-----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, FagyxGYYfE6uLc3AVKgKiepsq82Ebm2vQqjM6uVUUqAZMH2PgYAZCJaUQYCcWNBD QyhEgM4TvX5FOiWs35X6uw== 0000914121-05-002086.txt : 20051109 0000914121-05-002086.hdr.sgml : 20051109 20051109173204 ACCESSION NUMBER: 0000914121-05-002086 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 16 CONFORMED PERIOD OF REPORT: 20050930 FILED AS OF DATE: 20051109 DATE AS OF CHANGE: 20051109 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: 051191255 MAIL ADDRESS: STREET 1: 520 BROADHOLLOW ROAD CITY: MELVILLE STATE: NY ZIP: 11747 10-Q 1 am110905-10q.txt FORM 10-Q 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 September 30, 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 (I.R.S. Employer of Incorporation or Organization) Identification No.) 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 November 4, 2005, there were 49,590,821 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 September 30, 2005 and December 31, 2004 .............................................1 Consolidated Statements of Income for the Three and Nine Months Ended September 30, 2005 and 2004 .....................2 Consolidated Statements of Stockholders' Equity for the Nine Months Ended September 30, 2005 and 2004 .................3 Consolidated Statements of Cash Flows for the Three and Nine Months Ended September 30, 2005 and 2004 .................4 Notes to Consolidated Financial Statements .........................5 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations ..............................26 Item 3. Quantitative and Qualitative Disclosures About Market Risk ........55 Item 4. Controls and Procedures ...........................................57 PART II-OTHER INFORMATION Item 1. Legal Proceedings .................................................58 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds .......58 Item 3. Defaults Upon Senior Securities ...................................58 Item 4. Submission of Matters to a Vote of Security Holders ...............58 Item 5. Other Information .................................................59 Item 6. Exhibits ..........................................................59 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)
September 30, December 31, 2005 2004 --------------------------------- Assets: Cash and cash equivalents $ 624,424 $ 192,821 Accounts receivable and servicing advances 335,736 116,978 Mortgage-backed securities (including securities pledged of $8,338,884 as of September 30, 2005 and $5,968,969 as of December 31, 2004) 9,208,172 6,016,866 Mortgage loans held for sale, net 1,901,293 4,853,394 Mortgage loans held for investment, net 1,445,429 -- Derivative assets 67,185 24,803 Mortgage servicing rights, net 300,659 151,436 Premises and equipment, net 64,174 51,576 Goodwill 99,268 90,877 Other assets 31,697 57,046 ------------ ------------ Total assets $ 14,078,037 $ 11,555,797 ============ ============ Liabilities and Stockholders' Equity: Liabilities: Warehouse lines of credit $ 2,165,154 $ 735,783 Drafts payable 18,763 26,200 Commercial paper 1,334,296 529,790 Reverse repurchase agreements 8,041,579 7,071,168 Payable for securities purchased 554,717 -- Collateralized debt obligations -- 2,022,218 Derivative liabilities -- 1,860 Trust preferred securities 96,964 -- Accrued expenses and other liabilities 239,382 152,413 Notes payable 305,766 135,761 Income taxes payable 56,310 54,342 ------------ ------------ Total liabilities 12,812,931 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 September 30, 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 September 30, 2005 and December 31, 2004, respectively 83,183 83,183 Common stock, par value $0.01 per share, 100,000,000 shares authorized, 49,590,821 and 40,288,077 shares issued and outstanding as of September 30, 2005 and December 31, 2004, respectively 496 403 Additional paid-in capital 946,105 631,530 Retained earnings 235,556 99,628 Accumulated other comprehensive loss (51,091) (39,339) ------------ ------------ Total stockholders' equity 1,265,106 826,262 ------------ ------------ Total liabilities and stockholders' equity $ 14,078,037 $ 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 Nine Months Ended September 30, September 30, ------------------------- ------------------------- 2005 2004 2005 2004 --------- --------- --------- ---------- Net interest income: Interest income $ 180,038 $ 94,298 $ 462,250 $ 198,347 Interest expense (133,169) (61,405) (311,596) (132,596) --------- --------- --------- --------- Total net interest income 46,869 32,893 150,654 65,751 --------- --------- --------- --------- Non-interest income: Gain on sales of mortgage loans 123,658 28,373 236,288 98,095 Gain on sales of current period securitized mortgage loans 19,960 30,461 194,256 40,120 Gain (loss) on sales of mortgage-backed securities and derivatives 6,116 (8,120) 12,868 (2,810) Unrealized (loss) gain on mortgage-backed securities and derivatives (10,965) 27,069 36,242 82,041 Loan servicing fees 21,099 9,822 49,381 28,870 Amortization of mortgage servicing rights (15,055) (7,755) (36,388) (22,865) Impairment recovery (provision) of mortgage servicing rights 11,577 (4,807) (5,402) (10,139) --------- --------- --------- --------- Net loan servicing fees (loss) 17,621 (2,740) 7,591 (4,134) --------- --------- --------- --------- Other non-interest income 1,585 3,349 5,594 5,553 --------- --------- --------- --------- Total non-interest income 157,975 78,392 492,839 218,865 --------- --------- --------- --------- Non-interest expenses: Salaries, commissions and benefits, net 101,378 46,482 264,712 128,805 Occupancy and equipment 15,328 9,984 42,396 26,086 Data processing and communications 6,479 3,745 18,386 10,296 Office supplies and expenses 5,024 3,012 15,110 9,345 Marketing and promotion 5,104 2,610 14,360 7,018 Travel and entertainment 4,670 3,620 14,025 9,084 Professional fees 3,744 2,524 10,646 6,781 Other 7,360 6,363 21,072 15,883 --------- --------- --------- --------- Total non-interest expenses 149,087 78,340 400,707 213,298 --------- --------- --------- --------- Net income before income tax expense (benefit) 55,757 32,945 242,786 71,318 Income tax expense (benefit) 2,549 (9,998) (1,302) (26,330) --------- --------- --------- --------- Net income $ 53,208 $ 42,943 $ 244,088 $ 97,648 ========= ========= ========= ========= Dividends on preferred stock 3,304 1,648 9,913 1,648 --------- --------- --------- --------- Net income available to common shareholders $ 49,904 $ 41,295 $ 234,175 $ 96,000 ========= ========= ========= ========= Per share data: Basic $ 1.10 $ 1.03 $ 5.58 $ 2.61 Diluted $ 1.09 $ 1.02 $ 5.51 $ 2.58 Weighted average number of shares - basic 45,174 40,145 41,973 36,737 Weighted average number of shares - diluted 45,669 40,605 42,471 37,198
See notes to consolidated financial statements. - 2 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (Unaudited) NINE MONTHS ENDED SEPTEMBER 30, 2005 AND 2004 (In thousands)
Accumulated Additional Other Total Preferred Common Paid-in Retained Comprehensive Stockholders' Stock Stock Capital Earnings Loss Equity ----------------------------------------------------------------------------- Balance at January 1, 2004 $ -- $ 252 $ 281,432 $ 121,029 $ (4,743) $ 397,970 --------- ------ ---------- --------- ------------- ------------- Comprehensive income: Net income -- -- -- 97,648 -- 97,648 Net change in unrealized gain on mortgage-backed securities available for sale -- -- -- -- 1,780 1,780 Net change in unrealized loss on cash flow hedges, net of amortization -- -- -- -- (38,408) (38,408) ------------- Comprehensive income 61,020 Issuance of Series A preferred stock - offering 50,857 -- -- -- -- 50,857 Issuance of common stock - offering -- 144 339,647 -- -- 339,791 Issuance of common stock - earnouts -- 2 4,843 -- -- 4,845 Issuance of common stock, 1999 Omnibus Stock Incentive Plan -- 4 2,286 -- -- 2,290 Tax benefit from stock options exercised -- -- 1,599 -- -- 1,599 Dividends declared on Series A preferred stock -- -- -- (1,648) -- (1,648) Dividends declared on common stock -- -- -- (65,732) -- (65,732) --------- ------ ---------- --------- ------------- ------------- Balance at September 30, 2004 $ 50,857 $ 402 $ 629,807 $ 151,297 $ (41,371) $ 790,992 ========= ====== ========== ========= ============= ============= Balance at January 1, 2005 $ 134,040 $ 403 $ 631,530 $ 99,628 $ (39,339) $ 826,262 --------- ------ ---------- --------- ------------- ------------- Comprehensive income: Net income -- -- -- 244,088 -- 244,088 Net change in unrealized loss on mortgage-backed securities available for sale -- -- -- -- (33,452) (33,452) Net change in unrealized gain on cash flow hedges, net of amortization -- -- -- -- 21,700 21,700 ------------- Comprehensive income 232,336 Issuance of common stock - offering -- 90 304,033 -- -- 304,123 Issuance of common stock - earnouts -- 2 5,990 -- -- 5,992 Issuance of common stock, 1999 Omnibus Stock Incentive Plan -- 1 1,914 -- -- 1,915 Tax benefit from stock options exercised -- -- 2,638 -- -- 2,638 Dividends declared on Series A preferred stock -- -- -- (3,930) -- (3,930) Dividends declared on Series B preferred stock -- -- -- (5,983) -- (5,983) Dividends declared on common stock -- -- -- (98,247) -- (98,247) --------- ------ ---------- --------- ------------- ------------- Balance at September 30, 2005 $ 134,040 $ 496 $ 946,105 $ 235,556 $ (51,091) $ 1,265,106 ========= ====== ========== ========= ============= =============
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 Nine Months Ended September 30, September 30, ------------------------------------------------------------ 2005 2004 2005 2004 ------------ ------------ ------------ ------------ Cash flows from operating activities: Net income $ 53,208 $ 42,943 $ 244,088 $ 97,648 Adjustments to reconcile net income to net cash (used in) provided by operating activities: Depreciation and amortization 3,098 2,151 8,276 6,116 Amortization and impairment of mortgage servicing rights 3,478 12,562 41,790 33,004 Accretion and amortization of mortgage-backed securities, net (2,571) 9,455 853 19,615 Amortization of deferred cash flow hedge gain (loss) 1,689 (7,019) 20,479 (4,733) Loss on sales of mortgage-backed securities and derivatives 2,819 6,998 6,602 4,539 Unrealized loss (gain) on mortgage-backed securities 74,595 (33,525) 121,065 (22,766) Unrealized (gain) loss on free standing derivatives (31,137) 14,856 (45,546) (26,595) Decrease in forward delivery contracts (12,820) (9,004) (8,485) (5,564) Capitalized mortgage servicing rights on securitized loans (27,536) (27,203) (169,876) (59,580) Capitalized mortgage servicing rights on sold loans (14,762) (3,976) (21,136) (16,075) Decrease in interest rate lock commitments 14,501 7,358 8,447 18,981 (Increase) decrease in mortgage loan basis adjustments (12,649) (1,817) 7,721 18,507 Other 1,469 2,611 491 2,963 (Increase) decrease in operating assets: Accounts receivable (218,519) (124) (219,968) (17,142) Servicing advances (382) (492) 1,210 348 Income taxes receivable -- -- 25,797 -- Other assets (10,512) (2,857) (448) (2,729) Increase (decrease) in operating liabilities: Accrued expenses and other liabilities 53,657 32,761 73,820 65,921 Income taxes payable 8,557 (10,995) 1,968 (36,669) Origination of mortgage loans held for sale (12,394,139) (5,292,191) (30,296,568) (16,325,007) Principal received from sales of mortgage loans held for sale 9,448,293 2,806,070 16,986,607 10,741,622 Proceeds from securitizations of mortgage loans held for sale 2,993,315 2,765,737 16,185,841 5,611,616 Additions to mortgage-backed securities (1,191,209) (1,435,334) (4,497,990) (3,802,902) Principal proceeds from sales of self-originated mortgage-backed securities -- 1,023,037 1,104,227 1,168,352 Cash received from residual assets in securitizations 35,431 7,186 75,526 10,709 Principal repayments of mortgage-backed securities 274,035 93,120 554,610 176,028 ------------ ------------ ------------ ------------ Net cash (used in) provided by operating activities (948,091) 2,308 209,401 (2,343,793) ------------ ------------ ------------ ------------ Cash flows from investing activities: Purchases of premises and equipment (5,831) (5,565) (20,874) (12,333) Origination of mortgage loans held for investment (1,301,364) -- (1,435,121) -- Proceeds from repayments of mortgage loans held for investment 5,108 -- 5,108 -- Purchases of mortgage-backed securities (2,417,565) (535,056) (3,351,494) (5,186,475) Principal proceeds from sales of purchased mortgage-backed securities 518,517 633,036 1,673,468 1,538,587 Principal repayments of purchased mortgage-backed securities 414,667 296,974 1,144,387 565,785 Other -- -- -- (244) ------------ ------------ ------------ ------------ Net cash (used in) provided by investing activities (2,786,468) 389,389 (1,984,526) (3,094,680) ------------ ------------ ------------ ------------ Cash flows from financing activities: Increase (decrease) in warehouse lines of credit, net 1,499,457 (124,872) 1,429,371 (574,176) Increase in reverse repurchase agreements, net 1,703,949 485,518 970,411 5,554,697 Decrease in collateralized debt obligations -- -- (2,022,218) -- Increase (decrease) in payable for securities purchased 554,717 (423,909) 554,717 (259,701) Increase (decrease) in commercial paper, net 42,612 (584,324) 804,506 462,712 (Decrease) increase in drafts payable, net (7,775) (40,774) (7,437) 19,901 Increase in trust preferred securities 48,550 -- 96,964 -- Increase in notes payable, net 49,706 21,211 170,005 28,793 Proceeds from issuance of preferred stock -- 52,057 -- 52,057 Proceeds from issuance of common stock 304,522 426 305,420 342,637 Dividends paid (34,130) (24,468) (95,011) (55,115) ------------ ------------ ------------ ------------ Net cash provided by (used in) financing activities 4,161,608 (639,135) 2,206,728 5,571,805 ------------ ------------ ------------ ------------ Net increase (decrease) in cash and cash equivalents 427,049 (247,438) 431,603 133,332 Cash and cash equivalents, beginning of period 197,375 433,918 192,821 53,148 ------------ ------------ ------------ ------------ Cash and cash equivalents, end of period $ 624,424 $ 186,480 $ 624,424 $ 186,480 ============ ============ ============ ============ Supplemental disclosure of cash flow information: Interest paid $ 111,172 $ 28,887 $ 311,969 $ 65,485 Income taxes paid 118 996 906 7,357
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 - American Home Mortgage Investment Corp. ("AHM Investment") is a mortgage REIT focused on earning net interest income from mortgage loans and 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 and mortgage brokers or are purchased from correspondents, and are serviced at the Company's Irving, Texas servicing center. As used herein, references to the "Company," "American Home," "we," "our" and "us" refer to AHM Investment collectively with its subsidiaries. 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 report on 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 are demand deposits and short-term investments with a maturity of 90 days or less. 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 evaluates 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 assessment, 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 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. - 5 - Mortgage Loans Held for Investment - Mortgage loans held for investment are carried at the aggregate of their remaining unpaid principal balances, less any related charge-offs, net deferred origination costs and allowance for loan losses. Loan fees and direct origination costs are deferred and amortized into interest income over the contractual life of the loan using the level-yield method. 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 Company's 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("IRLCs"). 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 policy in effect as of April 1, 2004, the value of the expected future cash flows related to MSRs 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 SFAS No. 133 basis adjustments 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 $113.5 million and $71.8 million due to direct loan origination costs, including commission costs, incurred for the nine months ended September 30, 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 Nine Months Ended September 30, September 30, ------------------------- ------------------------- (In thousands, except per share data) 2005 2004 2005 2004 --------- --------- --------- ---------- Net income available to common shareholders - as reported $ 49,904 $ 41,295 $ 234,175 $ 96,000 Less: Total stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects (268) (272) (953) (638) --------- --------- --------- --------- Net income available to common shareholders - pro forma $ 49,636 $ 41,023 $ 233,222 $ 95,362 ========= ========= ========= ========= Earnings per share: Basic - as reported $ 1.10 $ 1.03 $ 5.58 $ 2.61 Basic - pro forma $ 1.10 $ 1.02 $ 5.56 $ 2.60 Diluted - as reported $ 1.09 $ 1.02 $ 5.51 $ 2.58 Diluted - pro forma $ 1.09 $ 1.01 $ 5.49 $ 2.56
In December 2004, the Financial Accounting Standards Board ("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 SEC 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. - 9 - NOTE 2 - MORTGAGE-BACKED SECURITIES The following table presents the Company's mortgage-backed securities available for sale as of September 30, 2005 and December 31, 2004:
September 30, 2005 --------------------------------------------------- Gross Gross Unrealized Unrealized Adjusted Cost Gains Losses Fair Value ------------- ---------- ---------- ---------- (In thousands) Agency securities $ 171,023 $ 3 $ (6,055) $ 164,971 Privately issued: Rated 4,507,912 267 (37,086) 4,471,093 Unrated 8,261 -- -- 8,261 ---------- ---------- ---------- ---------- Securities available for sale $4,687,196 $ 270 $ (43,141) $4,644,325 ========== ========== ========== ========== December 31, 2004 --------------------------------------------------- Gross Gross Unrealized 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 September 30, 2005 and December 31, 2004:
September 30, 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 $ 1,343 $ (4) $ 162,661 $ (6,051) $ 164,004 $ (6,055) Privately issued: Rated 3,603,232 (21,387) 655,437 (15,699) 4,258,669 (37,086) ------------------------- -------------------------- --------------------------- Securities available for sale $3,604,575 $ (21,391) $ 818,098 $ (21,750) $4,422,673 $ (43,141) ========================= ========================== =========================== 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 September 30, 2005 and December 31, 2004: September 30, 2005 December 31, 2004 --------------------------------------- Fair Value Fair Value ----------------- ------------------ (In thousands) Privately issued: Rated $4,311,283 $1,751,335 Unrated 252,564 54,591 ----------------- ------------------ Trading securities $4,563,847 $1,805,926 ================= ================== During the three months ended September 30, 2005, the Company recorded $37.6 million in unrealized losses on trading securities that related to trading securities held at September 30, 2005. During the nine months ended September 30, 2005, the Company recorded $7.2 million in unrealized gains on trading securities that related to trading securities held at September 30, 2005. During the three months ended September 30, 2005, the Company sold $521 million of mortgage-backed securities, excluding securities sold contemporaneously with the execution of securitization transactions, and realized $5.8 million in gains, net of hedges. The $521 million of - 11 - mortgage-backed securities sold were primarily market-purchased. During the three months ended September 30, 2005, the Company securitized and held in its portfolio $1.2 billion of mortgage-backed securities. During the nine months ended September 30, 2005, the Company sold $2.8 billion of mortgage-backed securities, excluding securities sold contemporaneously with the execution of securitization transactions, and realized $6.7 million in gains, net of hedges. During the nine months ended September 30, 2005, the Company securitized and held in its portfolio $4.4 billion of mortgage-backed securities. The Company's mortgage-backed securities held at September 30, 2005 are primarily either agency obligations or are rated AAA or AA by Standard & Poor's. The Company has credit exposure on $16.5 billion and $3.9 billion of loans it has securitized privately as of September 30, 2005 and December 31, 2004, respectively. The following table summarizes the loan delinquency information as of September 30, 2005 and December 31, 2004:
September 30, 2005 -------------------------------------------------- (Dollars in thousands) Loan Loan Percentage of Percentage of Delinquency Status Count Balance Total Portfolio Total Assets - ------------------ ----- ------- --------------- ------------ 60 to 89 days 61 $ 12,703 0.08% 0.09% 90 and greater days 81 14,758 0.09% 0.10% Foreclosure 240 62,091 0.38% 0.44% --- ---------- ---- ---- 382 $ 89,552 0.55% 0.63% === ========== ==== ==== 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 September 30, 2005, the fair value of residual assets from securitizations reported in mortgage-backed securities was $318.0 million. The significant assumptions used in estimating the fair value of residual cash flows as of September 30, 2005 and December 31, 2004 were as follows: September 30, 2005 December 31, 2004 ------------------ ----------------- Weighted-average prepayment speed (CPR) 28.46% 27.27% Weighted-average discount rate 17.14% 17.83% Weighted-average default rate 0.54% 0.49% - 12 - NOTE 3 - MORTGAGE LOANS, NET The following table presents the Company's mortgage loans held for sale, net, as of September 30, 2005 and December 31, 2004: September 30, December 31, (In thousands) 2005 2004 ------------ ------------ Mortgage loans held for sale $ 1,886,785 $ 4,815,749 SFAS No. 133 basis adjustments (1,306) 40 Deferred origination costs, net 15,814 37,605 ------------ ------------ Mortgage loans held for sale, net $ 1,901,293 $ 4,853,394 ============ ============ During the three months ended September 30, 2005, the Company sold non-securitized mortgage loans to third parties totaling $9.9 billion and realized $123.7 million in gains. During the nine months ended September 30, 2005, the Company sold non-securitized mortgage loans to third parties totaling $17.5 billion and realized $236.3 million in gains. During the three months ended September 30, 2005, the Company securitized mortgage loans totaling $2.5 billion, of which $1.3 billion were sold, and realized $20.0 million in gains. During the nine months ended September 30, 2005, the Company securitized mortgage loans totaling $16.7 billion, of which $12.3 billion were sold, and realized $194.3 million in gains. The following table presents the Company's mortgage loans held for investment, net, as of September 30, 2005: September 30, (In thousands) 2005 -------------- Mortgage loans held for investment $ 1,430,013 Deferred origination costs, net 15,416 -------------- Mortgage loans held for investment, net $ 1,445,429 ============== - 13 - NOTE 4 - DERIVATIVE ASSETS AND LIABILITIES The following table presents the Company's derivative assets and liabilities as of September 30, 2005 and December 31, 2004:
September 30, December 31, (In thousands) 2005 2004 ------------ ------------ Derivative Assets Interest rate swaps - free standing derivatives $ 38,536 $ 2,127 Interest rate swaps - cash flow hedges 17,285 9,192 Interest rate lock commitments 3,578 12,025 Forward delivery contracts - loan commitments 3,392 -- Forward delivery contracts - loans held for sale 3,233 -- Mortgage put options 727 -- Interest rate caps - free standing derivatives 434 1,459 ------------ ------------ Derivative assets $ 67,185 $ 24,803 ============ ============ Derivative Liabilities Forward delivery contracts - loan commitments $ -- $ 896 Forward delivery contracts - loans held for sale -- 964 ------------ ------------ Derivative liabilities $ -- $ 1,860 ============ ============
As of September 30, 2005, the notional amount of forward delivery contracts and interest rate swap agreements was approximately $1.6 billion and $6.9 billion, respectively. As of December 31, 2004, the notional amount of forward delivery contracts and interest rate swap agreements was approximately $954 million and $3.4 billion, respectively. During the three months ended September 30, 2005, the Company realized $0.3 million in gains on sales of interest rate swap agreements associated with its securitizations of mortgage loans. During the nine months ended September 30, 2005, the Company realized $6.1 million in gains on sales of interest rate swap agreements associated with its securitizations of mortgage loans. These gains are recorded in gain (loss) on sales of mortgage-backed securities and derivatives in the consolidated statements of income. During the three months ended September 30, 2005, the Company recognized in earnings $26.6 million in unrealized gains on free standing derivatives. During the nine months ended September 30, 2005, the Company recognized in earnings $29.1 million in unrealized gains on free standing derivatives. These gains are recorded in unrealized (loss) gain on 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 September 30, 2005 and December 31, 2004. As of September 30, 2005, the unrealized loss on interest rate swap agreements relating to cash flow hedges recorded in accumulated other comprehensive loss was a loss of $8.2 million. - 14 - The following table presents the Company's estimate of amounts that will be reclassified from accumulated other comprehensive loss to interest expense: (In thousands) Twelve months ended September 30, 2006 $2,382 Twelve months ended September 30, 2007 609 Twelve months ended September 30, 2008 3,095 Twelve months ended September 30, 2009 1,972 Twelve months ended September 30, 2010 163 NOTE 5 - MORTGAGE SERVICING RIGHTS, NET The following table presents the activity in the Company's mortgage servicing rights, net, for the three and nine months ended September 30, 2005 and 2004:
Three Months Ended Nine Months Ended September 30, September 30, --------------------------------------------------- (In thousands) 2005 2004 2005 2004 --------- --------- --------- --------- Mortgage Servicing Rights: Balance at beginning of period $ 290,756 $ 151,018 $ 163,374 $ 121,652 Additions 42,298 31,179 191,013 75,655 Amortization (15,055) (7,755) (36,388) (22,865) --------- --------- --------- --------- Balance at end of period $ 317,999 $ 174,442 $ 317,999 $ 174,442 --------- --------- --------- --------- Impairment Allowance: Balance at beginning of period $ (28,917) $ (9,200) $ (11,938) $ (3,868) Impairment recovery (provision) 11,577 (4,807) (5,402) (10,139) --------- --------- --------- --------- Balance at end of period $ (17,340) $ (14,007) $ (17,340) $ (14,007) --------- --------- --------- --------- Mortgage servicing rights, net $ 300,659 $ 160,435 $ 300,659 $ 160,435 ========= ========= ========= =========
Aggregate Amortization Expense ------------------------------ Nine months ended September 30, 2005 $ 36,388 Estimated Amortization Expense ------------------------------ Twelve months ended September 30, 2006 $ 61,436 Twelve months ended September 30, 2007 53,872 Twelve months ended September 30, 2008 42,401 Twelve months ended September 30, 2009 32,831 Twelve months ended September 30, 2010 24,777 Thereafter 102,682 On a quarterly basis, the Company evaluates 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. - 15 - The significant assumptions used in estimating the fair value of MSRs at September 30, 2005 and December 31, 2004 were as follows: September 30, 2005 December 31, 2004 ------------------ ----------------- Weighted-average prepayment speed (PSA) 341 316 Weighted-average discount rate 11.83% 10.37% Weighted-average default rate 3.55% 2.76% The following table presents certain information regarding the Company's servicing portfolio of loans serviced for others at September 30, 2005 and December 31, 2004:
September 30, 2005 December 31, 2004 ------------------ ----------------- (Dollars in thousands) Loan servicing portfolio - loans sold or securitized $ 24,247,837 $ 11,955,608 ARM loans as a percentage of total loans 74% 60% Average loan size $ 189 $ 156 Weighted-average servicing fee 0.331% 0.348% Weighted-average note rate 5.73% 5.48% Weighted-average remaining term (in months) 337 318 Weighted-average age (in months) 13 20
NOTE 6 - GOODWILL The following table presents the activity in the Company's goodwill for the nine months ended September 30, 2005 and 2004:
Mortgage-Backed Loan Origination Securities Holdings (In thousands) Segment Segment Total ---------------- -------------------- ----------- Balance at January 1, 2004 $58,605 $24,840 $83,445 Earnouts from previous acquisitions 5,751 -- 5,751 ------- ------- ------- Balance at September 30, 2004 $64,356 $24,840 $89,196 ======= ======= ======= Balance at January 1, 2005 $66,037 $24,840 $90,877 Earnouts from previous acquisitions 8,391 -- 8,391 ------- ------- ------- Balance at September 30, 2005 $74,428 $24,840 $99,268 ======= ======= =======
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. - 16 - 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 $3.3 billion Secured Liquidity Note Program, a $1.5 billion pre-purchase facility with UBS Real Estate Securities Inc. ("UBS"), a facility of $1.5 billion with Bear Stearns, a $1.0 billion bank syndicated facility led by Bank of America (which includes a $350 million term loan facility which the Company uses to finance its MSRs), a facility of $750 million with Goldman Sachs, a facility of $750 million with Morgan Stanley Bank ("Morgan Stanley"), a $450 million facility with IXIS Real Estate Capital Inc. (formerly CDC Mortgage Capital Inc.) ("IXIS"), a facility of $500 million with Lehman Brothers, an early purchase program facility with Countrywide Home Loans, Inc. ("Countrywide") 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 September 30, 2005, the Company was in compliance with respect to the loan covenants. 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 September 30, 2005, borrowings under the working capital line of credit were $20.3 million. As of September 30, 2005, the Company had $2.2 billion of warehouse lines of credit outstanding with a weighted-average borrowing rate of 4.29%. As of December 31, 2004, the Company had $735.8 million of warehouse lines of credit outstanding with a weighted-average borrowing rate of 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 September 30, 2005 had borrowed funds from eight 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 September 30, 2005, the Company had $8.0 billion of reverse repurchase agreements outstanding with a weighted-average borrowing rate of 3.84% and a weighted-average remaining maturity of six 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 September 30, 2005 and December 31, 2004, the Company's reverse repurchase agreements had the following remaining maturities: September 30, December 31, 2005 2004 ------------ ------------ (In thousands) Within 30 days $ 2,605,619 $ 3,617,325 31 to 89 days 1,206,468 2,050,529 90 to 365 days 4,229,492 1,403,314 ------------ ------------ Reverse repurchase agreements $ 8,041,579 $ 7,071,168 ============ ============ The Company's average reverse repurchase agreements outstanding were $6.5 billion and $6.8 billion for the three months ended September 30, 2005 and 2004, respectively. The Company's average reverse repurchase agreements outstanding were $6.6 billion and $4.4 billion for the nine months ended September 30, 2005 and 2004, respectively. - 17 - 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 $3.3 billion at September 30, 2005. As of September 30, 2005, the Company had $1.3 billion of SLNs outstanding, with an average interest cost of 3.71%. The SLNs were collateralized by loans held for sale and cash with a balance of $1.4 billion as of September 30, 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 September 30, 2005 and December 31, 2004 : September 30, December 31, 2005 2004 ------------ ------------ (In thousands) Within 30 days $ 1,309,383 $ 529,790 31 to 89 days 24,913 -- ------------ ------------ Commercial paper $ 1,334,296 $ 529,790 ============ ============ NOTE 8 - COLLATERALIZED DEBT OBLIGATIONS In December 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. This securitization transaction qualified for sale treatment under SFAS No. 140 in the first quarter of 2005, and consequently the Company had no collateralized debt obligations as of March 31, 2005. As of September 30, 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 In August 2005, the Company issued 9,000,000 shares of its common stock ("Common Stock") at a price of $35.50 per share. The total proceeds to the Company were $319.5 million, before underwriting discounts, commissions and other offering expenses. 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 September 30, 2005, there were 49,590,821 shares of common stock issued and outstanding, 2,150,000 shares of our 9.75% Series A Cumulative Redeemable Preferred Stock ("Series A Preferred") issued and outstanding and 3,450,000 shares of our 9.25% Series B Cumulative Redeemable Preferred Stock ("Series B Preferred") issued and outstanding. During the three months ended September 30, 2005, the Company declared dividends totaling $38.8 million, or $0.86 per common share, which were paid on October 27, 2005. During the three months ended September 30, 2004, the Company declared a dividend totaling $24.5 million, or $0.61 per common share, which was paid on October 21, 2004. During the nine months ended September 30, 2005, the Company declared dividends totaling $98.2 million, or $2.33 per common share. During the nine months ended September 30, 2004, the Company declared dividends totaling $65.7 million, or $1.77 per common share. - 18 - During the three months ended September 30, 2005, the Company declared a dividend of $1.3 million, or $0.609375 per Series A Preferred share, which was paid on October 31, 2005. During the nine months ended September 30, 2005, the Company declared dividends of $3.9 million, or $1.828125 per Series A Preferred share. During the three months ended September 30, 2005, the Company declared a dividend of $2.0 million, or $0.578125 per Series B Preferred share, which was paid on October 31, 2005. During the nine months ended September 30, 2005, the Company declared dividends of $6.0 million, or $1.734375 per Series B Preferred share. NOTE 10 - INCOME TAXES A reconciliation of the statutory income tax provision to the effective income tax expense (benefit) is as follows:
Three Months Ended September 30, Nine Months Ended September 30, -------------------------------------------- --------------------------------------------- (Dollars in thousands) 2005 2004 2005 2004 ------------------ -------------------- --------------------- -------------------- Tax provision at statutory rate $ 19,516 35.0% $ 11,534 35.0% $ 84,975 35.0% $ 24,961 35.0% Non-taxable REIT income (17,487) (31.4) (20,313) (61.6) (87,339) (36.0) (47,807) (66.9) State and local taxes, net of federal income tax benefit 253 0.5 (1,369) (4.2) (47) (0.0) (4,004) (5.6) Other 267 0.5 150 0.5 1,109 0.4 520 0.7 -------- --- -------- ----- -------- ---- -------- ----- Income tax expense (benefit) $ 2,549 4.6% $ (9,998) (30.3%) $ (1,302) (0.6%) $(26,330) (36.8%) ======== === ======== ===== ======== ==== ======== =====
The major sources of temporary differences and their deferred tax effect at September 30, 2005 and December 31, 2004 are as follows:
September 30, December 31, 2005 2004 ------------ ------------ (In thousands) Deferred tax liabilities: Capitalized cost of mortgage servicing rights $ 134,302 $ 82,399 Loan origination costs 16,846 11,236 Depreciation 3,083 2,341 Deferred state income taxes 48 -- ------------ ------------ Deferred tax liabilities 154,279 95,976 ------------ ------------ Deferred tax assets: Tax loss carryforwards 77,979 36,384 Allowance for bad debts and foreclosure reserve 2,842 2,711 Mark-to-market adjustments 17,007 811 Deferred state income taxes -- 353 Broker fees 958 528 AMT credit 1,745 -- Other 377 847 ------------ ------------ Deferred tax assets 100,908 41,634 ------------ ------------ Net deferred tax liabilities $ 53,371 $ 54,342 ============ ============
- 19 - In June 2002, American Home Mortgage Holdings Inc., ("AHM Holdings"), currently a wholly owned subsidiary of AHM Investment, 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 $130 million of federal and approximately $229 million of state net operating loss carryforwards which begin to expire in 2024 and 2009, respectively. At September 30, 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 assessments. 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 and nine months ended September 30, 2005 and 2004:
Three Months Ended September 30, Nine Months Ended September 30, -------------------------------- ------------------------------- (Dollars in thousands, except per share amounts) 2005 2004 2005 2004 ------------- ------------ ------------ ------------ Numerator for basic earnings per share - Net income available to common shareholders $ 49,904 $ 41,295 $ 234,175 $ 96,000 ============ ============ ============ ============ Denominator: Denominator for basic earnings per share Weighted average number of common shares outstanding during the period 45,173,834 40,144,601 41,972,908 36,737,484 Net effect of dilutive stock options 494,784 460,453 498,269 460,568 ------------ ------------ ------------ ------------ Denominator for diluted earnings per share 45,668,618 40,605,054 42,471,177 37,198,052 ============ ============ ============ ============ Net income per share available to common shareholders: Basic $ 1.10 $ 1.03 $ 5.58 $ 2.61 ============ ============ ============ ============ Diluted $ 1.09 $ 1.02 $ 5.51 $ 2.58 ============ ============ ============ ============
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 4,000,000 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 September 30, 2005, the Company has awarded 213,343 shares of restricted stock under the Plan. During the three months ended September 30, 2005 and 2004, the Company recognized compensation expense of $212 thousand and $79 thousand, respectively, relating to shares of restricted stock granted under the Plan. During the nine months ended September 30, 2005 and 2004, the Company recognized - 20 - compensation expense of $527 thousand and $603 thousand, respectively, relating to shares of restricted stock granted under the Plan. At September 30, 2005, 175,509 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 nine months ended September 30, 2005 and 2004. There were 25,000 and 382,419 options granted under the Plan in the three months and nine months ended September 30, 2005, with weighted-average exercise prices of $34.18 and $32.63, in the three months and nine months ended September 30, 2005, respectively. The weighted-average fair value per share of options granted during the three months and nine months ended September 30, 2005 was $4.81 and $3.82, respectively. There were 110,000 and 422,413 options granted under the Plan in the three months and nine months ended September 30, 2004, with weighted-average exercise prices of $27.13 and $24.62, in the three months and nine months ended September 30, 2004, respectively. The weighted-average fair value per share of options granted during the three months and nine months ended September 30, 2004 was $4.58 and $5.00, respectively. 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 September 30, Nine Months Ended September 30, -------------------------------- ------------------------------- 2005 2004 2005 2004 -------------- --------------- ------------- --------------- Dividend yield 10.2 % 9.0 % 9.1 % 8.3 % Expected volatility 36.1 % 38.3 % 29.1 % 44.5 % Risk-free interest rate 5.0 % 5.0 % 5.0 % 5.0 % Expected life 3 years 3 years 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 November 30, 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. - 21 -
Three Months Ended September 30, 2005 ------------------------------------------------------------ (In thousands) Mortgage-Backed Securities Loan Loan Holdings Origination Servicing Segment Segment Segment Total ------------------------------------------------------------------ Net interest income: Interest income $ 84,560 $ 95,478 $ -- $ 180,038 Interest expense (62,945) (68,937) (1,287) (133,169) ------------------------------------------------------------ Total net interest income 21,615 26,541 (1,287) 46,869 ------------------------------------------------------------ Non-interest income: Gain on sales of mortgage loans -- 123,658 -- 123,658 Gain on sales of current period securitized mortgage loans -- 19,960 -- 19,960 Gain on sales of mortgage-backed securities and derivatives 5,816 300 -- 6,116 Unrealized (loss) gain on mortgage-backed securities and derivatives (43,581) 32,616 -- (10,965) Loan servicing fees -- -- 21,099 21,099 Amortization of mortgage servicing rights -- -- (15,055) (15,055) Impairment recovery of mortgage servicing rights -- -- 11,577 11,577 ------------------------------------------------------------ Net loan servicing fees -- -- 17,621 17,621 Other non-interest income -- 1,114 471 1,585 ------------------------------------------------------------ Total non-interest income (37,765) 177,648 18,092 157,975 ------------------------------------------------------------ Non-interest expenses: Salaries, commissions and benefits, net 1,488 96,738 3,152 101,378 Occupancy and equipment 2 14,985 341 15,328 Data processing and communications 22 6,373 84 6,479 Office supplies and expenses 4 4,616 404 5,024 Marketing and promotion -- 5,088 16 5,104 Travel and entertainment -- 4,588 82 4,670 Professional fees 807 2,753 184 3,744 Other 1,726 3,123 2,511 7,360 ------------------------------------------------------------ Total non-interest expenses 4,049 138,264 6,774 149,087 ------------------------------------------------------------ Net income before income tax (benefit) expense (20,199) 65,925 10,031 55,757 ------------------------------------------------------------ Income tax (benefit) expense -- (1,221) 3,770 2,549 ------------------------------------------------------------ Net income $ (20,199) $ 67,146 $ 6,261 $ 53,208 ============================================================ Dividends on preferred stock 3,304 -- -- 3,304 ------------------------------------------------------------ Net income available to common shareholders $ (23,503) $ 67,146 $ 6,261 $ 49,904 ============================================================ September 30, 2005 ------------------------------------------------------------ Segment assets $ 9,432,484 $ 4,197,165 $ 448,388 $ 14,078,037 ============================================================
- 22 -
Three Months Ended September 30, 2004 ------------------------------------------------------------ (in thousands) Mortgage-Backed Securities Loan Loan Holdings Origination Servicing Segment Segment Segment Total ------------------------------------------------------------------ Net interest income: Interest income $ 66,856 $ 27,442 $ -- $ 94,298 Interest expense (42,124) (18,252) (1,029) (61,405) ------------------------------------------------------------ Total net interest income 24,732 9,190 (1,029) 32,893 ------------------------------------------------------------ Non-interest income: Gain on sales of mortgage loans -- 28,373 -- 28,373 Gain on sales of current period securitized mortgage loans -- 30,461 -- 30,461 Loss on sales of mortgage-backed securities and derivatives (4,610) (3,510) -- (8,120) Unrealized (loss) gain on mortgage-backed securities and derivatives (1,784) 28,853 -- 27,069 Loan servicing fees -- -- 9,822 9,822 Amortization of mortgage servicing rights -- -- (7,755) (7,755) Impairment provision of mortgage servicing rights -- -- (4,807) (4,807) ------------------------------------------------------------ Net loan servicing loss -- -- (2,740) (2,740) Other non-interest income -- 3,349 -- 3,349 ------------------------------------------------------------ Total non-interest income (6,394) 87,526 (2,740) 78,392 ------------------------------------------------------------ Non-interest expenses: Salaries, commissions and benefits, net 55 45,151 1,276 46,482 Occupancy and equipment 5 9,858 121 9,984 Data processing and communications 5 3,637 103 3,745 Office supplies and expenses -- 2,831 181 3,012 Marketing and promotion -- 2,608 2 2,610 Travel and entertainment -- 3,609 11 3,620 Professional fees 44 2,389 91 2,524 Other 2,036 3,591 736 6,363 ------------------------------------------------------------ Total non-interest expenses 2,145 73,674 2,521 78,340 ------------------------------------------------------------ Net income before income tax benefit 16,193 23,042 (6,290) 32,945 ------------------------------------------------------------ Income tax benefit -- (7,510) (2,488) (9,998) ------------------------------------------------------------ Net income $ 16,193 $ 30,552 $ (3,802) $ 42,943 ============================================================ Dividends on preferred stock 1,648 -- -- 1,648 ------------------------------------------------------------ Net income available to common shareholders $ 14,545 $ 30,552 $ (3,802) $ 41,295 ============================================================ December 31, 2004 ------------------------------------------------------------ Segment assets $ 6,136,642 $ 5,194,387 $ 224,768 $ 11,555,797 ============================================================
- 23 -
Nine Months Ended September 30, 2005 ------------------------------------------------------------ (in thousands) Mortgage-Backed Securities Loan Loan Holdings Origination Servicing Segment Segment Segment Total ------------------------------------------------------------------ Net interest income: Interest income $ 219,906 $ 242,344 $ -- $ 462,250 Interest expense (154,168) (152,799) (4,629) (311,596) ------------------------------------------------------------ Total net interest income 65,738 89,545 (4,629) 150,654 ------------------------------------------------------------ Non-interest income: Gain on sales of mortgage loans -- 236,288 -- 236,288 Gain on sales of current period securitized mortgage loans -- 194,256 -- 194,256 Gain on sales of mortgage-backed securities and derivatives 6,725 6,143 -- 12,868 Unrealized (loss) gain on mortgage-backed securities and derivatives (41,496) 77,738 -- 36,242 Loan servicing fees -- -- 49,381 49,381 Amortization of mortgage servicing rights -- -- (36,388) (36,388) Impairment provision of mortgage servicing rights -- -- (5,402) (5,402) ------------------------------------------------------------ Net loan servicing fees -- -- 7,591 7,591 Other non-interest income -- 3,722 1,872 5,594 ------------------------------------------------------------ Total non-interest income (34,771) 518,147 9,463 492,839 ------------------------------------------------------------ Non-interest expenses: Salaries, commissions and benefits, net 6,057 250,179 8,476 264,712 Occupancy and equipment 5 41,645 746 42,396 Data processing and communications 64 17,953 369 18,386 Office supplies and expenses 5 13,955 1,150 15,110 Marketing and promotion 2 14,281 77 14,360 Travel and entertainment 5 13,589 431 14,025 Professional fees 2,829 7,060 757 10,646 Other 6,331 9,439 5,302 21,072 ------------------------------------------------------------ Total non-interest expenses 15,298 368,101 17,308 400,707 ------------------------------------------------------------ Net income before income tax expense (benefit) 15,669 239,591 (12,474) 242,786 ------------------------------------------------------------ Income tax expense (benefit) -- 3,777 (5,079) (1,302) ------------------------------------------------------------ Net income $ 15,669 $ 235,814 $ (7,395) $ 244,088 ============================================================ Dividends on preferred stock 9,913 -- -- 9,913 ------------------------------------------------------------ Net income available to common shareholders $ 5,756 $ 235,814 $ (7,395) $ 234,175 ============================================================ September 30, 2005 ------------------------------------------------------------ Segment assets $ 9,432,484 $ 4,197,165 $ 448,388 $ 14,078,037 ============================================================
- 24 -
Nine Months Ended September 30, 2004 ------------------------------------------------------------ (in thousands) Mortgage-Backed Securities Loan Loan Holdings Origination Servicing Segment Segment Segment Total ------------------------------------------------------------------ Net interest income: Interest income $ 123,194 $ 75,153 $ -- $ 198,347 Interest expense (82,026) (47,736) (2,834) (132,596) ------------------------------------------------------------ Total net interest income 41,168 27,417 (2,834) 65,751 ------------------------------------------------------------ Non-interest income: Gain on sales of mortgage loans -- 98,095 -- 98,095 Gain on sales of current period securitized mortgage loans -- 40,120 -- 40,120 Gain (loss) on sales of mortgage-backed securities and derivatives 1,578 (4,388) -- (2,810) Unrealized gain on mortgage-backed securities and derivatives 14,385 67,656 -- 82,041 Loan servicing fees -- -- 28,870 28,870 Amortization of mortgage servicing rights -- -- (22,865) (22,865) Impairment provision of mortgage servicing rights -- -- (10,139) (10,139) ------------------------------------------------------------ Net loan servicing loss -- -- (4,134) (4,134) Other non-interest income -- 5,553 -- 5,553 ------------------------------------------------------------ Total non-interest income 15,963 207,036 (4,134) 218,865 ------------------------------------------------------------ Non-interest expenses: Salaries, commissions and benefits, net 159 125,053 3,593 128,805 Occupancy and equipment 5 25,691 390 26,086 Data processing and communications 11 10,068 217 10,296 Office supplies and expenses -- 8,525 820 9,345 Marketing and promotion -- 7,013 5 7,018 Travel and entertainment 2 8,947 135 9,084 Professional fees 251 6,060 470 6,781 Other 5,109 8,044 2,730 15,883 ------------------------------------------------------------ Total non-interest expenses 5,537 199,401 8,360 213,298 ------------------------------------------------------------ Net income before income tax benefit 51,594 35,052 (15,328) 71,318 ------------------------------------------------------------ Income tax benefit -- (20,267) (6,063) (26,330) ------------------------------------------------------------ Net income $ 51,594 $ 55,319 $ (9,265) $ 97,648 ============================================================ Dividends on preferred stock 1,648 -- -- 1,648 ------------------------------------------------------------ Net income available to common shareholders $ 49,946 $ 55,319 $ (9,265) $ 96,000 ============================================================ December 31, 2004 ------------------------------------------------------------ Segment assets $ 6,136,642 $ 5,194,387 $ 224,768 $ 11,555,797 ============================================================
- 25 - ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Cautionary Note 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 portfolio strategy; o our 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 ("SEC"). 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 - 26 - 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 - 27 - 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. - 28 - Adjusted Financial Measures The Company securitizes a substantial portion of its mortgage loans held for sale each quarter and has intended 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 an amended Annual Report on Form 10-K/A filed with the SEC on April 22, 2005. Throughout the "Management's Discussion and Analysis of Financial Condition and Results of Operations" section of this Quarterly Report on Form 10-Q, 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: - 29 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (In thousands) - --------------------------------------------------------------------------------
September 30, December 31, December 31, December 31, 2005 2004 2004 2004 ------------- ------------ ------------ ------------ (1) As GAAP Adjustments Adjusted ------------- ------------ ------------ ------------ Assets: Cash and cash equivalents $ 624,424 $ 192,821 $ -- $ 192,821 Accounts receivable and servicing advances 335,736 116,978 (11,640) 105,338 Mortgage-backed securities 9,208,172 6,016,866 1,584,927 7,601,793 Mortgage loans held for sale, net 1,901,293 4,853,394 (3,536,785) 1,316,609 Mortgage loans held for investment, net 1,445,429 -- -- -- Derivative assets 67,185 24,803 (1,459) 23,344 Mortgage servicing rights, net 300,659 151,436 37,793 189,229 Premises and equipment, net 64,174 51,576 -- 51,576 Goodwill 99,268 90,877 -- 90,877 Other assets 31,697 57,046 (10,490) 46,556 ------------ ------------ ------------ ------------ Total assets $ 14,078,037 $ 11,555,797 $ (1,937,654) $ 9,618,143 ============ ============ ============ ============ Liabilities and Stockholders' Equity: Liabilities: Warehouse lines of credit $ 2,165,154 $ 735,783 $ -- $ 735,783 Drafts payable 18,763 26,200 -- 26,200 Commercial paper 1,334,296 529,790 -- 529,790 Reverse repurchase agreements 8,041,579 7,071,168 -- 7,071,168 Payable for securities purchased 554,717 -- -- -- Collateralized debt obligations -- 2,022,218 (2,022,218) -- Derivative liabilities -- 1,860 -- 1,860 Trust preferred securities 96,964 -- -- -- Accrued expenses and other liabilities 239,382 152,413 13,213 165,626 Notes payable 305,766 135,761 -- 135,761 Income taxes payable 56,310 54,342 -- 54,342 ------------ ------------ ------------ ------------ Total liabilities 12,812,931 10,729,535 (2,009,005) 8,720,530 ------------ ------------ ------------ ------------ Stockholders' Equity: Preferred Stock 134,040 134,040 -- 134,040 Common stock 496 403 -- 403 Additional paid-in capital 946,105 631,530 -- 631,530 Retained earnings 235,556 99,628 71,351 170,979 Accumulated other comprehensive loss (51,091) (39,339) -- (39,339) ------------ ------------ ------------ ------------ Total stockholders' equity 1,265,106 826,262 71,351 897,613 ------------ ------------ ------------ ------------ Total liabilities and stockholders' equity $ 14,078,037 $ 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. - 30 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (In thousands, except per share amounts)
