-1 [TRADE ASSIGNMENT] ("Takeout Investor") [Address] Attention: Ladies and Gentlemen: Attached hereto is a correct and complete copy of your confirmation of commitment (the "Commitment"), trade-dated _, ____, to purchase $ of mortgage loans (the "Mortgage Loans") at a purchase price of . This is to confirm that (i) the Commitment is in full force and effect, (ii) the Commitment is hereby assigned to Greenwich Capital Financial Products, Inc. ("GCFP"), (iii) you will accept delivery of such Mortgage Loans directly from GCFP, (iv) you will pay GCFP for such Mortgage Loans, (v) upon GCFP's acceptance of this assignment, GCFP is obligated to make delivery of such Mortgage Loans to you in accordance with the attached Commitment and (vi) upon GCFP's acceptance of this assignment, you will release Seller from its obligation to deliver the Mortgage Loans to you under the Commitment. Upon GCFP's determination not to accept an assignment, GCFP will notify you that this assignment is rejected. Not later than 2:00 P.M. Eastern Standard Time one business day prior to your satisfaction of the Commitment, you shall fax a purchase confirmation to GCFP at (___) ___-____, Attention: . Payment will be made to GCFP in immediately available funds. Very truly yours, [SELLER] By: --------------------------- Name: ------------------------- Title: ------------------------ Agreed to, confirmed and accepted: [TAKEOUT INVESTOR] By: --------------------------- Name: ------------------------- Title: ------------------------ EXHIBIT K-2 [TRADE ASSIGNMENT] (Blanket) _____("Takeout Investor") [Address] Attention: Ladies and Gentlemen: This is to confirm that (i) your commitments ("Commitment"), made from time to time, to purchase mortgage loans (the "Mortgage Loans") from Seller may be assigned to Greenwich Capital Financial Products, Inc. ("GCFP"), (ii) you will accept delivery of such Mortgage Loans directly from GCFP, (iii) you will pay GCFP for such Mortgage Loans, (iv) upon GCFP's acceptance of this assignment with respect to any Commitment, GCFP will be obligated to make delivery of such Mortgage Loans to you in accordance with such Commitment and (v) upon GCFP's acceptance of such assignment with respect to any Commitment, you will release Seller from its obligation to deliver the related Mortgage Loans to you under such Commitment but Seller will not be released from any of its other obligations under the Loan Purchase and Sale Agreement. Your agreement to the foregoing shall remain in effect until terminated by your giving notice of such termination to Seller in the form attached hereto as Exhibit 1. Upon GCFP's determination not to accept an assignment, GCFP will notify you that this assignment is rejected with respect to the related Commitment. Not later than 9:00 A.M. Eastern Standard Time on the business day that you purchase the Mortgage Loans, you shall fax a purchase list containing the information required by the Mortgage Loan Settlement Summary to GCFP at (___) ___-____, Attention: . You may also transmit such information electronically by 10:00 A.M. on such business day. Payment will be made to GCFP in immediately available funds. Very truly yours, [SELLER] By: --------------------------- Name: ------------------------- Title: ------------------------ Agreed to, confirmed and accepted: [TAKEOUT INVESTOR] By: --------------------------- Name: ------------------------- Title: ------------------------ EXHIBIT 1 to EXHIBIT K-2 [WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT] [Seller] [Address] [Address] Ladies and Gentlemen: The undersigned hereby terminates its agreement to Seller's assignment of Commitments to GCFP, which approval was given pursuant to the Trade Assignment dated . This termination shall be effective as of but shall not affect the assignment of any Commitment which assignment was made prior to the date hereof. Capitalized terms not defined herein shall have the meanings set forth in the Trade Assignment. Very truly yours, [TAKEOUT INVESTOR] By: --------------------------- Name: ------------------------- Title: ------------------------ Copy to: [Purchaser] SCHEDULE A LIST OF CONDUITS ---------------- 1. SCHEDULE A LIST OF CONDUITS ---------------- 1. EX-10.6 17 am033105-ex10_6.txt EXHIBIT 10.6 GUARANTY This GUARANTY, dated as of December 3, 2004, is made by AMERICAN HOME MORTGAGE INVESTMENT CORP., a corporation organized under the laws of the State of Maryland ("Guarantor"), in favor of Lehman Brothers Inc. and Lehman Commercial Paper Inc. (collectively, "Lehman"). As an inducement and in consideration for Lehman to enter into that certain letter agreement, dated as of December __, 2004 (the "Letter Agreement") by and among American Home Mortgage Acceptance, Inc. ("Seller") and Lehman, to the Master Repurchase Agreement, dated as of March 29, 2004 (the "Master Repurchase Agreement"; the Master Repurchase Agreement and the Letter Agreement, collectively, the "Agreement"; capitalized terms used herein but not defined herein shall have the meanings given in the Agreement) between Lehman and the Seller, a wholly-owned subsidiary of the Guarantor, the Guarantor hereby unconditionally and irrevocably guarantees the punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all obligations of the Seller now or hereafter existing under the Agreement with respect to any and all Transactions for the Mortgage Loans (such obligations being the "Obligations"), and agrees to pay any and all expenses incurred by Lehman in enforcing any rights under this Guaranty. This Guaranty is a guaranty of payment and not of collection. Lehman shall not be required to exhaust any right to remedy or take any action against Seller, any guarantor, any other person, any collateral or any credit support. The Guarantor guarantees that the Obligations will be paid or