Three Months Ended ----------------------------------------------------------- Sept. 30, June 30, March 31, Dec. 31, Sept. 30, 2005 2005 2005 2004 2004 ----------- -------- --------- -------- ---------- (1) (1) As As Adjusted Adjusted ----------- -------- --------- -------- ---------- Net interest income: Interest income $ 180,038 $ 135,318 $ 119,969 $ 113,785 $ 94,298 Interest expense (133,169) (90,336) (71,325) (67,002) (61,405) --------- --------- --------- --------- --------- Net interest income 46,869 44,982 48,644 46,783 32,893 --------- --------- --------- --------- --------- Non-interest income: Gain on sales of mortgage loans 123,658 77,377 35,253 36,004 28,373 Gain on sales of current period securitized mortgage loans 19,960 104,377 44,661 40,674 30,461 Gain (loss) on sales of mortgage-backed securities and derivatives 6,116 620 4,732 2,873 (8,120) Unrealized (loss) gain on mortgage-backed securities and derivatives (10,965) (10,292) 20,236 27,224 27,069 Loan servicing fees 21,099 16,970 14,163 11,701 9,822 Amortization (15,055) (12,832) (10,671) (9,750) (7,755) Impairment reserve recovery (provision) 11,577 (20,398) 5,467 (5,013) (4,807) --------- --------- --------- --------- --------- Net loan servicing fees (loss) 17,621 (16,260) 8,959 (3,062) (2,740) --------- --------- --------- --------- --------- Other non-interest income 1,585 2,543 1,466 1,480 3,349 --------- --------- --------- --------- --------- Non-interest income 157,975 158,365 115,307 105,193 78,392 --------- --------- --------- --------- --------- Non-interest expenses: Salaries, commissions and benefits, net 101,378 94,859 68,475 60,588 46,482 Occupancy and equipment 15,328 14,397 12,671 11,556 9,984 Data processing and communications 6,479 5,957 5,950 5,869 3,745 Office supplies and expenses 5,024 5,657 4,429 4,385 3,012 Marketing and promotion 5,104 5,126 4,130 3,391 2,610 Travel and entertainment 4,670 5,427 3,928 5,106 3,620 Professional fees 3,744 3,432 3,470 5,378 2,524 Other 7,360 6,843 6,869 6,333 6,363 --------- --------- --------- --------- --------- Non-interest expenses 149,087 141,698 109,922 102,606 78,340 --------- --------- --------- --------- --------- Net income before income tax expense (benefit) 55,757 61,649 54,029 49,370 32,945 Income tax expense (benefit) 2,549 (3,851) -- 755 (9,998) --------- --------- --------- --------- --------- Net income $ 53,208 $ 65,500 $ 54,029 $ 48,615 $ 42,943 ========= ========= ========= ========= ========= Dividends on preferred stock 3,304 3,304 3,305 2,340 1,648 --------- --------- --------- --------- --------- Net income available to common shareholders $ 49,904 $ 62,196 $ 50,724 $ 46,275 $ 41,295 ========= ========= ========= ========= ========= Per share data: Basic $ 1.10 $ 1.54 $ 1.26 $ 1.15 $ 1.03 Diluted $ 1.09 $ 1.52 $ 1.24 $ 1.14 $ 1.02 Weighted average number of shares - basic 45,174 40,384 40,308 40,216 40,145 Weighted average number of shares - diluted 45,669 40,886 40,811 40,737 40,605
Note: (1) - 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 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (In thousands, except per share amounts)
Three Months Ended --------------------------------------------------------------------------------- March 31, 2005 December 31, 2004 --------------------------------------- ---------------------------------------- (1) (1) GAAP Adjustments As Adjusted GAAP Adjustments As Adjusted ---------- ------------- ------------- ----------- ------------- ------------- Net interest income: Interest income $ 146,894 $ (26,925) $ 119,969 $ 115,957 $ (2,172) $ 113,785 Interest expense (88,091) 16,766 (71,325) (68,777) 1,775 (67,002) --------- --------- --------- --------- --------- --------- Net interest income 58,803 (10,159) 48,644 47,180 (397) 46,783 --------- --------- --------- --------- --------- --------- Non-interest income: Gain on sales of mortgage loans 35,253 -- 35,253 36,004 -- 36,004 Gain on sales of current period securitized mortgage loans 69,919 (25,258) 44,661 -- 40,674 40,674 Gain on sales of mortgage-backed securities and derivatives 6,132 (1,400) 4,732 2,873 -- 2,873 Unrealized gain (loss) on mortgage-backed securities and derivatives 57,499 (37,263) 20,236 (6,579) 33,803 27,224 Loan servicing fees 11,312 2,851 14,163 11,701 -- 11,701 Amortization (8,501) (2,170) (10,671) (9,750) -- (9,750) Impairment reserve recovery (provision) 3,419 2,048 5,467 (2,284) (2,729) (5,013) --------- --------- --------- --------- --------- --------- Net loan servicing fees (loss) 6,230 2,729 8,959 (333) (2,729) (3,062) --------- --------- --------- --------- --------- --------- Other non-interest income 1,466 -- 1,466 1,480 -- 1,480 --------- --------- --------- --------- --------- --------- Non-interest income 176,499 (61,192) 115,307 33,445 71,748 105,193 --------- --------- --------- --------- --------- --------- Non-interest expenses: Salaries, commissions and benefits, net 68,475 -- 68,475 60,588 -- 60,588 Occupancy and equipment 12,671 -- 12,671 11,556 -- 11,556 Data processing and communications 5,950 -- 5,950 5,869 -- 5,869 Office supplies and expenses 4,429 -- 4,429 4,385 -- 4,385 Marketing and promotion 4,130 -- 4,130 3,391 -- 3,391 Travel and entertainment 3,928 -- 3,928 5,106 -- 5,106 Professional fees 3,470 -- 3,470 5,378 -- 5,378 Other 6,869 -- 6,869 6,333 -- 6,333 --------- --------- --------- --------- --------- --------- Non-interest expenses 109,922 -- 109,922 102,606 -- 102,606 --------- --------- --------- --------- --------- --------- Net income before income tax expense 125,380 (71,351) 54,029 (21,981) 71,351 49,370 Income tax expense -- -- -- 755 -- 755 --------- --------- --------- --------- --------- --------- Net income $ 125,380 $ (71,351) $ 54,029 $ (22,736) $ 71,351 $ 48,615 ========= ========= ========= ========= ========= ========= Dividends on preferred stock 3,305 -- 3,305 2,340 -- 2,340 --------- --------- --------- --------- --------- --------- Net income available to common shareholders $ 122,075 $ (71,351) $ 50,724 $ (25,076) $ 71,351 $ 46,275 ========= ========= ========= ========= ========= ========= Per share data: Basic $ 3.03 $ (1.77) $ 1.26 $ (0.62) $ 1.77 $ 1.15 Diluted $ 2.99 $ (1.75) $ 1.24 $ (0.62) $ 1.75 $ 1.14 Weighted average number of shares - basic 40,308 40,308 40,308 40,216 40,216 40,216 Weighted average number of shares - diluted 40,811 40,811 40,811 40,737 40,737 40,737
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. - 32 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (In thousands, except per share amounts)
Nine Months Ended September 30, -------------------------------------------------------------- 2005 2005 2005 2004 ------------- ------------ ------------ ------------ (1) As GAAP Adjustments Adjusted ------------- ------------ ------------ ------------ Net interest income: Interest income $ 462,250 $ (26,925) $ 435,325 $ 198,347 Interest expense (311,596) 16,766 (294,830) (132,596) ------------ ------------ ------------ ------------ Net interest income 150,654 (10,159) 140,495 65,751 ------------ ------------ ------------ ------------ Non-interest income: Gain on sales of mortgage loans 236,288 -- 236,288 98,095 Gain on sales of current period securitized mortgage loans 194,256 (25,258) 168,998 40,120 Gain (loss) on sales of mortgage-backed securities and derivatives 12,868 (1,400) 11,468 (2,810) Unrealized gain (loss) on mortgage-backed securities and derivatives 36,242 (37,263) (1,021) 82,041 Loan servicing fees 49,381 2,851 52,232 28,870 Amortization (36,388) (2,170) (38,558) (22,865) Impairment reserve provision (5,402) 2,048 (3,354) (10,139) ------------ ------------ ------------ ------------ Net loan servicing fees (loss) 7,591 2,729 10,320 (4,134) ------------ ------------ ------------ ------------ Other non-interest income 5,594 -- 5,594 5,553 ------------ ------------ ------------ ------------ Non-interest income 492,839 (61,192) 431,647 218,865 ------------ ------------ ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 264,712 -- 264,712 128,805 Occupancy and equipment 42,396 -- 42,396 26,086 Data processing and communications 18,386 -- 18,386 10,296 Office supplies and expenses 15,110 -- 15,110 9,345 Marketing and promotion 14,360 -- 14,360 7,018 Travel and entertainment 14,025 -- 14,025 9,084 Professional fees 10,646 -- 10,646 6,781 Other 21,072 -- 21,072 15,883 ------------ ------------ ------------ ------------ Non-interest expenses 400,707 -- 400,707 213,298 ------------ ------------ ------------ ------------ Net income before income tax benefit 242,786 (71,351) 171,435 71,318 Income tax benefit (1,302) -- (1,302) (26,330) ------------ ------------ ------------ ------------ Net income $ 244,088 $ (71,351) $ 172,737 $ 97,648 ============ ============ ============ ============ Dividends on preferred stock 9,913 -- 9,913 1,648 ------------ ------------ ------------ ------------ Net income available to common shareholders $ 234,175 $ (71,351) $ 162,824 $ 96,000 ============ ============ ============ ============ Per share data: Basic $ 5.58 $ (1.70) $ 3.88 $ 2.61 Diluted $ 5.51 $ (1.68) $ 3.83 $ 2.58 Weighted average number of shares - basic 41,973 41,973 41,973 36,737 Weighted average number of shares - diluted 42,471 42,471 42,471 37,198
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. - 33 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME MORTGAGE-BACKED SECURITIES HOLDINGS SEGMENT (In thousands)
Nine Months Ended September 30, -------------------------------------------------------------- 2005 2005 2005 2004 ------------- ------------ ------------ ------------ (1) As GAAP Adjustments Adjusted ------------- ------------ ------------ ------------ Net interest income: Interest income $ 219,906 $ 19,968 $ 239,874 $ 123,194 Interest expense (154,168) -- (154,168) (82,026) ------------ ------------ ------------ ------------ Net interest income 65,738 19,968 85,706 41,168 ------------ ------------ ------------ ------------ Non-interest income: Gain on sales of mortgage loans -- -- -- -- Gain on sales of current period securitized mortgage loans -- -- -- -- Gain on sales of mortgage-backed securities and derivatives 6,725 (1,400) 5,325 1,578 Unrealized (loss) gain on mortgage-backed securities and derivatives (41,496) (19,083) (60,579) 14,385 Loan servicing fees -- -- -- -- Amortization -- -- -- -- Impairment reserve recovery (provision) -- -- -- -- ------------ ------------ ------------ ------------ Net loan servicing fees -- -- -- -- ------------ ------------ ------------ ------------ Other non-interest income -- -- -- -- ------------ ------------ ------------ ------------ Non-interest income (34,771) (20,483) (55,254) 15,963 ------------ ------------ ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 6,057 -- 6,057 159 Occupancy and equipment 5 -- 5 5 Data processing and communications 64 -- 64 11 Office supplies and expenses 5 -- 5 -- Marketing and promotion 2 -- 2 -- Travel and entertainment 5 -- 5 2 Professional fees 2,829 -- 2,829 251 Other 6,331 -- 6,331 5,109 ------------ ------------ ------------ ------------ Non-interest expenses 15,298 -- 15,298 5,537 ------------ ------------ ------------ ------------ Net income before income tax expense (benefit) 15,669 (515) 15,154 51,594 Income tax expense (benefit) -- -- -- -- ------------ ------------ ------------ ------------ Net income $ 15,669 $ (515) $ 15,154 $ 51,594 ============ ============ ============ ============
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. - 34 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME LOAN ORIGINATION SEGMENT (In thousands)
Nine Months Ended September 30, -------------------------------------------------------------- 2005 2005 2005 2004 ------------- ------------ ------------ ------------ (1) As GAAP Adjustments Adjusted ------------- ------------ ------------ ------------ Net interest income: Interest income $ 242,344 $ (46,893) $ 195,451 $ 75,153 Interest expense (152,799) 16,766 (136,033) (47,736) ------------ ------------ ------------ ------------ Net interest income 89,545 (30,127) 59,418 27,417 ------------ ------------ ------------ ------------ Non-interest income: Gain on sales of mortgage loans 236,288 -- 236,288 98,095 Gain on sales of current period securitized mortgage loans 194,256 (25,258) 168,998 40,120 Gain (loss) on sales of mortgage-backed securities and derivatives 6,143 -- 6,143 (4,388) Unrealized gain on mortgage-backed securities and derivatives 77,738 (18,180) 59,558 67,656 Loan servicing fees -- -- -- -- Amortization -- -- -- -- Impairment reserve recovery (provision) -- -- -- -- ------------ ------------ ------------ ------------ Net loan servicing fees -- -- -- -- ------------ ------------ ------------ ------------ Other non-interest income 3,722 -- 3,722 5,553 ------------ ------------ ------------ ------------ Non-interest income 518,147 (43,438) 474,709 207,036 ------------ ------------ ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 250,179 -- 250,179 125,053 Occupancy and equipment 41,645 -- 41,645 25,691 Data processing and communications 17,953 -- 17,953 10,068 Office supplies and expenses 13,955 -- 13,955 8,525 Marketing and promotion 14,281 -- 14,281 7,013 Travel and entertainment 13,589 -- 13,589 8,947 Professional fees 7,060 -- 7,060 6,060 Other 9,439 -- 9,439 8,044 ------------ ------------ ------------ ------------ Non-interest expenses 368,101 -- 368,101 199,401 ------------ ------------ ------------ ------------ Net income before income tax expense (benefit) 239,591 (73,565) 166,026 35,052 Income tax expense (benefit) 3,777 -- 3,777 (20,267) ------------ ------------ ------------ ------------ Net income $ 235,814 $ (73,565) $ 162,249 $ 55,319 ============ ============ ============ ============
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. - 35 - AMERICAN HOME MORTGAGE INVESTMENT CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME LOAN SERVICING SEGMENT (In thousands)
Nine Months Ended September 30, -------------------------------------------------------------- 2005 2005 2005 2004 ------------- ------------ ------------ ------------ (1) As GAAP Adjustments Adjusted ------------- ------------ ------------ ------------ Net interest income: Interest income $ -- $ -- $ -- $ -- Interest expense (4,629) -- (4,629) (2,834) ------------ ------------ ------------ ------------ Net interest income (4,629) -- (4,629) (2,834) ------------ ------------ ------------ ------------ Non-interest income: Gain on sales of mortgage loans -- -- -- -- Gain on sales of current period securitized mortgage loans -- -- -- -- Gain (loss) on sales of mortgage-backed securities and derivatives -- -- -- -- Unrealized gain (loss) on mortgage-backed securities and derivatives -- -- -- -- Loan servicing fees 49,381 2,851 52,232 28,870 Amortization (36,388) (2,170) (38,558) (22,865) Impairment reserve provision (5,402) 2,048 (3,354) (10,139) ------------ ------------ ------------ ------------ Net loan servicing fees (loss) 7,591 2,729 10,320 (4,134) ------------ ------------ ------------ ------------ Other non-interest income 1,872 -- 1,872 -- ------------ ------------ ------------ ------------ Non-interest income 9,463 2,729 12,192 (4,134) ------------ ------------ ------------ ------------ Non-interest expenses: Salaries, commissions and benefits, net 8,476 -- 8,476 3,593 Occupancy and equipment 746 -- 746 390 Data processing and communications 369 -- 369 217 Office supplies and expenses 1,150 -- 1,150 820 Marketing and promotion 77 -- 77 5 Travel and entertainment 431 -- 431 135 Professional fees 757 -- 757 470 Other 5,302 -- 5,302 2,730 ------------ ------------ ------------ ------------ Non-interest expenses 17,308 -- 17,308 8,360 ------------ ------------ ------------ ------------ Net income before income tax benefit (12,474) 2,729 (9,745) (15,328) Income tax benefit (5,079) -- (5,079) (6,063) ------------ ------------ ------------ ------------ Net income $ (7,395) $ 2,729 $ (4,666) $ (9,265) ============ ============ ============ ============
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. - 36 - Financial Condition Total assets at September 30, 2005 were $14.1 billion, a $2.5 billion increase from $11.6 billion at December 31, 2004, and an increase of $4.5 billion compared to the $9.6 billion of total assets as adjusted at December 31, 2004. The increase in total assets primarily reflects an increase in mortgage-backed securities of $3.2 billion and an increase in mortgage loans held for investment of $1.4 billion, partly offset by a decrease in mortgage loans held for sale of $3.0 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 September 30, 2005, 65.4% of our total assets were mortgage-backed securities, 13.5% were mortgage loans held for sale and 10.3% were mortgage loans held for investment, compared to 52.1%, 42.0% and 0.0%, respectively, at December 31, 2004 and 79.0%, 13.7% and 0.0%, respectively, at December 31, 2004 as adjusted. The following table summarizes our mortgage-backed securities owned at September 30, 2005, December 31, 2004 and December 31, 2004 as adjusted, classified by type of issuer and by ratings categories:
September 30, 2005 ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio Mix ---------- ------------- -------- ------------- -------- ------------- (Dollars in thousands) Agency securities $ -- --% $ 164,971 3.6% $ 164,971 1.8% Privately issued: AAA 3,909,617 85.7 4,446,652 95.7 8,356,269 90.8 AA 47,235 1.0 11,252 0.2 58,487 0.6 A 169,337 3.7 8,978 0.2 178,315 1.9 BBB 185,094 4.1 4,211 0.1 189,305 2.1 Unrated 252,564 5.5 8,261 0.2 260,825 2.8 ---------- ----- ---------- ----- ---------- ----- Total $4,563,847 100.0% $4,644,325 100.0% $9,208,172 100.0% ========== ===== ========== ===== ========== ===== December 31, 2004 ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio 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% ========== ===== ========== ===== ========== =====
- 37 -
December 31, 2004 (as adjusted) ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio 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 September 30, 2005, December 31, 2004 and December 31, 2004 as adjusted:
September 30, 2005 ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio Mix ---------- ------------- -------- ------------- -------- ------------- (Dollars in thousands) Index: One-month LIBOR $ 516,148 11.3% $ 74,711 1.6% $ 590,859 6.4% Six-month LIBOR 3,603,106 79.0 2,209,179 47.6 5,812,285 63.1 One-year LIBOR 383,812 8.4 2,080,197 44.8 2,464,009 26.8 One-year constant maturity treasury 510 0.0 280,238 6.0 280,748 3.0 One-year monthly treasury average 60,271 1.3 -- -- 60,271 0.7 ---------- ----- ---------- ----- ---------- ----- Total $4,563,847 100.0% $4,644,325 100.0% $9,208,172 100.0% ========== ===== ========== ===== ========== ===== December 31, 2004 ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio 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% ========== ===== ========== ===== ========== =====
- 38 -
December 31, 2004 (as adjusted) ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio 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 September 30, 2005, December 31, 2004 and December 31, 2004 as adjusted:
September 30, 2005 ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio Mix ---------- ------------- -------- ------------- -------- ------------- (Dollars in thousands) Product: ARMs less than 3 years $ 857,415 18.8% $ 597,387 12.9% $1,454,802 15.8% 3/1 Hybrid ARM 217,452 4.8 302,752 6.5 520,204 5.6 5/1 Hybrid ARM 3,488,980 76.4 3,744,186 80.6 7,233,166 78.6 ---------- ----- ---------- ----- ---------- ----- Total $4,563,847 100.0% $4,644,325 100.0% $9,208,172 100.0% ========== ===== ========== ===== ========== ===== December 31, 2004 ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio 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% ========== ===== ========== ===== ========== =====
- 39 -
December 31, 2004 (as adjusted) ------------------------------------------------------------------------------------------- Trading Securities Securities Available for Sale Total ------------------------------- ------------------------------ ---------------------------- Carrying Carrying Carrying Value Portfolio Mix Value Portfolio Mix Value Portfolio 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 September 30, 2005, we purchased $2.4 billion of mortgage-backed securities and added $1.2 billion of self-originated mortgage-backed securities to our portfolio. During the nine months ended September 30, 2005, we purchased $3.4 billion of mortgage-backed securities and added $4.5 billion of self-originated mortgage-backed securities to our portfolio, including $1.5 billion from the Q4-04 Securitization. During the three and nine months ended September 30, 2005, we sold $521.3 million and $2.8 billion of mortgage-backed securities, respectively. Results of Operations - Comparison of the Three Months Ended September 30, 2005 and 2004 Overview Net income for the three months ended September 30, 2005 was $53.2 million compared to $42.9 million for the three months ended September 30, 2004, an increase of $10.3 million, or 23.9%. The increase in net income was the result of a $79.6 million increase in non-interest income and a $14.0 million increase in net interest income, partly offset by a $70.7 million increase in non-interest expenses and a $12.6 million increase in income tax expense. The $79.6 million increase in non-interest income consists of a $95.3 million increase in gain on sales of mortgage loans and a $20.4 million increase in net loan servicing fees, offset by a $23.8 million decrease in realized and unrealized gains on mortgage-backed securities and derivatives, a $10.5 million decrease in gain on sales of current period securitized mortgage loans and a $1.8 million decrease in other non-interest income. 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 September 30, 2005 compared to the three months ended September 30, 2004: - 40 -
(Dollars in thousands) Three Months Ended September 30, --------------------------------------------------------------------------------------- 2005 2004 ------------------------------------------- ------------------------------------------ Average Average Average Average Balance Interest Yield/Cost Balance Interest Yield/Cost ------------ ----------- ---------- ----------- ----------- ------------ Interest earning assets: Mortgage-backed securities, net (1) $ 7,101,548 $ 84,560 4.76% $ 7,179,816 $ 66,856 3.72% Mortgage loans 5,665,768 95,478 6.74% 2,422,596 27,442 4.53% ----------- ----------- ----------- ----------- 12,767,316 180,038 5.64% 9,602,412 94,298 3.93% ----------- ----------- ----------- ----------- Interest bearing liabilities: Warehouse lines of credit (2) 2,689,507 40,099 5.83% 1,110,441 12,659 4.56% Commercial paper 2,787,060 26,088 3.66% 1,300,726 5,400 1.66% Reverse repurchase agreements (3) 6,529,138 62,945 3.84% 6,776,787 42,124 2.47% Trust preferred securities 85,870 1,584 7.22% -- -- -- Notes payable 207,357 2,453 4.63% 119,536 1,222 4.09% ----------- ----------- ----------- ----------- 12,298,932 133,169 4.24% 9,307,490 61,405 2.64% ----------- ----------- ----------- ----------- Net interest income $ 46,869 $ 32,893 =========== =========== Interest rate spread 1.40% 1.28% ==== ==== Net interest margin 1.56% 1.37% ==== ====
(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 $4.3 million of net interest expense on interest rate swap agreements for the 2004 period. (3) Includes $3.4 million and $13.2 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. The following table presents 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 September 30, 2005 compared to the three months ended September 30, 2004: Three Months Ended September 30, 2005 Compared to (In thousands) Three Months Ended September 30, 2004 --------------------------------------- Average Average Rate Volume Total ------- ------- ------- Mortgage-backed securities, net $22,649 $(4,945) $17,704 Mortgage loans 18,167 49,869 68,036 ------- ------- ------- Interest income 40,816 44,924 85,740 ------- ------- ------- Warehouse lines of credit 4,506 22,934 27,440 Commercial paper 10,621 10,067 20,688 Reverse repurchase agreements 30,949 (10,128) 20,821 Trust preferred securities -- 1,584 1,584 Notes payable 188 1,043 1,231 ------- ------- ------- Interest expense 46,264 25,500 71,764 ------- ------- ------- Net interest income $(5,448) $19,424 $13,976 ======= ======= ======= - -------------------------------------------------------------------------------- - 41 - Interest Income: Interest income on mortgage-backed securities for the three months ended September 30, 2005 was $84.6 million, compared to $66.9 million for the three months ended September 30, 2004, a $17.7 million, or 26.5%, increase. This increase primarily reflects higher interest rates in 2005 versus 2004. Interest income on our mortgage loans for the three months ended September 30, 2005 was $95.5 million, compared to $27.5 million for the three months ended September 30, 2004, an increase of $68.0 million, or 247.9%. The increase in interest income on mortgage loans 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 $3.3 billion commercial paper, or secured liquidity note ("SLN"), program. Interest expense on warehouse lines of credit for the three months ended September 30, 2005 was $40.1 million, compared to interest expense for the three months ended September 30, 2004 of $12.7 million, a $27.4 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 generally higher short-term interest rates 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 September 30, 2005 was $26.1 million, versus $5.4 million for the three months ended September 30, 2004, a $20.7 million increase. 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 entered into reverse repurchase agreements, a form of collateralized short-term borrowing, with fourteen different financial institutions and, as of September 30, 2005, have borrowed funds from eight of these counterparties. 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 September 30, 2005 was $62.9 million, compared to interest expense for the three months ended September 30, 2004 of $42.1 million, a $20.8 million increase. The increase in reverse repurchase agreements interest expense was primarily the result of higher short-term interest rates in 2005 versus 2004. 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 September 30, 2005 totaled $176.5 million, or 1.42% of mortgage loans sold or securitized, compared to $84.2 million, or 1.50%, of mortgage loans sold or securitized during the three months ended September 30, 2004. The increase primarily reflects a $6.8 billion increase in mortgage loans sold or securitized to $12.4 billion in the third quarter of 2005 from $5.6 billion in the third 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 September 30, 2005 and 2004: Gains on Sales and Securitizations of Mortgage Loans
Three Months Ended September 30, ---------------------------------- 2005 2004 ---------------- -------------- (Dollars in thousands) Gain on sales of mortgage loans $ 123,658 $ 28,373 Gain on sales of current period securitized mortgage loans 19,960 30,461 Gain (loss) on sales of free standing derivatives 300 (3,510) Unrealized gain on self-originated mortgage-backed securities retained in period 22,604 28,853 Unrealized gain on free standing derivatives 10,012 -- ------------ ------------ Total gain on sales and securitizations of mortgage loans $ 176,534 $ 84,177 ============ ============ Total mortgage loans sold or securitized $ 12,397,436 $ 5,613,060 ============ ============ Total gain on sales and securitizations of mortgage loans as a % of total mortgage loans sold or securitized 1.42% 1.50%
- 42 - Portfolio Gains and Losses: During the three months ended September 30, 2005, portfolio losses in our Mortgage-Backed Securities Holdings segment were $37.8 million compared to a portfolio loss of $6.4 million during the three months ended September 30, 2004. The increase in portfolio losses in the third quarter of 2005 compared to the third quarter of 2004 was primarily the result of a $41.8 million net increase in unrealized losses on mortgage-backed securities and free standing derivatives, partly offset by a $10.4 million increase in gain on sales of mortgage-backed securities. The following table presents the components of portfolio gains and losses in our Mortgage-Backed Securities Holdings segment during the three months ended September 30, 2005 and 2004: Portfolio Gains and Losses
Three Months Ended September 30, -------------------------------- 2005 2004 -------- -------- (In thousands) Gain (loss) on sales of mortgage-backed securities $ 5,816 $ (4,610) Unrealized (loss) gain on mortgage-backed securities (60,211) 18,344 Unrealized gain (loss) on free standing derivatives 16,630 (20,128) -------- -------- Net unrealized loss on mortgage-backed securities and free standing derivatives (43,581) (1,784) -------- -------- Total portfolio loss $(37,765) $ (6,394) ======== ========
The following table presents the components of gains and losses on sales of mortgage-backed securities and derivatives shown in the Company's consolidated statements of income: Components of Gains and Losses on Sales of Mortgage-backed Securities and Derivatives
Three Months Ended September 30, -------------------------------- 2005 2004 -------- -------- (In thousands) Gain (loss) on sales of mortgage-backed securities $ 5,816 $ (4,610) Gain (loss) on sales of free standing interest rate swap derivatives 300 (3,510) -------- -------- Gain (loss) on sales of mortgage-backed securities and derivatives $ 6,116 $ (8,120) ======== ========
The following table presents the components of unrealized gains and losses on mortgage-backed securities and derivatives shown in the Company's consolidated statements of income: Components of Unrealized Gains and Losses on Mortgage-backed Securities and Derivatives
Three Months Ended September 30, -------------------------------- 2005 2004 -------- -------- (In thousands) Unrealized gain on self-originated mortgage-backed securities retained in period $ 22,604 $ 28,853 Unrealized (loss) gain on mortgage-backed securities (60,211) 18,344 Unrealized gain (loss) on free standing derivatives 26,642 (20,128) -------- -------- Unrealized (loss) gain on mortgage-backed securities and derivatives $(10,965) $ 27,069 ======== ========
Net Loan Servicing Fees Net loan servicing fees were a gain of $17.6 million for the three months ended September 30, 2005 compared to a loss of $2.7 million for the three months ended September 30, 2004. - 43 - Loan Servicing Fees: Loan servicing fees increased to $21.1 million for the three months ended September 30, 2005 from $9.8 million for the three months ended September 30, 2004, an increase of $11.3 million, or 114.8%. Included in loan servicing fees are gains on Ginnie Mae early buy-out sales of $0.4 million for the three months ended September 30, 2005 compared to $0.7 million for the three months ended September 30, 2004, a decrease of $0.3 million, or 38.9%. This decrease partly offset the increase in loan servicing fees in the third quarter of 2005 versus the third quarter of 2004 as a result of an increase in loans serviced for others. Amortization of MSRs: Amortization of MSRs increased to $15.1 million for the three months ended September 30, 2005 from $7.8 million for the three months ended September 30, 2004, an increase of $7.3 million, or 94.1%. The increase in amortization was due to a higher average servicing portfolio in the third quarter of 2005 versus the third quarter of 2004. Impairment Recovery (Provision) of MSRs: We recognized a temporary impairment recovery of $11.6 million for the three months ended September 30, 2005 versus a temporary impairment provision of $4.8 million for the three months ended September 30, 2004, resulting in an increase in net loan servicing fees of $16.4 million. The decrease in impairment provision in the three months ended September 30, 2005 was due to higher interest rates, 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. The following table presents net loan servicing fees and losses shown in the Company's consolidated statements of income: Three Months Ended September 30, -------------------------------- 2005 2004 -------- -------- (In thousands) Loan servicing fees $ 21,099 $ 9,822 Amortization (15,055) (7,755) Impairment reserve recovery (provision) 11,577 (4,807) -------- -------- Net loan servicing fees (loss) $ 17,621 $ (2,740) ======== ======== Other Non-Interest Income Other non-interest income totaled $1.6 million for the three months ended September 30, 2005 compared to $3.4 million for the three months ended September 30, 2004. For the three months ended September 30, 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 $0.3 million. For the three months ended September 30, 2004, other non-interest income primarily includes revenue from a legal settlement of $1.5 million, reinsurance premiums earned totaling approximately $0.6 million, rental income of $0.5 million, and revenue from title services of $0.2 million. Non-Interest Expenses Our non-interest expenses for the three months ended September 30, 2005 were $149.1 million compared to $78.3 million for the three months ended September 30, 2004, an increase of $70.8 million, or 90.3%. The increase primarily reflects a $64.6 million rise in our Loan Origination segment non-interest expenses to $138.3 million, or 1.01% of total loan originations in the third quarter of 2005, from $73.7 million, or 1.39% of total loan originations in the third 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 September 30, 2005 were $101.4 million, compared to $46.5 million for the three months ended September 30, 2004, an increase of $54.9 million, or 118.1%. The increase in expenses reflects higher origination volume and a resulting higher commission expense and higher salaries due to an increase in employees to 6,467 at September 30, 2005 from 4,145 at September 30, 2004. Other Operating Expenses: Operating expenses, excluding salaries, commissions and benefits, were $47.7 million for the three months ended September 30, 2005, compared to $31.8 million for the three months ended September 30, 2004, an increase of $15.9 million, or 49.8%. The increase in operating expenses in the third quarter of 2005 versus the third quarter of 2004 includes a $5.3 million increase in - 44 - occupancy and equipment expense, due to higher lease obligations and certain fixed asset expenses relating to the increased number of branches in the 2005 period. Income Tax Expense (Benefit) We recognized $2.5 million of income tax expense for the three months ended September 30, 2005, compared to a benefit of $10.0 million for the three months ended September 30, 2004. The increase in income tax expense in the third quarter of 2005 versus the third 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 September 30, 2005 were $13.7 billion compared to $5.3 billion for the three months ended September 30, 2004, a 158.8% increase. Our retail originations, which are conducted through our community loan production offices and Internet call center, were 46% of our loan originations in the three months ended September 30, 2005 compared to 51% of our originations in the three months ended September 30, 2004. Mortgage brokers accounted for 54% of our loan originations in the three months ended September 30, 2005 compared to 49% of our originations in the three months ended September 30, 2004. Results of Operations - Comparison of the Nine Months Ended September 30, 2005 and 2004 Overview Net income for the nine months ended September 30, 2005 was $244.1 million compared to $97.7 million for the nine months ended September 30, 2004, an increase of $146.4 million, or 150.0%. Net income for the nine months ended September 30, 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 $273.9 million increase in non-interest income and an $84.9 million increase in net interest income, partly offset by a $187.4 million increase in non-interest expenses and a $25.0 million decrease in income tax benefit. The $273.9 million increase in non-interest income consists of a $154.1 million increase in gain on sales of current period securitized mortgage loans, a $138.2 million increase in gain on sales of mortgage loans and an $11.7 million increase in net loan servicing fees, partly offset by a $30.1 million decrease in realized and unrealized gains on mortgage-backed securities and derivatives in the nine months ended September 30, 2005 versus the nine months ended September 30, 2004. Net income as adjusted for the nine months ended September 30, 2005 was $172.7 million, an increase of $75.1 million, or 76.9%, over net income for the nine months ended September 30, 2004. The increase in net income as adjusted was the result of a $212.8 million increase in non-interest income as adjusted and a $74.7 million increase in net interest income as adjusted, partly offset by a $187.4 million increase in non-interest expenses and a $25.0 million decrease in income tax benefit. The $212.8 million increase in non-interest income as adjusted consists of a $138.2 million increase in gain on sales of mortgage loans, a $128.9 million increase in gain on sales of current period securitized mortgage loans as adjusted and a $14.5 million increase in net loan servicing fees as adjusted, partly offset by a $68.8 million decrease in realized and unrealized gains on mortgage-backed securities and derivatives as adjusted in the nine months ended September 30, 2005 versus the nine months ended September 30, 2004. Net Interest Income The following table presents 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 nine months ended September 30, 2005 compared to the nine months ended September 30, 2004 and for the nine months ended September 30, 2005 as adjusted compared to the nine months ended September 30, 2004: - 45 -
(Dollars in thousands) Nine Months Ended September 30, --------------------------------------------------------------------------------------- 2005 2004 ------------------------------------------- ------------------------------------------ Average Average Average Average Balance Interest Yield/Cost Balance Interest Yield/Cost ------------ ----------- ---------- ----------- ----------- ------------ Interest earning assets: Mortgage-backed securities, net (1) $ 6,591,006 $ 219,906 4.45% $ 4,659,398 $ 123,194 3.53% Mortgage loans 5,253,770 242,344 6.15% 2,019,746 75,153 4.96% ----------- ----------- ----------- ----------- 11,844,776 462,250 5.20% 6,679,144 198,347 3.96% ----------- ----------- ----------- ----------- Interest bearing liabilities: Warehouse lines of credit (2) 2,002,754 77,642 5.11% 1,355,512 40,193 3.91% Commercial paper 1,947,314 46,906 3.18% 553,160 6,942 1.65% Reverse repurchase agreements (3) 6,573,306 161,906 3.29% 4,366,228 82,026 2.51% Collateralized debt obligations 655,083 16,766 3.37% -- -- -- Trust preferred securities 37,912 2,066 7.19% -- -- -- Notes payable 182,563 6,310 4.56% 119,261 3,435 3.80% ----------- ----------- ----------- ----------- 11,398,932 311,596 3.60% 6,394,161 132,596 2.73% ----------- ----------- ----------- ----------- Net interest income $ 150,654 $ 65,751 =========== =========== Interest rate spread 1.60% 1.22% ==== ==== Net interest margin 1.73% 1.34% ==== ====
(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 $2.8 million and $9.7 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. (3) Includes $13.9 million and $31.6 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. - 46 -
(Dollars in thousands) Nine Months Ended September 30, --------------------------------------------------------------------------------------- 2005(As Adjusted) 2004 ------------------------------------------- ------------------------------------------ Average Average Average Average Balance Interest Yield/Cost Balance Interest Yield/Cost ------------ ----------- ---------- ----------- ----------- ------------ Interest earning assets: Mortgage-backed securities, net (1) $ 7,102,047 $ 239,874 4.50% $ 4,659,398 $ 123,194 3.53% Mortgage loans 4,117,270 195,451 6.33% 2,019,746 75,153 4.96% ----------- ----------- ----------- ----------- 11,219,317 435,325 5.17% 6,679,144 198,347 3.96% ----------- ----------- ----------- ----------- Interest bearing liabilities: Warehouse lines of credit (2) 2,002,754 77,642 5.11% 1,355,512 40,193 3.91% Commercial paper 1,947,314 46,906 3.18% 553,160 6,942 1.65% Reverse repurchase agreements (3) 6,573,306 161,906 3.29% 4,366,228 82,026 2.51% Trust preferred securities 37,912 2,066 7.19% -- -- -- Notes payable 182,563 6,310 4.56% 119,261 3,435 3.80% ----------- ----------- ----------- ----------- 10,743,849 294,830 3.62% 6,394,161 132,596 2.73% ----------- ----------- ----------- ----------- Net interest income $ 140,495 $ 65,751 =========== =========== Interest rate spread 1.55% 1.22% ==== ==== Net interest margin 1.71% 1.34% ==== ====
(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 $2.8 million and $9.7 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. (3) Includes $13.9 million and $31.6 million of net interest expense on interest rate swap agreements for the 2005 and 2004 periods, respectively. The following table presents 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 nine months ended September 30, 2005 compared to the nine months ended September 30, 2004 and for the nine months ended September 30, 2005 as adjusted compared to the nine months ended September 30, 2004: Nine Months Ended September 30, 2005 Compared to (In thousands) Nine Months Ended September 30, 2004 --------------------------------------- Average Average Rate Volume Total -------- -------- -------- Mortgage-backed securities, net $ 37,443 $ 59,269 $ 96,712 Mortgage loans 21,768 145,423 167,191 -------- -------- -------- Interest income 59,211 204,692 263,903 -------- -------- -------- Warehouse lines of credit 14,668 22,781 37,449 Commercial paper 10,682 29,282 39,964 Reverse repurchase agreements 30,448 49,432 79,880 Collateralized debt obligations -- 16,766 16,766 Trust preferred securities -- 2,066 2,066 Notes payable 787 2,088 2,875 -------- -------- -------- Interest expense 56,585 122,415 179,000 -------- -------- -------- Net interest income $ 2,626 $ 82,277 $ 84,903 ======== ======== ======== - -------------------------------------------------------------------------------- - 47 - Nine Months Ended September 30, 2005 (As Adjusted) Compared to (In thousands) Nine Months Ended September 30, 2004 --------------------------------------- Average Average Rate Volume Total ------- ------- ------- Mortgage-backed securities, net $ 40,380 $ 76,300 $116,680 Mortgage loans 25,243 95,055 120,298 -------- -------- -------- Interest income 65,623 171,355 236,978 -------- -------- -------- Warehouse lines of credit 14,668 22,781 37,449 Commercial paper 10,682 29,282 39,964 Reverse repurchase agreements 30,448 49,432 79,880 Trust preferred securities -- 2,066 2,066 Notes payable 787 2,088 2,875 -------- -------- -------- Interest expense 56,585 105,649 162,234 -------- -------- -------- Net interest income $ 9,038 $ 65,706 $ 74,744 ======== ======== ======== Interest Income: Interest income on mortgage-backed securities for the nine months ended September 30, 2005 was $219.9 million, compared to $123.2 million for the nine months ended September 30, 2004, a $96.7 million, or 78.5% increase. This increase reflects primarily the growth of our mortgage-backed securities portfolio and higher interest rates in 2005 versus 2004. Interest income on mortgage-backed securities as adjusted for the nine months ended September 30, 2005 was $239.9 million, compared to $123.2 million for the nine months ended September 30, 2004, a $116.7 million, or 94.7% increase. This increase reflects primarily the growth of our mortgage-backed securities portfolio and higher interest rates in 2005 versus 2004. Interest income on our mortgage loans for the nine months ended September 30, 2005 was $242.3 million compared to $75.1 million for the nine months ended September 30, 2004, an increase of $167.2 million, or 222.5%. The increase in interest income on mortgage loans 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 as adjusted for the nine months ended September 30, 2005 was $195.4 million compared to $75.1 million for the nine months ended September 30, 2004, an increase of $120.3 million, or 160.1%. The increase in loan 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 $3.3 billion commercial paper, or secured liquidity note ("SLN"), program. Interest expense on warehouse lines of credit for the nine months ended September 30, 2005 was $77.6 million, compared to interest expense for the nine months ended September 30, 2004 of $40.2 million, a $37.4 million increase. The increase in warehouse lines of credit interest expense was primarily the result an increase in average volume due to higher mortgage origination volume and an increase in average rate due to generally higher short-term interest rates 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. Interest expense on commercial paper for the nine months ended September 30, 2005 was $46.9 million versus $6.9 million for the nine months ended September 30, 2004, a $40.0 million increase. 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 entered into reverse repurchase agreements, a form of collateralized short-term borrowing, with fourteen different financial institutions and, as of September 30, 2005, have borrowed funds from eight of these counterparties. 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 nine months ended September 30, 2005 was $161.9 million, compared to interest expense for the nine months ended September 30, 2004 of - 48 - $82.0 million, a $79.9 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 nine months ended September 30, 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. 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 nine months ended September 30, 2005 totaled $514.4 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 nine months ended September 30, 2005 were $471.0 million, or 1.59%, of mortgage loans sold or securitized, as adjusted, compared to $201.5 million, or 1.22%, of mortgage loans sold or securitized during the nine months ended September 30, 2004. The increase primarily reflects a $13.1 billion increase in mortgage loans sold or securitized, as adjusted, to $29.6 billion, as adjusted, in the first nine months of 2005 from $16.5 billion in the first nine months of 2004. The change in fair value of IRLCs included in gain on sales of mortgage loans in the 2004 period was reduced as a result of our adoption of SAB No. 105. The following table presents the components of gain on sales and securitizations of mortgage loans in our Loan Origination segment during the nine months ended September 30, 2005 and 2004: Gains on Sales and Securitizations of Mortgage Loans
Nine Months Ended September 30, ---------------------------------------------------------- 2005 2005 2005 2004 ---------------------------------------------------------- GAAP Adjustments As Adjusted ---------------------------------------------------------- (Dollars in thousands) Gain on sales of mortgage loans $ 236,288 $ -- $ 236,288 $ 98,095 Gain on sales of current period securitized mortgage loans 194,256 (25,258) 168,998 40,120 Gain (loss) on sales of free standing derivatives 6,143 -- 6,143 (4,388) Unrealized gain on self-originated mortgage-backed securities retained in period 72,806 (18,180) 54,626 67,656 Unrealized gain on free standing derivatives 4,932 -- 4,932 -- ---------------------------------------------------------- Total gain on sales and securitizations of mortgage loans $ 514,425 $ (43,438) $ 470,987 $ 201,483 ========================================================== Total mortgage loans sold or securitized $33,101,422 $(3,526,123) $29,575,299 $ 16,514,175 ========================================================== Total gain on sales and securitizations of mortgage loans as a % of total mortgage loans sold or securitized 1.55% 1.59% 1.22%
Portfolio Gains and Losses: During the nine months ended September 30, 2005, portfolio gains and losses in our Mortgage-Backed Securities Holdings segment, as adjusted, were a portfolio loss of $55.3 million compared to a portfolio gain of $16.0 million during the nine months ended September 30, 2004. The decrease in portfolio gains in the first nine months of 2005 compared to the first nine months of 2004 was the result of a $75.0 million net decrease in unrealized gain on mortgage-backed securities and free standing derivatives, as adjusted, partly offset by a $3.7 million increase in gain on sales of mortgage-backed securities, as adjusted. The following table presents the components of portfolio gains and losses in our Mortgage-Backed Securities Holdings segment during the nine months ended September 30, 2005 and 2004: - 49 - Portfolio Gains and Losses
Nine Months Ended September 30, ---------------------------------------------------------- 2005 2005 2005 2004 ---------------------------------------------------------- GAAP Adjustments As Adjusted ---------------------------------------------------------- (In thousands) Gain on sales of mortgage-backed securities $ 6,725 $ (1,400) $ 5,325 $ 1,578 Unrealized loss on mortgage-backed securities (65,640) (19,083) (84,723) (6,938) Unrealized gain on free standing derivatives 24,144 -- 24,144 21,323 ---------------------------------------------------------- Net unrealized (loss) gain on mortgage-backed securities and free standing derivatives (41,496) (19,083) (60,579) 14,385 ---------------------------------------------------------- Total portfolio (loss) gain $ (34,771) $ (20,483) $ (55,254) $ 15,963 ==========================================================
The following table presents the components of gains and losses on sales of mortgage-backed securities and derivatives shown in the Company's consolidated statements of income: Components of Gain (Loss) on Sales of Mortgage-backed Securities and Derivatives
Nine Months Ended September 30, ---------------------------------------------------------- 2005 2005 2005 2004 ---------------------------------------------------------- GAAP Adjustments As Adjusted ---------------------------------------------------------- (In thousands) Gain on sales of mortgage-backed securities $ 6,725 $ (1,400) $ 5,325 $ 1,578 Gain (loss) on sales of free standing interest rate swap derivatives 6,143 -- 6,143 (4,388) ---------------------------------------------------------- Gain (loss) on sales of mortgage-backed securities and derivatives $ 12,868 $ (1,400) $ 11,468 $ (2,810) ==========================================================
The following table presents the components of unrealized gains and losses on mortgage-backed securities and derivatives shown in the Company's consolidated statements of income: Components of Unrealized Gains and Losses on Mortgage-backed Securities and Derivatives
Nine Months Ended September 30, ---------------------------------------------------------------- 2005 2005 2005 2004 ---------------------------------------------------------------- GAAP Adjustments As Adjusted ---------------------------------------------------------------- (In thousands) Unrealized gain on self-originated mortgage-backed securities retained in period $ 72,806 $ (18,180) $ 54,626 $ 67,656 Unrealized loss on mortgage-backed securities (65,640) (19,083) (84,723) (6,938) Unrealized gain on free standing derivatives 29,076 -- 29,076 21,323 ---------------------------------------------------------------- Unrealized gain (loss) on mortgage-backed securities and derivatives $ 36,242 $ (37,263) $ (1,021) $ 82,041 ================================================================
Net Loan Servicing Fees Net loan servicing fees were $7.6 million for the nine months ended September 30, 2005 compared to a loss of $4.1 million for the nine months ended September 30, 2004. Loan Servicing Fees: Loan servicing fees increased to $49.4 million for the nine months ended September 30, 2005 from $28.9 million for the nine months ended September 30, 2004, an increase of $20.5 million, or 71.0%. Included in loan servicing fees are gains on Ginnie Mae early buy-out sales of $1.2 million for the nine months ended September 30, 2005 compared to $3.7 million for the nine months ended September 30, 2004, a decrease of $2.5 million, or 67.9%. This decrease partly offset the increase in loan servicing fees in the first nine months of 2005 versus the first nine months of 2004, as a result of an increase in loans serviced for others. - 50 - Amortization of MSRs: Amortization of MSRs increased to $36.4 million for the nine months ended September 30, 2005 from $22.9 million for the nine months ended September 30, 2004, an increase of $13.5 million, or 59.1%. The increase in amortization was due to a higher average servicing portfolio in the first nine months of 2005 versus the first nine months of 2004. Impairment Provision of MSRs: We recognized a temporary impairment provision of $5.4 million for the nine months ended September 30, 2005 versus a temporary impairment provision of $10.1 million for the nine months ended September 30, 2004, resulting in an increase in net loan servicing fees of $4.7 million. The decrease in impairment provision in the nine months ended September 30, 2005 was due to higher interest rates, 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. The following table presents GAAP, as adjusted and reconciling adjustments to net loan servicing fees (loss) for the nine months ended September 30, 2005 and 2004:
Nine Months Ended September 30, ---------------------------------------------------------- 2005 2005 2005 2004 ---------------------------------------------------------- GAAP Adjustments As Adjusted ---------------------------------------------------------- Loan servicing fees $ 49,381 $ 2,851 $ 52,232 $ 28,870 Amortization (36,388) (2,170) (38,558) (22,865) Impairment reserve provision (5,402) 2,048 (3,354) (10,139) ---------------------------------------------------------- Net loan servicing fees (loss) $ 7,591 $ 2,729 $ 10,320 $ (4,134) ==========================================================
Other Non-Interest Income Other non-interest income totaled $5.6 million for the nine months ended September 30, 2005 and for the nine months ended September 30, 2004. For the nine months ended September 30, 2005, other non-interest income primarily includes reinsurance premiums earned totaling approximately $3.2 million, rental income of $1.1 million and revenue from title services of $0.9 million. For the nine months ended September 30, 2004, other non-interest income primarily includes rental income of $1.6 million, income from a legal settlement of $1.5 million, reinsurance premiums earned totaling approximately $1.1 million and revenue from title services of $0.7 million. Non-Interest Expenses Our non-interest expenses for the nine months ended September 30, 2005 were $400.7 million compared to $213.3 million for the nine months ended September 30, 2004, an increase of $187.4 million, or 87.9%. The increase primarily reflects a $168.7 million rise in our Loan Origination segment non-interest expenses to $368.1 million, or 1.16%, of total loan originations in the first nine months of 2005 from $199.4 million, or 1.22%, of total loan originations in the first nine months 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 nine months ended September 30, 2005 were $264.7 million, compared to $128.8 million for the nine months ended September 30, 2004, an increase of $135.9 million, or 105.5%. The increase in expenses reflects higher origination volume and a resulting higher commission expense and higher salaries due to an increase in employees to 6,467 at September 30, 2005 from 4,145 at September 30, 2004. Other Operating Expenses: Operating expenses, excluding salaries, commissions and benefits, were $136.0 million for the nine months ended September 30, 2005 compared to $84.5 million for the nine months ended September 30, 2004, an increase of $51.5 million, or 61.0%. The increase in operating expenses in the first nine months of 2005 versus the first nine months of 2004 includes a $16.3 million increase in occupancy and equipment expense, due to higher lease obligations and certain fixed asset expenses relating to the increased number of branches in the 2005 period. - 51 - Income Tax Benefit A $1.3 million income tax benefit was recognized for the nine months ended September 30, 2005, compared to a benefit of $26.3 million for the nine months ended September 30, 2004. The decrease in income tax benefit in the first nine months of 2005 versus the first nine months of 2004 reflects a decrease in loss before income taxes relating to our TRS. Loan Originations We originate and sell or securitize one-to-four family residential mortgage loans. Total loan originations for the nine months ended September 30, 2005 were $31.7 billion compared to $16.3 billion for the nine months ended September 30, 2004, a 94.4% increase. Our retail originations, which are conducted through our community loan production offices and Internet call center, were 48% of our loan originations in the nine months ended September 30, 2005 and the nine months ended September 30, 2004. Mortgage brokers accounted for 52% of our loan originations in the nine months ended September 30, 2005 and the nine months ended September 30, 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 September 30, 2005 had borrowed funds from eight 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 September 30, 2005, we had $8.0 billion of reverse repurchase agreements outstanding with a weighted-average borrowing rate of 3.84% before the impact of interest rate swaps and a weighted-average remaining maturity of six months. To originate a mortgage loan, we draw against a $3.3 billion Secured Liquidity Note Program, a $1.5 billion pre-purchase facility with UBS Real Estate Securities Inc. ("UBS"), a facility of $1.5 billion with Bear Stearns, a $1.0 billion bank syndicated facility led by Bank of America (which includes a $350 million term loan facility which we use to finance our MSRs), a facility of $750 million with Goldman Sachs, a facility of $750 million with Morgan Stanley Bank ("Morgan Stanley"), a $450 million facility with IXIS Real Estate Capital Inc. (formerly CDC Mortgage Capital Inc.) ("IXIS"), a facility of $500 million with Lehman Brothers, an early purchase program facility with Countrywide Home Loans, Inc. ("Countrywide"), 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, we have 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 November 4, 2005, the aggregate outstanding balance under the commercial paper program was $3.1 billion, the aggregate outstanding balance under the warehouse facilities was $2.9 billion, the aggregate outstanding balance in drafts payable was $25.6 million and the aggregate maximum amount available for additional borrowings was $1.9 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). - 52 - As of September 30, 2005, our aggregate warehouse facility borrowings were $2.2 billion (including $20.3 million of borrowings under a working capital sub-limit) and our outstanding drafts payable were $18.8 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 September 30, 2005, our loans held for sale were $1.9 billion and our loans held for investment were $1.4 billion compared to loans held for sale of $4.9 billion at December 31, 2004. In addition to warehouse facilities, we have purchase and sale agreements with UBS, Greenwich Capital and Countrywide. These agreements allow us to accelerate the sale of our mortgage loan inventory, resulting in a more effective use of the warehouse facility. Aggregate amounts sold and being held under these agreements at September 30, 2005 and December 31, 2004 were $3.4 billion and $443.8 million, respectively. Aggregate amounts so held under these agreements at November 4, 2005 were $2.4 billion. These agreements are not committed facilities and may be terminated at the discretion of the counterparties. 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 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 $350.0 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 August 11, 2006. Interest is based on a spread to the LIBOR and may be adjusted for earnings on escrow balances. At September 30, 2005 and December 31, 2004, borrowings under our term loan facility were $192.4 million and $108.6 million, respectively. Cash and cash equivalents increased to $624.4 million at September 30, 2005 from $192.8 million at December 31, 2004. Our primary sources of cash and cash equivalents during the nine months ended September 30, 2005, were as follows: o $17.0 billion of proceeds from principal received from sales of mortgage loans held for sale; o $16.2 billion of proceeds from securitizations of mortgage loans held for sale; o $2.8 billion of principal proceeds from sales of mortgage-backed securities; and o $1.7 billion of principal repayments of mortgage-backed securities. Our primary uses of cash and cash equivalents during the nine months ended September 30, 2005, were as follows: o $31.7 billion of origination of mortgage loans; o $4.5 billion of additions to mortgage-backed securities; and o $3.4 billion of purchases of mortgage-backed securities. - 53 - Commitments The Company had the following commitments (excluding derivative financial instruments) at September 30, 2005:
Less than 1 Total Year 1 - 3 Years 4 - 5 Years After 5 Years ---------- ---------- ------- ------- ------- (In thousands) Reverse repurchase agreements $8,041,579 $8,041,579 $ -- $ -- $ -- Commercial paper 1,334,296 1,334,296 -- -- -- Warehouse liabilities 2,165,154 2,165,154 -- -- -- Notes payable 305,766 194,135 1,517 86,135 23,979 Trust preferred securities 96,964 -- -- -- 96,964 Operating leases 169,412 54,129 93,966 21,047 270
- 54 - 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 adjustable-rate mortgage ("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 approximately one month on September 30, 2005. - 55 - The following table summarizes the Company's interest rate sensitive instruments as of September 30, 2005 and December 31, 2004: September 30, 2005 ------------------------------------- Carrying Estimated Amount Fair Value ---------- ---------- Assets: Mortgage-backed securities $9,208,172 $9,208,172 Derivative assets (1) 67,185 75,556 Mortgage loans held for sale, net 1,901,293 1,909,533 Mortgage loans held for investment, net 1,445,429 1,473,965 Mortgage servicing rights, net 300,659 300,772 Liabilities: Reverse repurchase agreements $8,041,579 $8,041,313 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 includes 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 September 30, 2005 and December 31, 2004 of $11.6 billion and $6.2 billion, respectively. - 56 - ITEM 4. CONTROLS AND PROCEDURES Controls and Procedures The Company's management, including the Company's Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of its disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), as of the end of the fiscal quarter covered by this quarterly report. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that the Company's disclosure controls and procedures were effective as of the end of the fiscal quarter covered by this quarterly report. The Company's management, including the Company's Chief Executive Officer and Chief Financial Officer, has evaluated the Company's internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) to determine whether any changes occurred during the third quarter of 2005 that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting. Based on that evaluation, there has been no such change during the third quarter of 2005. Remediation Efforts Related to Previously Reported Material Weakness in Internal Control over Financial Reporting The Company previously disclosed in its 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. - 57 - PART II-OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS In the ordinary course of its business, the Company is from time to time subject to various legal proceedings. The Company does not believe that any of its current legal proceedings, individually or in the aggregate, will have a material adverse effect on its operations or financial condition. Columbia National, Incorporated As previously reported in our report on Form 10-K/A for the year ended December 31, 2004, in June 2002, the Company acquired Columbia National, Incorporated, a Maryland corporation ("Columbia"), which is currently a subsidiary of the Company, and which changed its name in July 2004 to "American Home Mortgage Servicing, Inc." Prior to the Company's acquisition of Columbia, Columbia discovered fraudulent loan activity at its Bensalem, Pennsylvania, office and notified the U.S. Department of Housing and Urban Development ("HUD"). HUD then instituted an investigation into the loan originations of the Bensalem office. Shortly thereafter, several years before Columbia was acquired by the Company, Columbia closed the Bensalem office and terminated the employees involved in the alleged fraudulent activity. In 2000, Columbia settled with HUD, paying a fine to HUD in the amount of $24,000 and agreeing to indemnify HUD for certain losses. Columbia, as loan servicer for institutional investors, subsequently made FHA insurance claims with respect to approximately 60 loans that were originated by the Bensalem office between 1997 and 1999. The federal government is now seeking to recover insurance proceeds paid in connection with certain of those claims, along with potentially applicable fines and penalties. The Company is cooperating fully with respect to the federal government's review of these loans. The Company does not expect that the amount of any potential settlement will materially affect its financial condition or results of operations. 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 September 30, 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 July 1, 2005, and August 15, 2005, the Company issued an aggregate of 1,498 and 2,463 unregistered 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. - 58 - 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 -- Amended and Restated Credit Agreement, dated as of August 12, 2005, by and among American Home Mortgage Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., the Lenders from time to time party thereto, and Bank of America, N.A. 10.2.1 -- Amendment No. 9, dated as of September 2, 2005, 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. 10.2.2 -- Promissory Note, dated September 2, 2005, made by American Home Mortgage Corp., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., American Home Mortgage Acceptance, Inc., and American Home Mortgage Servicing, Inc. in favor of Morgan Stanley Mortgage Capital Inc. 10.3 -- Amendment No. 10, dated as of September 26, 2005, 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 -- Extension Letter Agreement, dated as of October 5, 2005, by and among AHM SPV I, LLC, American Home Mortgage Corp., Calyon New York Branch, and Lloyds TSB Bank plc. 10.5.1 -- Master Repurchase Agreement, dated as of August 31, 2005, among American Home Mortgage Acceptance, Inc., American Home Mortgage Corp., and Goldman Sachs Mortgage Company. 10.5.2 -- Custodial Agreement, dated as of August 31, 2005, among Goldman Sachs Mortgage Company, American Home Mortgage Acceptance, Inc., American Home Mortgage Corp., and Deutsche Bank National Trust Company. 10.5.3 -- Guaranty, dated as of August 31, 2005, by American Home Mortgage Investment Corp. in favor of Goldman Sachs Mortgage Company. 10.6.1 -- Letter Agreement, dated as of September 13, 2005, by and among Lehman Brothers Inc., Lehman Commercial Paper Inc., and American Home Mortgage Acceptance Inc. 10.6.2 -- Second Amendment to Custodial Agreement, dated as of September 13, 2005, to the Custodial Agreement, dated as of December 3, 2004, by and among Lehman Brothers Inc., Lehman Commercial Paper Inc., American Home Mortgage Acceptance Inc., and Deutsche Bank National Trust Company.
- 59 -
Exhibit No. Description ----------- --------------------------------------------------------------- 10.6.3 -- Guaranty, dated as of September 13, 2005, 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.
60 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: November 9, 2005 By: /s/ Michael Strauss ------------------------------------- Michael Strauss Chairman, Chief Executive Officer and President Date: November 9, 2005 By: /s/ Stephen A. Hozie ------------------------------------- Stephen A. Hozie Executive Vice President and Chief Financial Officer (Principal Financial Officer) - 61 - INDEX TO EXHIBITS -----------------
Exhibit No. Description ----------- --------------------------------------------------------------- 10.1 -- Amended and Restated Credit Agreement, dated as of August 12, 2005, by and among American Home Mortgage Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage Corp., American Home Mortgage Acceptance, Inc., the Lenders from time to time party thereto, and Bank of America, N.A. 10.2.1 -- Amendment No. 9, dated as of September 2, 2005, 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. 10.2.2 -- Promissory Note, dated September 2, 2005, made by American Home Mortgage Corp., American Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., American Home Mortgage Acceptance, Inc., and American Home Mortgage Servicing, Inc. in favor of Morgan Stanley Mortgage Capital Inc. 10.3 -- Amendment No. 10, dated as of September 26, 2005, 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 -- Extension Letter Agreement, dated as of October 5, 2005, by and among AHM SPV I, LLC, American Home Mortgage Corp., Calyon New York Branch, and Lloyds TSB Bank plc. 10.5.1 -- Master Repurchase Agreement, dated as of August 31, 2005, among American Home Mortgage Acceptance, Inc., American Home Mortgage Corp., and Goldman Sachs Mortgage Company. 10.5.2 -- Custodial Agreement, dated as of August 31, 2005, among Goldman Sachs Mortgage Company, American Home Mortgage Acceptance, Inc., American Home Mortgage Corp., and Deutsche Bank National Trust Company. 10.5.3 -- Guaranty, dated as of August 31, 2005, by American Home Mortgage Investment Corp. in favor of Goldman Sachs Mortgage Company. 10.6.1 -- Letter Agreement, dated as of September 13, 2005, by and among Lehman Brothers Inc., Lehman Commercial Paper Inc., and American Home Mortgage Acceptance Inc. 10.6.2 -- Second Amendment to Custodial Agreement, dated as of September 13, 2005, to the Custodial Agreement, dated as of December 3, 2004, by and among Lehman Brothers Inc., Lehman Commercial Paper Inc., American Home Mortgage Acceptance Inc., and Deutsche Bank National Trust Company. 10.6.3 -- Guaranty, dated as of September 13, 2005, 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 am110905-ex10_1.txt CONTRACT EXHIBIT 10.1 Published CUSIP Number: 02660SAA3 AMENDED AND RESTATED CREDIT AGREEMENT Dated as of August 12, 2005 among AMERICAN HOME MORTGAGE INVESTMENT CORP. AMERICAN HOME MORTGAGE SERVICING, INC. AMERICAN HOME MORTGAGE CORP. and AMERICAN HOME MORTGAGE ACCEPTANCE, INC., as the Borrowers, BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender, and a Lender and The Other Lenders Party Hereto CALYON NEW YORK BRANCH and DEUTSCHE BANK SECURITIES INC., as Co-Syndication Agents CITIBANK, N.A. and JPMORGAN CHASE BANK, N.A. as Co-Documentation Agents BANC OF AMERICA SECURITIES LLC, Sole Lead Arranger and Sole Book Manager AMENDED AND RESTATED CREDIT AGREEMENT THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered into as of August 12, 2005, by and among AMERICAN HOME MORTGAGE INVESTMENT CORP., a Maryland corporation ("AHMIC"), AMERICAN HOME MORTGAGE SERVICING, INC., a Maryland corporation ("AHMS"), AMERICAN HOME MORTGAGE CORP., a New York corporation ("AHMC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC., a Maryland corporation ("AHMA") (AHMIC, AHMS, AHMC and AHMA each, a "Borrower" and, collectively, the "Borrowers"), the lenders from time to time party hereto, together with their respective successors and assigns (each, a "Lender" and, collectively, the "Lenders"), and BANK OF AMERICA, N.A., as administrative agent, or any successor administrative agent (in such capacity, the "Administrative Agent"). Unless otherwise indicated, (a) all capitalized terms used herein shall have the meaning set forth in the Glossary attached to the Existing Credit Agreement (hereinafter defined) as Appendix I (the "Glossary") and by this reference incorporated herein, (b) all Paragraph, Appendix, Exhibit, and Schedule references herein are to Paragraphs, Appendices, Exhibits, and Schedules in or to the Existing Credit Agreement, and (c) all Section references herein are to Sections in this Agreement. R E C I T A L S A. Certain Borrowers have entered into the Credit Agreement (as modified, amended or supplemented to date, the "Existing Credit Agreement") dated as of August 30, 2004, with the Lenders party thereto, and the Administrative Agent, providing for, among other things, a revolving credit facility in the aggregate principal amount of $700,000,000. B. The Borrowers have requested that the Existing Credit Agreement be amended and restated to, among other things, (i) increase the Aggregate Credit Limit to $1,000,000,000, (ii) add AHMIC as a Borrower, jointly and severally liable on the Obligations, and (iii) extend the Maturity Date to August 11, 2006, and the Lenders and the Administrative Agent have agreed to so amend and restate the Existing Credit Agreement. NOW, THEREFORE, in consideration of the above Recitals and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Amendment and Restatement of Existing Credit Agreement. (a) Restatement. All of the terms, provisions, and conditions of the Existing Credit Agreement are incorporated herein by reference, are amended to the extent set forth or provided in this Section 1, and, as so amended, are deemed restated in their entirety. The amendment and restatement of the Existing Credit Agreement hereunder is not intended by the parties to constitute either a novation or a discharge or satisfaction of the indebtedness, rights, and obligations under the Existing Credit Agreement or other Loan Documents, which indebtedness, rights, and obligations under the Existing Credit Agreement and other Loan Documents shall remain outstanding hereunder on the terms and conditions of this Agreement. (b) Definitions. (i) The following definitions in the Glossary are deleted in their entirety and the following definitions are substituted therefor: "Adjusted Consolidated Funded Debt" on any date of determination shall mean the sum of (a) the Consolidated Funded Debt of AHMIC and any other Person which would be reflected on the consolidated balance sheet of AHMIC prepared in accordance with GAAP if such balance sheet were prepared as of such date of determination, less (b) 50% of any Subordinated Debt (including Subordinated Debt incurred in connection with the issuance of "trust preferred securities"), less (c) the mortgage debt associated with the building and the land located at 538 Broadhollow Road, Melville, New York. "Aggregate Credit Limit" shall mean at any date the sum of the Maximum Commitments of the Lenders as the same may be increased or decreased from time to time as permitted hereunder, with the "Aggregate Credit Limit" on the Effective Date being $1,000,000,000; provided, however, that in no event shall the Aggregate Credit Limit be increased to an amount in excess of the then current Maximum Aggregate Credit Limit. "Agreement" shall mean this Amended and Restated Credit Agreement dated as of August 12, 2005 (which amends and restates that certain Credit Agreement dated as of August 30, 2004, as amended) by and among the Borrowers, the Administrative Agent and certain Lenders, as the same may be amended, extended or replaced from time to time. "Applicable Margin" shall mean, with respect to the principal balance of Loans that have been advanced against the following types of Collateral, the per annum rate set forth opposite each such Collateral type (provided that, in the event that on any day a particular item of Collateral may be categorized as more than one type of Collateral, then the Applicable Margin with respect to such item of Collateral shall be the highest of the Applicable Margins applicable to such item of Collateral): - ------------------------------------------------------------------------------- Collateral Type Applicable Margin --------------------------- LIBOR Base Rate - ------------------------------------------------------------------------------- Prime First Mortgage Loans..................... 0.90% 0.00% Prime Second Mortgage Loans.................... 1.25% 0.00% Subprime Mortgage Loans........................ 1.25% 0.00% Impaired Mortgage Loans or Aged Mortgage Loans. 1.25% 0.00% HUD 203(k) Mortgage Loans...................... 0.90% 0.00% Construction-to-Perm Mortgage Loans............ 1.625% 0.00% Bond Agency Program Mortgage Loans............. 1.25% 0.00% Repurchased Maturing Mortgage Loans............ 1.25% 0.00% REO Property................................... 1.25% 0.00% EBO Mortgage Loans............................. 1.25% 0.00% Mortgage-Backed Securities (AAA or Agency) .... 0.50% 0.00% Servicing Rights............................... 1.875% 1.00% Servicing Receivable........................... 1.25% 0.00% - ------------------------------------------------------------------------------- 2 ; provided that, to the extent the Borrower elects to convert any Servicing Rights Loans to a term loan pursuant to Paragraph 2(d), then the Applicable Margin for Servicing Rights Loans will be increased on and after such conversion date by .25%. "Borrowers" shall mean AHMIC, AHMS, AHMC, and AHMA; "Borrower" shall mean any of AHMIC, AHMS, AHMC, or AHMA. "Effective Date" shall mean August 12, 2005, or such subsequent date on which each of the conditions set forth in this Agreement is satisfied. "Existing Credit Agreement" shall mean that certain Credit Agreement dated as of August 30, 2004, as amended, among the Borrowers (other than AHMIC), the lenders party thereto and Bank of America, as Administrative Agent for such lenders. "Fee Letter" shall mean that certain letter agreement dated July 12, 2005, among the Borrowers, Bank of America and Banc of America Securities LLC. "Funding Account" shall mean an account, the last four digits of which are 8044 (or such other account as Administrative Agent may agree to in writing), maintained in the Borrowers' names alone with the Administrative Agent. "Interim Date" shall mean May 31, 2005. "Maturity Date" shall mean the earlier of: (a) August 11, 2006, as such date may be extended from time to time in writing by 100% of the Lenders, in their sole discretion, and (b) the date the Lenders terminate their obligation to make further Loans hereunder pursuant to Paragraph 12. "Maximum Aggregate Credit Limit" shall mean $1,250,000,000.00 as such amount may be increased or decreased from time to time by written agreement of the Administrative Agent, the Borrowers, and 100% of the Lenders. "Servicing Delinquencies" shall mean the aggregate outstanding principal balance of Mortgage Loans included in the Borrowers' Eligible Servicing Portfolio that are 30 days or more past due after the end of the month in which such Mortgage Loans first became past due (other than any such Mortgage Loans that are in the process of foreclosure). "Servicing Rights Credit Sublimit" shall mean, at any time, an amount not to exceed 35% of the Aggregate Credit Limit. "Settlement Account" shall mean a "no-access" account, the last four digits of which are 2748 or 5450 (or such other account as may be agreed to in writing by Administrative Agent and Collateral Agent), maintained by the Collateral Agent for the benefit of the Administrative Agent on behalf of the Lenders, which is designated for receipt of the proceeds of the sale or other disposition of the Collateral. "Statement Date" shall mean December 31, 2004. "Warehouse Borrowing Base" shall mean at any date all Eligible Mortgage Loans and Eligible Mortgage-Backed Securities in which the Administrative Agent or the 3 Collateral Agent holds for the benefit of the Lenders a first priority perfected security interest at such date. (ii) The following definitions in the Glossary are revised as follows: (A) The definition of "Collateral Type" is revised to delete the word "and" at the end of clause (q), replace the "." at the end of clause (r) with "; and", and to add a new clause (s) as follows: (s) Eligible Mortgage-Backed Securities. (B) The definition of "Collateral Value of the Warehouse Borrowing Base" is revised to delete "and" at the end of the existing clause (i), to re-letter the existing clause (j) as clause (k), and to insert a new clause (j) immediately following clause (i) as follows: (j) the lesser of (i) the aggregate Unit Collateral Values of all Mortgage-Backed Securities included in the Warehouse Borrowing Base and (ii) an amount equal to 100% of the Aggregate Credit Limit; and (C) Clause (f)(ii) in the definition of "Eligible Mortgage Loan" is revised to read as follows: (ii) is not classified as (a) a "high cost" loan under HOEPA or (b) a "high cost," "threshold," "covered," or "predatory" loan under any other applicable state, federal or local law (or a similarly classified loan using different terminology under a law, regulation or ordinance imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees). (D) Clause (l) in the definition of "Eligible Mortgage Loan" is revised to read as follows: (l) The date of the underlying promissory note is no earlier than 90 days prior to the date such Mortgage Loan is first included in the Warehouse Borrowing Base, unless the Mortgage Loan is a Construction-to-Perm Mortgage Loan, an EBO Mortgage Loan, or a modification resulting from an extension of a Mortgage Loan with a final balloon payment or with an adjustable interest rate; (E) The definition of "Eligible Mortgage Loan" is further revised to delete the last proviso thereto in its entirety. (F) Clause (c) in the definition of "Eligible Servicing Portfolio" is revised to read in its entirety as follows: (c) Each of the applicable Approved Investors (other than under Servicing Contracts in effect as of the Effective Date and other than FNMA, FHLMC, and GNMA) under such Servicing Contracts has consented to the assignment of the related Servicing Rights to the Administrative Agent, or its affiliate or designee, for the benefit of the Lenders pursuant to a written consent 4 in form and content satisfactory to the Administrative Agent including, if and as requested, a Resignation Letter (or, in the case of Servicing Contracts in effect as of the Effective Date or FNMA, FHLMC, and GNMA, the Borrowers have obtained such written consent, or have undertaken commercially reasonable efforts to obtain such written consent, within 60 days following the Effective Date, or such longer period as Administrative Agent may agree in writing), or in lieu of such written consent, the Administrative Agent has received evidence reasonably satisfactory to it that the Servicing Rights under the applicable Servicing Contracts may be assigned to the Administrative Agent, or its affiliate or designee, for the benefit of the Lenders without such consent; (G) The definition of "Unit Collateral Value" is revised (x) to delete the word "lesser" and to replace it with the word "least" in clauses (d), (e), (f), (i), and (j), (y) to delete the word "or" before the beginning of clause (j)(iii) and to replace it with the word "and" and (z) to delete the word "and" at the end of clause (n), to replace the "." at the end of clause (o) with "; and", and to add a new clause (p) at the end of the definition as follows: (p) With respect to an Eligible Mortgage-Backed Security, 95% of the Fair Market Value of such Eligible Mortgage-Backed Security. (iii) The following definitions are added to the Glossary in the appropriate alphabetical order: "Eligible Mortgage-Backed Security" shall mean a Mortgage-Backed Security with respect to which each of the following are accurate and complete (and the Borrowers by including such Mortgage-Backed Security in any computation of the Collateral Value of the Warehouse Borrowing Base shall be deemed to so represent and warrant to the Administrative Agent, the Collateral Agent, and the Lenders at and as of the date of such computation): (a) Such Mortgage-Backed Security is in full force and effect, and is valid, binding, and enforceable, in accordance with its terms, without offset, counterclaim, defense, or right of rescission or avoidance of any kind, whether by operation of law or otherwise; (b) Such Mortgage-Backed Security is issued or guaranteed by GNMA, FNMA, or FHLMC, or, in the alternative, has a rating of no less than AAA (or its equivalent) by each of (and at least two of) Fitch Investors Service, L.P., Moody's Investors Service, Inc., or Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., or any of their respective successors, except to the extent that one (but not more than one) of the above-listed rating agencies has not issued a rating for such Mortgage-Backed Security; (c) Such Mortgage-Backed Security is owned by AHMIC; (d) Such Mortgage-Backed Security is free from default; (e) Such Mortgage-Backed Security has either been deposited with and is held by the Collateral Agent or an agent, bailee, 5 and custodian of the Collateral Agent under the Security Agreement (or by a Person who has executed a custodial agreement acceptable to Administrative Agent), properly endorsed in blank for transfer or, if such Mortgage-Backed Security is a Book-Entry MBS, such Mortgage-Backed Security is the subject of a Perfected Assignment; (f) Such Mortgage-Backed Security is free and clear of all Liens, encumbrances, charges, rights and interests of any kind, except in favor of the Administrative Agent or the Collateral Agent for the benefit of the Lenders. There are (i) no outstanding rights, options, warrants or agreements for a purchase, sale or issuance, in connection with the Mortgage-Backed Security, (ii) no agreements on the part of any Borrower to issue, sell or distribute the Mortgage-Backed Security, and (iii) no obligations on the part of any Borrower (contingent or otherwise) to purchase, redeem or otherwise acquire any securities or any interest therein or to pay any dividend or make any distribution in respect of the Mortgage-Backed Security; (g) If such Mortgage-Backed Security is certificated and has been withdrawn from the possession of the Collateral Agent on terms and subject to conditions set forth in the Security Agreement, and if such certificated Mortgage-Backed Security was shipped by the Collateral Agent directly to a permanent investor for purchase, the full amount required to be paid on account thereof (as set forth on the schedule attached to the related transmittal letter) has been received into the Settlement Account (in which case such Mortgage-Backed Security shall cease to be an Eligible Mortgage-Backed Security), or such Mortgage-Backed Security has been returned to the Collateral Agent, in either case within two (2) days from the date of shipment by the Collateral Agent; (h) The Required Documents for such Mortgage-Backed Security have been delivered to the Collateral Agent prior to the inclusion of such Mortgage-Backed Security in the Warehouse Borrowing Base such that such Mortgage-Backed Security is a Warehouse-Related MBS; (i) Either (1) such Mortgage-Backed Security was issued at least 31 days prior to such Mortgage-Backed Security being deposited with the Collateral Agent or otherwise being subject to a Perfected Assignment, or (2) if such Mortgage-Backed Security was issued within such aforementioned 31 day period, no Lender or Affiliate of any Lender was a member of the selling syndicate or group with respect to such Mortgage-Backed Security, as described in Section 11(d)(1) of the Securities Exchange Act of 1934, as amended; (j) Such Mortgage-Backed Security is not an interest-only security or strip; (k) To the best of each Borrower's knowledge the Governing Agreement for such Mortgage-Backed Security and any other agreement executed and delivered in connection with such Mortgage- 6 Backed Security are genuine, and each is the legal, valid and binding obligation of the maker thereof enforceable in accordance with its terms. The Governing Agreement for such Mortgage-Backed Security is in full force and effect, and the enforceability of such Governing Agreement has not been contested by the Trustee; (l) The terms of the Governing Agreement for such Mortgage-Backed Security and such Mortgage-Backed Security have not been impaired, altered or modified in any material respect other than as disclosed to the Administrative Agent; (m) The related Borrower has not waived the performance by the Trustee of any action, if the Trustee's failure to perform such action would cause the Governing Agreement for such Mortgage-Backed Security to be in default, nor has the related Borrower waived any default resulting from any action or inaction by the Trustee; (n) To the best of the related Borrower's knowledge there is no default, breach, violation or event of acceleration existing under the Governing Agreement for such Mortgage-Backed Security and no event has occurred which, with the passage of time or giving of notice or both and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration thereunder, and neither the related Borrower nor its predecessors in interest have waived any such default, breach, violation or event of acceleration; and (o) Such Mortgage-Backed Security is assignable to the Administrative Agent or the Collateral Agent for the benefit of the Lenders subject to any documents required to be delivered pursuant to the Governing Agreement for such Mortgage-Backed Security, and the Governing Agreement for such Mortgage-Backed Security permits the related Borrower to pledge such Mortgage-Backed Security to the Administrative Agent or the Collateral Agent for the benefit of the Lenders. "Governing Agreement" shall mean, with respect to any Eligible Mortgage-Backed Security, the agreement or agreements which govern the issuance and the payment of such Eligible Mortgage-Backed Security, which may include without limitation, any pooling and servicing agreement and any trust agreement. "RFC Credit Agreement" shall mean that certain Second Amended and Restated Warehousing Credit, Term Loan and Security Agreement (Syndicated) dated as of May 27, 2004, among certain of the Borrowers, the lenders party thereto and Residential Funding Corporation, as credit agent for such lenders. "Trustee" shall mean the person responsible for administering a Mortgage-Backed Security under its Governing Agreement. (c) Other Amendments. The following provisions of the Existing Credit Agreement are amended as follows: 7 (i) The text of the first sentence of Paragraph 5(b) is revised to add the words "and on the Maturity Date" at the end of such sentence immediately prior to the period. (ii) The text of Paragraph 5(k) is deleted in its entirety and replaced with the following: The Borrowers shall pay to the Administrative Agent, to be allocated to the Lenders pro rata in accordance with their respective Percentage Shares for the applicable calculation period, quarterly in arrears, on the last Business Day of each September, December, March and June, commencing September 30, 2005, and on the Maturity Date, a non-refundable facility fee equal to (1) the Aggregate Credit Limit in effect on the payment date therefor, multiplied by (2) 0.125% per annum. (iii) The text of Paragraph 6(a) is deleted in its entirety and replaced with the following: The Borrowers represent, warrant, covenant and agree that, other than the initial Loans funded hereunder on the Effective Date which shall be utilized to refinance and extend in full all Indebtedness of the Borrowers outstanding under the Existing Credit Agreement (including to allow any Lender to purchase a ratable share of the outstanding Loans of any "Lender" under the Existing Credit Agreement that is not extending its Commitment under this Agreement), the proceeds of all Loans shall be utilized by the Borrowers solely for the purpose of originating and/or acquiring Mortgage Loans and Mortgage-Backed Securities (and to repay Swing Line Loans) and rights under Servicing Contracts that will be part of the Eligible Servicing Portfolio and to support working capital needs. (iv) Paragraph 6(b)(1) is amended to replace each reference to "9:30 a.m." with "10:30 a.m." (v) Paragraph 6(b)(2) is amended to replace the reference to "12:00 p.m." with "1:30 p.m." (vi) Paragraph 6(d)(1) is amended to add the following sentence at the end of such paragraph: The Borrowers shall further cause the sum of the aggregate Unit Collateral Values of all Mortgage-Backed Securities included in the Warehouse Borrowing Base to be not less than the sum of the aggregate outstanding amount of the Loans advanced for the account of AHMIC. (vii) Paragraphs 6(d)(4) and 6(d)(5) are deleted in their entirety and replaced with the following: (4) The Borrowers shall promptly (and in any event no later than one Business Day after such demand) prepay, upon telephonic demand by the Administrative Agent: (i) Warehouse Loans and/or Swing Line Loans to the Administrative Agent on behalf of the Lenders or the Swing Line Lender, as the case may be, on any day in the amount of any shortfall in the Collateral Value of the Warehouse Borrowing Base or the aggregate Unit Collateral Values of the Eligible Mortgage-Backed Securities included in 8 the Warehouse Borrowing Base, as determined pursuant to subparagraph (1) above, (ii) Servicing Rights Loans to the Administrative Agent on behalf of the Lenders on any day in the amount of any shortfall in the Collateral Value of the Servicing Rights Borrowing Base, as determined pursuant to subparagraph (2) above (including after any of the Servicing Rights Loans are converted to a term loan pursuant to Paragraph 2(d)), and (iii) Working Capital Loans to the Administrative Agent on behalf of the Lenders on any day in the amount of any shortfall in the Collateral Value of the Working Capital Borrowing Base, as determined pursuant to subparagraph (3) above. (5) If, but only if, at such time as the Borrowers shall be required to prepay Loans under subparagraph (4)(i) of this Paragraph 6(d) there shall not have occurred and be continuing an Event of Default or Potential Default, in lieu of prepaying the Warehouse Loans or Swing Line Loans, the Borrowers may deliver to the Collateral Agent additional Eligible Mortgage Loans or Eligible Mortgage-Backed Securities (to support Loans for the account of AHMIC) with aggregate Unit Collateral Values such that the Borrowers shall be in compliance with the requirement of subparagraph (1) above. (viii) The text of Paragraphs 6(g)(1) and 6(g)(1)(ii) is amended to add the words ", Eligible Mortgage-Backed Securities," immediately following the words "Eligible Mortgage Loans". (ix) The text of Paragraph 6(i)(1) is deleted in its entirety and replaced with the following: (1) Provided there exists no Event of Default or Potential Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may, from time to time, request an increase in the Aggregate Credit Limit by an amount (for all such requests) not exceeding $250,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $25,000,000, and (ii) the Borrowers may make a maximum of four such requests. At the time of delivering such notice, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). (x) The caption and first sentence of Paragraph 8(a) are amended in their entirety to read as follows: First Loan under Existing Credit Agreement. The obligations of each Lender to make its initial Loan under the Existing Credit Agreement is subject to satisfaction of the following conditions precedent: (xi) The text of Paragraph 8(a)(1)(i) is deleted and replaced with the following: A duly executed copy of the Existing Credit Agreement; (xii) Paragraph 8(a)(1)(xiii) is amended to replace the defined term "Existing Credit Agreement" with the defined term "RFC Credit Agreement". (xiii) The text of Paragraph 8(b)(4)(ii) is amended by deleting the word "and" before the "E" and adding a new clause (F) at the end as follows: 9 (F) the aggregate principal amount of Warehouse Loans and Swing Line Loans outstanding for the account of AHMIC will not exceed the aggregate Unit Collateral Values of the Eligible Mortgage-Backed Securities; and (xiv) The text of Paragraph 8(b)(5) is deleted in its entirety and replaced with the following: (5) Since December 31, 2004, there shall not have occurred a material adverse change in the business, assets, liabilities (actual or contingent), operations, financial condition, or business prospects of the Loan Parties taken as a whole. (xv) The text of Paragraph 8(b)(6) is deleted in its entirety and replaced with the following: (6) By inclusion of any Mortgage Loan, Mortgage-Backed Security, REO Property, Servicing Receivable, or Servicing Right, as applicable, in any computation of the Collateral Value of the Warehouse Borrowing Base, the Collateral Value of the Servicing Rights Borrowing Base, or the Collateral Value of the Working Capital Borrowing Base, as applicable, on any Borrowing Base Certificate delivered to the Collateral Agent or the Administrative Agent, the Borrowers shall be deemed to represent and warrant to the Administrative Agent, the Collateral Agent, and the Lenders at and as of the date of such computation that each of the criteria specifically set forth in the respective definitions of each Collateral Type is true and correct; provided that, in the event that any Mortgage Loan, Mortgage-Backed Security, REO Property, Servicing Receivable, or Servicing Right fails to meet the criteria set forth in the respective definitions of such Collateral Type, such Collateral Type shall be deemed to have an Appraisal Value or Unit Collateral Value (as the case may be) of $0, but such failure shall not, in and of itself, constitute an Event of Default. This representation and warranty by the Borrowers shall be deemed to have been made on any day that a Warehouse Loan is made to refund a Swing Line Loan. (xvi) A new Paragraph 8(c) - Conditions to Effectiveness of Amended and Restated Credit Agreement is added to read as follows: 8(c) Conditions to Effectiveness of Amended and Restated Credit Agreement. The obligation of each Lender to make its initial Loan under this Agreement is subject to satisfaction of the following conditions precedent: (1) The Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Administrative Agent: (i) A duly executed copy of this Agreement; (ii) Duly executed originals of each of the Notes; (iii) All financing statements and other documents, instruments and agreements, properly executed, as appropriate, deemed necessary or appropriate 10 by the Administrative Agent, in its reasonable discretion, to create in favor of the Administrative Agent for the pro rata, pari passu benefit of the Lenders a first priority perfected security interest in and lien upon the Collateral; (iv) Certified copies of resolutions of the Board of Directors of each of the Loan Parties approving the execution and delivery of the Loan Documents to which it is a party, the performance of the Obligations and the consummation of the transactions contemplated thereby; (v) A certificate of the Secretary or an Assistant Secretary of each of the Loan Parties certifying the names and true signatures of the officers of such Loan Party authorized to execute the Loan Documents to which it is a party; (vi) A copy of the Articles or Certificate of Incorporation of each of the Loan Parties, certified by the Secretary of State of the state of its incorporation as of a recent date, or, if previously delivered and certified, a certificate of a Secretary or Assistant Secretary certifying that there have been no changes since the certificate previously delivered; (vii) A copy of the Bylaws of each of the Loan Parties, certified by the Secretary or an Assistant Secretary of such Loan Party as of the date of this Agreement as being accurate and complete, or, if previously delivered and certified, a certificate of a Secretary or Assistant Secretary certifying that there have been no changes since the certificate previously delivered; (viii) A certificate of the appropriate Governmental Authority of each state in which each of the Loan Parties is required to be authorized to do business to the effect that such Loan Party is so qualified and in good standing as of a recent date; (ix) A certificate of a Responsible Financial Officer of each of the Loan Parties, demonstrating in detail satisfactory to the Administrative Agent such Loan Party's compliance with the financial covenants set forth in Paragraphs 11(h), (i), (j) and (k) at and as of May 31, 2005; (x) Evidence in form and substance reasonably satisfactory to the Administrative Agent that AHMH continues to be a MERS Member and that the Borrowers, as affiliates of AHMH, continue to be approved by MERS as authorized users of the MERS System pursuant to the membership of AHMH; (xi) Evidence reasonably satisfactory to the Administrative Agent of the payment by the Borrowers of all interest, fees and other amounts (other than principal of Loans) accrued to the Effective Date under the Existing Credit Agreement, under this Agreement or under the Fee Letter; (xii) An opinion of counsel to the Loan Parties with respect to such matters as the Administrative Agent may request; (xiii) A duly completed and executed Borrowing Base Certificate dated as of the date of the first Loan hereunder; 11 (xiv) A certificate executed by a duly authorized officer of AHMIC certifying as to the policies and procedures relating to the Borrowers' Hedging Arrangements and the Borrowers' underwriting and servicing guidelines; and (xv) Such other documents, instruments, agreements, certificates and evidences as the Administrative Agent may reasonably request. (xvii) The text of Paragraph 9(o) is deleted in its entirety and replaced with the following: AHMIC has elected to be treated as a REIT for U.S. federal income tax purposes. AHMH is a taxable REIT Subsidiary of AHMIC. AHMS and AHMC are taxable REIT Subsidiaries of AHMIC. AHMA is a qualified REIT Subsidiary of AHMIC. Each of AHMIC, AHMH, AHMS, AHMC and AHMA is in compliance with the provisions of the Internal Revenue Code of 1986, as amended, governing its REIT status, as applicable." (xviii) The text of Paragraph 10(a)(2) is deleted in its entirety and replaced with the following: (2) Promptly after available, but in any event within 45 days after the end of each calendar quarter of each fiscal year of AHMIC, a consolidated and consolidating balance sheet of AHMIC and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations, shareholders' equity and cash flows for the portion of AHMIC's fiscal year then ended, setting forth in comparative form the figures as of the end of and for the corresponding portion of the year then ended for the previous fiscal year, all in reasonable detail, certified by a Responsible Financial Officer of AHMIC in the accompanying Covenant Compliance Certificate as fairly presenting the financial condition, results of operation, shareholders' equity and cash flows of AHMIC and its Subsidiaries in accordance with GAAP and with any FNMA, FHLMC and GNMA requirements, subject only to normal year-end audit adjustments and the absence of footnotes; (xix) The delivery requirements reflected for each sub-paragraph in Paragraph 10(b) referenced in the chart below are replaced with the amended delivery requirements corresponding with such sub-paragraph as reflected in the chart below: ======================================================================== Paragraph Amended Delivery Requirement ======================================================================== 10(b)(6) Within 45 days after the last day of each month (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ 10(b)(7) Within 15 days after the last day of each fiscal quarter (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ 10(b)(8) Within 15 days after the last day of each fiscal quarter (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ 10(b)(11) Within 15 days after the last day of each fiscal quarter (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ 10(b)(12) Within 15 days after the last day of each fiscal 12 ======================================================================== Paragraph Amended Delivery Requirement ======================================================================== quarter (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ 10(b)(13) Within 15 days after the last day of each fiscal quarter (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ 10(b)(14) Within 15 days after the last day of each fiscal quarter (or, more frequently as Administrative Agent may otherwise reasonably request) ------------------------------------------------------------------------ (xx) The text of Paragraph 10(b)(17) is deleted in its entirety and replaced with the following: (17) At any time as Administrative Agent may request in its reasonable, sole discretion, an "agreed-upon procedures report," in form and substance reasonably satisfactory to the Administrative Agent, with respect to the operations of Borrowers, the operations of Collateral Agent (with 48 hours prior notice to the Collateral Agent) with respect to its services provided pursuant to the Security Agreement, and to advances made by any of the Borrowers that give rise to Servicing Receivables, prepared by an independent consultant reasonably acceptable to the Administrative Agent in accordance with procedures, guidelines and standards mutually agreeable to the Borrowers and the Administrative Agent; and (xxi) Paragraph 10(j) is amended to insert the word "reasonable" before the word "expenses" in the first place that the word "expenses" appears. (xxii) The text of Paragraph 11(c) is deleted in its entirety and replaced with the following: Liquidate or dissolve, or enter into any consolidation, merger, partnership, joint venture, syndicate or other combination unless: (1) a Loan Party is the survivor in any consolidation, merger, partnership, joint venture, syndicate, or other combination to which it is a party, (2) a Subsidiary of a Loan Party is the survivor in any consolidation, merger, partnership, joint venture, syndicate, or other combination to which it is a party if a Loan Party is not also a party thereto, and (3) no Potential Default or Event of Default would exist after giving effect to such consolidation, merger, partnership, joint venture, syndicate or other combination. (xxiii) The text of Paragraph 11(d) is deleted in its entirety and replaced with the following: Purchase or acquire or incur liability for the purchase or acquisition of any or all of the assets of any Person, other than, so long as no Event of Default or Potential Default would exist after giving effect thereto, (i) of a Loan Party or any Subsidiary of a Loan Party, (ii) in the ordinary course of business (it being expressly agreed and understood that acquisitions of Mortgage Loans and Servicing Rights and servicing rights under Sub-Servicing Contracts and of Persons owning Mortgage Loans and Servicing Rights and servicing rights under Sub-Servicing Contracts are ordinary course of business activities), or (iii) the purchase or acquisition of other assets or businesses which are the same or similar to current business activities of the Loan Parties or are 13 businesses or assets closely related to the current businesses of the Loan Parties; provided, however, that in the case of clause (iii) the aggregate purchase price of all such purchases or acquisitions from and after the date of this Agreement (x) shall not exceed $50,000,000 without the prior written consent of the Administrative Agent and (y) shall not exceed $100,000,000 without the prior written consent of the Administrative Agent and the Majority Lenders. (xxiv) Paragraph 11(f) is amended to change "$2,500,000" to "$5,000,000." (xxv) Paragraph 11(g) is amended to change "$2,500,000" to "$5,000,000." (xxvi) The text of Paragraph 11(h)(1) is deleted in its entirety and replaced with the following: (1) Permit at any time the Tangible Net Worth of AHMIC to be less than $685,000,000, plus 75% of the Net Cash Proceeds of any capital stock (including preferred stock) issued by AHMIC after June 30, 2005. (xxvii) Paragraph 11(j)(1) is amended to change "6%" to "4%." (xxviii) The text of Paragraph 12(e) is deleted in its entirety and replaced with the following: 12(e) Any of the Loan Parties shall default in any payment of principal of or interest on any Indebtedness (other than the Obligations) having a principal balance of $1,500,000 or any other event shall occur (including any "termination event" or similar event under any Loan Parties' (or any affiliate thereof) single seller program, other than such "termination events" which relate to (1) any failure to maintain an agreement with a "Rated Bidder" as set forth in Section 11(2)(n) of either (i) the Mortgage Loan Purchase and Servicing Agreement dated as of May 27, 2004, by and among Broadhollow Funding, LLC, as purchaser, American Home Mortgage Corp., as seller, Columbia National, Incorporated, as servicer, and American Home Mortgage Investment Corp., as performance guarantor, or (ii) the Mortgage Loan Purchase and Servicing Agreement dated as of May 27, 2004, by and among Melville Funding, LLC, as purchaser, American Home Mortgage Acceptance, Inc., as seller, Columbia National, Incorporated, as servicer, and American Home Mortgage Investment Corp., as performance guarantor (collectively, the "Purchase Agreements"), and (2) any failure to extend a "Swap Counterparty Agreement" as set forth in Section 11(2)(o) of the Purchase Agreements) the effect of which other event is to cause or permit such Indebtedness to be declared or otherwise to become due prior to its stated maturity or such single seller program to be terminated (after giving effect to any applicable cure periods and except as otherwise provided above); or (xxix) A new Paragraph 15(q) is added as follows: Existing Credit Agreement. This Agreement entirely amends and restates the Existing Credit Agreement, and each Borrower, the Administrative Agent, and each Lender that is party to the Existing Credit Agreement agrees that, effective as of the Effective Date, the obligation to extend any credit under the Existing Credit Agreement is amended and superceded by this Agreement. However, any fees previously paid to the Lenders for periods through August 29, 2005, are fully earned and non-refundable. 