performed strictly in accordance with their terms. The liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of any defense whatsoever available to Seller or the Guarantor, including, but not limited to, the following: (a) any lack of validity or enforceability or any Obligation or any agreement or instrument related thereto; (b) any change in the time, manner or place of payment or performance of, or in any term of, all or any of the Obligations, or any other amendment or waiver of or any consent to the departure from any Obligation or any agreement or instrument related thereto; (c) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Obligations; or (d) any law, regulation or order of any jurisdiction affecting or purporting to affect any terms of any Obligation or of any agreement or instrument relating thereto or any of Lehman's rights with respect thereto (including, without limitation, any stay imposed by the Federal bankruptcy laws). This Guaranty is a continuing guaranty and shall remain in full force and effect until the Obligations have been paid in full. The Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations or this Guaranty. This Guaranty shall continue to be effective or be reinstated, as the case may be, if any payment of any of the Obligations is rescinded or must otherwise be returned by Lehman upon the insolvency, bankruptcy or reorganization of Seller or otherwise, all as though such payment had not been made. Schedule D-1 The Guarantor will not exercise any rights which it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or otherwise, until all the Obligations shall have been paid in full. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time when all the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of Lehman and shall forthwith be paid to Lehman to be applied to the Obligations, whether matured or unmatured, in accordance with the terms of such Obligations and any related agreement or instrument. Any and all payments made by the Guarantor hereunder shall be made free and clear of and without deduction from any and all present and future taxes, levies, deductions, charges or withholdings and all liabilities with respect thereof, excluding taxes imposed on Lehman's income and franchise taxes imposed on Lehman by the jurisdiction under which Lehman is organized. All notices hereunder shall be in writing and sent or delivered: if to Lehman: c/o Lehman Brothers Inc. & Lehman Commercial Paper Inc. 745 Seventh Avenue New York, New York 10019 Attention: Fred Madonna if to the Guarantor: 538 Broadhollow Road Melville, New York 11747 Attention: General Counsel or to either party at such other address(es) as may be specified in a written notice given in accordance herewith. This Guaranty shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of and be enforceable by Lehman and its successors, transferees and assigns. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN CONFLICTS LAWS) OF THE STATE OF NEW YORK. Schedule D-2 IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its duly authorized officers as of the date first above written. AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan B. Horn -------------------------------------- Name: Alan B. Horn Title: Executive Vice President Schedule D-3 EX-31.1 18 am033105-ex31_1.txt CERT. (SECTION 302) OF CHRM, CEO AND PRES. Exhibit 31.1 Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Michael Strauss, certify that: 1. I have reviewed this Quarterly Report on Form 10-Q of American Home Mortgage Investment Corp.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; 4. The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and 5. The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of the Registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting. /s/ Michael Strauss - -------------------------------------------------- Michael Strauss Chairman, Chief Executive Officer and President May 5, 2005 EX-31.2 19 am033105-ex31_2.txt CERTIFICATION (SECTION 302) EVP & CFO Exhibit 31.2 Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Stephen A. Hozie, certify that: 1. I have reviewed this Quarterly Report on Form 10-Q of American Home Mortgage Investment Corp.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; 4. The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and 5. The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of the Registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting. /s/ Stephen A. Hozie - ----------------------------------------------- Stephen A. Hozie Executive Vice President and Chief Financial Officer May 5, 2005 EX-32.1 20 am033105-ex32_1.txt CERT. (SECTION 906) OF CHRM, CEO AND PRES. Exhibit 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of American Home Mortgage Investment Corp. (the "Registrant") on Form 10-Q for the quarter ended March 31, 2005, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Michael Strauss, Chairman of the Board, Chief Executive Officer and President of the Registrant, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant. May 5, 2005 /s/ Michael Strauss --------------------------------------- Michael Strauss Chairman, Chief Executive Officer and President EX-32.2 21 am033105-ex32_2.txt CERTIFICATION (SECTION 906) OF EVP & CFO Exhibit 32.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of American Home Mortgage Investment Corp. (the "Registrant") on Form 10-Q for the quarter ended March 31, 2005, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Stephen A. Hozie, Executive Vice President and Chief Financial Officer of the Registrant, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant. May 5, 2005 /s/ Stephen A. Hozie ---------------------------------------------- Stephen A. Hozie Executive Vice President and Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----