14 (xxx) Schedules I, II, V and VI are entirely deleted and replaced with the attached Schedules I, II, V and VI, respectively, and all references to such Schedules in the Loan Documents and all documents delivered pursuant thereto or in connection therewith or as an amendment, modification, restatement, or supplement thereto, shall henceforth include references to the attached Schedules as amended and restated. (xxxi) Exhibits A-1 and A-2, Exhibit E, Exhibit I, and Exhibit J are deleted and replaced with the attached Exhibits A-1 and A-2, Exhibit E, Exhibit I, and Exhibit J, respectively, and all references to such Exhibits respectively in the Loan Documents and all documents delivered pursuant thereto or in connection therewith or as an amendment, modification, restatement, or supplement thereto, shall henceforth include references to the attached Exhibits. (d) References. All references in the Loan Documents to the "Agreement" or the "Credit Agreement," and in all documents delivered pursuant thereto or in connection therewith or as an amendment, modification, restatement, or supplement thereto, including in any Note thereto heretofore executed and delivered by the Borrowers, shall henceforth include references to this Agreement, and the Schedules, Exhibits, Appendix, and other Loan Documents modified hereby, as the same may, from time to time, be amended, modified, supplemented and/or restated. (e) Conforming Amendments. Any and all of the terms and provisions of the Loan Documents are hereby amended and modified wherever necessary, even though not specifically addressed herein, so as to conform to the amendments and modifications set forth herein. (f) General Provision Regarding Extension and Restatement. Notwithstanding the fact that this Agreement is an extension and renewal of the Existing Credit Agreement, each Lender acknowledges that, to the extent any Lender under the Existing Credit Agreement decides not to renew its commitment under this Agreement (a "Non-Renewing Lender"), then, on the Effective Date of this Agreement, such renewing and extending Lenders and any new Lenders under this Agreement shall be deemed to have purchased a ratable share of any Non-Renewing Lender's outstanding Loans such that, after giving effect thereto, each Non-Renewing Lender no longer holds any interests or commitments under the Existing Credit Agreement and each continuing and new Lender under this Agreement has a Maximum Commitment and Percentage Share as described on Schedule I attached hereto. (g) Joinder of AHMIC. By execution hereof, AHMIC agrees that it is bound under the terms of the Existing Credit Agreement and other Loan Documents, as amended by this Agreement, as a "Borrower" thereunder, as if it had been an original Borrower signatory thereto. 2. Amendments to Security Agreement and Joinder. (a) Amendments to Security Agreement. (i) Paragraph 1 of the Security Agreement is amended to revise the fourth complete sentence to read as follows: The Collateral Agent agrees to act in accordance with this Security Agreement and in accordance with any written instructions properly delivered pursuant hereto, without further consent of the Borrowers. 15 (ii) Paragraph 2(b) of the Security Agreement is amended to change the initial reference to "11:00 a.m." to "1:00 p.m.". (iii) Paragraph 2(c) of the Security Agreement is amended to change the second reference to "11:00 a.m." to "1:00 p.m.". (iv) Paragraph 2(h) of the Security Agreement is amended to change the reference to "11:00 a.m." to "1:00 p.m.". (v) Paragraph 4(b) of the Security Agreement is amended in its entirety as follows: (b) All Warehouse-Related MBSs, now owned and hereafter acquired by any of the Borrowers, which, if certificated, are delivered to the Collateral Agent for inclusion as "Collateral" hereunder, or which, if uncertificated, are subject to Perfected Assignments pursuant to Paragraph 2(g) of this Security Agreement, and all right to the payment of monies and non-cash distributions on account of any of the above and all new, substituted and additional securities at any time issued with respect thereto; (vi) Paragraph 5(a) of the Security Agreement is amended to change the initial reference to "11:00 a.m." to "1:00 p.m." and the second reference to "11:00 a.m." to "12:00 p.m.". (vii) Exhibits 1, 2 and 4 to the Security Agreement are deleted and replaced with the attached Exhibits 1, 2 and 4, respectively, and all references to such Exhibits respectively in the Loan Documents and all documents delivered pursuant thereto or in connection therewith or as an amendment, modification, restatement, or supplement thereto, shall henceforth include references to the attached Exhibits. (b) Joinder of AHMIC. By execution hereof, AHMIC agrees that it is bound under the terms of the Security Agreement as a "Borrower" thereunder, as if it had been an original Borrower signatory thereto. In furtherance of the foregoing, AHMIC hereby assigns, pledges, and grants to Administrative Agent for the benefit of the Secured Parties and to each of the Secured Parties a first priority, perfected security interest in the Collateral to secure payment and performance of the Obligations. (c) Authorization. By execution hereof, each Borrower irrevocably authorizes the Administrative Agent, the Collateral Agent, or any Secured Party to file, at any time and from time to time, in any UCC jurisdiction, any initial financing statement or amendment thereto, as may be desired by Administrative Agent or Secured Parties in order to perfect a security interest in favor of the Secured Parties in the Collateral, without any further consent from any Borrower. 16 3. Miscellaneous. (a) Acknowledgment and Ratification. As a condition precedent to, and as a material inducement to the Lenders, the Collateral Agent, and the Administrative Agent with respect to, this Agreement, the Borrowers and Guarantors (with the knowledge and intent that the Lenders, the Collateral Agent and the Administrative Agent are relying upon the same in entering into this Agreement) jointly and severally (i) consent to the agreements in this Agreement, and (ii) agree and acknowledge that the execution, delivery, and performance of this Agreement shall in no way release, diminish, impair, reduce, or otherwise affect the respective security interests granted under the Loan Documents or obligations of the Borrowers or the Guarantors under the Loan Documents to which they are a party, which security interests and obligations are hereby ratified and confirmed. (b) Representations. As a condition precedent to, and as a material inducement to the Lenders, the Collateral Agent, and the Administrative Agent with respect to, this Agreement, the Borrowers jointly and severally represent and warrant to the Lenders (with the knowledge and intent that the Lenders, the Collateral Agent, and the Administrative Agent are relying upon the same in entering into this Agreement) that as of the Effective Date, (i) all representations and warranties in the Loan Documents are true and correct in all material respects as though made on the Effective Date, except to the extent that (A) any of them speak to a different specific date in which case they were true and correct in all material respects as of that specific date, or (B) the facts on which any of them were based have been changed by transactions contemplated or permitted by the Loan Documents, (ii) no Default or Event of Default exists, (iii) this Agreement has been duly authorized and approved by all necessary corporate action and requires the consent of no other Person, and upon execution and delivery, this Agreement shall be binding and enforceable against the Borrowers in accordance with its terms, and (iv) since December 31, 2004, there has not occurred a material adverse change in the business, assets, liabilities (actual or contingent), operations, financial condition, or business prospects of the Loan Parties taken as a whole. (c) Expenses. The Borrowers shall pay all costs, fees, and expenses paid or incurred by the Administrative Agent incident to this Agreement and the other Loan Documents, including, without limitation, the reasonable fees and expenses of the Administrative Agent's counsel in connection with the negotiation, preparation, delivery, and execution of this Agreement and any related documents. (d) Parties. This Agreement binds and inures to the benefit of the Borrowers, the Lenders, the Collateral Agent, and the Administrative Agent and their respective successors and assigns, subject to the assignment provisions of Paragraph 14(a). (e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The parties hereto have executed this Agreement in multiple counterparts, effective as of Effective Date. [REMAINDER OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGES FOLLOW.] 17 SCHEDULE I INITIAL COMMITMENT SCHEDULE ================================================================================ Maximum Percentage Lender Commitment Share - -------------------------------------------------------------------------------- Bank of America, N.A. $75,000,000 7.500000000% Calyon New York Branch 70,000,000 7.000000000% Citigroup Global Markets Realty Corp. 70,000,000 7.000000000% Deutsche Bank Trust Company Americas 70,000,000 7.000000000% JPMorgan Chase Bank, N.A. 70,000,000 7.000000000% ABN AMRO Bank N.V. 60,000,000 6.000000000% Barclays Bank plc 60,000,000 6.000000000% Commerzbank Aktiengesellschaft New York and Grand Cayman Branches 60,000,000 6.000000000% Merrill Lynch Bank USA 60,000,000 6.000000000% Societe Generale 60,000,000 6.000000000% US Bank National Association 60,000,000 6.000000000% The Bank of New York 45,000,000 4.500000000% BNP Paribas 45,000,000 4.500000000% Credit Suisse, Cayman Islands Branch 45,000,000 4.500000000% Sovereign Bank 45,000,000 4.500000000% WestLB AG, New York Branch 45,000,000 4.500000000% KBC Bank N.V. 35,000,000 3.500000000% Bank Hapoalim B.M. 25,000,000 2.500000000% Total: $1,000,000,000 100.000000000% ================================================================================ EX-10.2.1 3 am110905-ex10_21.txt CONTRACT EXHIBIT 10.2.1 AMENDMENT NO. 9 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 9, dated as of September 2, 2005 (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 join Morgan Stanley Mortgage Capital Inc. ("MSMCI") as a Lender with a commitment of $250,000,000. 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) 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 an amount equal to $750,000,000. (b) Schedule 6 to the Existing Loan Agreement shall be superceded and replaced in its entirety by the document attached hereto as Schedule 6. 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 each Borrower; (c) Resolutions. True, correct and complete copies of the resolutions of each Borrower, 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) Legal Opinion. One or more legal opinions of in-house counsel to the Borrowers, in form and substance satisfactory to the Agent. (e) 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] 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 AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer MORGAN STANLEY BANK, as the Agent and as a Lender By: /s/ Paul Najarian -------------------------------------- Name: Paul Najarian Title: Vice President MORGAN STANLEY MORTGAGE CAPITAL INC., as a Lender By: /s/ Paul Najarian -------------------------------------- Name: Paul Najarian Title: Vice President Schedule 6 COMMITMENTS Lender Commitment Morgan Stanley Bank $ 500,000,000 Morgan Stanley Mortgage Capital Inc. $ 250,000,000 - ---------------------------------------------------------------------- Total $ 750,000,000 Exhibit A PROMISSORY NOTE $250,000,000 September [__], 2005 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 MORTGAGE CAPITAL INC. (the "Lender"), at the principal office of the Lender at 1221 Avenue of the Americas, 27th Floor, New York, New York 10020, in lawful money of the United States, and in immediately available funds, the principal sum of TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (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 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. 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 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 By:____________________________________ Name: Title: AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated), as a Borrower By:____________________________________ Name: Title: Exhibit A 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 Unpaid Amount Interest Amount Paid Principal Notation Date Made of Loan Rate or Prepaid Amount Made by - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- EX-10.2.2 4 am110905-ex10_22.txt CONTRACT EXHIBIT 10.2.2 PROMISSORY NOTE $250,000,000 September 2, 2005 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 MORTGAGE CAPITAL INC. (the "Lender"), at the principal office of the Lender at 1221 Avenue of the Americas, 27th Floor, New York, New York 10020, in lawful money of the United States, and in immediately available funds, the principal sum of TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (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 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. 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 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/ Craig Pino -------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE INVESTMENT CORP., as a Borrower By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE HOLDINGS, INC., as a Borrower By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE ACCEPTANCE, INC., as a Borrower By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated), as a Borrower By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Senior Vice President and Treasurer EX-10.3 5 am110905-ex10_3.txt AMENDED (#10) MASTER LOAN AND SECURITY AGREEMENT EXHIBIT 10.3 AMENDMENT NO. 10 TO THE AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT AMENDMENT NO. 10, dated as of September 26, 2005 (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. 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 extend the Termination Date from September 26, 2005 to October 26, 2005. 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. The definition of "Termination Date" 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: "Termination Date" shall mean October 26, 2005 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] 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: Treasurer and Senior Vice President AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Treasurer and Senior Vice President AMERICAN HOME MORTGAGE HOLDINGS, INC. By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Treasurer and Senior Vice President AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Treasurer and Senior Vice President AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a Columbia National, Incorporated) By: /s/ Craig Pino -------------------------------------- Name: Craig Pino Title: Treasurer and Senior Vice President MORGAN STANLEY BANK, as the Agent and as a Lender By: /s/ Paul Najarian -------------------------------------- Name: Paul Najarian Title: Vice President MORGAN STANLEY MORTGAGE CAPITAL INC., as a Lender By: /s/ Paul Najarian -------------------------------------- Name: Paul Najarian Title: Vice President EX-10.4 6 am110905-ex10_4.txt CONTRACT EXHIBIT 10.4 CALYON NEW YORK BRANCH 1301 Avenue of the Americas New York, New York 10019 As of October 5, 2005 AHM SPV I, LLC c/o American Home Mortgage Holdings, Inc. 538 Broadhollow Road Melville, New York 11747 AMERICAN HOME MORTGAGE CORP. 538 Broadhollow Road Melville, New York 11747 LA FAYETTE ASSET SECURITIZATION LLC c/o Calyon Building 1301 Avenue of the Americas New York, New York 10019 CALYON NEW YORK BRANCH Calyon Building 1301 Avenue of the Americas New York, New York 10019 LLOYDS TSB BANK PLC 1251 Avenue of the Americas 39th Floor New York, NY 10020 Re: Extension Letter Ladies and Gentlemen: 1. Reference is made to the Loan Agreement, dated as of August 8, 2003, as amended from time to time (the "Loan Agreement"), among AHM SPV I, LLC, a Delaware limited liability company (hereinafter, together with its successors and assigns, the "Borrower"), LA FAYETTE ASSET SECURITIZATION LLC, a Delaware limited liability company, as the Issuer (hereinafter, together with its successors and assigns, "Issuer"), CALYON NEW YORK BRANCH (hereinafter, together with its successors and assigns, "Calyon"), as the Administrative Agent and as a Bank, LLOYDS TSB BANK PLC (hereinafter, together with its successors and assigns, "Lloyds"), as a Bank, and AMERICAN HOME MORTGAGE CORP., a New York corporation, as the Servicer (hereinafter, together with its successors and assigns "the Servicer"). Unless otherwise defined herein, capitalized terms have the meanings set forth in the Loan Agreement. 2. The Borrower, Calyon, as a Bank and as the Administrative Agent, Lloyds, as a Bank, and the Servicer hereby agree that the Annual Extension Date, as set forth in the Loan Agreement, shall be and is hereby extended to November 18, 2005, as may be further extended by the Borrower, Calyon, as a Bank and as the Administrative Agent, Lloyds, as a Bank, and the Servicer. 3. This Letter may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same letter. The delivery of a signed signature page to this Letter by telecopy transmission shall constitute due execution and delivery of this Letter for all purposes. 4. Except as modified by this Letter, all of the provisions of the Loan Agreement 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. 5. This Letter and the rights and obligations of the parties under this letter 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). -2- IN WITNESS WHEREOF, this Letter has been duly executed and delivered by each signatory hereto and shall be effective as of the date hereof. CALYON NEW YORK BRANCH, as Administrative Agent and as a Bank By: /s/ Kostantina Kourmpetis -------------------------------------- Name: Kostantina Kourmpetis Title: Managing Director By: /s/ Anthony Brown -------------------------------------- Name: Anthony Brown Title: Vice President Agreed and Accepted as of the date first above noted: AHM SPV I, LLC, as Borrower By: /s/ Alan Horn --------------------------------- Name: Alan Horn Title: Secretary AMERICAN HOME MORTGAGE CORP., as Servicer By: /s/ Alan Horn -------------------------------- Name: Alan Horn Title: EVP, General Counsel and Secretary LLOYDS TSB BANK PLC, as a Bank By: /s/ Michelle White -------------------------------- Name: Michelle White Title: Assistant Vice President Structured Finance By: /s/ Ian Dimmock -------------------------------- Name: Ian Dimmock Title: Vice President Structured Finance EX-10.5.1 7 am110905-ex10_51.txt CONTRACT EXHIBIT 10.5.1 ============================================================================== MASTER REPURCHASE AGREEMENT Between: Goldman Sachs Mortgage Company, a New York limited partnership, as Buyer and American Home Mortgage Acceptance, Inc., a Maryland corporation and American Home Mortgage Corp., a New York corporation, as Sellers Dated as of August 31, 2005 ============================================================================== TABLE OF CONTENTS Page Section 1. Applicability....................................................1 Section 2. Definitions......................................................1 Section 3. Initiation; Termination.........................................12 Section 4. Margin Amount Maintenance.......................................15 Section 5. Periodic Advance Repurchase Payments; Late Payment Fee; Income..........................................................16 Section 6. Requirements of Law.............................................16 Section 7. Taxes...........................................................17 Section 8. Security Interest; Buyer's Appointment as Attorney-In-Fact......20 Section 9. Payment, Transfer and Custody...................................21 Section 10. Intentionally Omitted...........................................22 Section 11. Representations.................................................22 Section 12. Covenants.......................................................26 Section 13. Events of Default...............................................30 Section 14. Remedies........................................................31 Section 15. Indemnification and Expenses; Recourse..........................33 Section 16. Servicing.......................................................34 Section 17. Due Diligence...................................................35 Section 18. Assignability...................................................35 Section 19. Transfer and Maintenance of Register............................36 Section 20. Hypothecation or Pledge of Purchased Mortgage Loans.............36 Section 21. Tax Treatment...................................................37 Section 22. Set-Off.........................................................37 Section 23. Terminability...................................................37 Section 24. Notices and Other Communications................................37 Section 25. Entire Agreement; Severability; Single Agreement................37 Section 26. Governing Law...................................................38 Section 27. Submission to Jurisdiction; Waivers.............................38 Section 28. No Waivers, Etc.................................................39 Section 29. Netting.........................................................39 Section 30. Confidentiality.................................................39 Section 31. Intent..........................................................40 Section 32. Disclosure Relating to Certain Federal Protections..............40 Section 33. Authorizations..................................................41 Section 34. Acknowledgement of Anti-Predatory Lending Policies..............41 Section 35. Miscellaneous...................................................41 Section 36. Joint and Several Liability.....................................41 Section 37. General Interpretive Principles.................................41 EXHIBITS SCHEDULE 1 Representations and Warranties Re: Mortgage Loans SCHEDULE 2 UCC Filing Jurisdiction EXHIBIT A Form of Opinion Letter EXHIBIT B Form of Transaction Request EXHIBIT C Mortgage Loan Schedule Fields EXHIBIT D Underwriting Guidelines EXHIBIT E Servicer Notice EXHIBIT F Form of Section 7 Certificate MASTER REPURCHASE AGREEMENT This is a MASTER REPURCHASE AGREEMENT dated as of August 31, 2005, between AMERICAN HOME MORTGAGE ACCEPTANCE, INC., a Maryland corporation ("AHMA"), AMERICAN HOME MORTGAGE CORP., a New York corporation ("AHMC"; AHMA and AHMC are also each referred to as a "Seller," and collectively as "Sellers") and GOLDMAN SACHS MORTGAGE COMPANY, a New York limited partnership ("Buyer"). Section 1. Applicability From time to time, the parties hereto may enter into transactions in which Sellers agree to sell to Buyer certain Eligible Mortgage Loans (as defined below) in exchange for an amount paid by Buyer, with a simultaneous agreement by Sellers to re-purchase from Buyer such Eligible Mortgage Loans at a date certain in exchange for an amount paid by Sellers. As more fully described herein, each such transaction shall be referred to as a "Transaction" and, unless otherwise agreed in writing, shall be governed by this Agreement. Section 2. Definitions As used herein, the following terms shall have the following meanings (all terms defined in this Section 2 or in other provisions of this Agreement in the singular to have the same meanings when used in the plural and vice versa): "1934 Act" shall have the meaning set forth in Section 32 hereof. "Accepted Servicing Practices" shall mean, with respect to any Mortgage Loan, those mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the same type as such Mortgage Loan in the jurisdiction where the related Mortgaged Property is located. "Additional Purchased Mortgage Loans" shall have the meaning specified in Section 4. "Affiliate" shall mean with respect to any Person, any "affiliate" of such Person, as such term is defined in the Bankruptcy Code. "Agreement" shall mean this Master Repurchase Agreement, as the same may be amended, supplemented or otherwise modified from time to time. "AHMA" shall have the meaning provided in the heading hereof. "AHMC" shall have the meaning provided in the heading hereof. "Appraised Value" shall mean the value set forth in an appraisal made in connection with the origination of the related Mortgage Loan as the value of the Mortgaged Property. "Assignment and Acceptance" shall have the meaning set forth in Section 18 hereof. "Assignment of Mortgage" shall have the meaning set forth in the Custodial Agreement. "Asset Value" shall mean with respect to each Mortgage Loan, as of any date of determination, the lesser of (i) the Purchase Price Percentage multiplied by the Market Value of such Mortgage Loan and (ii) the outstanding principal balance of such Mortgage Loan. Without limiting the generality of the foregoing, Sellers acknowledge that the Asset Value may be reduced to zero by Buyer if: (a) such Mortgage Loan ceases to be an Eligible Mortgage Loan; (b) a First Payment Default occurs with respect to such Purchased Mortgage Loan; (c) such Purchased Mortgage Loan contains a breach of a representation or warranty made by any Seller in the Facility Documents; (d) the Purchased Mortgage Loan has been released from the possession of Custodian for a period in excess of 10 calendar days or 45 days in the case of a release to any Person previously approved by Buyer in its reasonable discretion; (e) Buyer has determined in its sole discretion that the Purchased Mortgage Loan is not eligible for whole loan sale or securitization in a transaction consistent with the prevailing sale and securitization industry; (f) Sellers have delivered a lost note affidavit in lieu of an original Mortgage Note, unless the then current Market Value of all Mortgage Loans that Sellers have delivered a lost note affidavit in lieu of an original Mortgage Note is less than $5,000,000 ; (g) a judgment for foreclosure has been entered or which has otherwise been comparably converted to REO Property. "Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978, as amended from time to time. "Business Day" shall mean a day other than (i) a Saturday or Sunday, (ii) any day on which banking institutions are authorized or required by law, executive order or governmental decree to be closed in the State of New York or (iii) any day on which the New York Stock Exchange is closed. "Buyer" shall have the meaning provided in the heading hereof. "Capital Lease Obligations" shall mean, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP. "Cash Equivalents" shall mean (a) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of 90 days or less from the date of acquisition and overnight bank deposits of Buyer or of any commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of Buyer or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's and in either case maturing within 90 days after the day of acquisition, (e) securities with maturities of 90 days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody's, (f) securities with maturities of 90 days or less from the 2 date of acquisition backed by standby letters of credit issued by Buyer or any commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. "Change in Control" shall mean: (a) any transaction or event as a result of which Guarantor ceases to own all of the capital stock and other beneficial interests of AHMA or any transaction as a result of which American Home Mortgage Holdings, Inc., a Delaware corporation, ceases to own all of the capital stock and other beneficial interests in AHMC; or (b) the sale, transfer, or other disposition of all or substantially all of a Seller's assets (excluding any such action taken in connection with any whole loan sale or securitization transaction); or (c) the consummation of a merger or consolidation of a Seller with or into another entity or any other corporate reorganization (in one transaction or in a series of transactions). "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. "CLTV" shall mean, with respect to any Second Lien Mortgage Loan, the sum of the original principal balance of such Mortgage Loan and the outstanding principal balance of any other loan secured by the applicable Mortgaged Property as of the date of origination of the Mortgage Loan, divided by the Appraised Value of such Mortgaged Property as of the origination date. "Confidential Terms" shall have the meaning set forth in Section 30 hereof. "Costs" shall have the meaning set forth in Section 15(a) hereof. "Custodial Agreement" shall mean that certain Custodial Agreement dated as of the date hereof, among Sellers, Buyer and Custodian, as the same may be amended from time to time. "Custodian" shall mean Deutsche Bank National Trust Company, or any successor thereto under the Custodial Agreement. "Default" shall mean an Event of Default or an event that with notice or lapse of time or both would become an Event of Default. "Defaulting Party" shall have the meaning set forth in Section 29 hereof. "Dollars" and "$" shall mean lawful money of the United States of America. "Due Date" shall mean the day of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace. "Due Diligence Costs" shall have the meaning set forth in Section 17 hereof. "Due Diligence Review" shall mean the performance by Buyer of any or all of the reviews permitted under Section 17 hereof with respect to any or all of the Mortgage Loans, as desired by Buyer from time to time. "Effective Date" shall mean the date upon which the conditions precedent set forth in Section 3(a) shall have been satisfied. 3 "Electronic Tracking Agreement" shall mean that certain Electronic Tracking Agreement dated as of the date hereof, among Buyer, Sellers, Custodian, MERS and MERSCORP, Inc., a Delaware corporation, as the same may be amended from time to time. "Eligible Mortgage Loan" shall mean a Purchased Mortgage Loan which complies with the representations and warranties set forth on Schedule 1 to this Agreement. "ERISA" shall, with respect to any Person, mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor thereto, and the regulations promulgated and rulings issued thereunder. "ERISA Affiliate" shall, with respect to any Person, mean any Person which is a member of any group of organizations (i) described in Section 414(b) or (c) of the Code of which such Person is a member, or (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of which such Person is a member. "Escrow Payments" shall mean, with respect to any Mortgage Loan, the amounts constituting ground rents, taxes, assessments, water rates, sewer rents, municipal charges, mortgage insurance premiums, fire and hazard insurance premiums, condominium charges, and any other payments required to be escrowed by the Mortgagor with the mortgagee pursuant to the Mortgage or any other document. "Event of Default" shall have the meaning specified in Section 13 hereof. "Event of ERISA Termination" shall, with respect to any Seller or Guarantor, mean (i) with respect to any Plan, a reportable event, as defined in Section 4043 of ERISA, as to which the PBGC has not by regulation waived the reporting of the occurrence of such event, or (ii) the withdrawal of such Person or any of its ERISA Affiliates from a Plan during a plan year in which it is a substantial employer, as defined in Section 4001(a)(2) of ERISA, or (iii) the failure by such Person or any of its ERISA Affiliates thereof to meet the minimum funding standard of Section 412 of the Code or Section 302 of ERISA with respect to any Plan, including, without limitation, the failure to make on or before its due date a required installment under Section 412(m) of the Code or Section 302(e) of ERISA, or (iv) the distribution under Section 4041 of ERISA of a notice of intent to terminate any Plan or any action taken by such Person or any of its ERISA Affiliates to terminate any Plan, or (v) the adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of tax-exempt status of the trust of which such Plan is a part if such Person or any of its ERISA Affiliates fails to timely provide security to the Plan in accordance with the provisions of said Sections, or (vi) the institution by the PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vii) the receipt by such Person or any of its ERISA Affiliates of a notice from a Multiemployer Plan that action of the type described in the previous clause (vi) has been taken by the PBGC with respect to such Multiemployer Plan, or (viii) any event or circumstance exists which may reasonably be expected to constitute grounds for such Person or any of its ERISA Affiliates to incur liability under Title IV of ERISA or under Section 412(c)(11) of the Code with respect to any Plan. "Excluded Taxes" shall have the meaning specified in Section 7(e) hereof. "Facility Documents" shall mean this Agreement, the Custodial Agreement, the Guaranty Agreement, the Electronic Tracking Agreement and, in each case, any other documents executed and delivered in connection therewith 4 "Fannie Mae" shall mean Fannie Mae, or any successor thereto. "FDIA" shall have the meaning set forth in Section 31 hereof. "FDICIA" shall have the meaning set forth in Section 31 hereof. "Financial Statements" shall mean the consolidated financial statements of Sellers prepared in accordance with GAAP for the year or other period then ended. Such financial statements will be audited, in the case of annual statements, by Deloitte & Touche LLP. "First Lien Mortgage Loan" shall mean a Mortgage Loan secured by a first Lien on the related Mortgaged Property. "First Payment Default" shall mean, with respect to a Mortgage Loan, the failure of the Mortgagor to make the first Monthly Payment due under such Mortgage Loan on or before its scheduled Due Date. "Fitch" shall mean Fitch Ratings, Inc., or any successor thereto. "Freddie Mac" shall mean Freddie Mac, or any successor thereto. "GAAP" shall mean generally accepted accounting principles in the United States of America, applied on a consistent basis and applied to both classification of items and amounts, and shall include, without limitation, the official interpretations thereof by the Financial Accounting Standards Board, its predecessors and successors. "Governmental Authority" shall mean any nation or government, any state, county, municipality or other political subdivision thereof or any governmental body, agency, authority, department or commission (including, without limitation, any taxing authority) or any instrumentality or officer of any of the foregoing (including, without limitation, any court or tribunal) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation, partnership or other entity directly or indirectly owned by or controlled by the foregoing. "GS Indebtedness" shall mean any Indebtedness of Sellers or Guarantor under the Facility Documents and under any other arrangement between any Seller, Guarantor and/or any of their respective Affiliates on the one hand, and Buyer and/or an Affiliate of Buyer on the other hand. "Guarantee" shall mean, as to any Person, any obligation of such Person directly or indirectly guaranteeing any Indebtedness of any other Person or in any manner providing for the payment of any Indebtedness of any other Person or otherwise protecting the holder of such Indebtedness against loss (whether by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, or to take-or-pay or otherwise); provided that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee of a Person shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The terms "Guarantee" and "Guaranteed" used as verbs shall have correlative meanings. "Guarantor" shall mean American Home Mortgage Investment Corp., a Maryland corporation. 5 "Guaranty Agreement" shall mean that certain Guaranty dated as of the date hereof, executed by Guarantor in favor of Buyer. "High Cost Mortgage Loan" shall mean a Mortgage Loan classified as (a) a "high cost" loan under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost," "threshold," "covered," or "predatory" loan under any other applicable state, federal or local law (or a similarly classified loan using different terminology under a law, regulation or ordinance imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees). "Income" shall mean, with respect to any Mortgage Loan at any time, any principal thereof then payable and all interest, dividends or other distributions payable thereon. "Increased Cost Certificate" shall have the meaning set forth in Section 6(a) hereof. "Indebtedness" shall mean, with respect to any Person, (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business, so long as such trade accounts payable are payable within 90 days of the date the respective goods are delivered or the respective services are rendered; (c) Indebtedness of others secured by a Lien on the Property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) obligations of such Person under repurchase agreements, sale/buy-back agreements or like arrangements; (g) Indebtedness of others Guaranteed by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; and (i) Indebtedness of general partnerships of which such Person is a general partner. "Indemnified Party" shall have the meaning set forth in Section 15(a) hereof. "Insolvency Event" shall mean, for any Person: (a) that such Person or any Affiliate shall discontinue or abandon operation of its business; or (b) that such Person or any Affiliate shall fail generally to, or admit in writing its inability to, pay its debts as they become due; or (c) a proceeding shall have been instituted in a court having jurisdiction seeking a decree or order for relief in respect of such Person or its Affiliate in an involuntary case under any applicable bankruptcy, insolvency, liquidation, reorganization or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or its Affiliate, or for any substantial part of its property, or for the winding-up or liquidation of its affairs; or (d) the commencement by such Person or its Affiliate of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or such Person's or its Affiliate's consent to the entry of an order for relief in an involuntary case under any such Law, or consent to the appointment of or taking possession by a receiver, 6 liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person, or for any substantial part of its property, or any general assignment for the benefit of creditors; or (e) that such Person or its Affiliate shall become insolvent; or (f) if such Person or its Affiliate is a corporation, such Person or its Affiliate, or any of their respective Subsidiaries, shall take any corporate action in furtherance of, or the action of which would result in any of the actions set forth in the preceding clause (a), (b), (c), (d) or (e). "Late Payment Fee" shall have the meaning set forth in Section 5(b) hereof. "LIBOR Rate" shall mean, with respect to each day a Transaction is outstanding, the rate per annum equal to the rate appearing at page 5 of the Telerate Screen as one-month LIBOR on such date (and if such date is not a Business Day, the LIBOR Rate in effect on the Business Day immediately preceding such date), and if such rate shall not be so quoted, the rate per annum at which Buyer or its Affiliate is offered dollar deposits at or about 10:00 a.m., New York City time, on such date, by prime banks in the interbank eurodollar market where the eurodollar and foreign currency exchange operations in respect of its Transactions are then being conducted for delivery on such day for a period of one month and in an amount comparable to the amount of the Transactions outstanding on such day. "Lien" shall mean any lien, claim, charge, restriction, pledge, security interest, mortgage, deed of trust or other encumbrance. "LTV" shall mean with respect to any Mortgage Loan, the ratio of the original outstanding principal amount of the Mortgage Loan to the lesser of (a) the Appraised Value of the Mortgaged Property at origination or (b) if the Mortgaged Property was purchased within 12 months of the origination of the Mortgage Loan, the purchase price of the Mortgaged Property. "Margin Call" shall have the meaning specified in Section 4. "Margin Deficit" shall have the meaning specified in Section 4. "Market Value" shall mean, as of any date with respect to any Purchased Mortgage Loan, the price at which such Mortgage Loan could readily be sold as determined by Buyer in its sole discretion. "Material Adverse Effect" shall mean a material adverse effect on (a) the Property, business, operations, financial condition or prospects of any Seller, Guarantor or any of their respective Affiliates, (b) the ability of any Seller, Guarantor or any of their respective Affiliates to perform their respective obligations under any of the Facility Documents to which it is a party, (c) the validity or enforceability of any of the Facility Documents, (d) the rights and remedies of Buyer or its Affiliates under any of the Facility Documents, (e) the timely payment of any amounts payable under the Facility Documents, or (f) the Asset Value of the Purchased Mortgage Loans, taken as a whole. "Maximum Purchase Price" shall mean Seven Hundred Fifty Million Dollars ($750,000,000). "MERS" shall mean Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or any successor thereto. 7 "MERS System" shall mean the system of recording transfers of mortgages electronically maintained by MERS. "Monthly Payment" shall mean the scheduled monthly payment of principal and interest on a Mortgage Loan. "Moody's" shall mean Moody's Investor's Service, Inc. or any successors thereto. "Mortgage" shall mean each mortgage, assignment of rents, security agreement and fixture filing, or deed of trust, assignment of rents, security agreement and fixture filing, deed to secure debt, assignment of rents, security agreement and fixture filing, or similar instrument creating and evidencing a first or second lien on real property and other property and rights incidental thereto. "Mortgage File" shall have the meaning specified in the Custodial Agreement. "Mortgage Interest Rate" shall mean the rate of interest borne on a Mortgage Loan from time to time in accordance with the terms of the related Mortgage Note. "Mortgage Loan" shall mean any loan evidenced by a Mortgage Note and secured by a Mortgage encumbering Mortgaged Property consisting of a one-to-four family residence. "Mortgage Loan Schedule" shall mean with respect to any Transaction as of any date, a mortgage loan schedule in the form of a computer tape or other electronic medium generated by Sellers and delivered to Buyer and Custodian, which provides information (including, without limitation, the information set forth on Exhibit C attached hereto) relating to the Purchased Mortgage Loans in a format acceptable to Buyer. "Mortgage Loan Schedule and Exception Report" shall have the meaning set forth in the Custodial Agreement. "Mortgage Note" shall mean the promissory note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage. "Mortgaged Property" shall mean the real property securing repayment of the debt evidenced by a Mortgage Note. "Mortgagor" shall mean the obligor or obligors on a Mortgage Note, including any Person who has assumed or guaranteed the obligations of the obligor thereunder. "Multiemployer Plan" shall mean, with respect to any Person, a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to (or required to be contributed to) by such Person or any ERISA Affiliate thereof on behalf of its employees and which is covered by Title IV of ERISA. "Non-Excluded Taxes" shall have the meaning set forth in Section 7(a) hereof. "Non-Exempt Buyer" shall have the meaning set forth in Section 7(e) hereof. "Nondefaulting Party" shall have the meaning set forth in Section 29 hereof. "Obligations" shall mean (a) any amounts due and payable by any Seller to Buyer in connection with any Transaction hereunder, together with interest thereon (including interest which would be payable 8 as post-petition interest in connection with any bankruptcy or similar proceeding) and all other amounts, fees or expenses which are payable hereunder or under any of the Facility Documents and (b) all other obligations or amounts due and payable by any Seller to Buyer or an Affiliate of Buyer under any other contract or agreement. "OFAC" shall have the meaning set forth in Section 11(y) hereof. "Other Taxes" shall have the meaning set forth in Section 7(b) hereof. "Payment Date" shall mean the last day of each month, or if such date is not a Business Day, the Business Day immediately preceding the last day of the month. "PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA. "Periodic Advance Repurchase Payment" shall have the meaning specified in Section 5(a). "Person" shall mean 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). "Plan" shall mean, with respect to a Seller, any employee benefit or similar plan that is or was at any time during the current year or immediately preceding five years established, maintained or contributed to by such Seller or any ERISA Affiliate thereof and that is covered by Title IV of ERISA, other than a Multiemployer Plan. "PMI Policy" shall mean a policy of primary mortgage guaranty insurance issued by a Qualified Insurer, as required by this Agreement with respect to certain Mortgage Loans. "Post-Default Rate" shall mean a rate equal to the sum of (a) the Pricing Rate plus (b) two percent (2.00%). "Price Differential" shall mean, with respect to any Transaction hereunder as of any date, the aggregate amount obtained by daily application of the Pricing Rate (or, during the continuation of an Event of Default, by daily application of the Post-Default Rate) for such Transaction to the Purchase Price for such Transaction on a 360 day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the Repurchase Date . "Pricing Rate" shall mean a rate per annum equal to the sum of (a) the LIBOR Rate plus (b) the Pricing Spread. "Pricing Spread" shall mean fifty basis points (0.50%). "Prohibited Person" shall have the meaning set forth in Section 11(y) hereof. "Property" shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. "Purchase Date" shall mean the date on which Purchased Mortgage Loans are transferred by Seller to Buyer or its designee. 9 "Purchase Price" shall mean, (a) on the Purchase Date, the price at which each Purchased Mortgage Loan is transferred by Sellers to Buyer which shall equal the lesser of (i) the Purchase Price Percentage multiplied by the Market Value of such Mortgage Loan on the Purchase Date and (ii) the outstanding principal balance of the Mortgage Loan and (b) thereafter, except where Buyer and Sellers agree otherwise, such Purchase Price determined in accordance with (a) above, decreased by the amount of any cash, Income and Periodic Advance Repurchase Payments (in each case, other than Price Differential) actually received by Buyer on account of such Purchased Mortgage Loan pursuant to Sections 5 or applied to reduce Sellers' obligations under Section 4(b) hereof. "Purchase Price Percentage" shall mean ninety-eight percent (98.0%). "Purchased Mortgage Loans" shall mean the Mortgage Loans sold by Sellers to Buyer in a Transaction, and any Additional Purchased Mortgage Loans as evidenced by a Mortgage Loan Schedule and Exception Report delivered by Sellers to Buyer and/or a Trust Receipt. "Qualified Insurer" shall mean a mortgage guaranty insurance company duly authorized and licensed where required by law to transact mortgage guaranty insurance business and acceptable under the Underwriting Guidelines. "Rating Agency" shall mean any of S&P, Moody's or Fitch. "Records" shall mean all instruments, agreements and other books, records, and reports and data generated by other media for the storage of information maintained by Sellers or any other person or entity with respect to a Purchased Mortgage Loan. Records shall include the Mortgage Notes, any Mortgages, the Mortgage Files, the credit files related to the Purchased Mortgage Loan and any other instruments necessary to document or service a Mortgage Loan. "Register" shall have the meaning set forth in Section 19 hereof. "Regulations T, U and X" shall mean Regulations T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time. "REO Property" shall mean a Mortgaged Property acquired through foreclosure or by deed in lieu of foreclosure. "Reportable Event" shall mean any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .21, .22, .24, .26, .27 or .28 of PBGC Reg. ss. 4043. "Repurchase Assets" shall have the meaning provided in Section 8 hereof. "Repurchase Date" shall mean the date on which Sellers are to repurchase the Purchased Mortgage Loans subject to a Transaction from Buyer as specified in the related Transaction Request, or if not so specified, on a date requested pursuant to Section 3(d) or on the Termination Date, including any date determined by application of the provisions of Sections 3 or 14. "Repurchase Price" shall mean the price at which Purchased Mortgage Loans are to be transferred from Buyer or its designee to Sellers upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination. 10 "Requirement of Law" shall mean as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule, regulation, procedure or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. "S&P" shall mean Standard & Poor's Ratings Services, or any successor thereto. "SEC" shall have the meaning set forth in Section 32 hereof. "Second Lien Mortgage Loan" shall mean a Mortgage Loan secured by a second lien on the related Mortgaged Property. "Section 4402" shall have the meaning set forth in Section 29 hereof. "Section 7 Certificate" shall have the meaning set forth in Section 7(e) hereof. "Seller" or "Sellers" shall have the meaning provided in the heading hereof. "Servicer" shall mean American Home Mortgage Servicing, Inc., a Maryland corporation. "Servicer Notice" shall have the meaning set forth in Section 16 hereof. "Single-Employer Plan" shall mean a single-employer plan as defined in Section 4001(a)(15) of ERISA which is subject to the provisions of Title IV of ERISA. "SIPA" shall have the meaning set forth in Section 32 hereof. "Subsidiary" shall mean, with respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person. "Tangible Net Worth" shall mean, for any Person as of a particular date, (a) all amounts which would be included under capital on a balance sheet of such Person at such date, determined in accordance with GAAP, less (b) (i) amounts owing to such Person from its Affiliates, or from officers, employees, shareholders or other Persons similarly affiliated with such Person, (ii) intangible assets and (iii) deferred tax charge. "Taxes" shall have the meaning set forth in Section 7(a) hereof. "Termination Date" shall mean the date which is 45 days from the date hereof which shall be October 15, 2005. "Transaction" shall have the meaning specified in Section 1. "Transaction Request" shall mean a request from Sellers to Buyer to enter into a Transaction. 11 "Trust Receipt" shall have the meaning set forth in the Custodial Agreement. "Underwriting Guidelines" shall mean the underwriting guidelines of Sellers, attached hereto as Exhibit D. "Uniform Commercial Code" shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non perfection of the security interest in any Repurchase Assets or the continuation, renewal or enforcement thereof is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, "Uniform Commercial Code" shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non perfection. Section 3. Initiation; Termination (a) Conditions Precedent to Initial Transaction. Buyer's agreement to enter into the initial Transaction hereunder is subject to the satisfaction, immediately prior to or concurrently with the making of such Transaction, of the condition precedent that Buyer shall have received from Sellers any fees and expenses payable hereunder, and all of the following documents, each of which shall be satisfactory to Buyer and its counsel in form and substance: (i) The following Facility Documents delivered to Buyer: (A) Repurchase Agreement. This Agreement, duly executed by the parties thereto; (B) Guaranty Agreement. The Guaranty Agreement, duly executed by the parties thereto; (C) Custodial Agreement. The Custodial Agreement, duly executed by the parties thereto; and (D) Electronic Tracking Agreement. The Electronic Tracking Agreement entered into, duly executed and delivered by the parties thereto. (ii) Opinions of Counsel. An opinion or opinions of outside counsel to Sellers (or, in Buyer's sole discretion, in-house counsel to Sellers), substantially in the form of Exhibit A. (iii) Organizational Documents. A certificate of corporate existence of each Seller and Guarantor delivered to Buyer prior to the Effective Date (or if unavailable, as soon as available thereafter) and certified copies of the charter and by-laws (or equivalent documents) of each Seller and Guarantor and of all corporate or other authority for each Seller and Guarantor with respect to the execution, delivery and performance of the Facility Documents and each other document to be delivered by Sellers or Guarantor from time to time in connection herewith. (iv) Security Interest. Evidence that all other actions necessary or, in the opinion of Buyer, desirable to perfect and protect Buyer's interest in the Purchased Mortgage Loans and other Repurchase Assets have been taken, including, without limitation, UCC searches and duly authorized and filed Uniform Commercial Code financing statements on Form UCC-1. 12 (v) Underwriting Guidelines. A true and correct copy of the Underwriting Guidelines certified by an officer of each Seller. (vi) Other Documents. Such other documents as Buyer may reasonably request, in form and substance reasonably acceptable to Buyer. (b) Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in this Section 3(b), Buyer shall enter into a Transaction with Sellers. Buyer's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the intended use thereof: (i) Due Diligence Review. Without limiting the generality of Section 17 hereof, Buyer shall have completed, to its satisfaction, its due diligence review of the related Mortgage Loans and Seller and Guarantor. (ii) No Default. No Default shall have occurred and be continuing under the Facility Documents. (iii) Representations and Warranties. Both immediately prior to the Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Sellers in Section 11 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). (iv) Maximum Purchase Price. After giving effect to the requested Transaction, the aggregate outstanding Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Agreement shall not exceed the Maximum Purchase Price. (v) No Margin Deficit. After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the aggregate Purchase Price for such Transactions. (vi) Transaction Request. On or prior to 10:00 a.m. (New York Time) one (1) day prior to the applicable Purchase Date, Sellers shall have delivered to Buyer (a) a Transaction Request, and (b) a Mortgage Loan Schedule. (vii) Delivery of Mortgage File. Sellers shall have delivered to Custodian the Mortgage File with respect to each Purchased Mortgage Loan and Custodian shall have issued a Trust Receipt with respect to each such Purchased Mortgage Loan to Buyer. (viii) Servicer Notice. A fully executed Servicer Notice. (ix) Fees and Expenses. Sellers shall have paid to Buyer all reasonable fees and expenses of counsel to Buyer as contemplated by Section 15(b) which amounts, at Buyer's option, may be withheld from the proceeds remitted by Buyer to the Sellers pursuant to any Transaction hereunder. (x) No Material Adverse Change. None of the following shall have occurred and/or be continuing: 13 (A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a "repo market" or comparable "lending market" for financing debt obligations secured by securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Mortgage Loans through the "repo market" or "lending market" with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or (B) an event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or (C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement; (D) On or after the Effective Date, there shall have occurred (i) a material change in financial markets, an outbreak or escalation of hostilities or a material change in national or international political, financial or economic conditions; (ii) a general suspension of trading on major stock exchanges or suspension of trading in Guarantor's stock; or (iii) a disruption in or moratorium on commercial banking activities or securities settlement services. Each Transaction Request delivered by Sellers shall constitute a certification by Sellers that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of Purchase Date). (c) Initiation. (i) Sellers shall deliver a Transaction Request to Buyer on or prior to the date and time set forth in Section 3(b)(vi) prior to entering into any Transaction, substantially in the form attached as Exhibit B hereto. The Transaction Request shall specify any additional terms or conditions of the Transaction agreed to by Sellers and Buyer and not inconsistent with this Agreement. Each Transaction Request, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Sellers with respect to the Transaction to which the Transaction Request relates, and Buyer's disbursement and any Seller's acceptance of the related proceeds shall constitute Buyer's and Sellers' agreement to the terms of such Transaction Request. It is the intention of the parties that each Transaction Request shall not be separate from this Agreement but shall be made a part of this Agreement. In the event that any terms or conditions of any Transaction Request are inconsistent, or in direct conflict, with this Agreement, the terms of this Agreement shall prevail; provided that the Transaction Request and this Agreement shall be construed to be cumulative to the extent possible. Such Transaction Request shall include a Mortgage Loan Schedule with respect to the Mortgage Loans to be sold in such requested Transaction. (ii) The Repurchase Date for each Transaction shall not be later than the Termination Date. (iii) Subject to the terms and conditions of this Agreement, during such period Sellers may sell to Buyer, repurchase from Buyer and resell to Buyer Eligible Mortgage Loans hereunder. 14 (iv) No later than the date and time set forth in Section 3(b)(vi), the Sellers shall deliver to Custodian the Mortgage Loan File pertaining to each Eligible Mortgage Loan to be purchased by Buyer. (v) Subject to the provisions of this Section 3, the Purchase Price will then be made available to Sellers by Buyer transferring, via wire transfer, in the aggregate amount of such Purchase Price in funds immediately available. (d) Repurchase (i) Sellers may repurchase Purchased Mortgage Loans without penalty or premium on any date. The Repurchase Price payable for the repurchase of any such Purchased Mortgage Loan shall be reduced as provided in Section 5(d). If Sellers intend to make such a repurchase, Sellers shall give one (1) Business Day's prior written notice thereof to Buyer, designating the Purchased Mortgage Loans to be repurchased. If such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, and, on receipt, such amount shall be applied to the Repurchase Price for the designated Purchased Mortgage Loans. (ii) On the Repurchase Date, termination of the Transaction will be effected by reassignment to Sellers or their designee of the Purchased Mortgage Loans (and any Income in respect thereof received by Buyer not previously credited or transferred to, or applied to the Obligations of Sellers pursuant to Section 5) against the simultaneous transfer of the Repurchase Price to an account of Buyer. Such obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Mortgage Loan (but liquidation or foreclosure proceeds received by Buyer shall be applied to reduce the Repurchase Price for such Purchased Mortgage Loan on each Payment Date except as otherwise provided herein). Sellers are obligated to obtain the Mortgage Files from Custodian or Buyer or its designee at Sellers' expense on the Repurchase Date. Section 4. Margin Amount Maintenance (a) Buyer shall determine the Asset Value of the Purchased Mortgage Loans at such intervals as determined by Buyer in its sole discretion. (b) If at any time the aggregate Asset Value of all related Purchased Mortgage Loans subject to all Transactions is less than the aggregate Purchase Price for all such Transactions (a "Margin Deficit"), then Buyer may by notice to Sellers (as such notice is more particularly set forth below, a "Margin Call"), require Sellers to transfer to Buyer or its designee cash or Eligible Mortgage Loans approved by Buyer in its sole discretion ("Additional Purchased Mortgage Loans") so that the aggregate Asset Value of the Purchased Mortgage Loans, including any such cash or Additional Purchased Mortgage Loans, will thereupon equal or exceed the aggregate Purchase Price for all Transactions. In the event Buyer delivers a Margin Call to Sellers on any Business Day, Sellers shall be required to transfer cash or Additional Purchased Mortgage Loans no later than 5 p.m. (New York City time) on the subsequent Business Day. (c) Buyer's election, in its sole and absolute discretion, not to make a Margin Call at any time there is a Margin Deficit shall not in any way limit or impair its right to make a Margin Call at any time a Margin Deficit exists. (d) Any cash transferred to Buyer pursuant to Section 4(b) above shall be credited against the Repurchase Price of the related Transactions. 15 Section 5. Periodic Advance Repurchase Payments; Late Payment Fee; Income (a) Notwithstanding that Buyer and Sellers intend that the Transactions hereunder be sales to Buyer of the Purchased Mortgage Loans for all purposes except accounting and tax purposes, Sellers shall pay to Buyer the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Sellers to Buyer) plus the amount of any unpaid Margin Deficit (each such payment, a "Periodic Advance Repurchase Payment") on each Payment Date. Notwithstanding the preceding sentence, if Sellers fail to make all or part of the Periodic Advance Repurchase Payment by 3:00 p.m. (New York time) on any Payment Date, the Pricing Rate shall be equal to the Post-Default Rate until the Periodic Advance Repurchase Payment is received in full by Buyer. (b) If Sellers shall fail to pay in full any accrued Periodic Advance Repurchase Payment, Repurchase Price or any other amount due and payable to Buyer under the Facility Documents (whether on the Repurchase Date, Termination Date, by acceleration or otherwise), a late fee (the "Late Payment Fee") shall accrue on such amount at a rate equal to the Post-Default Rate for the period from and including the due date thereof to but excluding the date the same is paid in full. Late Payment Fees payable hereunder shall accrue daily and shall be payable upon such accrual. (c) For so long as no Event of Default has occurred, (i) Buyer hereby grants Sellers a license to directly receive all Income paid or distributed on or in respect of the Repurchase Assets; (ii) all Income constituting principal or unscheduled prepayments in respect of a Repurchase Asset that is received by Buyer, shall be retained by Buyer and shall be applied by Buyer to reduce the Repurchase Price of such Transaction Asset; and (iii) all other Income received by Buyer shall be remitted to Sellers. (d) The license granted under Section 5(c) above shall automatically terminate upon the occurrence of an Event of Default without further act or instrument. Any and all Income in respect of Transaction Assets received by any Seller following the termination of such license (which shall automatically occur following the occurrence of an Event of Default) shall be paid by Sellers to Buyer and shall be applied by Buyer to reduce the amounts that comprise the Obligations in any manner that it shall elect. Until so paid by Sellers to Buyer, all Income received by Sellers shall be held by Sellers in trust for Buyer, segregated from other funds of Sellers, and shall forthwith upon receipt by Sellers be turned over to Buyer in the exact form received by Sellers (duly endorsed by Sellers to Buyer, if required). (e) Buyer shall offset against the Repurchase Price of each such Transaction all Income and Periodic Advance Repurchase Payments actually received by Buyer, excluding any Late Payment Fees. Section 6. Requirements of Law (a) If any Requirement of Law (other than with respect to any amendment made to Buyer's certificate of incorporation and by laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof: (i) shall subject Buyer to any Tax or increased Tax of any kind whatsoever with respect to this Agreement or any Transaction or change the basis of taxation of payments to Buyer in respect thereof; (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, 16 advances, or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the LIBOR Rate hereunder; (iii) shall impose on Buyer any other condition; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of entering, continuing or maintaining any Transaction or to reduce any amount due or owing hereunder in respect thereof, then, in any such case, upon Sellers' receipt from Buyer of a certificate that sets forth in reasonable detail the good faith calculation of the additional amount or amounts as will compensate Buyer for such increased cost or reduced amount receivable and basis therefor (an "Increased Cost Certificate"), Sellers shall (i) promptly to pay Buyer such additional amount or amounts as set forth in the Increased Cost Certificate; or (ii) pay to Buyer the Repurchase Price applicable to all of the Transactions identified in the Increased Cost Certificate (which may include all of the Transactions) within two (2) Business Days after its receipt of the Increased Cost Certificate. (b) If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer's certificate of incorporation and by laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Buyer's or such corporation's capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer's or such corporation's policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, upon Sellers' receipt of an Increased Cost Certificate, Sellers shall (i) promptly pay to Buyer such additional amount or amounts as set forth in the Increased Cost Certificate; or (ii) pay to Buyer the Repurchase Price applicable to all of the Transactions identified in the Increased Cost Certificate (which may include all of the Transactions) within two (2) Business Days after its receipt of the Increased Cost Certificate. (c) If Buyer becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify Sellers of the event by reason of which it has become so entitled. An Increased Cost Certificate as to any additional amounts payable pursuant to this Section submitted by Buyer to Sellers shall be conclusive in the absence of manifest error. Section 7. Taxes (a) Any and all payments by Sellers under or in respect of this Agreement or any other Facility Documents to which Sellers are a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities (including penalties, interest and additions to tax) with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, "Taxes"), unless required by law. If any Seller shall be required under any applicable Requirement of Law to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Facility Documents to Buyer, (i) Sellers shall make all such deductions and withholdings in respect of Taxes, (ii) Sellers shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) the sum payable by Sellers shall be increased as may be necessary so that after Sellers have made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 7) Buyer receives an amount equal to the sum it would have received had no 17 such deductions or withholdings been made in respect of Non-Excluded Taxes. For purposes of this Agreement the term "Non-Excluded Taxes" are Taxes other than, in the case of Buyer, Taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the jurisdiction under the laws of which Buyer is organized or of its applicable lending office, or any political subdivision thereof, unless such Taxes are imposed as a result of Buyer having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Facility Documents (in which case such Taxes will be treated as Non-Excluded Taxes). (b) In addition, Sellers hereby agree to pay any present or future stamp, recording, documentary, excise, property or value-added taxes, or similar taxes, charges or levies that arise from any payment made under or in respect of this Agreement or any other Facility Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement or any other Facility Document (collectively, "Other Taxes"). (c) Sellers hereby agree to indemnify Buyer for, and to hold it harmless against, the full amount of Non-Excluded Taxes and Other Taxes, and the full amount of Taxes of any kind imposed by any jurisdiction on amounts payable under this Section 7 imposed on or paid by such Buyer and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. The indemnity by Sellers provided for in this Section 7(c) shall apply and be made whether or not the Non-Excluded Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by Sellers under the indemnity set forth in this Section 7(c) shall be paid within ten (10) days from the date on which Buyer makes written demand therefor. (d) Within thirty (30) days after the date of any payment of Taxes, Sellers (or any Person making such payment on behalf of Sellers) shall furnish to Buyer for its own account a certified copy of the original official receipt evidencing payment thereof. For purposes of subsection (e) of this Section 7, the terms "United States" and "United States person" shall have the meanings specified in Section 7701 of the Internal Revenue Code. (e) Buyer (including for avoidance of doubt any assignee, successor or participant) that either (i) is not incorporated under the laws of the United States, any State thereof, or the District of Columbia or (ii) whose name does not include "Incorporated," "Inc.," "Corporation," "Corp.," "P.C.," "insurance company," or "assurance company" (a "Non-Exempt Buyer") shall deliver or cause to be delivered to Sellers the following properly completed and duly executed documents: (i) in the case of a Non-Exempt Buyer that is not a United States person, a complete and executed (x) U.S. Internal Revenue Form W-8BEN with Part II completed in which Buyer claims the benefits of a tax treaty with the United States providing for a zero or reduced rate of withholding (or any successor forms thereto), including all appropriate attachments or (y) a U.S. Internal Revenue Service Form W-8ECI (or any successor forms thereto); or (ii) in the case of an individual, (x) a complete and executed U.S. Internal Revenue Service Form W-8BEN (or any successor forms thereto) and a certificate substantially in the form of Exhibit F (a "Section 7 Certificate") or (y) a complete and executed U.S. Internal Revenue Service Form W-9 (or any successor forms thereto); or (iii) in the case of a Non-Exempt Buyer that is organized under the laws of the United States, any State thereof, or the District of Columbia, a complete and executed U.S. Internal Revenue Service Form W-9 (or any successor forms thereto), including all appropriate attachments; or 18 (iv) in the case of a Non-Exempt Buyer that (x) is not organized under the laws of the United States, any State thereof, or the District of Columbia and (y) is treated as a corporation for U.S. federal income tax purposes, a complete and executed U.S. Internal Revenue Service Form W-8BEN claiming a zero rate of withholding (or any successor forms thereto) and a Section 7 Certificate; or (v) in the case of a Non-Exempt Buyer that (A) is treated as a partnership or other non-corporate entity, and (B) is not organized under the laws of the United States, any State thereof, or the District of Columbia, (x)(i) a complete and executed U.S. Internal Revenue Service Form W-8IMY (or any successor forms thereto) (including all required documents and attachments) and (ii) a Section 7 Certificate, and (y) without duplication, with respect to each of its beneficial owners and the beneficial owners of such beneficial owners looking through chains of owners to individuals or entities that are treated as corporations for U.S. federal income tax purposes (all such owners, "beneficial owners"), the documents that would be required by clause (i), (ii), (iii), (iv), (vi), (vii) and/or this clause (v) with respect to each such beneficial owner if such beneficial owner were Buyer, provided, however, that no such documents will be required with respect to a beneficial owner to the extent the actual Buyer is determined to be in compliance with the requirements for certification on behalf of its beneficial owner as may be provided in applicable U.S. Treasury regulations, or the requirements of this clause (v) are otherwise determined to be unnecessary, all such determinations under this clause (v) to be made in the sole discretion of Sellers, provided, however, that Buyer shall be provided an opportunity to establish such compliance as reasonable; or (vi) in the case of a Non-Exempt Buyer that is disregarded for U.S. federal income tax purposes, the document that would be required by clause (i), (ii), (iii), (iv), (v), (vii) and/or this clause (vi) of this Section 7(e) with respect to its beneficial owner if such beneficial owner were Buyer; or (vii) in the case of a Non-Exempt Buyer that (A) is not a United States person and (B) is acting in the capacity as an "intermediary" (as defined in U.S. Treasury Regulations), (x)(i) a U.S. Internal Revenue Service Form W-8IMY (or any successor form thereto) (including all required documents and attachments) and (ii) a Section 7 Certificate, and (y) if the intermediary is a "non-qualified intermediary" (as defined in U.S. Treasury Regulations), from each person upon whose behalf the "non-qualified intermediary" is acting the documents that would be required by clause (i), (ii), (iii), (iv), (v), (vi), and/or this clause (vii) with respect to each such person if each such person were Buyer. If the forms referred to above in this Section 7(e) that are provided by Buyer at the time Buyer first becomes a party to this Agreement or, with respect to a grant of a participation, the effective date thereof, indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be treated as Taxes other than "Non-Excluded Taxes" ("Excluded Taxes") and shall not qualify as Non-Excluded Taxes unless and until Buyer provides the appropriate form certifying that a lesser rate applies, whereupon withholding tax at such lesser rate shall be considered Excluded Taxes solely for the periods governed by such form. If, however, on the date a Person becomes an assignee, successor or participant to this Agreement, Buyer transferor was entitled to indemnification or additional amounts under this Section 7, then Buyer assignee, successor or participant shall be entitled to indemnification or additional amounts to the extent (and only to the extent), that Buyer transferor was entitled to such indemnification or additional amounts for Non-Excluded Taxes, and Buyer assignee, successor or participant shall be entitled to additional indemnification or additional amounts for any other or additional Non-Excluded Taxes. (f) For any period with respect to which Buyer has failed to provide Sellers with the appropriate form, certificate or other document described in subsection (e) of this Section 7 (other than (i) if such failure is due to a change in any applicable Requirement of Law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was 19 required to be provided, (ii) if such form, certificate or other document otherwise is not required under subsection (e) of this Section 7, or (iii) if it is legally inadvisable or otherwise commercially disadvantageous for Buyer to deliver such form, certificate or other document), Buyer shall not be entitled to indemnification or additional amounts under subsection (a) or (c) of this Section 7 with respect to Non-Excluded Taxes imposed by the United States by reason of such failure; provided, however, that should Buyer become subject to Non-Excluded Taxes because of its failure to deliver a form, certificate or other document required hereunder, Sellers shall take such steps as Buyer shall reasonably request, to assist Buyer in recovering such Non-Excluded Taxes. (g) Without prejudice to the survival of any other agreement of Sellers hereunder, the agreements and obligations of Sellers contained in this Section 7 shall survive the termination of this Agreement. Nothing contained in this Section 7 shall require Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary. Section 8. Security Interest; Buyer's Appointment as Attorney-In-Fact (a) Security Interest. Although the parties intend that all Transactions hereunder be sales and purchases (other than for accounting and tax purposes) and not loans, in the event any such Transactions are deemed to be loans, Sellers hereby pledge to Buyer as security for the performance by Sellers of the Obligations and hereby grants, assigns and pledges to Buyer a fully perfected first priority security interest in the Purchased Mortgage Loans, the Records, and all servicing rights related to the Purchased Mortgage Loans, the Facility Documents (to the extent such Facility Documents and Sellers' right thereunder relate to the Purchased Mortgage Loans), any Property relating to any Purchased Mortgage Loan or the related Mortgaged Property, all insurance policies and insurance proceeds relating to any Purchased Mortgage Loan or the related Mortgaged Property, including but not limited to any payments or proceeds under any related primary insurance or hazard insurance, any Income relating to any Purchased Mortgage Loan and any contract rights, accounts (including any interest of Sellers in escrow accounts) and any other payments, rights to payment (including payments of interest or finance charges) and general intangibles to the extent that the foregoing relates to any Purchased Mortgage Loan and any other assets relating to the Purchased Mortgage Loans (including, without limitation, any other accounts) or any interest in the Purchased Mortgage Loans, all collateral under any other secured debt facility (including, without limitation, any facility documented as a repurchase agreement or similar purchase and sale agreement) between any Seller and/or its Affiliates on the one hand and Buyer and/or its Affiliates on the other, and any proceeds (including the related securitization proceeds) and distributions and any other property, rights, title or interests as are specified on a Trust Receipt and Mortgage Loan Schedule and Exception Report with respect to any of the foregoing, in all instances, whether now owned or hereafter acquired, now existing or hereafter created (collectively, the "Repurchase Assets"). Sellers hereby authorize Buyer to file such financing statement or statements relating to the Repurchase Assets as Buyer, at its option, may deem appropriate. Sellers shall pay the filing costs for any financing statement or statements prepared pursuant to this Section 8. (b) Buyer's Appointment as Attorney in Fact. Sellers hereby irrevocably constitute and appoint Buyer and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Sellers and in the name of Sellers or in its own name, from time to time in Buyer's discretion, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, Sellers hereby give Buyer the power and right, on behalf of Sellers, without assent by, but with notice to, Sellers, if an Event of Default shall have occurred and be continuing, to do the following: 20 (i) in the name of Sellers, or in its own name, or otherwise, to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due with respect to any other Repurchase Assets and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by Buyer for the purpose of collecting any and all such moneys due with respect to any other Repurchase Assets whenever payable; (ii) to pay or discharge taxes and Liens levied or placed on or threatened against the Repurchase Assets; (iii) (A) to direct any party liable for any payment under any Repurchase Assets to make payment of any and all moneys due or to become due thereunder directly to Buyer or as Buyer shall direct; (B) to ask or demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Repurchase Assets; (C) to sign and endorse any invoices, assignments, verifications, notices and other documents in connection with any Repurchase Assets; (D) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Repurchase Assets or any proceeds thereof and to enforce any other right in respect of any Repurchase Assets; (E) to defend any suit, action or proceeding brought against Sellers with respect to any Repurchase Assets; (F) to settle, compromise or adjust any suit, action or proceeding described in clause (E) above and, in connection therewith, to give such discharges or releases as Buyer may deem appropriate; and (G) generally, to sell, transfer, pledge and make any agreement with respect to or otherwise deal with any Repurchase Assets as fully and completely as though Buyer were the absolute owner thereof for all purposes, and to do, at Buyer's option and Sellers' expense, at any time, and from time to time, all acts and things which Buyer deems necessary to protect, preserve or realize upon the Repurchase Assets and Buyer's Liens thereon and to effect the intent of this Agreement, all as fully and effectively as Sellers might do. Sellers hereby ratify all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable. Sellers also authorize Buyer, if an Event of Default shall have occurred, from time to time, to execute, in connection with any sale provided for in Section 14 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Repurchase Assets. The powers conferred on Buyer hereunder are solely to protect Buyer's interests in the Repurchase Assets and shall not impose any duty upon it to exercise any such powers. Buyer shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to Sellers for any act or failure to act hereunder, except for its or their own gross negligence or willful misconduct. Section 9. Payment, Transfer and Custody (a) Unless otherwise mutually agreed in writing, all transfers of funds to be made by Sellers hereunder shall be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to Buyer at the following account maintained by Buyer: Account No. 40711421, for the account of Goldman Sachs Mortgage Company; Reference: American Home Mortgage Warehouse, Citibank, N.A., ABA No. 02100089, not later than 3:00 p.m. New York City time, on the date on which such payment shall become due (and each such payment made after such time shall be deemed to have been made on the next succeeding Business Day). Sellers acknowledge that they have no rights of withdrawal from the foregoing account. 21 (b) On the Purchase Date for each Transaction, ownership of the Purchased Mortgage Loans shall be transferred to Buyer or its designee against the simultaneous transfer of the Purchase Price to the following account of Sellers (or as otherwise directed by Sellers): Account No. [_________________], for the account of [_________________] [BANK], ABA No. [_________________], Attn: [_________________]. With respect to the Purchased Mortgage Loans being sold by any Seller on a Purchase Date, Sellers hereby sell, transfer, convey and assign to Buyer or its designee without recourse, but subject to the terms of this Agreement, all their respective right, title and interest in and to the Purchased Mortgage Loans together with all right, title and interest in and to the proceeds of any related Repurchase Assets. (c) In connection with such sale, transfer, conveyance and assignment, on or prior to each Purchase Date, Sellers shall deliver or cause to be delivered and released to Custodian the Mortgage File for the related Purchased Mortgage Loans. Section 10. Intentionally Omitted Section 11. Representations Sellers represent and warrant to Buyer that as any Purchase Date and as of the date of this Agreement and at all times while the Facility Documents and any Transaction hereunder is in full force and effect: (a) Acting as Principal. Sellers will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal). (b) No Broker. Sellers have not dealt with any broker, investment banker, agent, or other person, except for Buyer, who may be entitled to any commission or compensation in connection with the sale of Purchased Mortgage Loans pursuant to this Agreement. (c) Financial Statements. Guarantor has furnished to Buyer a copy of Guarantor's (a) consolidated balance sheet and the consolidated balance sheets of its consolidated Subsidiaries for the fiscal year ended December 31, 2004 and the related consolidated statements of income and retained earnings and of cash flows for Guarantor and its consolidated Subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous year, with the opinion thereon of Deloitte & Touche LLP and (b) consolidated balance sheet and the consolidated balance sheets of its consolidated Subsidiaries for the quarterly fiscal period(s) of Guarantor ended March 31, 2005 and June 30, 2005 and the related consolidated statements of income and retained earnings and of cash flows of Guarantor and its consolidated Subsidiaries for such quarterly fiscal period(s), setting forth in each case in comparative form the figures for the previous year. All such financial statements are complete and correct and fairly present, in all material respects, the consolidated financial condition of Guarantor and its Subsidiaries and the consolidated results of their operations as at such dates and for such fiscal periods, all in accordance with GAAP applied on a consistent basis. Since June 30, 2005, there has been no material adverse change in the consolidated business, operations or financial condition of Guarantor and its consolidated Subsidiaries taken as a whole from that set forth in said financial statements nor is Guarantor or Sellers aware of any state of facts which (without notice or the lapse of time) would or could result in any such material adverse change or could have a Material Adverse Effect and that Guarantor does not have, any liabilities, direct or indirect, fixed or contingent, matured or unmatured, known or unknown, or liabilities for taxes, long-term leases or unusual forward or long-term commitments not disclosed by, or reserved against in, said balance sheet and related statements, and at the present time there are no material unrealized or anticipated losses from any loans, advances or other commitments of Guarantor except as heretofore disclosed to Buyer in writing. 22 (d) Organization, Etc. AHMA is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland. AHMC is a corporation duly organized, validly existing and in good standing under the laws of the State of New York. Each Seller (a) has all requisite corporate or other power, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a Material Adverse Effect; (b) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary, except where failure so to qualify would not be reasonably likely (either individually or in the aggregate) to have a Material Adverse Effect; and (c) has full power and authority to execute, deliver and perform its obligations under the Facility Documents. (e) Authorization, Compliance, Etc. The execution and delivery of, and the performance by each Seller of its obligations under, the Facility Documents to which it is a party (a) are within such Seller's powers, (b) have been duly authorized by all requisite action, (c) do not violate any provision of applicable law, rule or regulation, or any order, writ, injunction or decree of any court or other Governmental Authority, or its organizational documents, (d) do not violate any indenture, agreement, document or instrument to which such Seller or any of its Subsidiaries is a party, or by which any of them or any of their Properties, any of the Repurchase Assets is bound or to which any of them is subject and (e) are not in conflict with, do not result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or except as may be provided by any Facility Document, result in the creation or imposition of any Lien upon any of the Property of such Seller or any of its Subsidiaries pursuant to, any such indenture, agreement, document or instrument. No Seller is required to obtain any consent, approval or authorization from, or to file any declaration or statement with, any Governmental Authority in connection with or as a condition to the consummation of the Transactions contemplated herein and the execution, delivery or performance of the Facility Documents to which it is a party. (f) Litigation. There are no actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting any Seller, Guarantor or any of their respective Subsidiaries or affecting any of the Repurchase Assets or any of the other Properties of Guarantor before any Governmental Authority which (i) questions or challenges the validity or enforceability of the Facility Documents or any action to be taken in connection with the transactions contemplated hereby, (ii) makes a claim or claims in an aggregate amount greater than $5,000,000, (iii) individually or in the aggregate, if adversely determined, would have a Material Adverse Effect, or (iv) requires filing with the SEC in accordance with its regulations. (g) Purchased Mortgage Loans. (i) Sellers have not assigned, pledged, or otherwise conveyed or encumbered any Purchased Mortgage Loan to any other Person, and immediately prior to the sale of any Mortgage Loan to Buyer, the applicable Seller was the sole owner of such Mortgage Loan and had good and marketable title thereto, free and clear of all Liens, in each case except for Liens to be released simultaneously with the sale to Buyer hereunder. (ii) The provisions of this Agreement are effective to either constitute a sale of Repurchase Assets to Buyer or to create in favor of Buyer a valid security interest in all right, title and interest of Sellers in, to and under the Repurchase Assets. (h) Chief Executive Office/Jurisdiction of Organization. On the Effective Date, Sellers' chief executive offices are, and have been, located at 538 Broadhollow Road, Melville, New York 11747. 23 AHMA's jurisdiction of organization is Maryland and AHMC's jurisdiction of organization is New York. (i) Location of Books and Records. The location where each Seller keeps its books and records, including all computer tapes and records related to the Repurchase Assets is its chief executive office. (j) Enforceability. This Agreement and all of the other Facility Documents executed and delivered by Guarantor and Sellers in connection herewith are legal, valid and binding obligations of Sellers and Guarantor and are enforceable against Sellers and Guarantor in accordance with their terms except as such enforceability may be limited by (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and (ii) general principles of equity. (k) Ability to Perform. No Seller believes, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in the Facility Documents to which it is a party on its part to be performed (l) No Default. No Default has occurred and is continuing. (m) Underwriting Guidelines. The Underwriting Guidelines are the true and correct underwriting guidelines of Sellers. (n) Adverse Selection. No Seller has selected the Purchased Mortgage Loans in a manner so as to adversely affect Buyer's interests. (o) Tangible Net Worth. Guarantor's Tangible Net Worth is greater than Six Hundred Eighty-Five Million Dollars ($685,000,000). (p) Accurate and Complete Disclosure. The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of any Seller and Guarantor to Buyer in connection with the negotiation, preparation or delivery of this Agreement and the other Facility Documents or included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of any Seller or Guarantor to Buyer in connection with this Agreement and the other Facility Documents and the transactions contemplated hereby and thereby including without limitation, the information set forth in the related Mortgage Loan Schedule, will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified. There is no fact known to Sellers, after due inquiry, that could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein, in the other Facility Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished to Buyer for use in connection with the transactions contemplated hereby or thereby. (q) Margin Regulations. The use of all funds acquired by Sellers under this Agreement will not conflict with or contravene any of Regulations T, U or X. (r) Investment Company. None of Sellers, Guarantor nor any of their respective Subsidiaries is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 24 (s) Solvency. As of the date hereof and immediately after giving effect to each Transaction, the fair value of the assets of each Seller and Guarantor is greater than the fair value of the liabilities (including, without limitation, contingent liabilities if and to the extent required to be recorded as a liability on the financial statements of any Seller or Guarantor in accordance with GAAP) of such Person and each Seller and Guarantor are solvent and, after giving effect to the transactions contemplated by this Agreement and the other Facility Documents, will not be rendered insolvent or left with an unreasonably small amount of capital with which to conduct its business and perform its obligations. No Seller or Guarantor intends to incur, nor does it believe that it has incurred, debts beyond its ability to pay such debts as they mature. No Seller or Guarantor is contemplating the commencement of an insolvency, bankruptcy, liquidation, or consolidation proceeding or the appointment of a receiver, liquidator, conservator, trustee, or similar official in respect of itself or any of its property. (t) ERISA. (i) No liability under Sections 4062, 4063, 4064 or 4069 of ERISA has been or is expected by to be incurred by any Seller or Guarantor or any of their respective ERISA Affiliates with respect to any Plan which is a Single-Employer Plan in an amount that could reasonably be expected to have a Material Adverse Effect. (ii) No Plan which is a Single-Employer Plan had an accumulated funding deficiency, whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof. No Seller or Guarantor nor any of their respective ERISA Affiliates is (A) required to give security to any Plan which is a Single-Employer Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA, or (B) subject to a Lien in favor of such a Plan under Section 412(n) of the Code or Section 302(f) of ERISA. (iii) Each Plan of Sellers, Guarantor, their respective Subsidiaries and ERISA Affiliates is in compliance with the applicable provisions of ERISA and the Code, except where the failure to comply would not result in any Material Adverse Effect. (iv) No Seller or Guarantor nor any of their respective Subsidiaries has incurred a tax liability under Chapter 43 of the Code or a penalty under Section 502 of ERISA which has not been paid in full, except where the incurrence of such tax or penalty would not result in a Material Adverse Effect. (v) No Seller or Guarantor nor any of their respective Subsidiaries nor any of their respective ERISA Affiliates has incurred or reasonably expects to incur any withdrawal liability under Section 4201 of ERISA as a result of a complete or partial withdrawal from a Multiemployer Plan in an amount that could reasonably be expected to have a Material Adverse Effect. (u) Taxes. Sellers and Guarantor and their respective Subsidiaries have timely filed all tax returns that are required to be filed by them and have timely paid all Taxes due, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. There are no Liens for Taxes, except for statutory liens for Taxes not yet due and payable. (v) No Reliance. Each Seller has made its own independent decisions to enter into the Facility Documents and each Transaction and as to whether such Transaction is appropriate and proper for it based upon its own judgment and upon advice from such advisors (including without limitation, legal counsel and accountants) as it has deemed necessary. No Seller is relying upon any advice from Buyer as to any aspect of the Transactions, including without limitation, the legal, accounting or tax treatment of such Transactions. 25 (w) Plan Assets. No Seller or Guarantor is an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code, and the Purchased Mortgage Loans are not "plan assets" within the meaning of 29 CFR ss.2510.3-101. (x) No Prohibited Persons. No Seller or Guarantor nor any of their respective Affiliates, officers, directors, partners or members, is a Person (or to Sellers' or Guarantor's knowledge, owned or controlled by a Person): (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 ("EO13224"); (ii) whose name appears on the United States Treasury Department's Office of Foreign Assets Control ("OFAC") most current list of "Specifically Designated National and Blocked Persons" (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf); (iii) who commits, threatens to commit or supports "terrorism", as that term is defined in EO13224; or (iv) who is otherwise affiliated with any Person listed above (any and all Persons described in clauses (i) through (iv) above are herein referred to as a "Prohibited Person"). Section 12. Covenants On and as of the date of this Agreement and each Purchase Date and at all times until this Agreement is no longer in force, Sellers covenant as follows: (a) Preservation of Existence; Compliance with Law. Each Seller and Guarantor shall: (i) Preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises necessary for the operation of its business; (ii) Comply with the requirements of all applicable laws, rules, regulations and orders, whether now in effect or hereafter enacted or promulgated by any applicable Governmental Authority (including, without limitation, all environmental laws); (iii) Maintain all licenses, permits or other approvals necessary for such Person to conduct its business and to perform its obligations under the Facility Documents, and shall conduct its business strictly in accordance with applicable law; (iv) Keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied; and (v) Permit representatives of Buyer, upon reasonable notice (unless an Event of Default shall have occurred and is continuing, in which case, no prior notice shall be required), during normal business hours, to examine, copy and make extracts from its books and records, to inspect any of its Properties, and to discuss its business and affairs with its officers, all to the extent reasonably requested by Buyer. (b) Taxes. Each Seller and Guarantor shall timely file all tax returns that are required to be filed by it and shall timely pay all Taxes due, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted with respect to which adequate reserves have been provided. (c) Notice of Proceedings or Adverse Change. Sellers shall give notice to Buyer immediately after any knowledge of: (i) the occurrence of any Default; 26 (ii) any (a) default or event of default under any Indebtedness of any Seller or Guarantor that is greater than $5,000,000 individually or in the aggregate or (b) litigation, investigation, regulatory action or proceeding that is pending or threatened by or against any Seller or Guarantor in any federal or state court or before any Governmental Authority which, if not cured or if adversely determined, would reasonably be expected to have a Material Adverse Effect or constitute a Default, and (c) any Material Adverse Effect with respect to any Seller or Guarantor; (iii) any litigation or proceeding that is pending or threatened against (a) Sellers in which the amount involved exceeds $5,000,000 and is not covered by insurance, in which injunctive or similar relief is sought, or which, would reasonably be expected to have a Material Adverse Effect and (b) any litigation or proceeding that is pending or threatened in connection with any of the Repurchase Assets, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect; (iv) and, as soon as reasonably possible, notice of any of the following events: (A) a change in the insurance coverage of Sellers or Guarantor, with a copy of evidence of same attached; (B) any material change in accounting policies or financial reporting practices of Sellers or Guarantor; (C) promptly upon receipt of notice or knowledge of any Lien or security interest (other than security interests created hereby or under any other Facility Document) on, or claim asserted against, any of the Repurchase Assets; and (D) any other event, circumstance or condition that has resulted, or has a possibility of resulting, in a Material Adverse Effect. (d) Financial Reporting. Sellers and Guarantor shall maintain a system of accounting established and administered in accordance with GAAP, and furnish to Buyer promptly, from time to time, such other information regarding the business affairs, operations and financial condition of Sellers and Guarantor as Buyer may reasonably request. (e) Visitation and Inspection Rights. Each Seller permit Buyer to inspect, and take all other reasonable actions permitted under Section 17 hereof. (f) Reimbursement of Expenses. Each Seller shall promptly reimburse Buyer for all expenses as the same are incurred by Buyer as required by Section 15(b) hereof. (g) Further Assurances. Sellers shall execute and deliver to Buyer all further documents, financing statements, agreements and instruments, and take all further action that may be required under applicable law, or that Buyer may reasonably request, in order to effectuate the transactions contemplated by this Agreement and the Facility Documents or, without limiting any of the foregoing, to grant, preserve, protect and perfect the validity and first-priority of the security interests created or intended to be created hereby. Sellers shall do all things necessary to preserve the Repurchase Assets so that they remain subject to a first priority perfected security interest hereunder. Without limiting the foregoing, Sellers and Guarantor will comply with all rules, regulations, and other laws of any Governmental Authority and cause the Repurchase Assets to comply with all applicable rules, regulations and other laws. Sellers shall fully perform or cause to be performed when due all of its obligations under any Repurchase Assets or the Facility Documents. 27 (h) True and Correct Information. All information, reports, exhibits, schedules, financial statements or certificates of each Seller, Guarantor or any of their respective Affiliates or any of their officers furnished to Buyer hereunder and during Buyer's diligence of Sellers and/or Guarantor are and will be true and complete and do not omit to disclose any material facts necessary to make the statements therein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements, information and reports delivered by Sellers and/or Guarantor to Buyer pursuant to the Facility Documents shall be prepared in accordance with GAAP, or in the case of SEC filings, the appropriate SEC accounting requirements. (i) ERISA Events. (i) Promptly upon becoming aware of the occurrence of any Event of ERISA Termination which together with all other Events of ERISA Termination occurring within the prior 12 months involve a payment of money by or a potential aggregate liability of Sellers or Guarantor or any of their respective ERISA Affiliates or any combination of such Persons in excess of $1,000,000, Sellers shall give Buyer a written notice specifying the nature thereof, what action Sellers or Guarantor or any of their respective ERISA Affiliates has taken and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto. (ii) Promptly upon receipt thereof, Sellers shall furnish to Buyer copies of (i) all notices received by Sellers or Guarantor or any of their respective ERISA Affiliates of the PBGC's intent to terminate any Plan or to have a trustee appointed to administer any Plan; (ii) all notices received by Sellers or Guarantor or any of their respective ERISA Affiliates from the sponsor of a Multiemployer Plan pursuant to Section 4202 of ERISA involving withdrawal liability in excess of $1,000,000; and (iii) all funding waiver requests filed by any Seller or Guarantor or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to any Plan, the accrued benefits of which exceed the present value of the plan assets as of the date the waiver request is filed, and all communications received by any Seller or Guarantor any their respective ERISA Affiliates from the Internal Revenue Service with respect to any such funding waiver request. (j) No Adverse Selection. Sellers shall not select Eligible Mortgage Loans to be sold to Buyer as Purchased Mortgage Loans using any type of adverse selection or other selection criteria which would adversely affect Buyer. (k) Servicer Approval. Sellers shall not cause the Mortgage Loans to be serviced by any servicer other than a servicer expressly approved in writing by Buyer, which approval shall be deemed granted by Buyer with respect to Servicer with the execution of this Agreement. (l) Books and Records. Sellers shall, to the extent practicable, maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Repurchase Assets in the event of the destruction of the originals thereof), and keep and maintain or obtain, as and when required, all documents, books, records and other information reasonably necessary or advisable for the collection of all Repurchase Assets. (m) Illegal Activities. No Seller or Guarantor shall engage in any conduct or activity that could subject its assets to forfeiture or seizure. (n) Material Change in Business. No Seller or Guarantor shall make any material change in the nature of its business as carried on at the date hereof. 28 (o) Disposition of Assets; Liens. No Seller shall create, incur, assume or suffer to exist any Lien of any nature whatsoever on any of the Repurchase Assets, whether real, personal or mixed, now or hereafter owned, other than the Liens created in connection with the transactions contemplated by this Agreement; nor shall Sellers cause any of the Purchased Mortgage Loans to be sold, pledged, assigned or transferred. (p) Transactions with Affiliates. No Seller shall enter into any transaction, including, without limitation, the purchase, sale, lease or exchange of property or assets or the rendering or accepting of any service with any Affiliate, unless such transaction is (a) not otherwise prohibited in this Agreement, (b) in the ordinary course of such Seller's business and (c) upon fair and reasonable terms no less favorable to such Seller, as the case may be, than it would obtain in a comparable arm's length transaction with a Person which is not an Affiliate. (q) ERISA Matters. (i) No Seller shall permit any event or condition which is described in the definition of "Event of ERISA Termination" to occur or exist with respect to any Plan or Multiemployer Plan if such event or condition, together with all other events or conditions described in the definition of Event of ERISA Termination occurring within the prior 12 months, involves the payment of money by or an incurrence of liability of Sellers or any ERISA Affiliate thereof, or any combination of such entities in an amount in excess of $1,000,000. (ii) No Seller shall be an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code and Sellers shall not use "plan assets" within the meaning of 29 CFR ss.2510.3-101 to engage in this Agreement or the Transactions hereunder. (r) Consolidations, Mergers and Sales of Assets. No Seller shall (i) consolidate or merge with or into any other Person or (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person; provided that a Seller may merge or consolidate with another Person if such Seller is the corporation surviving such merger. (s) Guarantees. No Seller shall create, incur, assume or suffer to exist any Guarantees, except to the extent reflected in such Seller's financial statements or notes thereto. (t) Servicing Tape. Sellers shall each provide (or cause Servicer to provide) to Buyer on the fifth Business Day of each month a computer readable file containing servicing information, including without limitation, a Mortgage Loan Schedule, details of Income, remittance monies, collection performance, delinquencies, expected dispositions and sales, and such other fields specified by Buyer from time to time, on a Repurchase Asset by Repurchase Asset basis and in the aggregate, with respect to the Repurchase Assets serviced hereunder by Servicer. (u) Underwriting Guidelines No Seller shall amend or otherwise modify the Underwriting Guidelines in any material respect without the prior written consent of Buyer, not to be unreasonably withheld. Without limiting the foregoing, in the event that Seller makes any amendment or modification to the Underwriting Guidelines, such Seller shall promptly deliver to Buyer a complete copy of the amended or modified Underwriting Guidelines. Section 13. Events of Default If any of the following events (each an "Event of Default") occur, Sellers and Buyer shall have the rights set forth in Section 14, as applicable: 29 (a) Payment Default. Sellers shall default in (i) the payment of any Periodic Advance Payment, Repurchase Price or Price Differential with respect to any Transaction when due (whether at stated maturity, upon acceleration or at mandatory or optional prepayment); or (ii) the payment of any other Obligations, when the same shall become due and payable, whether at the due date thereof, or by acceleration or otherwise; or (b) Representation and Warranty Breach. Any representation, warranty or certification made or deemed made herein or in any other Facility Document by Sellers or Guarantor or any certificate furnished to Buyer pursuant to the provisions hereof or thereof or any information with respect to the Mortgage Loans furnished in writing by on behalf of Sellers shall prove to have been untrue or misleading in any material respect as of the time made or furnished (other than the representations and warranties set forth in Schedule 1, which shall be considered solely for the purpose of determining the Market Value of the Purchased Mortgage Loans; unless (i) Sellers shall have made any such representations and warranties with actual knowledge that they were materially false or misleading at the time made; or (ii) any such representations and warranties have been determined in good faith by Buyer in its sole discretion to be materially false or misleading on a regular basis); or (c) Immediate Covenant Default. The failure of any Seller to perform, comply with or observe any term, covenant or agreement applicable to Sellers contained in any of Sections 12(a), (j), (l), (p) (q) or (r); or (d) Additional Covenant Defaults. Any Seller shall fail to observe or perform any other covenant or agreement contained in this Agreement (and not identified in clause (c) of Section 13.01) or any other Facility Document, and if such default shall be capable of being remedied, and such failure to observe or perform shall continue unremedied for a period of three (3) Business Days; or (e) Judgments. A judgment or judgments for the payment of money in excess of $5,000,000 in the aggregate shall be rendered against any Seller or Guarantor or any of their respective Affiliates by one or more courts, administrative tribunals or other bodies having jurisdiction and the same shall not be satisfied, discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within 30 days from the date of entry thereof, and such Person(s) shall not, within said period of 30 days, or such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal; or (f) Cross-Default. (i) Any Seller, Guarantor or any of their respective Affiliates shall be in default under any Indebtedness or any other contract to which it is a party, which default involves Indebtedness or an obligation in excess of $5,000,000; or (ii) Any Seller, Guarantor or any of their respective Affiliates shall be in default under any GS Indebtedness or other agreement with Buyer and/or its Affiliates, which default involves GS Indebtedness or an obligation in excess of $250,000; or (g) Insolvency Event. An Insolvency Event shall have occurred with respect to any Seller or Guarantor; or (h) Enforceability. For any reason, any Facility Document at any time shall not be in full force and effect in all material respects or shall not be enforceable in all material respects in accordance with its respective terms, or any Lien granted pursuant thereto shall fail to be perfected and of first priority, or any Person (other than Buyer) shall contest the validity, enforceability, perfection or priority 30 of any Lien granted pursuant thereto, or any party thereto (other than Buyer) shall seek to disaffirm, terminate, limit or reduce its obligations hereunder; or (i) Liens. Any Seller shall grant, or suffer to exist, any Lien on any Repurchase Asset (except any Lien in favor of Buyer); or at least one of the following fails to be true (A) the Repurchase Assets shall not have been sold to Buyer, or (B) the Liens contemplated hereby shall cease or fail to be first priority perfected Liens on any Repurchase Assets in favor of Buyer or shall be Liens in favor of any Person other than Buyer; or (j) Material Adverse Change. Any material adverse change in the Property, business, prospects, financial condition or operations of Guarantor, any Seller or any of their respective Affiliates shall occur, in each case as determined by Buyer in its sole good faith discretion, or any other condition shall exist which, in Buyer's sole good faith discretion, constitutes a material impairment of such Person's ability to perform its obligations under this Agreement or any other Facility Document; or (k) ERISA. (i) any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any Seller, Guarantor or any of their respective ERISA Affiliates, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of Buyer, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Plan shall terminate for purposes of Title IV of ERISA, (v) any Seller, Guarantor or any of their respective ERISA Affiliates shall, or in the reasonable opinion of Buyer be likely to, incur any liability in connection with a withdrawal from, or the insolvency or reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect; or (l) Change of Control. A Change of Control of any Seller shall have occurred. Section 14. Remedies (a) If an Event of Default occurs, the following rights and remedies are available to Buyer; provided, that an Event of Default shall be deemed to be continuing unless expressly waived by Buyer in writing. (i) At the option of Buyer, exercised by prior written notice to Sellers (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Insolvency Event of any Seller), the Repurchase Date for each Transaction hereunder, if it has not already occurred, shall be deemed immediately to occur. Buyer shall (except upon the occurrence of an Insolvency Event of any Seller) give prior written notice to such Seller of the exercise of such option as promptly as practicable. (ii) If Buyer exercises or is deemed to have exercised the option referred to in subsection (a)(i) of this Section, (A) Sellers' obligations in such Transactions to repurchase all Purchased Mortgage Loans, at the Repurchase Price therefor on the Repurchase Date determined in accordance with subsection (a)(i) of this Section, (1) shall thereupon become immediately due 31 and payable and (2) all Income received by Buyer after such exercise or deemed exercise shall be retained by Buyer and applied to reduce the amounts that comprise the Obligations in any manner that it shall elect; and (B) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of, on a 360 day per year basis for the actual number of days during the period from and including the date of the exercise or deemed exercise of such option to but excluding the date of payment of the Repurchase Price as so increased, (x) the Post-Default Rate in effect following an Event of Default to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subsection (a)(i) of this Section (decreased as of any day by (i) any amounts actually in the possession of Buyer pursuant to clause (C) of this subsection, and (ii) any proceeds from the sale of Purchased Mortgage Loans applied to the Repurchase Price pursuant to subsection (a)(iv) of this Section. (iii) Upon the occurrence of an Events of Default, Buyer shall have the right to obtain physical possession of all files of Sellers relating to the Purchased Mortgage Loans and the Repurchase Assets and all documents relating to the Purchased Mortgage Loans which are then or may thereafter come in to the possession of Sellers or any third party acting for such Seller (including, without limitation, Servicer) and Sellers shall deliver to Buyer such assignments as Buyer shall request. Buyer shall be entitled to specific performance of all agreements of Sellers contained in the Facility Documents. (iv) At any time on the Business Day following notice to Sellers (which notice may be the notice given under subsection (a)(i) of this Section), in the event Sellers have not repurchased all Purchased Mortgage Loans, Buyer may (A) immediately sell, without demand or further notice of any kind, at a public or private sale and at such price or prices as Buyer may deem satisfactory any or all Purchased Mortgage Loans and the Repurchase Assets subject to a such Transactions hereunder and apply the proceeds thereof to the Obligations in any manner that it shall elect or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give Sellers credit for such Purchased Mortgage Loans and the Repurchase Assets in an amount equal to the Market Value of the Purchased Mortgage Loans against the Obligations in any manner that it shall elect. The proceeds of any disposition of Purchased Mortgage Loans and the Repurchase Assets shall be applied as determined by Buyer in its sole discretion. (v) Sellers shall be liable to Buyer for (i) the amount of all reasonable legal or other expenses (including, without limitation, all costs and expenses of Buyer in connection with the enforcement of this Agreement or any other agreement evidencing a Transaction, whether in action, suit or litigation or bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally, further including, without limitation, the reasonable fees and expenses of counsel (including the costs of internal counsel of Buyer) incurred in connection with or as a result of an Event of Default, (ii) damages in an amount equal to the cost (including all fees, expenses and commissions) of entering into replacement transactions and entering into or terminating hedge transactions in connection with or as a result of an Event of Default, and (iii) any other loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default in respect of a Transaction. (vi) Buyer shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law. (b) Buyer may exercise one or more of the remedies available hereunder immediately upon the occurrence of an Event of Default and at any time thereafter without notice to Sellers. All rights and 32 remedies arising under this Agreement are cumulative and not exclusive of any other rights or remedies which Buyer may have. (c) Buyer may enforce its rights and remedies hereunder without prior judicial process or hearing, and Sellers hereby expressly waives any defenses Sellers might otherwise have to require Buyer to enforce its rights by judicial process. Sellers also waive any defense (other than a defense of payment or performance) Sellers might otherwise have arising from the use of nonjudicial process, enforcement and sale of all or any portion of the Repurchase Assets, or from any other election of remedies. Sellers recognize that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm's length. (d) To the extent permitted by applicable law, Sellers shall be liable to Buyer for interest on any amounts owing by such Seller hereunder, from the date Sellers becomes liable for such amounts hereunder until such amounts are (i) paid in full by Sellers or (ii) satisfied in full by the exercise of Buyer's rights hereunder. Interest on any sum payable by the Sellers to Buyer under this paragraph 14(d) shall be at a rate equal to the Post-Default Rate. Section 15. Indemnification and Expenses; Recourse (a) Sellers agrees to hold Buyer, and its Affiliates and their respective direct and indirect partners, shareholders, members, officers, directors, employees, agents and advisors (each an "Indemnified Party") harmless from and indemnify any Indemnified Party against all liabilities, losses, damages, judgments, costs and expenses of any kind which may be imposed on, incurred by or asserted against such Indemnified Party (collectively, "Costs"), relating to or arising out of this Agreement, any other Facility Document or any transaction contemplated hereby or thereby, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, any other Facility Document or any transaction contemplated hereby or thereby, that, in each case, results from anything other than the Indemnified Party's gross negligence or willful misconduct. Without limiting the generality of the foregoing, Sellers agree to hold any Indemnified Party harmless from and indemnify such Indemnified Party against all Costs with respect to all Mortgage Loans relating to or arising out of any taxes incurred or assessed in connection with the ownership of the Mortgage Loans, that, in each case, results from anything other than the Indemnified Party's gross negligence or willful misconduct. In any suit, proceeding or action brought by an Indemnified Party in connection with any Mortgage Loan for any sum owing thereunder, or to enforce any provisions of any Mortgage Loan, Sellers will save, indemnify and hold such Indemnified Party harmless from and against all expense, loss or damage suffered by reason of any defense, set off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by any Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from any Seller. Sellers also agree to reimburse an Indemnified Party as and when billed by such Indemnified Party for all the Indemnified Party's costs and expenses incurred in connection with the enforcement or the preservation of Buyer's rights under this Agreement, any other Facility Document or any transaction contemplated hereby or thereby, including without limitation the reasonable fees and disbursements of its outside counsel. (b) Sellers agree to pay as and when billed by Buyer all present and future reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement, any other Facility Document. Sellers agrees to pay as and when billed by Buyer all of the reasonable out-of-pocket costs and expenses incurred in connection with the consummation and administration of the transactions contemplated hereby and thereby including without limitation filing fees and all the reasonable fees, disbursements and expenses of outside counsel to Buyer which amount may, at Buyer's option, be 33 deducted from the Purchase Price paid for the first Transaction hereunder. Subject to the limitations set forth in Section 17 hereof, Sellers agree to pay Buyer all the reasonable out of pocket due diligence, inspection, testing and review costs and expenses incurred by Buyer with respect to Mortgage Loans submitted by Sellers for purchase under this Agreement, including, but not limited to, those out of pocket costs and expenses incurred by Buyer pursuant to Sections 15(b) and 17 hereof. (c) Sellers hereby acknowledge that the Obligations are recourse obligations of Sellers. Section 16. Servicing (a) Sellers, on Buyer's behalf, shall contract with Servicer to service the Purchased Mortgage Loans consistent with the degree of skill and care that Sellers customarily require with respect to Mortgage Loans owned or managed by it and in accordance with Accepted Servicing Practices. Servicer shall (i) comply with all applicable Requirements of Law, (ii) maintain all state and federal licenses necessary for it to perform its servicing responsibilities hereunder and (iii) not impair the rights of Buyer in any Mortgage Loans or any payment thereunder. Buyer may terminate the servicing of any Mortgage Loan with the then existing servicer in accordance with Section 16(d) hereof. (b) Each Seller shall cause Servicer to hold or cause to be held all escrow funds collected by Sellers with respect to any Purchased Mortgage Loans in trust accounts and shall apply the same for the purposes for which such funds were collected. (c) Sellers shall provide a Servicer Notice to the Servicer substantially in the form of Exhibit E hereto (a "Servicer Notice") and shall cause Servicer to acknowledge and agree to the same. Any successor or assignee of a Servicer shall be approved in writing by Buyer and shall acknowledge and agree to a Servicer Notice prior to such successor's assumption of servicing obligations with respect to the Repurchase Assets. (d) Upon the occurrence of a Event of Default, Buyer shall have the right to immediately terminate Servicer's right to service the Purchased Mortgage Loans without payment of any penalty or termination fee. Sellers shall cooperate in transferring the servicing of the Purchased Mortgage Loans to a successor servicer appointed by Buyer in its sole discretion. (e) If Sellers should discover that, for any reason whatsoever, any Person responsible to Sellers by contract for managing or servicing any such Purchased Mortgage Loan has failed to perform fully such Seller's obligations under the Facility Documents or any of the obligations of such entities with respect to the Purchased Mortgage Loans, such Seller shall promptly notify Buyer. (f) Sellers shall cause the Servicer to permit Buyer from time to time to inspect Servicer's servicing facilities, as the case may be, for the purpose of satisfying Buyer that Servicer has the ability to service the Purchased Mortgage Loans as provided in this Agreement. (g) After the Purchase Date with respect to a Transaction and until the Repurchase Date applicable thereto, Sellers shall have no right to modify or alter the terms of such Purchased Mortgage Loan and Sellers will have no obligation or right to repossess such Transaction Asset or substitute another Transaction Asset, except as provided in the Custodial Agreement. Section 17. Due Diligence (a) Sellers acknowledge that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Sellers and Guarantor, for purposes of verifying compliance with the 34 representations, warranties and specifications made hereunder, or otherwise, and Sellers agree that upon reasonable prior notice to Sellers unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Servicer, Sellers and/or Custodian. Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, each Seller acknowledges that Buyer may purchase Mortgage Loans from Sellers based solely upon the information provided by Sellers to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker's price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Sellers. Each Seller further agrees that Sellers shall pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer's activities pursuant to this Section 17 ("Due Diligence Costs"). Section 18. Assignability (a) The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by any Seller without the prior written consent of Buyer. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement. Subject to the following sentence, Buyer may from time to time assign all or a portion of its rights and obligations under this Agreement and the Facility Documents pursuant to an executed assignment and acceptance by Buyer and assignee ("Assignment and Acceptance"), specifying the percentage or portion of such rights and obligations assigned. Notwithstanding the preceding sentence, if such assignment is to a Person that is not an Affiliate of Buyer and no Default shall have occurred and be continuing, any such assignment shall be subject to the prior written consent of Sellers, which consent shall not be unreasonably withheld, delayed or conditioned. Upon such assignment, (a) such assignee shall be a party hereto and to each Facility Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Facility Documents. Unless otherwise stated in the Assignment and Acceptance, each Seller shall continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Sellers. (b) Buyer may sell participations to one or more Persons in or to all or a portion of its rights and obligations under this Agreement; provided, however, that (i) Buyer's obligations under this Agreement shall remain unchanged, (ii) Buyer shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) each Seller shall continue to deal solely and directly 35 with Buyer in connection with Buyer's rights and obligations under this Agreement and the other Facility Documents except as provided in Section 7. (c) Buyer may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 18, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to Sellers, Guarantor or any of their respective Subsidiaries or to any aspect of the Transactions that has been furnished to Buyer by or on behalf of Sellers or any of their respective Subsidiaries; provided that such assignee or participant agrees in writing to hold such information subject to the confidentiality provisions of this Agreement. (d) In the event Buyer assigns all or a portion of its rights and obligations under this Agreement, the parties hereto agree to negotiate in good faith an amendment to this Agreement to add agency provisions similar to those included in repurchase agreements for similar syndicated repurchase facilities. Section 19. Transfer and Maintenance of Register (a) Subject to acceptance and recording thereof pursuant to paragraph (b) of this Section 19, from and after the effective date specified in each Assignment and Acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of Buyer under this Agreement. Any assignment or transfer by Buyer of rights or obligations under this Agreement that does not comply with this Section 19 shall be treated for purposes of this Agreement as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 19(b) hereof. (b) Each Seller shall maintain a register (the "Register") on which it will record Buyer's rights hereunder, and each Assignment and Acceptance and participation. The Register shall include the names and addresses of Buyer (including all assignees, successors and participants) and the percentage or portion of such rights and obligations assigned. Failure to make any such recordation, or any error in such recordation shall not affect Sellers' obligations in respect of such rights. If Buyer sells a participation in its rights hereunder, it shall provide Sellers, or maintain as agent of such Seller, the information described in this paragraph and permit such Seller to review such information as reasonably needed for such Seller to comply with its obligations under this Agreement or under any applicable Requirement of Law. Section 20. Hypothecation or Pledge of Purchased Mortgage Loans Title to all Purchased Mortgage Loans and Repurchase Assets shall pass to Buyer and Buyer shall have free and unrestricted use of all Purchased Mortgage Loans. Nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with the Purchased Mortgage Loans or otherwise pledging, repledging, transferring, hypothecating, or rehypothecating the Purchased Mortgage Loans. Nothing contained in this Agreement shall obligate Buyer to segregate any Purchased Mortgage Loans delivered to Buyer by a Seller. Section 21. Tax Treatment Each party to this Agreement acknowledges that it is its intent for purposes of U.S. federal, state and local income and franchise taxes, to treat each Transaction as indebtedness of Sellers that is secured by the Purchased Mortgage Loans and that the Purchased Mortgage Loans are owned by Sellers in the absence of a Default by Sellers. All parties to this Agreement agree to such treatment and agree to take no action inconsistent with this treatment, unless required by law. 36 Section 22. Set-Off In addition to any rights and remedies of Buyer hereunder and by law, Buyer shall have the right, without prior notice to Sellers, any such notice being expressly waived by each Seller to the extent permitted by applicable law, upon any amount becoming due and payable by Sellers hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Buyer and/or any of its Affiliate to or for the credit or the account of Sellers, Guarantor or any of their respective Affiliates. Buyer agrees promptly to notify Sellers after any such set off and application made by Buyer; provided that the failure to give such notice shall not affect the validity of such set off and application. Section 23. Terminability Sellers acknowledge that: (a) each representation and warranty made or deemed to be made by entering into a Transaction, herein or pursuant hereto shall survive the making of such representation and warranty, notwithstanding the payment of the Repurchase Price with respect thereto or the termination of any of the Facility Documents; (b) Buyer shall not be deemed to have waived any Default that may arise because any representation or warranty shall have proved to be false or misleading, notwithstanding that Buyer may have had notice or knowledge or reason to believe that such representation or warranty was false or misleading at the time the Transaction was made; and (c) the covenants contained in this Agreement, including without limitation, the obligations of each Seller under Section 15 hereof, shall survive the termination of this Agreement. Section 24. Notices and Other Communications Except as otherwise expressly permitted by this Agreement, all notices, requests and other communications provided for herein (including without limitation any modifications of, or waivers, requests or consents under, this Agreement) shall be given or made in writing (including without limitation by telecopy) delivered to the intended recipient at the "Address for Notices" specified below its name on the signature pages hereof or thereof); or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. Except as otherwise provided in this Agreement and except for notices given under Section 3 (which shall be effective only on receipt), all such communications shall be deemed to have been duly given when transmitted by telecopy or personally delivered or, in the case of a notice sent by mail or courier, upon receipt or refusal, in each case given or addressed as aforesaid. Section 25. Entire Agreement; Severability; Single Agreement This Agreement, together with the Facility Documents, constitute the entire understanding between Buyer and Sellers with respect to the subject matter they cover and shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions involving Purchased Mortgage Loans. By acceptance of this Agreement, Buyer and each Seller acknowledge that they have not made, and are not relying upon, any statements, representations, promises or undertakings not contained in this Agreement. Each provision and agreement herein shall be treated as 37 separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. Buyer and each Seller acknowledges that, and have entered hereinto and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and that each has been entered into in consideration of the other Transactions. Accordingly, each of Buyer and each Seller agree (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transaction hereunder; (iii) that payments, deliveries, and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries, and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries, and other transfers may be applied against each other and netted and (iv) to promptly provide notice to the other after any such set off or application. Section 26. Governing Law THIS REPURCHASE AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. Section 27. Submission to Jurisdiction; Waivers BUYER AND EACH SELLER HEREBY IRREVOCABLY AND UNCONDITIONALLY: (i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS REPURCHASE AGREEMENT AND THE OTHER FACILITY DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF; (ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; (iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE BUYER SHALL HAVE BEEN NOTIFIED; AND (iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION. 38 (v) THE BUYER AND EACH SELLER HEREBY IRREVOCABLY WAIVE, 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 REPURCHASE AGREEMENT, ANY OTHER FACILITY DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. Section 28. No Waivers, Etc. No failure on the part of Buyer to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under any Facility Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under any Facility Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. Section 29. Netting If Buyer and Sellers are "financial institutions" as now or hereinafter defined in Section 4402 of Title 12 of the United States Code ("Section 4402") and any rules or regulations promulgated thereunder, (a) All amounts to be paid or advanced by one party to or on behalf of the other under this Agreement or any Transaction hereunder shall be deemed to be "payment obligations" and all amounts to be received by or on behalf of one party from the other under this Agreement or any Transaction hereunder shall be deemed to be "payment entitlements" within the meaning of Section 4402, and this Agreement shall be deemed to be a "netting contract" as defined in Section 4402. (b) The payment obligations and the payment entitlements of the parties hereto pursuant to this Agreement and any Transaction hereunder shall be netted as follows. In the event that either party (the "Defaulting Party") shall fail to honor any payment obligation under this Agreement or any Transaction hereunder, the other party (the "Nondefaulting Party") shall be entitled to reduce the amount of any payment to be made by the Nondefaulting Party to the Defaulting Party by the amount of the payment obligation that the Defaulting Party failed to honor. Section 30. Confidentiality Buyer and each Seller hereby acknowledge and agree that all information provided by one party to any other regarding the terms set forth in any of the Facility Documents or the Transactions contemplated thereby (the "Confidential Terms") shall be kept confidential and shall not be divulged to any party without the prior written consent of such other party except to the extent that (i) it is necessary to do so in working with legal counsel, auditors, taxing authorities or other governmental agencies or regulatory bodies or in order to comply with any applicable federal or state laws, (ii) any of the Confidential Terms are in the public domain other than due to a breach of this covenant, or (iii) in the event of an Event of Default Buyer determines such information to be necessary or desirable to disclose in connection with the marketing and sales of the Purchased Mortgage Loans or otherwise to enforce or exercise Buyer's rights hereunder. Notwithstanding the foregoing or anything to the contrary contained herein or in any other Facility Document, the parties hereto may disclose to any and all Persons, without limitation of any kind, the federal, state and local tax treatment of the Transactions, any fact relevant to understanding the federal, state and local tax treatment of the Transactions, and all materials of any kind (including opinions or other tax analyses) relating to such federal, state and local tax treatment and that may be relevant to understanding such tax treatment; provided that Sellers may not disclose the name of or identifying information with respect to Buyer or any pricing terms (including, without limitation, the 39 Pricing Rate, Purchase Price Percentage and Purchase Price) or other nonpublic business or financial information that is unrelated to the federal, state and local tax treatment of the Transactions and is not relevant to understanding the federal, state and local tax treatment of the Transactions, without the prior written consent of Buyer. The provisions set forth in this Section 30 shall survive the termination of this Agreement. Section 31. Intent (a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Mortgage Loans subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable). (b) It is understood that either party's right to liquidate Mortgage Loans delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Section 14 hereof is a contractual right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. (c) The parties agree and acknowledge that if a party hereto is an "insured depository institution," as such term is defined in the Federal Deposit Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a "qualified financial contract," as that term is defined in FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable). (d) It is understood that this Agreement constitutes a "netting contract" as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") and each payment entitlement and payment obligation under any Transaction hereunder shall constitute a "covered contractual payment entitlement" or "covered contractual payment obligation", respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a "financial institution" as that term is defined in FDICIA). (e) This Agreement is intended to be a "repurchase agreement" and a "securities contract," within the meaning of Section 555 and Section 559 under the Bankruptcy Code. Section 32. Disclosure Relating to Certain Federal Protections The parties acknowledge that they have been advised that: (a) in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission ("SEC") under Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other party with respect to any Transaction hereunder; (b) in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and 40 (c) in the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable. Section 33. Intentionally Omitted Section 34. Acknowledgement of Anti-Predatory Lending Policies Sellers acknowledge that they have been informed that Buyer has in place internal policies and procedures that expressly prohibit its purchase of any High Cost Mortgage Loan. Section 35. Miscellaneous (a) Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. (b) Captions. The captions and headings appearing herein are for included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement. (c) Acknowledgment. Each Seller hereby acknowledges that: (i) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Facility Documents; (ii) Buyer has no fiduciary relationship to either Seller; and (iii) no joint venture exists between Buyer and either Seller. (d) Documents Mutually Drafted. Each Seller and Buyer agree that this Agreement each other Facility Document prepared in connection with the Transactions set forth herein have been mutually drafted and negotiated by each party, and consequently such documents shall not be construed against either party as the drafter thereof. Section 36. Joint and Several Liability. Each Seller hereby acknowledges and agrees that such Seller shall be jointly and severally liable to Buyer for all representations, warranties, covenants, obligations and indemnities of Sellers hereunder. Section 37. General Interpretive Principles For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Agreement have the meanings assigned to them in this Agreement and include the plural as well as the singular, and the use of any gender herein shall be deemed to include the other gender; (b) accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; 41 (c) references herein to "Articles", "Sections", "Subsections", "Paragraphs", and other subdivisions without reference to a document are to designated Articles, Sections, Subsections, Paragraphs and other subdivisions of this Agreement; (d) a reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions; (e) the words "herein", "hereof", "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular provision; (f) the term "include" or "including" shall mean without limitation by reason of enumeration; and (g) all times specified herein or in any other Facility Document (unless expressly specified otherwise) are local times in New York, New York unless otherwise stated. [THIS SPACE INTENTIONALLY LEFT BLANK] 42 IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date set forth above. SELLERS: AMERICAN HOME MORTGAGE ACCEPTANCE, INC., Address for Notices to Sellers: a Maryland corporation American Home Mortgage Acceptance, Inc. American Home Mortgage Corp. By: /s/ Stephen A. Hozie 538 Broadhollow Road --------------------- Melville, New York 11747 Name: Stephen A. Hozie Attention: Alan B. Horn Title: Executive Vice President and Chief Telecopier No.: 800-209-7276 Financial Officer Telephone No.: 516-396-7703 AMERICAN HOME MORTGAGE CORP., a New York corporation By: /s/ Stephen A. Hozie --------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer Acknowledged and Agreed: GUARANTOR: AMERICAN HOME MORTGAGE INVESTMENT CORP., a Maryland corporation By: /s/ Stephen A. Hozie ---------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer BUYER: Address for Notices to Buyer: GOLDMAN SACHS MORTGAGE COMPANY, Goldman Sachs Mortgage Company a New York limited partnership 85 Broad Street New York, New York 10004 By: Goldman Sachs Real Estate Funding Corp., Attention: Anthony Preisano a New York corporation, as general Telecopier No.: 212-428-9097 partner Telephone No.: 212-855-0393 By: /s/ Howard Altarescu --------------------- Name: Howard Altarescu With a copy to: Title: Authorized Signatory Clifford Chance US LLP 31 West 52nd Street New York, New York 10019 Attention: Frederick B. Utley, III, Esq. Telecopier No.: 212-878-8375 Telephone No.: 212-878-8356 SCHEDULE 1 REPRESENTATIONS AND WARRANTIES RE: MORTGAGE LOANS Each Seller represents and warrants to Buyer, with respect to each Mortgage Loan, that as of the Purchase Date for the purchase of any Purchased Mortgage Loans by Buyer from Sellers and as of the date of this Agreement and any Transaction hereunder and at all times while the Facility Documents and any Transaction hereunder is in full force and effect. For purposes of this Schedule 1 and the representations and warranties set forth herein, a breach of a representation or warranty shall be deemed to have been cured with respect to a Mortgage Loan if and when Sellers has taken or caused to be taken action such that the event, circumstance or condition that gave rise to such breach no longer adversely affects such Mortgage Loan. With respect to those representations and warranties which are made to the best of each Seller's knowledge, if it is discovered by such Seller or Buyer that the substance of such representation and warranty is inaccurate, notwithstanding such Seller's lack of knowledge with respect to the substance of such representation and warranty, such inaccuracy shall be deemed a breach of the applicable representation and warranty. (a) Mortgage Loans as Described. The information set forth in the Mortgage Loan Schedule is complete, true and correct; (b) Payments Current. No payment required under the Mortgage Loan is 30 days or more delinquent nor has any payment under the Mortgage Loan been 30 days or more delinquent at any time since the origination of the Mortgage Loan; (c) No Outstanding Charges. There are no defaults in complying with the terms of the Mortgage, and all taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. No Seller has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by one month the Due Date of the first installment of principal and interest; (d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage have not been impaired, waived, altered or modified in any respect, from the date of origination except by a written instrument which has been recorded, if necessary to protect the interests of Buyer, and which has been delivered to Custodian or to such other Person as Buyer shall designate in writing, and the terms of which are reflected in the Mortgage Loan Schedule. The substance of any such waiver, alteration or modification has been approved by the issuer of any related PMI Policy and the title insurer, if any, to the extent required by the policy, and its terms are reflected on the Mortgage Loan Schedule, if applicable. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement, approved by the issuer of any related PMI Policy and the issuer of the title insurer, to the extent required by the policy, and which assumption agreement is part of the Mortgage Loan File delivered to Custodian or to such other Person as Buyer shall designate in writing and the terms of which are reflected in the Mortgage Loan Schedule; (e) No Defenses. The Mortgage Loan is not subject to any right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either Exh. H-1 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 without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto, and no Mortgagor was a debtor in any state or federal bankruptcy or insolvency proceeding at, or subsequent to, the time the Mortgage Loan was originated; (f) Hazard Insurance. Pursuant to the terms of the Mortgage, all buildings or other improvements upon the Mortgaged Property are insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are provided for in the Fannie Mae Guides or by Freddie Mac. If required by the National Flood Insurance Act of 1968, as amended, each Mortgage Loan is covered by a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration as in effect which policy conforms to Fannie Mae and Freddie Mac. All individual insurance policies contain a standard mortgagee clause naming the applicable Seller and its successors and assigns as mortgagee, and all premiums thereon have been paid and such policies may not be reduced, terminated or cancelled without 30 days' prior written notice to the mortgagee. The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, the Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a "master" or "blanket" hazard insurance policy covering a condominium, or any hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of Buyer upon the consummation of the transactions contemplated by this Agreement. No Seller has engaged in, and has no knowledge of the Mortgagor's or any servicer's having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for herein, or the validity and binding effect of such policy, including, without limitation, no unlawful fee, commission, kickback or other unlawful compensation or value of any kind has been or will be received, retained or realized by any attorney, firm or other person or entity, and no such unlawful items have been received, retained or realized by any Seller; (g) Compliance with Applicable Laws. Any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity and disclosure laws or unfair and deceptive practices laws applicable to the Mortgage Loan have been complied with, the consummation of the transactions contemplated hereby will not involve the violation of any such laws or regulations, and Sellers shall maintain in its possession, available for Buyer's inspection, and shall deliver to Buyer upon demand, evidence of compliance with all such requirements; (h) No Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission. The relevant Seller has not waived the performance by the Mortgagor of any action, if the Mortgagor's failure to perform such action would cause the Mortgage Loan to be in default, nor has Seller waived any default resulting from any action or inaction by the Mortgagor; (i) Location and Type of Mortgaged Property. The Mortgaged Property is a fee simple property located in the state identified in the Mortgage Loan Schedule except that with respect to real property located in jurisdictions in which the use of leasehold estates for residential properties is a widely-accepted practice, the Mortgaged Property may be a leasehold estate and consists of a single Exh. H-2 parcel of real property with a detached single family residence erected thereon, or a two- to four-family dwelling, or an individual residential condominium unit in a low-rise condominium project, or an individual unit in a planned unit development and that no residence or dwelling is (i) a mobile home or (ii) a manufactured home, provided, however, that any condominium unit or planned unit development shall not fall within any of the "Ineligible Projects" of part VIII, Section 102 of the Fannie Mae Selling Guide and shall conform with the Underwriting Guidelines. The Mortgage Property is not raw land; (j) Valid First and Second Lien. Each Mortgage is a valid and subsisting first lien, with respect to First Lien Mortgage Loans, or second lien, with respect to Second Lien Mortgage Loans, of record on a single parcel of real estate constituting the Mortgaged Property, including all buildings and improvements on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems located in or annexed to such buildings, and all additions, alterations and replacements made at any time, subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to prudent mortgage lending companies, and such other exceptions to which similar properties are commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage. In no event shall any Mortgage Loan be in a lien position more junior than a second lien. The lien of the Mortgage is subject only to: (i) the lien of current real property taxes and assessments not yet due and payable; (ii) covenants, conditions and restrictions, rights of way, easements and other matters of the public record as of the date of recording acceptable to prudent mortgage lending institutions generally and specifically referred to in the lender's title insurance policy delivered to the originator of the Mortgage Loan and (a) specifically referred to or otherwise considered in the appraisal made for the originator of the Mortgage Loan or (b) which do not adversely affect the Appraised Value of the Mortgaged Property set forth in such appraisal; (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage or the use, enjoyment, value or marketability of the related Mortgaged Property; and (iv) with respect to Second Lien Mortgage Loans, the lien of the first mortgage on the Mortgaged Property. Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting, enforceable and perfected (A) first lien and first priority security interest with respect to each First Lien Mortgage Loan, or (B) second lien and second priority security interest with respect to each Second Lien Mortgage Loan, in either case, on the property described therein and Sellers have full right to sell and assign the same to Buyer. The Mortgaged Property was not, as of the date of origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed to secure debt or other security instrument creating a lien subordinate to the lien of the Mortgage; (k) Validity of Mortgage Documents. The Mortgage Note and the Mortgage and any other agreement executed and delivered by a Mortgagor in connection with a Mortgage Loan are genuine, and each is the legal, valid and binding obligation of the maker thereof enforceable in accordance with its terms. All parties to the Mortgage Note, the Mortgage and any other such related agreement had legal capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage and any such agreement, and the Mortgage Note, the Mortgage and any other such related agreement have been duly and properly executed by other such related parties. The documents, instruments and Exh.H-3 agreements submitted for loan underwriting were not falsified and contain no untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the information and statements therein not misleading. No fraud, error, omission, misrepresentation, negligence or similar occurrence with respect to a Mortgage Loan has taken place on the part of any Person, including without limitation, the Mortgagor, any appraiser, any builder or developer, or any other party involved in the origination or servicing of the Mortgage Loan. The relevant Seller has reviewed all of the documents constituting the Servicing File and has made such inquiries as it deems necessary to make and confirm the accuracy of the representations set forth herein; (l) Full Disbursement of Proceeds. The Mortgage Loan has been closed and the proceeds of the Mortgage Loan have been fully disbursed and there is no requirement for future advances thereunder, and any and all requirements as to completion of any on-site or off-site improvement and as to disbursements of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making or closing the Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor is not entitled to any refund of any amounts paid or due under the Mortgage Note or Mortgage; (m) Ownership. The relevant Seller is the sole owner of record and holder of the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage Loans to Buyer, such Seller will retain the Mortgage Files or any part thereof with respect thereto not delivered to Custodian, Buyer or Buyer's designee, in trust only for the purpose of servicing and supervising the servicing of each Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Sellers have good, indefeasible and marketable title thereto, and has full right to transfer and sell the Mortgage Loan to Buyer free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement and following the sale of each Mortgage Loan, Buyer will own such Mortgage Loan free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest. The relevant Seller intends to relinquish all rights to possess, control and monitor the Mortgage Loan; (n) Doing Business. All parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (2) either (i) organized under the laws of such state, or (ii) qualified to do business in such state, or (iii) a federal savings and loan association, a savings bank or a national bank having a principal office in such state, or (3) not doing business in such state; (o) CLTV, LTV, PMI Policy. No Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV in excess of 100%. No Mortgage Loan has an LTV greater than 100%. The LTV of the Mortgage Loan either is not more than 80% or the excess over 75% of the Appraised Value is and will be insured as to payment defaults by a PMI Policy until the LTV of such Mortgage Loan is reduced to 80%. All provisions of such PMI Policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. No action, inaction, or event has occurred and no state of facts exists that has, or will result in the exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject to a PMI Policy obligates the Mortgagor thereunder to maintain the PMI Policy and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan as set forth on the Mortgage Loan Schedule is net of any such insurance premium; (p) Title Insurance. The Mortgage Loan is covered by an ALTA lender's title insurance policy, or with respect to any Mortgage Loan for which the related Mortgaged Property is located in California a CLTA lender's title insurance policy, or other generally acceptable form of policy or insurance acceptable to Fannie Mae or Freddie Mac and each such title insurance policy is issued by a Exh. H-4 title insurer acceptable to Fannie Mae or Freddie Mac and qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the applicable Seller, its successors and assigns, as to the first priority lien (with respect to First Lien Mortgage Loans) or second priority lien (with respect to Second Lien Mortgage Loans) of the Mortgage in the original principal amount of the Mortgage Loan, subject only to the exceptions contained in clauses (1), (2), (3) and (4) of paragraph (j) of this Schedule 1, and in the case of Adjustable Rate Mortgage Loans, against any loss by reason of the invalidity or unenforceability of the lien resulting from the provisions of the Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly Payment. Where required by state law or regulation, the Mortgagor has been given the opportunity to choose the carrier of the required mortgage title insurance. Additionally, such lender's title insurance policy affirmatively insures ingress and egress, and against encroachments by or upon the Mortgaged Property or any interest therein. The title policy does not contain any special exceptions (other than the standard exclusions) for zoning and uses and has been marked to delete the standard survey exception or to replace the standard survey exception with a specific survey reading. The relevant Seller, its successor and assigns, are the sole insureds of such lender's title insurance policy, and such lender's title insurance policy is valid and remains in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. No claims have been made under such lender's title insurance policy, and no prior holder of the related Mortgage, including any Seller, has done, by act or omission, anything which would impair the coverage of such lender's title insurance policy, including without limitation, no unlawful fee, commission, kickback or other unlawful compensation or value of any kind has been or will be received, retained or realized by any attorney, firm or other person or entity, and no such unlawful items have been received, retained or realized by any Seller; (q) No Defaults. Other than payments due but not yet 30 days or more delinquent, there is no default, breach, violation or event which would permit acceleration existing under the Mortgage or the Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event which would permit acceleration, and Sellers nor any of their respective Affiliates nor any of their respective predecessors, have waived any default, breach, violation or event which would permit acceleration. With respect to each Second Lien Mortgage Loan, (i) the prior mortgage is in full force and effect, (ii) there is no default, breach, violation or event of acceleration existing under such prior mortgage or the related mortgage note, (iii) no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration thereunder, and either (A) the prior mortgage contains a provision which allows or (B) applicable law requires, the mortgagee under the Second Lien Mortgage Loan to receive notice of, and affords such mortgagee an opportunity to cure any default by payment in full or otherwise under the prior mortgage; (r) No Mechanics' Liens. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage; (s) Location of Improvements; No Encroachments. All improvements which were considered in determining the Appraised Value of the Mortgaged Property lay wholly within the boundaries and building restriction lines of the Mortgaged Property, and no improvements on adjoining properties encroach upon the Mortgaged Property. No improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (t) Origination; Payment Terms. The Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act, a savings and loan association, a savings bank, a commercial bank, credit union, Exh. H-5 insurance company or other similar institution which is supervised and examined by a federal or state authority. The documents, instruments and agreements submitted for loan underwriting were not falsified and contain no untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the information and statements therein not misleading. No Mortgage Loan contains terms or provisions which would result in negative amortization. Principal payments on the Mortgage Loan commenced no more than sixty days after funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest Rate as well as the Lifetime Rate Cap and the Periodic Cap are as set forth on the Mortgage Loan Schedule. The Mortgage Note is payable in equal monthly installments of principal and interest, which installments of interest, with respect to Adjustable Rate Mortgage Loans, are subject to change due to the adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date, with interest calculated and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date, over an original term of not more than thirty years from commencement of amortization. Unless otherwise specified, the Mortgage Loan is payable on the first day of each month. There are no Convertible Mortgage Loans which contain a provision allowing the Mortgagor to convert the Mortgage Note from an adjustable interest rate Mortgage Note to a fixed interest rate Mortgage Note; (u) Customary Provisions. The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage Loan will be able to deliver good and merchantable title to the Mortgaged Property. There is no homestead or other exemption available to a Mortgagor which would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage, subject to applicable federal and state laws and judicial precedent with respect to bankruptcy and right of redemption or similar law; (v) Conformance with Agency and Underwriting Guidelines. The Mortgage Loan was underwritten in accordance with the Underwriting Guidelines (a copy of which is attached hereto as Exhibit D) The Mortgage Note and Mortgage are on forms acceptable to Freddie Mac or Fannie Mae and Sellers have not made any representations to a Mortgagor that are inconsistent with the mortgage instruments used; (w) Occupancy of the Mortgaged Property. The Mortgaged Property is lawfully occupied under applicable law. All inspections, licenses and certificates required to be made or issued with respect to all occupied portions of the Mortgaged Property and, with respect to the use and occupancy of the same, including but not limited to certificates of occupancy and fire underwriting certificates, have been made or obtained from the appropriate authorities; (x) No Additional Collateral. The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage referred to in clause (j) above; (y) Deeds of Trust. In the event the Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Buyer to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (z) (aa) Delivery of Mortgage Documents. The Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents required to be delivered under the Custodial Exh. H-6 Agreement for each Mortgage Loan have been delivered to Custodian. The relevant Seller is in possession of a complete, true and accurate Mortgage File in compliance with Exhibit A hereto, except for such documents the originals of which have been delivered to Custodian; (bb) Condominiums/Planned Unit Developments. If the Mortgaged Property is a condominium unit or a planned unit development (other than a de minimis planned unit development) such condominium or planned unit development project is (i) acceptable to Fannie Mae or Freddie Mac or (ii) located in a condominium or planned unit development project which has received project approval from Fannie Mae or Freddie Mac. The representations and warranties required by Fannie Mae with respect to such condominium or planned unit development have been satisfied and remain true and correct; (cc) Transfer of Mortgage Loans. The Assignment of Mortgage with respect to each Mortgage Loan is in recordable form and is acceptable for recording under the laws of the jurisdiction in which the Mortgaged Property is located. The transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by each Seller are not subject to the bulk transfer, bulk sale or similar statutory provisions in effect in any applicable jurisdiction (including, without limitation, Article 6 of the Uniform Commercial Code); (dd) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the mortgagee thereunder, and to the best of each Seller's knowledge, such provision is enforceable; (ee) Assumability. With respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents provide that after the related first Interest Rate Adjustment Date, a related Mortgage Loan may only be assumed if the party assuming such Mortgage Loan meets certain credit requirements stated in the Mortgage Loan Documents; (ff) No Buydown Provisions; No Graduated Payments or Contingent Interests. The Mortgage Loan does not contain provisions pursuant to which Monthly Payments are paid or partially paid with funds deposited in any separate account established by Sellers, the Mortgagor, or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor nor does it contain any other similar provisions which may constitute a "buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan does not have a shared appreciation or other contingent interest feature; (gg) Consolidation of Future Advances. Any future advances made to the Mortgagor prior to the Purchase Date have been consolidated with the outstanding principal amount secured by the Mortgage, and the secured principal amount, as consolidated, bears a single interest rate and single repayment term. The lien of the Mortgage securing the consolidated principal amount is expressly insured as having first or second, as applicable, lien priority by a title insurance policy, an endorsement to the policy insuring the mortgagee's consolidated interest or by other title evidence acceptable to Fannie Mae and Freddie Mac. The consolidated principal amount does not exceed the original principal amount of the Mortgage Loan; (hh) Mortgaged Property Undamaged; No Condemnation Proceedings. There is no proceeding pending or threatened for the total or partial condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect adversely the value of the Mortgaged Property as security for the Exh. H-7 Mortgage Loan or the use for which the premises were intended and each Mortgaged Property is in good repair; (ii) Collection Practices; Escrow Deposits; Interest Rate Adjustments. The origination, servicing and collection practices used by each Seller with respect to the Mortgage Loan have been in all respects in compliance with Accepted Servicing Practices, applicable laws and regulations, and have been in all respects legal and proper and prudent in the mortgage origination and servicing business. With respect to escrow deposits and Escrow Payments, all such payments are in the possession of, or under the control of, Sellers and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. All Escrow Payments have been collected in full compliance with state and federal law and the provisions of the related Mortgage Note and Mortgage. An escrow of funds is not prohibited by applicable law and has been established in an amount sufficient to pay for every item that remains unpaid and has been assessed but is not yet due and payable. No escrow deposits or Escrow Payments or other charges or payments due Sellers have been capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest Rate adjustments have been made in strict compliance with state and federal law and the terms of the related Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If, pursuant to the terms of the Mortgage Note, another index was selected for determining the Mortgage Interest Rate, the same index was used with respect to each Mortgage Note which required a new index to be selected, and such selection did not conflict with the terms of the related Mortgage Note. The relevant Seller executed and delivered any and all notices required under applicable law and the terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and the Monthly Payment adjustments. Any interest required to be paid pursuant to state, federal and local law has been properly paid and credited; (jj) Intentionally Omitted; (kk) No Violation of Environmental Laws. The Mortgaged Property is free from any and all toxic or hazardous substances and there exists no violation of any local, state or federal environmental law, rule or regulation. There is no pending action or proceeding directly involving the Mortgaged Property in which compliance with any environmental law, rule or regulation is an issue; there is no violation of any environmental law, rule or regulation with respect to the Mortgage Property; and nothing further remains to be done to satisfy in full all requirements of each such law, rule or regulation constituting a prerequisite to use and enjoyment of said property; (ll) Servicemembers Civil Relief Act of 2003. The Mortgagor has not notified Sellers, and such Seller has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003; (mm) Appraisal. The Mortgage File contains an appraisal of the related Mortgaged Property signed prior to the approval of the Mortgage Loan application by a qualified appraiser, duly appointed by Sellers, who had no interest, direct or indirect in the Mortgaged Property or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan, and the appraisal and appraiser both satisfy the requirements of Fannie Mae or Freddie Mac and Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated thereunder, all as in effect on the date the Mortgage Loan was originated; (nn) Disclosure Materials. The Mortgagor has executed a statement to the effect that the Mortgagor has received all disclosure materials required by, and Sellers have complied with, all applicable law with respect to the making of the Mortgage Loans. Sellers shall maintain such statement in the Mortgage File; Exh. H-8 (oo) Construction or Rehabilitation of Mortgaged Property. No Mortgage Loan was made in connection with the construction or rehabilitation of a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged Property; (pp) Value of Mortgaged Property. No Seller has knowledge of any circumstances existing that could reasonably be expected to adversely affect the value or the marketability of any Mortgaged Property or Mortgage Loan or to cause the Mortgage Loans to prepay during any period materially faster or slower than similar mortgage loans held by Sellers generally secured by properties in the same geographic area as the related Mortgaged Property; (qq) No Defense to Insurance Coverage. No Seller has caused or will cause to be performed any and all acts required to preserve the rights and remedies of Buyer in any insurance policies applicable to the Mortgage Loans including, without limitation, any necessary notifications of insurers, assignments of policies or interests therein, and establishments of coinsured, joint loss payee and mortgagee rights in favor of Buyer. No action has been taken or failed to be taken, no event has occurred and no state of facts exists or has existed on or prior to the Purchase Date (whether or not known to any Seller on or prior to such date) which has resulted or will result in an exclusion from, denial of, or defense to coverage under any applicable, special hazard insurance policy, PMI Policy or bankruptcy bond (including, without limitation, any exclusions, denials or defenses which would limit or reduce the availability of the timely payment of the full amount of the loss otherwise due thereunder to the insured) whether arising out of actions, representations, errors, omissions, negligence, or fraud of Sellers, the related Mortgagor or any party involved in the application for such coverage, including the appraisal, plans and specifications and other exhibits or documents submitted therewith to the insurer under such insurance policy, or for any other reason under such coverage, but not including the failure of such insurer to pay by reason of such insurer's breach of such insurance policy or such insurer's financial inability to pay; (rr) Escrow Analysis. With respect to each Mortgage, Sellers have within the last twelve months (unless such Mortgage was originated within such twelve month period) analyzed the required Escrow Payments for each Mortgage and adjusted the amount of such payments so that, assuming all required payments are timely made, any deficiency will be eliminated on or before the first anniversary of such analysis, or any overage will be refunded to the Mortgagor, in accordance with RESPA and any other applicable law; (ss) Prior Servicing. Each Mortgage Loan has been serviced in all material respects in strict compliance with Accepted Servicing Practices; (tt) Credit Information. As to each consumer report (as defined in the Fair Credit Reporting Act, Public Law 91-508) or other credit information furnished by Sellers to Buyer, that such Seller has full right and authority and is not precluded by law or contract from furnishing such information to Buyer and Buyer is not precluded from furnishing the same to any subsequent or prospective purchaser of such Mortgage. The relevant Seller shall hold Buyer harmless from any and all damages, losses, costs and expenses (including attorney's fees) arising from disclosure of credit information in connection with Buyer's secondary marketing operations and the purchase and sale of mortgages or Servicing Rights thereto; (uu) Leaseholds. If the Mortgage Loan is secured by a long-term residential lease, (1) the lessor under the lease holds a fee simple interest in the land; (2) the terms of such lease expressly permit the mortgaging of the leasehold estate, the assignment of the lease without the lessor's consent and the acquisition by the holder of the Mortgage of the rights of the lessee upon foreclosure or assignment in lieu of foreclosure or provide the holder of the Mortgage with substantially similar protections; (3) the terms of such lease do not (a) allow the termination thereof upon the lessee's default without the holder of the Exh. H-9 Mortgage being entitled to receive written notice of, and opportunity to cure, such default, (b) allow the termination of the lease in the event of damage or destruction as long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage from being insured (or receiving proceeds of insurance) under the hazard insurance policy or policies relating to the Mortgaged Property or (d) permit any increase in rent other than pre-established increases set forth in the lease; (4) the original term of such lease is not less than 15 years; (5) the term of such lease does not terminate earlier than five years after the maturity date of the Mortgage Note; and (6) the Mortgaged Property is located in a jurisdiction in which the use of leasehold estates in transferring ownership in residential properties is a widely accepted practice; (vv) Prepayment Penalty. Each Mortgage Loan is subject to a Prepayment Penalty as provided in the related Mortgage Note unless otherwise as set forth on the Mortgage Loan Schedule hereof, and no Mortgage Loan has a Prepayment Penalty period in excess of five years; (ww) Predatory Lending Regulations; High Cost Loans; No Inclusion of Insurance. No Mortgage Loan (i) is subject to Section 226.32 of Regulation Z or any similar state law (relating to high interest rate credit/lending transactions), (ii) includes any single premium credit life or accident and health insurance or disability insurance or (iii) is a High Cost Mortgage Loan; (xx) Georgia Fair Lending Act. No Mortgage Loan that was originated on or after October 1, 2002 and before March 7, 2003 which is secured by property located in the State of Georgia. There is no Mortgage Loan that was originated on or after March 7, 2003 that is a "high cost home loan" as defined under the Georgia Fair Lending Act; (yy) Single-premium Credit Life Insurance Policy. In connection with the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were used to finance a single-premium credit life insurance policy; (zz) Tax Service Contract; Flood Certification Contract. Each Mortgage Loan is covered by a paid in full, life of loan, tax service contract and a paid in full, life of loan, flood certification contract and each of these contracts is assignable to Buyer; (aaa) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code; (bbb) Regarding the Mortgagor. The Mortgagor is one or more natural persons; (ccc) Origination. No predatory or deceptive lending practices, including, without limitation, the extension of credit without regard to the ability of the Mortgagor to repay and the extension of credit which has no apparent benefit to the Mortgagor, were employed in the origination of the Mortgage Loan; (ddd) Recordation. Each original Mortgage was recorded and, except for those Mortgage Loans subject to the MERS identification system, all subsequent assignments of the original Mortgage (other than the assignment to Buyer) have been recorded in the appropriate jurisdictions wherein such recordation is necessary to perfect the lien thereof as against creditors of Sellers, or is in the process of being recorded; and (eee) Compliance with Anti-Money Laundering Laws. Each Seller has complied with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money Laundering Laws"); each Seller has established an anti-money laundering compliance program as required by the Anti-Money Laundering Laws, has conducted the requisite due diligence in connection with the origination of each Mortgage Loan for purposes of the Exh. H-10 Anti-Money Laundering Laws, including with respect to the legitimacy of the applicable Mortgagor and the origin of the assets used by the said Mortgagor to purchase the property in question, and maintains, and will maintain, sufficient information to identify the applicable Mortgagor for purposes of the Anti-Money Laundering Laws. Exh. H-11 EX-10.5.2 8 am110905-ex10_52.txt CONTRACT EXHIBIT 10.5.2 ================================================================================ CUSTODIAL AGREEMENT Among GOLDMAN SACHS MORTGAGE COMPANY as Buyer and AMERICAN HOME MORTGAGE ACCEPTANCE, INC. and AMERICAN HOME MORTGAGE CORP., as Sellers and DEUTSCHE BANK NATIONAL TRUST COMPANY as Custodian Dated as of August 31, 2005 ================================================================================ TABLE OF CONTENTS Page Section 1. Definitions......................................................1 Section 2. Deposit of Mortgage Loans; Effecting a Transaction...............4 Section 3. Mortgage Loan Schedule or Exception Report.......................5 Section 4. Obligations of the Custodian.....................................6 Section 5. Additional Purchased Mortgage Loans..............................6 Section 6. Future Defects...................................................7 Section 7. Release for Servicing............................................7 Section 8. Limitation on Release............................................7 Section 9. Release for Payment..............................................8 Section 10. Joint and Several Obligations....................................8 Section 11. Covenants of the Seller..........................................8 Section 12. Repurchase Date..................................................8 Section 13. Transfer of Purchased Mortgage Loans Upon Termination of a Transaction......................................................9 Section 14. Shipment of Documents............................................9 Section 15. Examination and Copies of Mortgage Files.........................9 Section 16. Insurance of the Custodian.......................................9 Section 17. Periodic Statements.............................................10 Section 18. Fees and Expenses of the Custodian..............................10 Section 19. Custodian Representations.......................................10 Section 20. No Adverse Interest of the Custodian............................11 Section 21. Concerning the Custodian........................................11 Section 22. Indemnification.................................................12 Section 23. Merger or Consolidation of Custodian............................12 Section 24. Removal of the Custodian With Respect to Some or All of the Purchased Mortgage Loans........................................13 Section 25. Obligations of the Custodian With Respect to the Trust Receipt.........................................................13 Section 26. Termination by the Custodian....................................14 Section 27. Successors and Assigns..........................................14 Section 28. Authorized Representatives......................................15 Section 29. Notices.........................................................15 Section 30. Reproduction of Documents.......................................16 Section 31. Amendments; Entire Agreement....................................16 Section 32. Entire Agreement; Severability..................................16 Section 33. Governing Law; Counterparts.....................................16 -i- TABLE OF CONTENTS (continued) Page Section 34. Submission to Jurisdiction......................................17 -ii- EXHIBITS EXHIBIT 1 Mortgage File EXHIBIT 2 Form of Trust Receipt EXHIBIT 3 Form of Request for Release of Documents and Receipt EXHIBIT 4 Authorized Representatives of the Custodian EXHIBIT 5 Authorized Representatives of the Seller EXHIBIT 6 Authorized Representatives of the Buyer EXHIBIT 7 Form of Mortgage Loan Schedule EXHIBIT 8 Form of Repurchase Release EXHIBIT 9 Form of Lost Note Affidavit EXHIBIT 10 INTENTIONALLY OMITTED EXHIBIT 11 Form of Notice to Custodian -iii- THIS CUSTODIAL AGREEMENT, dated as of August 31, 2005 (this "Agreement") is made among Goldman Sachs Mortgage Company, a New York Limited Partnership (the "Buyer"), American Home Mortgage Acceptance, Inc., a Maryland corporation, American Home Mortgage Corp., a New York corporation (each a "Seller", and together the "Sellers") and Deutsche Bank National Trust Company, as Custodian (the "Custodian"). WITNESSETH: WHEREAS, the Buyer and the Sellers may, from time to time, enter into transactions (each, a "Transaction") in which the Buyer shall purchase from the Sellers certain Mortgage Loans, with a simultaneous agreement by the Sellers to repurchase such Purchased Mortgage Loans as provided in that certain Master Repurchase Agreement dated as of August 31, 2005 between the Sellers and the Buyer (the "Repurchase Agreement"); and WHEREAS, the Buyer has requested the Custodian to act as custodian on behalf of the Registered Holder (as defined below) for purposes of holding the Purchased Mortgage Loans purchased by Buyer from the Sellers pursuant to the Repurchase Agreement; and WHEREAS, the Custodian is a national banking association, is otherwise authorized to act as the Custodian pursuant to this Agreement, and has agreed to act as custodian/bailee for hire for the Registered Holders of the Purchased Mortgage Loans, all as more particularly set forth herein; and WHEREAS, the Sellers shall from time to time deliver Purchased Mortgage Loans to the Custodian that are subject to a Transaction, and has agreed to deliver or cause to be delivered to the Custodian certain documents with respect to the Purchased Mortgage Loans subject to each Transaction in accordance with the terms and conditions hereof; NOW, THEREFORE, in consideration of the mutual undertakings herein expressed, the parties hereto hereby agree as follows: Section 1. Definitions Capitalized terms used but not defined herein shall have the meanings assigned to them in the Repurchase Agreement. "Additional Purchased Mortgage Loans" shall have the meaning set forth in Section 5 hereof. "Agreement" shall mean this Custodial Agreement and all amendments and attachments hereto and supplements hereof. "Assignment of Mortgage" shall mean an individual assignment of the Mortgage, notice of transfer or equivalent instrument in recordable form sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the transfer of the Mortgage to the party indicated therein. "Authorized Representative" shall have the meaning set forth in Section 28 hereof. "Business Day" shall mean any day excluding (i) Saturday, Sunday or (ii) any day on which banks located in the States of New York or California are authorized or permitted to close for business or (iii) any day on which the New York Stock Exchange is closed. "Buyer" shall mean Goldman Sachs Mortgage Company or its successor in interest or assigns. "Custodial Delivery Failure" shall have the meaning set forth in Section 22(b) hereof. "Custodian" shall mean Deutsche Bank National Trust Company, or any successor in interest or assigns, or any successor to the Custodian under this Agreement as herein provided. "Electronic Agent" shall mean MERSCORP, Inc., or its successor in interest or assigns. "Event of Default" shall mean any event of default under the Repurchase Agreement or any confirmation thereunder. "Indemnitee" shall have the meaning set forth in Section 22(a) hereof. "Last Endorsee" shall have the meaning set forth in Section 3 hereof. "MERS" shall mean Mortgage Electronic Registration Systems, Inc., a Delaware corporation. "MERS Designated Mortgage Loan" shall have the meaning assigned to such term in Section 3 of the Electronic Tracking Agreement. "MERS Identification Number" shall mean the eighteen digit number permanently assigned to each MERS Designated Mortgage Loan. "MERS Procedures Manual" shall mean the MERS Procedures Manual attached as Exhibit B to the Electronic Tracking Agreement. "MERS Report" shall mean the schedule listing MERS Designated Mortgage Loans and other information prepared by Electronic Agent pursuant to the Electronic Tracking Agreement. "MERS(R) System" shall mean the Electronic Agent's mortgage electronic registry system, as more particularly described in the MERS Procedures Manual." "Mortgage" shall mean the mortgage, deed of trust or other instrument securing a Mortgage Note, which creates a first or second lien on the Mortgaged Property described therein. "Mortgage File" shall have the meaning set forth in Exhibit 1 attached hereto. "Mortgage Loan" shall mean performing first or second lien, one-to-four-family residential mortgage loan evidenced by a Mortgage Note and secured by a Mortgage, including, without limitation: (i) a promissory note, any reformation thereof and related deed of trust (or mortgage) and security agreement; (ii) all guaranties and insurance policies, including, without limitation, all mortgage and title insurance policies and all fire and extended coverage insurance policies and rights of the Sellers to return premiums or payments with respect thereto; and (iii) all right, title and interest of the Sellers in the property covered by such deed of trust (or mortgage). "Mortgage Loan Schedule" shall mean a schedule in written and computer readable formats of Purchased Mortgage Loans, containing the information set forth in Exhibit 7 hereto and otherwise acceptable to the Buyer. "Mortgage Loan Schedule and Exception Report" shall mean a list of Purchased Mortgage Loans delivered by the Custodian to the Buyer, reflecting the Mortgage Loans held by the Custodian for the -2- benefit of the Buyer, which includes codes indicating any exceptions with respect to each Mortgage Loan listed thereon. Each Mortgage Loan Schedule and Exception Report shall set forth (a) the Mortgage Loans being purchased by the Buyer on any applicable Purchase Date as well as the Mortgage Loans previously purchased by the Buyer and held by the Custodian hereunder, and (b) all exceptions with respect thereto, with any updates thereto from time to time last delivered. "Mortgage Note" shall mean the note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage, as the same may be reformed or amended from time to time. "Mortgaged Property" shall mean the real property securing repayment of the debt evidenced by a Mortgage Note. "Mortgagor" shall mean the obligor or obligors on a Mortgage Note, including any Person who has assumed or guaranteed the obligations of the obligor thereunder. "Notice of Default" shall mean written notice delivered by the Buyer to the Custodian and each Seller stating that an Event of Default has occurred. "Notice to the Custodian" shall have the meaning set forth in Section 25(b) hereof. "Opinion of Counsel" shall mean a written opinion letter of counsel in form and substance reasonably acceptable to the party receiving such opinion letter. "Person" shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof. "PMI Policy" shall mean a policy of primary mortgage guaranty insurance issued by a Qualified Insurer, as required by the Repurchase Agreement with respect to certain Mortgage Loans. "Purchase Date" shall mean with respect to each Purchased Mortgage Loan, the date on which such Purchased Mortgage Loan is purchased by the Buyer pursuant to the Repurchase Agreement. "Purchased Mortgage Loan" shall mean each Mortgage Loan, and/or any other evidence of ownership of a Mortgage Loan mutually agreed upon by the Buyer and the Sellers and identified to the Custodian transferred or caused to be transferred by the Sellers to the Buyer or its designee (including the Custodian) in a Transaction under the Repurchase Agreement and any Additional Purchased Mortgage Loans delivered pursuant to this Agreement. "Qualified Insurer" shall mean a mortgage guaranty insurance company duly authorized and licensed where required by law to transact mortgage guaranty insurance business and approved as an insurer by Fannie Mae or Freddie Mac. "Registered Holder" shall have the meaning set forth in Section 25 hereof. "Repurchase Agreement" shall have the meaning set forth in the first paragraph of the recitals hereto. "Repurchase Date" shall mean, with respect to each Purchased Mortgage Loan, the date on which such Purchased Mortgage Loan is to be repurchased by the Sellers pursuant to the Repurchase Agreement. -3- "Repurchase Release" shall have the meaning set forth in Section 12 hereof. "Responsible Officer" shall mean, with respect to the Custodian, any Person having substantial responsibility for the obligations of Custodian under this Agreement and any officer within the Corporate Trust Office (or any successor group of the Custodian), including any managing director, director, vice president, assistant vice president, secretary, assistant secretary, assistant treasurer, associate, vice president or any other officer of the Custodian customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. "Request for Release" shall have the meaning set forth in Section 7 hereof. "Seller" or "Sellers" shall have the meaning assigned to it in the recitals hereto. "Transaction" shall have the meaning set forth in the first paragraph of the recitals hereto. "Transferee" shall have the meaning set forth in Section 25(b) hereof. "Trust Receipt" shall mean a trust receipt issued by the Custodian evidencing the Purchased Mortgage Loans it holds, in the form attached hereto as Exhibit 2 and delivered to the Buyer by the Custodian in accordance with Section 2 hereof. "Written Instructions" shall mean written communications received by the Custodian from an Authorized Representative of the Buyer or the Sellers, including communications received by facsimile, or other telecommunications device capable of transmitting or creating a written record. Section 2. Deposit of Mortgage Loans; Effecting a Transaction (a) With respect to each Purchased Mortgage Loan, no later than 12:00 p.m. (New York time) 2 (two) Business Days prior to each Purchase Date (such date of delivery, the "Delivery Date"), the Sellers shall deliver or cause to be delivered to the Custodian (i) the Mortgage Files with respect to the related Purchased Mortgage Loans and (ii) the related Mortgage Loan Schedule for up to, with respect to initial delivery of Mortgage Loans pursuant to this Agreement, five hundred (500) Mortgage Loans, and, thereafter, for up to two hundred fifty (250) Mortgage Loans (with an additional Business Day prior to the Delivery Date for each additional set of two hundred fifty (250) Mortgage Loans). The Custodian shall deliver to the Buyer via electronic mail, no later than 3:00 p.m. (New York time) on the Business Day prior to the Purchase Date, a Mortgage Loan Schedule and Exception Report of all Mortgage Loans then held or to be held by the Custodian for the Buyer's benefit (including Mortgage Loans to be purchased on such Purchase Date) in an electronic format acceptable to the Buyer, which schedule shall include all information included in the Mortgage Loan Schedule and Exception Report pursuant to Section 3 and such additional information as the Buyer and the Custodian may agree. No later than 3:00 p.m. (New York time) on the Purchase Date, the Custodian shall issue and deliver (via electronic transmission with the original to follow) to the Buyer a copy of such Mortgage Loan Schedule and Exception Report relating to the Purchased Mortgage Loans. (b) On each Purchase Date, upon receipt of the Mortgage Loan Schedule and Exception Report from the Custodian, in form and substance acceptable to the Buyer, the Buyer shall transfer to the Sellers immediately available funds in an amount equal to the related Purchase Price. -4- (c) On and after the Purchase Date for any Mortgage Loan, until the related Repurchase Date or until the Custodian shall receive a Notice of Default, the Custodian shall hold the Purchased Mortgage Loans related to such Transaction as the custodian [and bailee for hire] for the exclusive benefit of the Registered Holder of the related Trust Receipt and shall not act upon instructions of any Seller to deliver the Purchased Mortgage Loans other than as expressly provided in this Agreement. (d) Custodian shall deliver to Buyer, no later than 3:00 p.m. (New York City time) on the related Purchase Date, electronically followed by overnight courier a Mortgage Loan Schedule and Exception Report having appended thereto a schedule of all Mortgage Loans with respect to which Custodian has completed the procedures set forth in Section 3 hereof and certify that it is holding each related Mortgage File for the benefit of Buyer in accordance with the terms hereof (provided that the Custodian has timely received the items pursuant to Section 2(a) herein). (e) In addition to the foregoing, on the initial Purchase Date, the Custodian shall deliver to the Buyer, no later than 3:00 p.m. (New York City time), a Trust Receipt with a Mortgage Loan Schedule and Exception Report attached thereto (provided that the Custodian has timely received the items pursuant to Section 2(a) herein). The Buyer shall be the initial Registered Holder of the Trust Receipt. Each Mortgage Loan Schedule and Exception Report delivered by the Custodian to the Buyer shall supersede and cancel the Mortgage Loan Schedule and Exception Report previously delivered by the Custodian to the Buyer hereunder, and shall replace the then existing Mortgage Loan Schedule and Exception Report to be attached to the Trust Receipt. Notwithstanding anything to the contrary set forth herein, in the event that the Mortgage Loan Schedule and Exception Report attached to the Trust Receipt is different from the most recently delivered Mortgage Loan Schedule and Exception Report, then the most recently delivered Mortgage Loan Schedule and Exception Report shall control and be binding upon the parties thereto. (f) The Registered Holder of any Trust Receipt may, at any time, request that the Custodian subdivide such Trust Receipt and issue additional Trust Receipts reflecting such subdivided pools of Mortgage Loans. Upon receipt of such request and delivery of the Trust Receipt to be subdivided, the Custodian shall cancel such Trust Receipt and deliver to the Registered Holder the requested subdivided Trust Receipts registered in the name of the Registered Holder in accordance with Section 25. Section 3. Mortgage Loan Schedule or Exception Report No later than 3:00 p.m.(New York City time) on the Purchase Date (provided the Custodian has timely received the items required pursuant to Section 2(a) herein), the Custodian shall issue and deliver to the Buyer via facsimile a Mortgage Loan Schedule and Exception Report relating to the Purchased Mortgage Loans to the effect that with respect to each such Purchased Mortgage Loan, except as noted in any attached exception report (i) that for each Purchased Mortgage Loan which is not a MERS Designated Mortgage Loan, all of the documents in paragraphs (a), (c), (e), (f) and, to the extent provided, (b), (d), and (h) of Section I of Exhibit 1 attached hereto are in its possession, and that for each Purchased Loan which is a MERS Designated Mortgage Loan, all of the documents in paragraphs (a), (c) and (e) (unless such Mortgage Loan was originated through MERS), and, to the extent provided, (b), (d) and (g) of Section II of Exhibit 1 attached hereto are in its possession (ii) such documents have been reviewed by it and appear regular on their face and relate to such Mortgage Loan; (iii) based on its examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information contained in the documents in the Mortgage File as to (A) the name of the mortgagor, (B) the address of the Mortgaged Property, (C) the interest rate on the Mortgage Note, (D) the original principal amount of the Mortgage Note, and (E) the maturity date of the Mortgage Note; (iv) the Mortgage Note and the Mortgage, each bears an original signature or signatures purporting to be the signature or signatures of the person or persons named as the maker and -5- mortgagor or grantor; or, in the case of certified copies of the Mortgage, if any, such copies bear a reproduction of such signature or signatures; (v) all signatures on the Mortgage properly relate to the Mortgage Note, as applicable, and the Custodian has verified that any rider or addendum properly relates to the Mortgage and that the signatures on any rider or addendum are not materially different from the signatures on the Mortgage; (vi) the original principal amount of the indebtedness secured by the Mortgage is identical to the original principal amount of the Mortgage Note; (vii) if the Mortgage Note does not name either Seller as the holder or payee, the Mortgage Note bears original endorsements that complete the chain of ownership from the original holder or payee to the last endorsee (the "Last Endorsee"); (viii) with respect to Purchased Mortgage Loans which are not MERS Designated Mortgage Loans, if the Mortgage does not name either Seller as the mortgagee or beneficiary, the original of the Assignment of Mortgage from the named mortgagee or beneficiary bears the original signature purporting to be the signature of the named mortgagee or beneficiary (and any other necessary party including subsequent assignors) or in the case of copies certified by a Seller, such copies bear a reproduction of such signature or signatures and that the Assignment of Mortgage and any intervening assignments of mortgage complete the chain of title from the originator to the Last Endorsee; (ix) with respect to Purchased Mortgage Loans which are not MERS Designated Mortgage Loans, the Mortgagor name on the Assignment of Mortgage agrees with the related Mortgage Loan Schedule; (x) each Mortgage Note in its possession has been endorsed as provided in Exhibit 1 hereto; and (xi) with respect to Purchased Mortgage Loans which are not MERS Designated Mortgage Loans, each Assignment of Mortgage has been executed as provided in Exhibit 1 hereto. With respect to any modifications or revisions occurring after the Purchase Date, not later than the Business Day following each Purchase Date, the Custodian shall deliver to the Mortgage Loan Schedule and Exception Report a revised Mortgage Loan Schedule and Exception Report relating to the Purchased Mortgage Loans. The Sellers shall be solely responsible for providing each and every document required for each Mortgage File to the Custodian in a timely manner and for completing or correcting any missing, incomplete or inconsistent documents, and the Custodian shall not be responsible or liable for taking any such action, causing the Sellers or any other person or entity to do so or notifying any Person (other than the Registered Holder to the extent specifically required in this Agreement) that any such action has or has not been taken. The Custodian makes no representations as to and shall not be responsible to verify (i) the validity, legality, enforceability, sufficiency, due authorization, recordability, genuineness, perfection or priority of any document in any Mortgage File or any of the Purchased Mortgage Loans identified on the Mortgage Loan Schedule and Exception Report or (ii) the collectability, insurability, effectiveness or suitability of any such Purchased Mortgage Loan. The Custodian shall not be required to review the content (except as necessary to certify its presence or absence) of any document described in the preceding paragraph except as expressly required herein in order to deliver the Mortgage Loan Schedule and Exception Report. Each Registered Holder may request the Custodian to provide such Registered Holder with a copy of the current Mortgage Loan Schedule and Exception Report. Section 4. Obligations of the Custodian (a) With respect to the Mortgage Files delivered to the Custodian or which come into the possession of the Custodian, following the related transfer pursuant to Section 2(b) above until the interests of the Buyer have been released pursuant to this Agreement, the Custodian is the custodian for the Registered Holder of the related Trust Receipt, exclusively. The Custodian shall, following the related transfer pursuant to Section 2(b) above until the interests of the Registered Holder have been released pursuant to this Agreement, hold all documents received by it for the exclusive use and benefit of -6- the Registered Holder and shall make disposition thereof only in accordance with this Agreement and the Written Instructions furnished by the Registered Holder. The Custodian shall segregate and maintain continuous custody of the Mortgage Files in secure and fire-resistant facilities in accordance with customary standards for such custody. (b) The Custodian shall promptly notify the Buyer and any other Registered Holder if (i) any Seller fails to pay any amount due to the Custodian under this Agreement or (ii) a Responsible Officer of the Custodian has actual knowledge that any Mortgage, pledge, lien, security interest or other charge or encumbrance has been placed on the Mortgage Files. Section 5. Additional Purchased Mortgage Loans (a) Each Seller may, from time to time, deliver to the Custodian one or more additional Mortgage Loans (each an "Additional Purchased Mortgage Loans") as an addition to the Purchased Mortgage Loans already held by the Custodian with respect to a Transaction. In such event, the Sellers shall deliver to the Custodian the Mortgage File for each Additional Purchased Mortgage Loans together with a Mortgage Loan Schedule, with a copy to the Buyer, stating that the Additional Purchased Mortgage Loan is being delivered with respect to an identified Transaction. It is expressly understood and agreed that the Custodian shall have no duty to perform any valuation of collateral and shall have no responsibility to ascertain the adequacy of any Additional Purchased Mortgage Loans other than undertaking a review of the related Mortgage File in accordance with Section 3 hereof. (b) The Custodian shall deliver to the Buyer no later than one Business Day after receipt of such Additional Purchased Mortgage Loan from the Sellers, a Mortgage Loan Schedule and Exception Report that reflects the delivery of each Additional Purchased Mortgage Loan; provided that in the event that the Custodian does not receive the items required to be delivered pursuant to Section 5(a) above by no later than 3:00 p.m. (New York City time) on the Business Day prior to the date of delivery, then the Custodian shall deliver such Mortgage Loan Schedule and Exception Report within one Business Day after the date of delivery. In issuing such Mortgage Loan Schedule and Exception Report, the Custodian shall employ the same procedures as set forth in Section 3 in reviewing the Mortgage Files. Section 6. Future Defects During the term of this Agreement, if the Custodian discovers any defect with respect to any Mortgage File, the Custodian shall give prompt written specification of such defect to the Sellers and the Registered Holder. For purposes of this Section, "defect" shall mean a failure of a document to conform to the Custodian's review as required by Section 3 of this Agreement or the absence of a Mortgage File or any part thereof or any other document required to be reviewed pursuant to this Agreement. The Sellers shall be solely responsible for completing or correcting any missing, incomplete or inconsistent documents, and the Custodian shall not be responsible or liable for taking any such action, causing the Sellers or any other person or entity to do so or notifying any Person that any such action has or has not been taken. Section 7. Release for Servicing From time to time and as appropriate for the foreclosure or servicing of any of the Purchased Mortgage Loans, the Custodian shall, upon receipt of a Request for Release of Documents and Receipt in the form of Exhibit 3 attached hereto ("Request for Release"), release or cause to be released to the Sellers or the Sellers' Authorized Representative the related Mortgage File or the documents of the related Mortgage File set forth in such Request for Release. The Sellers shall send a copy of any such Request for Release to the Registered Holder. Any document released to the Sellers or the Sellers' -7- Authorized Representative pursuant to a Request for Release shall be returned to the Custodian no later than 10 days from the date on such Request for Release, and the Custodian shall notify the Registered Holder of any failure by the Sellers to so return any such document. All Mortgage Files or documents from Mortgage Files released by the Custodian to the Sellers or, upon the Sellers' Written Instructions, the Sellers' Authorized Representative, pursuant to this Section 7, shall be held by the Sellers or the Sellers' Authorized Representative, as applicable, in trust for the benefit of the Registered Holder. The Sellers or the Sellers' Authorized Representative, as applicable, shall return to the Custodian the Mortgage File or other such documents from Mortgage Files when the need therefor in connection with such foreclosure or servicing no longer exists (but in any event no later than 10 days from the date on such Request for Release), unless the Mortgage Loan shall be liquidated, in which case, the Sellers or, if the Mortgage File or documents were released to the Sellers' Authorized Representative, the Sellers' Authorized Representative shall deliver to the Custodian an additional Request for Release that has been acknowledged and agreed to by the Registered Holder certifying such liquidation. Upon receipt of the related Mortgage File or other such documents from the Sellers, the Custodian shall return the related Request for Release to the Sellers, with a copy to the Registered Holder, acknowledging receipt (upon request) of such Mortgage File or other such documents. Section 8. Limitation on Release The foregoing Section 7 shall be operative only to the extent that at any time the Custodian shall not have released to the Sellers or the Sellers' Authorized Representative in total active Mortgage Files or documents (including those requested) pertaining to ten Mortgage Loans at the time being held by the Custodian under this Agreement. If ten Mortgage Loans or more have been, and remain released to the Sellers at the time of request, the Mortgage Note and/or Assignment of Mortgage or any additional Mortgage Files or documents requested to be released by the Sellers or the Sellers' Authorized Representative may be released only upon the written acknowledgment of the Request for Release by the Registered Holder. The limitations of this paragraph shall not apply to the release of Mortgage Files to the Sellers or, upon the Sellers' Written Instructions, the Sellers' Authorized Representative, pursuant to Section 9 below. Section 9. Release for Payment Upon the payment in full, liquidation or repurchase of any Mortgage Loan, and upon receipt by the Custodian of a Request for Release certifying that all proceeds related to such payment in full, liquidation, or repurchase have been received (provided that the Sellers shall have delivered a copy of such Request for Release to the related Registered Holder and the related Registered Holder shall not have objected to such release), the Custodian shall promptly release the related Mortgage File to the Sellers or, upon Sellers' Written Instructions, the Sellers' Authorized Representative. After such release the Custodian shall amend the applicable Mortgage Loan Schedule and Exception Report to reflect the release of the applicable Mortgage Loan and shall deliver to the related Registered Holder such amended Mortgage Loan Schedule and Exception Report. Section 10. Joint and Several Obligations The obligations and liabilities of the Sellers shall be joint and several. -8- Section 11. Covenants of the Seller Each Seller covenants to the related Registered Holder as of the date that any Mortgage File documents are released to the Sellers or the Sellers' subservicer pursuant to a Request for Release that: (a) if the Request for Release has been submitted for the release of a Purchased Mortgage Loan that has been paid in full, all amounts received in connection with the payment in full of the Purchased Mortgage Loan have been credited to such Registered Holder as provided in the Repurchase Agreement; (b) if item No. 1 has been checked on the Request for Release, the Repurchase Price for the applicable Purchased Mortgage Loan has been credited to such Registered Holder as provided in the Repurchase Agreement; and (c) if item No. 2 has been checked on the Request for Release, all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Registered Holder pursuant to the Repurchase Agreement. Section 12. Repurchase Date The Sellers shall provide the Buyer and the Custodian with Written Instructions at least one Business Day(s) prior to each Repurchase Date on which the Sellers intend to remove Purchased Mortgage Loans from the repurchase facility governed by the Repurchase Agreement, which Written Instructions shall include a schedule of Purchased Mortgage Loans to be removed on such date (unless all Purchased Mortgage Loans are to be removed, in which case the Written Instructions shall indicate this fact). The Buyer shall send a Repurchase Release in the form of Exhibit 8 hereto (a "Repurchase Release") to the Sellers and the Custodian by 3:00 p.m. (New York time) on the Business Day prior to each Repurchase Date listing the Purchased Mortgage Loans to be released on such Repurchase Date. On the Repurchase Date for each Transaction the Buyer hereby irrevocably instructs the Custodian to release to the Sellers or their designee the Purchased Mortgage Loans designated in such Repurchase Release upon receipt of notification by the Custodian from the Buyer that it has received the Repurchase Price. The Buyer shall notify the Custodian immediately upon confirmation that the Sellers have transmitted the Repurchase Price. Section 13. Transfer of Purchased Mortgage Loans Upon Termination of a Transaction If the Custodian is furnished with Written Instructions in the form of Exhibit 8 attached hereto (i) from the Buyer and the Sellers that a Transaction with respect to the Repurchase Agreement has been terminated, or (ii) from the Buyer that an Event of Default under the Repurchase Agreement has occurred as to any or all of the Purchased Mortgage Loans, the Custodian shall release to such Persons as are designated in such Written Instructions the Mortgage Files relating to the Purchased Mortgage Loans that are no longer subject to the Transaction, and shall deliver to the Buyer an updated Mortgage Loan Schedule and Exception Report listing all of the Purchased Mortgage Loans still subject to a Transaction. Section 14. Shipment of Documents Written Instructions as to the method of shipment and shipper(s) that Custodian is directed to utilize in connection with transmission of Mortgage Files in the performance of the Custodian's duties hereunder shall be delivered by the Sellers, the Buyer or any other Registered Holder to Custodian prior to any shipment of any Mortgage Files hereunder. The requesting party will arrange for the provision of such services at its sole cost and expense (or, at such party's option, reimburse Custodian for all costs and -9- expenses incurred by Custodian consistent with such Written Instructions) and will maintain such insurance against loss or damage to the Mortgage Files as the requesting party deems appropriate. Without limiting the generality of the provisions of Section 21 below, it is expressly agreed that in no event shall Custodian have any liability for any losses or damages to any person, arising out of actions of Custodian in accordance with instructions of the requesting party, unless such performance constitutes negligence, lack of good faith or willful misconduct on the part of the Custodian or any of its directors, officers, agents or employees. In the absence of Written Instructions from the Sellers or the Buyer, the Custodian shall not ship the related Mortgage Files. Section 15. Examination and Copies of Mortgage Files Upon the written request of the Buyer or any other Registered Holder, Buyer, such Registered Holder and their respective agents, accountants, attorneys, auditors and prospective purchasers will be permitted, upon one Business Day's prior notice, during normal business hours to examine the Mortgage Files and any other documents, records and papers in the possession of or under the control of the Custodian relating to any or all of the Purchased Mortgage Loans. The Sellers shall be responsible for any reasonable expenses in connection with such examinations. Upon the written request of the Sellers or the Buyer, the Custodian shall provide such party, at such party's expense, with copies of the Mortgage Notes, Mortgages, Assignment of Mortgages and other documents relating to one or more of the Mortgage Loans. Section 16. Insurance of the Custodian At its own expense, the Custodian shall maintain at all times during the existence of this Agreement and keep in full force and effect a fidelity bond, errors and omissions insurance and document hazard insurance. All such insurance shall be in amounts, with standard coverage and subject to standard deductibles, all as is customary for insurance typically maintained by institutions which act as custodian. The coverage under any such bond and insurance policies shall be in an amount as is customary for insurance typically maintained by institutions which act as custodian. A certificate of an Authorized Representative of the Custodian shall be furnished to the Sellers, the Buyer, and any other Registered Holder, upon request, stating that such insurance is in full force and effect. Section 17. Periodic Statements Upon the reasonable Written Instructions of the Buyer, any other Registered Holder or the Sellers at any time, the Custodian shall provide to the such party, as the case may be, a list of all the Purchased Mortgage Loans for which the Custodian holds a Mortgage File. Section 18. Fees and Expenses of the Custodian The Custodian shall charge such fees for its services under this Agreement as are set forth in a separate agreement between the Custodian and the Sellers, the payment of which fees, together with the Custodian's expenses (including reasonable legal fees and expenses) in connection herewith, shall be solely the obligation of the Sellers. The foregoing obligation to pay the Custodian its fees and to reimburse the Custodian for its expenses in connection with services provided by the Custodian hereunder shall survive any resignation or removal of the Custodian (for all reasonable fees and expenses incurred prior to such resignation or removal) or the termination or assignment of this Agreement. -10- Section 19. Custodian Representations The Custodian (and any successor Custodian subject to this Agreement as of the date of appointment of such custodian) hereby represents and warrants as of the date hereof and as of each date it delivers a Mortgage Loan Schedule and Exception Report that: (a) The Custodian is (i) a national banking association duly authorized, validly existing and in good standing under the laws of the United States and (ii) duly qualified and in good standing and in possession of all requisite authority, power, licenses, permits and franchises in order to execute, deliver and comply with its obligations under the terms of this Agreement; (b) The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action and the execution and delivery of this Agreement by the Custodian in the manner contemplated herein and the performance of and compliance with the terms hereof by it will not (i) violate, contravene or create a default under any applicable laws, licenses or permits, or (ii) violate, contravene or create a default under any charter document or bylaw of the Custodian; (c) The execution and delivery of this Agreement by the Custodian and the performance of and compliance with its obligations and covenants hereunder do not require the consent or approval of any governmental authority or, if such consent is required, it has been obtained; (d) This Agreement, and the original Trust Receipt issued hereunder (when executed and delivered by the Custodian) will constitute valid, legal and binding obligations of the Custodian, enforceable against the Custodian in accordance with their respective terms, except as the enforcement thereof may be limited by applicable bankruptcy or other debtor relief laws and that certain equitable remedies may not be available regardless of whether enforcement is sought in equity or at law; (e) There is no litigation pending to the Custodian's knowledge (without inquiry) which, if determined adversely to Custodian, would adversely affect the execution, delivery or enforceability of this Agreement, or any of the duties or obligations of Custodian hereunder; (f) The Custodian shall follow the Written Instructions of the Buyer or the related Registered Holder to protect or maintain any interest in real property securing the Mortgage Loan subject to this Agreement and any insurance applicable thereto; and (g) The Custodian is not controlled by, under common control with or otherwise affiliated with or related to either Seller, and the Custodian covenants and agrees with Buyer that prior to any such affiliation in the future, it shall notify Buyer. Section 20. No Adverse Interest of the Custodian By execution of this Agreement, the Custodian represents and warrants that it currently holds, and during the existence of this Agreement shall hold, no adverse interest, by way of security or otherwise, in any Purchased Mortgage Loan, and hereby waives and releases any such interest which it may have in any Purchased Mortgage Loan as of the date hereof. The Purchased Mortgage Loans shall not be subject to any security interest, lien or right of set-off by the Custodian or any third party claiming through the Custodian, and the Custodian shall not pledge, encumber, hypothecate, transfer, dispose of, or otherwise grant any third party interest in, the Purchased Mortgage Loans. -11- Section 21. Concerning the Custodian (a) The Custodian shall have no duties or responsibilities except those specifically set forth herein. The Custodian shall have no responsibility nor duty with respect to any Mortgage Files while not in its possession. If the Custodian requests instructions from the Buyer with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received Written Instructions from the Buyer with respect to a Mortgage File without incurring any liability therefore to the Buyer, the Sellers or any other Person. (b) Without limiting the generality of the foregoing, the Custodian may rely upon and shall be fully protected in acting in good faith upon any Written Instructions, certificate, resolution, statement, instrument, opinion, report, request, consent, order, approval, notice or other communication from the Buyer, any Registered Holder or the Sellers received by it and which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties hereunder. (c) Neither the Custodian, nor its officers, directors, employees or agents shall be liable to the Sellers, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the performance of its obligations hereunder or in connection herewith. The obligations of the Custodian shall be determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement, obligation or duty of the Custodian shall be implied with respect to this Agreement or the Custodian's services hereunder. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided herein. (d) Unless expressly provided herein, the Custodian shall be under no duty or obligation to inspect, review or examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they have been actually recorded, are in the proper form for recordation or, unless expressly provided herein, that they are not other than what they purport to be on their face. (e) No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity reasonably satisfactory to it is not reasonably assured to it. (f) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting as custodian of mortgage loans which are held to a standard of care of ordinary negligence, and this Section 21 shall not be interpreted to impose upon the Custodian a higher standard of care than that set forth in this sentence. (g) In order to comply with its duties under the U.S.A. Patriot Act, the Custodian shall obtain and verify certain information and documentation from the other parties hereto, including, but not limited to, such party's name, address, and other identifying information. Section 22. Indemnification (a) Each Seller agrees to reimburse, indemnify and hold harmless the Custodian and its directors, officers, employees, or agents (each, an "Indemnitee") from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suit, reasonable costs, expenses, or disbursements of any kind or nature whatsoever including reasonable fees and expenses of counsel, court -12- costs and costs of appeal that may be imposed on, incurred by, or asserted against it or them in any way in connection with or related to Custodian's execution and performance of this Agreement and any transactions contemplated hereby, including but not limited to the claims of any third parties, including Buyer, except in the case of loss, liability or expense resulting from a Custodial Delivery Failure (as defined below), the Custodian's breach of this Agreement or the negligence, lack of good faith or willful misconduct on the part of Custodian. Such indemnification shall survive the termination of this Agreement and the resignation or removal of the Custodian hereunder. (b) In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Purchased Mortgage Loan that was in its possession within two (2) Business Days after required or requested by a Seller, Buyer, or any other Registered Holder or otherwise determines that a document that it had previously certified as in its possession, is no longer in its possession, and that (i) such document is not outstanding pursuant to a Request for Release and Receipt in the form annexed hereto as Exhibit 3; and (ii) such document was held by the Custodian, as evidenced by a previously delivered Mortgage Loan Schedule and Exception Report, on behalf of the Sellers, Buyer, or the Registered Holder as applicable, (a "Custodial Delivery Failure") then the Custodian shall (a) with respect to any missing Mortgage Note, promptly deliver to Buyer, the Sellers or the Registered Holder upon request, a Lost Note Affidavit in the form of Exhibit 9 hereto and (b) with respect to any missing document related to such Mortgage Loan, including but not limited to a missing Mortgage Note, indemnify the Sellers, the Buyer and any other Registered Holder in accordance with the succeeding paragraph of this Section. (c) The Custodian agrees to indemnify and hold the Buyer, any other Registered Holder and each Seller, and their respective trustees, shareholders, officers, designees, successors and assigns harmless against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorneys' fees, court costs and costs of appeal that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising from the claims of any third party in connection with or related to a Custodial Delivery Failure or the Custodian's breach of this Agreement, or the negligence, lack of good faith or willful misconduct on the part of the Custodian. The foregoing indemnification shall survive the termination of this Agreement and the resignation or removal of the Custodian hereunder. Section 23. Merger or Consolidation of Custodian Any Person into which the Custodian may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding to the business of the Custodian, shall be the successor of the Custodian 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 24. Removal of the Custodian With Respect to Some or All of the Purchased Mortgage Loans Upon an Event of Default under the Repurchase Agreement the Buyer may (i) require, at the Sellers' expense, the Custodian to complete the endorsements on the Mortgage Notes in the name of the Buyer and to complete the Assignments of Mortgage in the name of the Buyer and/or (ii) remove and discharge the Custodian from the performance of its duties under this Agreement with respect to some or all of the Mortgage Loans by 30 days' written notice from the Buyer to the Custodian with a copy to the Sellers. In the event that the Buyer removes the Custodian from the performance of its duties under this Agreement with respect to all of the Mortgage Loans, the Buyer may, in its sole discretion, after notice to the Sellers, either appoint a successor Custodian to act on behalf of the Buyer by written instrument, or -13- terminate this Agreement. In the event of any such new appointment, the Custodian shall promptly transfer to the successor Custodian or the Buyer, as directed by the Buyer, the applicable Mortgage Loan documents being administered under this Agreement. In the event of any such appointment, the Buyer shall be responsible for the fees of the successor Custodian unless otherwise agreed by the Sellers and the Buyer. In the event of termination of this Agreement pursuant to this Section 24, the Custodian shall follow the reasonable Written Instructions of Buyer with respect to the disposition of the respective Mortgage Loan documents. Concurrently with the transfer and release of all of the Mortgage Files by the Custodian, the Buyer shall submit the related Trust Receipts to the Custodian for cancellation. Notwithstanding the foregoing, in the event that the Buyer terminates this Agreement with respect to some, but not all, of the Mortgage Loans, this Agreement shall remain in full force and effect with respect to any Purchased Mortgage Loans for which this Agreement is not terminated hereunder. In addition, the Buyer and the Custodian may, at the sole option of the Buyer, enter into a separate custodial agreement which shall be mutually acceptable to the parties with respect to any or all or the Mortgage Loans with respect to which this Agreement is terminated. Section 25. Obligations of the Custodian With Respect to the Trust Receipt (a) The Custodian shall keep a register in which the Custodian shall provide for the registration of transfers of Trust Receipts as provided herein and in which it shall record the name and address of the Person to whom such Trust Receipt is issued (the "Registered Holder"). The Buyer shall be the initial Registered Holder for all Purchased Loans. Each Trust Receipt, upon initial issuance or reissuance, shall be dated the date of such issuance or reissuance and shall evidence the receipt and possession by the Custodian on behalf of the Registered Holder of the Trust Receipt of the Mortgage Files and the Registered Holder's right to possess those Mortgage Files. The Custodian shall treat the person or entity in whose name the Trust Receipt is registered as the person or entity entitled to possession of the Mortgage Files evidenced by such Trust Receipt for all purposes whatsoever, subject to the terms of this Agreement, and the Custodian shall not be affected by notice of any facts to the contrary. No Trust Receipt shall be valid for any purpose unless substantially in the form set forth in Exhibit 2 to this Agreement and executed by manual signature of an Authorized Representative of the Custodian. Such signature upon any Trust Receipt shall be conclusive evidence, and the only evidence, that such Trust Receipt has been duly delivered under this Agreement. Trust Receipts bearing the manual signatures of individuals who were, at the time when such signatures were affixed, Authorized Representatives of the Custodian shall bind the Custodian, notwithstanding that such individuals have ceased to be so authorized prior to the delivery of those Trust Receipts. Each Trust Receipt shall have attached thereto a Mortgage Loan Schedule with an exception report with respect to the applicable Purchased Loans. Any transferee or assignee of the Trust Receipt shall succeed to all the rights of the transferring Registered Holder under this Agreement with respect to such Trust Receipt and the related Purchased Loans upon notice to the Custodian and delivery to the Custodian of the appropriate evidence of such transfer and assignment. (b) The Registered Holder may transfer its interest in the Mortgage Files covered by any Trust Receipt by delivering to the transferee (the "Transferee") such Trust Receipt, together with an appropriate notice to the Custodian in the form of Exhibit 11 hereto (the "Notice to the Custodian"). Within five Business Days of receipt of the Notice to the Custodian and receipt by the Custodian of the Trust Receipt from the Transferee, the Custodian shall deliver, in accordance with the written instructions of the Transferee, a Trust Receipt issued in the name of the Transferee and to the place indicated in any such written direction from the Transferee. Upon receipt of the Notice to the Custodian from the Registered Holder, the Custodian shall change its records to reflect that such Transferee is the Registered Holder of the Mortgage Files. -14- (c) In the event that (i) any mutilated Trust Receipt is surrendered to the Custodian, or the Custodian receives evidence to its satisfaction of the destruction, loss or theft of any Trust Receipt and (ii) there is delivered to the Custodian such security or indemnity as may be required by it to save it harmless, then, in the absence of notice to the Custodian that such Trust Receipt has been acquired by a bona fide purchaser, the Custodian shall execute and deliver a new Trust Receipt to such Registered Holder in exchange for or in lieu of any such mutilated, lost or stolen Trust Receipt. (d) Simultaneously with the relinquishment of a Trust Receipt to the Custodian by the Registered Holder thereof and the delivery by the Custodian of the related Mortgage Files to the Sellers or its designee or to such Registered Holder or a designee of the Registered Holder, the Trust Receipt shall be canceled and the related Mortgage Files will no longer be subject to this Agreement. Section 26. Termination by the Custodian The Custodian may terminate its obligations hereunder upon 30 days' prior written notice to the Buyer, any other Registered Holder and the Sellers. Such resignation shall take effect upon (i) the appointment of a successor Custodian acceptable to the Buyer within such 30 day period; and (ii) delivery of all Mortgage Files to the successor Custodian or, if no successor Custodian has been appointed, to Buyer. Upon such termination and appointment of a successor Custodian and surrender of all outstanding Trust Receipts, the Custodian shall (i) promptly transfer to the successor Custodian, as directed in writing by the Buyer or other applicable Registered Holder, all Mortgage Files being administered under this Agreement, and (ii) if the endorsements on the Mortgage Notes and the Assignments of Mortgage have been completed in the name of the Custodian, assign the Mortgages and endorse without recourse the Mortgage Notes to the successor Custodian or as otherwise directed in writing by the Buyer or applicable Registered Holder. Not withstanding the foregoing, it is understood and agreed that it is not intended that the Custodian have any ownership interest in such Mortgage Loans. Section 27. Successors and Assigns This Agreement shall inure to the benefit of the successors and assigns of the parties hereto. Neither Seller nor Custodian shall assign their respective rights or obligations hereunder or any interest therein without the prior written consent of Buyer. Buyer may from time to time assign all or a portion of its rights and obligations under this Agreement; provided that any such assignment shall be subject to the satisfactory completion of the Custodian's "Know Your Customer" procedures then in effect for all new customers. Section 28. Authorized Representatives Each individual designated as an authorized representative of the Custodian, each Seller and the Buyer (each, an "Authorized Representative"), is authorized to give and receive notices, requests and instructions and to deliver certificates and documents in connection with this Agreement on behalf of the Custodian, the Sellers or the Buyer, respectively, (in each case subject to their designated limit of authority, if any) and the specimen signature for each such Authorized Representative of the Custodian, each Seller and the Buyer initially authorized hereunder is set forth on Exhibits 4, 5 and 6, respectively. From time to time, the Custodian, each Seller and the Buyer may, by delivering to the other parties a revised exhibit, change the information previously given pursuant to this Section, but each of the parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt of a superseding exhibit. The Sellers shall deliver or cause to be delivered to the Custodian an Authorized Representatives exhibit for each subservicer designated by the Sellers in connection with this Agreement; provided that -15- the Custodian shall not recognize any request from the Sellers' subservicer unless and until the Sellers have given the Custodian written notice identifying such subservicer and such Authorized Representatives exhibit is received by the Custodian. The Custodian shall be entitled to rely conclusively upon (i) written notice from the Sellers identifying a subservicer authorized to give instructions (including Written Instructions) under this Agreement until receipt of written notice from the Sellers revoking such authority and (ii) the most recent Authorized Representatives exhibit delivered to it by a subservicer of the Sellers until receipt of a superseding exhibit. If the Custodian shall at any time receive conflicting instructions from the Sellers and a subservicer of the Sellers, the Custodian shall be entitled to rely on the instructions of the Sellers. Section 29. Notices Except as otherwise expressly permitted by this Agreement, all notices, requests and other communications provided for herein (including without limitation any modifications of, or waivers, requests or consents under, this Agreement) shall be given or made in writing (including without limitation by telecopy) delivered to the intended recipient at the "Address for Notices" specified below its name on the signature pages hereof or thereof); or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. Except as otherwise provided in this Agreement and except for notices given under Section 3 (which shall be effective only on receipt), all such communications shall be deemed to have been duly given when transmitted by telecopy or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid. Section 30. Reproduction of Documents This Agreement and all documents relating thereto, including, without limitation, (i) consents, waivers and modifications which may hereafter be executed, and (ii) certificates and other information previously or hereafter furnished, may be reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other similar process. The parties agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. Section 31. Amendments; Entire Agreement No amendment or waiver of any provision of this Agreement nor consent to any departure herefrom shall in any event be effective unless the same shall be in writing and signed by all the parties hereto, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. The Custodian shall not be required to execute any amendment which adversely affects its rights, duties, indemnities or immunities hereunder. Section 32. Entire Agreement; Severability This Agreement, together with the exhibits, annexes and other writings referred to herein or delivered pursuant hereto, constitute the entire agreement and understanding of the parties with respect to the matters and transactions contemplated by this Agreement and supersede any prior agreement and understandings with respect to those matters and transactions. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. -16- Section 33. Governing Law; Counterparts This Agreement shall be governed by the internal laws of the State of New York, without giving effect to the conflict of laws principles thereof. For the purpose of facilitating the execution of this Agreement as herein provided and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. Section 34. 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. 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 34. [SIGNATURE PAGES FOLLOW] -17- IN WITNESS WHEREOF, Buyer, Sellers and Custodian have duly executed this Agreement as of the date first above written. SELLERS: Address for Notices to Sellers: AMERICAN HOME MORTGAGE ACCEPTANCE, INC., American Home Mortgage a Maryland corporation Acceptance, Inc. American Home Mortgage Corp. 538 Broadhollow Road Melville, New York 11747 Attention: Alan B. Horn Telecopier No.: 800-209-7276 By: /s/ Stephen A. Hozie Telephone No.: 516-396-7703 ---------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer AMERICAN HOME MORTGAGE CORP., a New York corporation By: /s/ Stephen A. Hozie -------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer BUYER: Address for Notices to Buyer: GOLDMAN SACHS MORTGAGE COMPANY, Goldman Sachs Mortgage Company a New York limited partnership 85 Broad Street New York, New York 10004 By: Goldman Sachs Real Estate Funding Attention: Anthony Preisano Corp., a New York corporation, as Telecopier No.: 212-428-9097 general partner Telephone No.: 212-855-0393 By: /s/ Howard Altarescu With a copy to: --------------------- Name: Howard Altarescu Clifford Chance US LLP Title: Authorized Signatory 31 West 52nd Street New York, New York 10019 Attention: Frederick B. Utley, III, Esq. Telecopier No.: 212-878-8375 Telephone No.: 212-878-8356 CUSTODIAN: Address for Notices to Custodian: DEUTSCHE BANK NATIONAL TRUST COMPANY Deutsche Bank National Trust Company 1761 East St. Andrew Place By: /s/ Norma L. Catone Santa Ana, CA 92705 -------------------- Attention: Mortgage Custody - AH056C Name: Norma L. Catone Telecopier No.: 714-247-6082 Title: Vice President Telephone No.: 714-247-6000 EX-10.5.3 9 am110905-ex10_53.txt CONTRACT EXECUTION VERSION EXHIBIT 10.5.3 GUARANTY GUARANTY, dated as of August 31, 2005 (as amended from time to time, this "Guaranty"), made by AMERICAN HOME MORTGAGE INVESTMENT CORP., a Maryland corporation ("Guarantor"), in favor of GOLDMAN SACHS MORTGAGE COMPANY, a New York limited partnership ("Buyer"). RECITALS Reference is made to that certain Master Repurchase Agreement dated as of August 31, 2005 (as amended from time to time, the "Repurchase Agreement"), by and among American Home Mortgage Acceptance, Inc., a Maryland corporation, and American Home Mortgage Corp., a New York corporation (each a "Seller", and collectively "Sellers), and Buyer, pursuant to which Buyer agreed to enter into transactions with Sellers upon the terms and subject to the conditions set forth therein. It is a condition precedent to the obligation of Buyer to enter into Transactions that Guarantor execute and deliver to Buyer this Guaranty. Now, therefore, in consideration of the premises and to induce Buyer to enter into the Repurchase Agreement and engage in Transactions with Sellers, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Guarantor hereby agrees to guarantee Sellers' obligations under the Repurchase Agreement, as may be amended from time to time. 1. Defined Terms. (a) Unless otherwise defined herein, terms defined in the Repurchase Agreement and used herein shall have the meanings given to them in the Repurchase Agreement. (b) "Obligations" shall mean all obligations and liabilities of Sellers to Buyer, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, or whether for payment or for performance (including, without limitation, Price Differential accruing after the Repurchase Date for the Transactions and Price Differential accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Seller, whether or not a claim for post filing or post petition interest is allowed in such proceeding), which may arise under, or out of or in connection with the Facility Documents, whether on account of Repurchase Price, Price Differential, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to Buyer that are required to be paid by any Seller pursuant to the terms of such documents) or otherwise. (c) The words "hereof," "herein" and "hereunder" and words of similar import when used in this Guaranty shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified. (d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. 2. Guaranty. (a) Guarantor hereby, unconditionally and irrevocably, guarantees to Buyer and its successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Seller when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. (b) Guarantor further agrees to pay any and all reasonable expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by Buyer in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, Guarantor under this Guaranty. (c) No payment or payments made by any Seller, Guarantor, any other guarantor or any other Person or received or collected by Buyer from any Seller, Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of Guarantor hereunder which shall, notwithstanding any such payment or payments other than payments made by Guarantor in respect of the Obligations or payments received or collected from Guarantor in respect of the Obligations, remain liable for the Obligations up to the maximum liability of Guarantor hereunder until the Obligations are paid in full and the Repurchase Agreement is terminated. (d) Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to Buyer on account of its liability hereunder, it will notify Buyer in writing that such payment is made under this Guaranty for such purpose. 3. Right of Set-off. Upon the occurrence of any Event of Default, Guarantor hereby irrevocably authorizes Buyer at any time and from time to time without notice to Guarantor, any such notice being expressly waived by Guarantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Buyer to or for the credit or the account of Guarantor, or any part thereof in such amounts as Buyer may elect, against and on account of the obligations and liabilities of Guarantor to Buyer hereunder and claims of every nature and description of Buyer against Guarantor, in any currency, whether arising hereunder, under the Repurchase Agreement, any promissory note, or otherwise, as Buyer may elect, whether or not Buyer has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Buyer shall notify Guarantor promptly of any such set-off and the application made by Buyer, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of Buyer under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which Buyer may have. 4. No Subrogation. Notwithstanding any payment or payments made by Guarantor hereunder or any set-off or application of funds of Guarantor by Buyer, Guarantor shall not be entitled to be subrogated to any of the rights of Buyer against any Seller or any other guarantor or any collateral security or guarantee or right of offset held by Buyer for the payment of the Obligations, nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from any Seller or any other guarantor in respect of payments made by Guarantor hereunder, until all amounts owing to Buyer by each Seller on account of the Obligations are paid in full and the Repurchase Agreement is terminated. Guarantor hereby subordinates all of its subrogation rights against each Seller to the full payment of Obligations due Buyer under the Repurchase Agreement for a period of 91 days following the final payment of the last of all of the Obligations under the Facility Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have -2- been paid in full, such amount shall be held by Guarantor in trust for Buyer, segregated from other funds of Guarantor, and shall, forthwith upon receipt by Guarantor, be turned over to Buyer in the exact form received by Guarantor (duly indorsed by Guarantor to Buyer, if required), to be applied against the Obligations, whether matured or unmatured, in such order as Buyer may determine. 5. Amendments, Etc. with Respect to the Obligations; Waiver of Rights. Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against Guarantor and without notice to or further assent by Guarantor, any demand for payment of any of the Obligations made by Buyer may be rescinded by Buyer and any of the Obligations continued, and the Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by Buyer, and the Facility Documents may be amended, modified, supplemented or terminated, in whole or in part, as Buyer may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by Buyer for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. Buyer shall not have any obligation to protect, secure, perfect or insure any lien at any time held by it as security for the Obligations or for this Guaranty or any property subject thereto. When making any demand hereunder against Guarantor, Buyer may, but shall be under no obligation to, make a similar demand on Sellers or any other guarantor, and any failure by Buyer to make any such demand or to collect any payments from Sellers or any such other guarantor or any release of Sellers or such other guarantor shall not relieve Guarantor of its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of Buyer against Guarantor. For the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings. 6. Guaranty Absolute and Unconditional. (a) Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between each Seller and Guarantor, on the one hand, and Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. (b) Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon each Seller or Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against Sellers or against any assets subject to the Repurchase Agreement, and other formalities of any kind. (c) Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity, regularity or enforceability of the Repurchase Agreement, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Sellers against Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of Sellers or Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of any Seller from its Obligations, or of Guarantor from this Guaranty, in bankruptcy or in any other instance. -3- (d) When pursuing its rights and remedies hereunder against Guarantor, Buyer may, but shall be under no obligation to, pursue such rights and remedies as it may have against Sellers or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by Buyer to pursue such other rights or remedies or to collect any payments from Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. (e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto any Seller may be free from any Obligations. (f) Guarantor waives, to the fullest extent permitted by applicable law, all defenses of surety to which it may be entitled by statute or otherwise. 7. Reinstatement. The obligations of Guarantor under this Guaranty, and this Guaranty, shall continue to be effective, or be reinstated, as the case may be, and be continued in full force and effect, if at any time any payment, or any part thereof, of any of the Obligations is rescinded, invalidated, declared fraudulent or preferentially set aside or must otherwise be restored, returned or repaid by Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Seller or Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Seller or Guarantor or any substantial part of its or their property, or for any other reason, all as though such payments had not been made. 8. Payments. Guarantor hereby guarantees that payments hereunder will be paid to Buyer without set-off or counterclaim in U.S. Dollars. 9. Event of Default. If an Event of Default shall have occurred and be continuing, Guarantor agrees that, as between Guarantor and Buyer, the Obligations may be declared to be due for purposes of this Guaranty notwithstanding any stay, injunction or other prohibition which may prevent, delay or vitiate any such declaration as against any Seller and that, in the event of any such declaration (or attempted declaration), such Obligations shall forthwith become due by Guarantor for purposes of this Guaranty. 10. Representations and Warranties; Covenants. (a) Guarantor represents and warrants that (i) it is duly authorized to execute and deliver this Guaranty, to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance; (ii) the person signing this Guaranty on its behalf is duly authorized to do so on its behalf; (iii) this Guaranty is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar debtor/creditor laws and general principles of equity and public policy, (iv) no approval, consent or authorization of this Guaranty from any federal, state, or local regulatory authority having jurisdiction over it is required or, if required, such approval, consent or authorization has been or will be obtained, prior to the initial Transaction; (v) the execution, delivery, and performance of this Guaranty will not violate any law, regulation, order, judgment, decree, ordinance, charter, by law, or rule applicable to it or its property or -4- constitute a default (or an event which, with notice or lapse of time, or both would constitute a default) under or result in a breach of any material agreement or other material instrument by which it is bound or by which any of its assets are affected; (vi) it has received approval and authorization to enter into this Guaranty pursuant to its internal policies and procedures; (vii) this Guaranty is not entered into in contemplation of insolvency or with intent to hinder, delay or defraud any creditor; and (viii) it has examined and comprehends the Facility Documents in their entirety. (b) Guarantor represents, warrants and covenants to Buyer that as of the date of this Guaranty and as of the date of any Transaction under the Repurchase Agreement and at all times while this Guaranty and any Transaction under the Repurchase Agreement are in effect or there are Obligations outstanding: (i) Performance of Guaranty. Guarantor does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Guaranty on its part to be performed; (ii) Guarantor Not Insolvent. Guarantor is not, and with the passage of time does not expect to become, insolvent and is not contemplating the commencement of any isolvency; and (iii) Ownership of Seller. Guarantor is now, and will remain, the direct or indirect owner of all of the capital stock and other beneficial interests in each Seller. (c) Guarantor covenants and agrees that it shall not consolidate with or merge into, or transfer all or substantially all of its assets to, another entity (or permit the occurrence of same) unless the resulting surviving or transferee entity (i) is a corporation organized under the laws of the United States of America or political subdivision thereof; (ii) assumes all the obligations of Guarantor under this Agreement pursuant to an agreement reasonably satisfactory to Buyer or by law; (iii) such merger, consolidation or asset transfer has received the prior written approval of the regulatory authorities having jurisdiction over such transaction; and (iv) Buyer receives as part of the aforementioned agreement assurances from such entity prior to the proposed merger, consolidation or asset acquisition, reasonably satisfactory to Buyer, that such entity would not, following such proposed transaction, present an unacceptable credit risk to Buyer and would be an entity able to faithfully perform under the terms of this Guaranty. 11. Notices. All notices, requests and other communications provided for herein (including without limitation any modifications of, or waivers, requests or consents under, this Guaranty) shall be given or made in writing (including without limitation by telex or telecopy) delivered to the intended recipient at the "Address for Notices" specified below its name on the signature pages of the Repurchase Agreement, or, with respect to Guarantor, at the "Address for Notices" specified below its name on the signature page hereof); or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. All such communications shall be deemed to have been duly given when transmitted by telex or telecopy or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid. 12. Severability. Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. -5- 13. Integration. This Guaranty represents the agreement of Guarantor with respect to the subject matter hereof and thereof and there are no promises or representations by Buyer relative to the subject matter hereof or thereof not reflected herein or therein. 14. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the terms or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and Buyer, provided that any provision of this Guaranty may be waived by Buyer. (b) Buyer shall not by any act (except by a written instrument pursuant to Section 14(a) hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of Buyer, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by Buyer of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which Buyer would otherwise have on any future occasion. (c) The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law. 15. Section Headings. The section headings used in this Guaranty are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. 16. Successors and Assigns. This Guaranty shall be binding upon the successors and assigns of Guarantor and shall inure to the benefit of Buyer and its successors and assigns. This Guaranty may not be assigned by Guarantor without the express written consent of Buyer. Buyer may from time to time assign all or a portion of its rights and obligations under this Guaranty; provided that if such assignment is to a Person that is not an Affiliate of Buyer and no Default shall have occurred and be continuing, any such assignment shall be subject to the prior written consent of Guarantor, which consent shall not be unreasonably withheld, delayed or conditioned. 17. Governing Law. This Guaranty shall be governed by New York law without reference to its choice of law doctrine. 18. SUBMISSION TO JURISDICTION; WAIVERS. GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY AND THE OTHER FACILITY DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF; (B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE -6- VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; (C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH BUYER SHALL HAVE BEEN NOTIFIED; AND (D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION. 19. WAIVER OF JURY TRIAL. EACH OF GUARANTOR AND BUYER HEREBY 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 GUARANTY, ANY OTHER REPURCHASE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. [SIGNATURE PAGE FOLLOWS] -7- IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed and delivered by its duly authorized officer as of the day and year first above written. GUARANTOR: Address for Notices to Guarantor: AMERICAN HOME MORTGAGE INVESTMENT CORP., American Home Mortgage Investment a Maryland corporation Corp. 538 Broadhollow Road Melville, New York 11747 Attention: Alan B. Horn Facsimile No.: 800-209-7276 By: /s/ Stephen A. Hozie Telephone No.: 516-396-7703 ----------------------------- Name: Stephen A. Hozie Title: Executive Vice President and Chief Financial Officer SIGNATURE PAGE TO GUARANTY AGREEMENT EX-10.6.1 10 am110905-ex10_61.txt CONTRACT EXHIBIT 10.6.1 September 13, 2005 American Home Mortgage Acceptance, Inc. 538 Broadhollow Road Melville, New York 11747 Re: Transactions for Mortgage Loans Ladies and Gentlemen: Reference is made to the Master Repurchase Agreement, dated as of March 29, 2004 (the "Master Repurchase Agreement"), by and among Lehman Brothers Inc. and Lehman Commercial Paper Inc. (collectively "Buyer") and American Home Mortgage Acceptance Inc. ("Seller"). Capitalized terms used herein but not defined herein shall have the meanings given in the Master Repurchase Agreement. This letter agreement (the "Letter Agreement") sets forth the terms and conditions on which the Buyer may enter into Transactions with the Seller with respect to the whole mortgage loans referenced on Schedule A attached hereto (the "Mortgage Loans"). This Letter Agreement shall be deemed to constitute a part of, and be read together with, the Master Repurchase Agreement. In the event of any inconsistency between the Master Repurchase Agreement and this Letter Agreement, this Letter Agreement shall prevail. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. In consideration of the willingness of the Buyer to enter into Transactions for the Mortgage Loans, from time to time, the Seller and the Buyer agree as follows: 1. Mortgage Loans. For all purposes of the Master Repurchase Agreement, all references to Securities and Purchased Securities shall be deemed to include the Mortgage Loans. This Letter Agreement shall apply to any Transaction for Purchased Securities where the Purchased Securities are the Mortgage Loans, without the requirement of any further action or notice being taken by the Buyer or the Seller. The parties hereto acknowledge and agree that the Repurchase Date for any Transaction for Mortgage Loans shall not extend beyond October 14, 2005. The Seller expressly acknowledges and agrees that the Buyer shall not have any obligation to make any future advances under the Mortgage Loans and any requirements under the Mortgage Loans to disburse additional proceeds shall be satisfied solely and exclusively by the Seller. 2. Definitions. (a) The following definitions in Section 2 of the Master Repurchase Agreement are hereby deleted in their entirety and replaced with the language set forth below solely for purposes of any Transaction for the Mortgage Loans: Schedule D-1 "Buyer's Margin Percentage", 103.50%; "Market Value", the price at which such Mortgage Loan could readily be sold as determined by Buyer in its discretion, provided that Market Value shall be deemed zero for any Mortgage Loan with respect to which there is a breach of a representation or warranty made by Seller in the Letter Agreement; "Pricing Rate", the per annum percentage rate for determination of the Price Differential, which shall equal LIBOR plus 0.50% (or after the occurrence and during the continuance of an Event of Default on the part of Seller, LIBOR plus 6.00%); (b) The following definitions are hereby added to Section 2 of the Master Repurchase Agreement for purposes of any Transaction for the Mortgage Loans: "Affiliate" means, with respect to any Person, another Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition, "control" (including its correlative meanings, "controlled by" and "under common control with") means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise). "Capital Lease", as applied to any Person or entity, shall mean any lease of any property (whether real, personal or mixed) by that Person or entity as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person or entity. "Custodial Agreement" means that custodial agreement, dated as of December 3, 2004, as amended by the First Amendment to Custodial Agreement, dated as of June 10, 2005 and the Second Amendment to Custodial Agreement, dated as of the date hereof (the "Second Amendment") and as further amended, modified or supplemented from time to time, by and among Buyer, Seller and Custodian. The form of the Second Amendment is attached hereto as Schedule B. "Custodian" means the custodian under the Custodial Agreement. The initial custodian is Deutsche Bank National Trust Company. "GAAP" means with respect to the financial statements or other financial information of any Person, generally accepted accounting principles in the United States that are in effect from time to time. "Indebtedness" means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than trade accounts payable (other Schedule D-2 than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered; (c) Indebtedness of others secured by a lien on the property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such Person; (e) Capital Leases of such Person; and (f) any of the foregoing types of indebtedness of others guaranteed by such Person (without duplication). "LIBOR" means the rate per annum calculated two (2) Business Days prior to each Repurchase Date determined by Buyer on the basis of the offered rate for one month deposits of not less than U.S. $1,000,000, that appears on the date of determination on Dow Jones Market Service Page 3750 as of 11:00 a.m., London time (or such other page as may replace the Dow Jones Market Service Page on that service for the purposes of displaying London interbank offered rates of major banks). All percentages resulting from any calculations of LIBOR referred to in this Letter Agreement shall be rounded up to the nearest multiple of 1/100 of 1% and all U.S. Dollar amounts used in or resulting from such calculations shall be rounded to the next higher cent. "Material Adverse Effect" shall mean a material adverse effect on (a) the business, assets, property or condition (financial or otherwise) of Seller, or (b) the validity or enforceability of (i) the Master Repurchase Agreement (or any material provision thereof) or (ii) the rights, remedies or interests of Buyer hereunder or thereunder. "Mortgage" means a mortgage, deed of trust, deed to secure debt or other instrument, creating a valid, enforceable first or second lien on, or a first or second priority ownership interest in an estate in fee simple in, real property and the improvements thereon, securing a mortgage note or similar evidence of indebtedness. "Mortgage Note" means a note or other evidence of indebtedness of a Mortgagor secured by a Mortgage. "Mortgaged Property" means the real property securing repayment of the debt evidenced by a Mortgage Note. "Person" means an individual, partnership, limited liability company, corporation, joint stock company, trust or unincorporated organization or a governmental agency or political subdivision thereof. "Subsidiary" means, as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by Schedule D-3 reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of Seller. "Uniform Commercial Code" means the Uniform Commercial Code as in effect on the date in effect from time to time in the State of New York; provided, that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, "Uniform Commercial Code" shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection. (c) The following definitions in Section 2 of the Master Repurchase Agreement are hereby deleted for purposes of any Transaction for the Mortgage Loans: "Margin Excess", "Seller's Margin Amount" and "Seller's Margin Percentage". 3. Margin Excess. Section 4(b) of the Master Repurchase Agreement (and all references to Section 4(b) in any other Section of the Master Repurchase Agreement) are hereby deleted in their entirety. 4. Purchase Price; Maximum Purchase Price. The Purchase Price with respect to any Transaction for the Mortgage Loans shall be equal to, with respect to each Mortgage Loan, 98% of the lesser of (a) the Market Value of such Mortgage Loan and (b) the outstanding principal balance of such Mortgage Loan, provided that the maximum Purchase Price with respect to all Transactions for the Mortgage Loans shall be equal to $500,000,000. 5. Security Interest. Solely for purposes of any Transaction for the Mortgage Loans, Section 6 of the Master Repurchase Agreement is hereby deleted in its entirety and replaced with the following: (a) Buyer and Seller intend that the Transactions hereunder be sales to Buyer of the Mortgage Loans and not loans from Buyer to Seller secured by the Mortgage Loans. However, in order to preserve Buyer's rights under the Master Repurchase Agreement in the event that a court or other forum recharacterizes the Transactions hereunder as loans, and as security for the performance by Seller of all of Seller's obligations to Buyer under, the Master Repurchase Agreement and the Transactions entered into pursuant to the Master Repurchase Agreement, Seller grants to Buyer a security interest in the Mortgage Loans, servicing records, purchase commitments, insurance and guarantees relating to the Mortgage Loans, Mortgage Notes, Mortgages, income, any and all hedges, any and all servicing agreements and any and all collection accounts and escrow accounts relating to the Mortgage Loans and all cash or other property or amounts on deposit therein and any other general intangibles, instruments, supporting obligations, and other assets relating to the Mortgage Loans or any interest in the Mortgage Loans and the servicing of the Mortgage Loans and any and all replacements or substitutions for, Schedule D-4 distributions on or proceeds of any and all of the foregoing (collectively, and together with any other property or interests in which Seller grants a security interest to Buyer, the "Collateral"). (b) Seller shall pay all fees and expenses associated with perfecting and maintaining Buyer's security interest (and ownership interest) in the Collateral (including the cost of filing financing statements under the Uniform Commercial Code and recording assignments of Mortgage, as and when required by Buyer in its discretion). Seller shall take such further actions as are necessary in order to perfect Buyer's first priority security interest in any hedges. 6. Payment, Transfer and Custody. Solely for purposes of any Transaction for the Mortgage Loans, Section 7 of the Master Repurchase Agreement is hereby deleted in its entirety and replaced with the following: (a) On the Purchase Date for each Transaction, ownership of the Mortgage Loans shall be transferred to Buyer or its designee (including Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation. Seller, simultaneously with the delivery to Buyer or its designee (including Custodian) of the Mortgage Loans relating to each Transaction, hereby sells, transfers, conveys and assigns to Buyer or its designee (including Custodian) without recourse, but subject to the terms of the Master Repurchase Agreement, all the right, title and interest of Seller in and to the Mortgage Loans together with all right, title and interest in and to the proceeds of any related insurance policies. (b) In connection with each sale, transfer, conveyance and assignment, on or prior to each Purchase Date with respect to each Mortgage Loan, Seller shall deliver or cause to be delivered and released to Custodian the following original documents (collectively the "Mortgage File"), pertaining to each of the Mortgage Loans delivered therewith: (i) the original Mortgage Note bearing all intervening endorsements (or allonges), endorsed "Pay to the order of ___________, without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized officer (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[the Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the Last Endorsee], formerly known as [previous name]"); (ii) the original of any guarantee executed in connection with the Mortgage Note (if any); (iii) the original Mortgage with evidence of recording thereon or a copy certified by Seller, its agent or the title company on behalf of Seller that have been sent for recording; (iv) the originals of all assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies certified by Seller, its agent or the title company on behalf of Seller to have been sent for recording, if any; Schedule D-5 (v) the original assignment of Mortgage in blank for each Mortgage Loan, in form and substance acceptable for recording and signed in the name of the last endorsee thereof (in the event that the Mortgage Loan was acquired by the last endorsee in a merger, the signature must be in the following form: "[the last endorsee], successor by merger to [name of predecessor]"; in the event that the Mortgage Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[the last endorsee], formerly known as [previous name]"); (vi) the originals of all intervening assignments of mortgage with evidence of recording thereon or copies certified by Seller to have been sent for recording, if any; (vii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage (if any); and (viii) the original power of attorney, if any, or a copy thereof certified by Seller to have been sent for recording, for any document described above. (c) With respect to each Mortgage Loan delivered by Seller to Buyer or its designee (including Custodian), Seller shall have executed an omnibus power of attorney irrevocably appointing Buyer its attorney-in-fact with full power to complete and record the assignment of Mortgage, complete the endorsement of the Mortgage Note and take such other steps as may be necessary or desirable to enforce Buyer's rights against such Mortgage Loans, the related Mortgage Files and the servicing records. (d) Buyer shall deposit the Mortgage Files representing the Mortgage Loans, or direct that the Mortgage Files be deposited directly, with Custodian. The Mortgage Files shall be maintained in accordance with the Custodial Agreement. (e) Any Mortgage Files not delivered to Buyer or its designee (including Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its designee shall maintain a copy of the Mortgage File and the originals of the Mortgage File not delivered to Buyer or its designee. The possession of the Mortgage File by Seller or its designee is at the will of Buyer for the sole purpose of servicing the related Mortgage Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Mortgage Loan to Buyer. Seller or its designee (including Custodian) shall release its custody of the Mortgage File only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Mortgage Loans or is in connection with a repurchase of any Mortgage Loan by Seller. 7. Representations and Warranties. In addition to the representations and warranties set forth in Section 10 of the Master Repurchase Agreement, but solely for purposes of any Transaction for the Mortgage Loans pursuant to this Letter Agreement, the following shall apply: Schedule D-6 (a) Seller represents and warrants to Buyer that as of the Purchase Date for the purchase of any Mortgage Loans by Buyer from Seller and as of the date of this Letter Agreement and any Transaction hereunder and at all times while this Letter Agreement and any Transaction for Mortgage Loans hereunder is in full force and effect: (i) Organization. Seller is duly organized, validly existing and in good standing under the laws of the State of Maryland and is duly licensed, qualified, and in good standing in every state where Seller transacts business and in any state where any Mortgaged Property is located if the laws of such state require licensing or qualification in order to conduct business of the type conducted by Seller, as the case may be, therein, except where the failure to be so licensed, qualified, and in good standing would not result in a Material Adverse Effect. (ii) No Litigation. There is no action, suit, proceeding, arbitration or investigation pending or, to Seller's knowledge, threatened against Seller which, either in any one instance or in the aggregate, is likely to result in any Material Adverse Effect. (iii) No Broker. Seller has not dealt with any broker, investment banker, agent, or other person, except for Buyer, who may be entitled to any commission or compensation in connection with the sale of Mortgage Loans pursuant to the Master Repurchase Agreement. (iv) Good Title to Collateral. The Mortgage Loans shall be free and clear of any lien, encumbrance or impediment to transfer, and Seller has good, valid and marketable title and the right to sell and transfer such Mortgage Loans to Buyer free and clear of all liens. (v) Delivery of Mortgage File. With respect to each Mortgage Loan, the Mortgage Note, the Mortgage, the assignment of Mortgage and any other documents required to be delivered under this Letter Agreement and the Custodial Agreement for the Mortgage Loans have been or will be delivered to Custodian. Seller or its designee is in possession of a complete, true and accurate Mortgage File with respect to the Mortgage Loans, except for such documents that have been delivered to Custodian. (vi) Selection Process. The Purchased Mortgage Loans were selected from among the outstanding mortgage loans in Seller's portfolio as to which the representations and warranties set forth in this Letter Agreement could be made and such selection was not made in a manner so as to affect adversely the interests of Buyer. (vii) No Untrue Statements. Neither this Letter Agreement nor any written statement made, or any report or other document issued or delivered or to be issued or delivered by Seller, pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of a material Schedule D-7 fact or omits to state a material fact necessary to make the statements contained herein not misleading. (viii) Origination Practices. The origination practices used by Seller with respect to each Mortgage Loan (A) have been and are in all respects legal and proper in the mortgage origination business and (B) are in accordance with the underwriting guidelines previously supplied by Seller to Buyer. (ix) Performance of Agreement. Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in the Master Repurchase Agreement on its part to be performed. (x) Seller Not Insolvent. Seller is not, and with the passage of time does not expect to become, insolvent. (xi) No Event of Default. No default or Event of Default has occurred and is continuing hereunder. (xii) Financial Condition. (A) The consolidated balance sheet of American Home Mortgage Investment Corp. and its respective consolidated Subsidiaries, as at March 31, 2005, and the related consolidated statements of income and of cash flows for the quarter ended on such date, copies of which have heretofore been furnished to Buyer, are complete and correct and present fairly in accordance with GAAP the consolidated or consolidating financial condition of each such Person and its Subsidiaries as at such dates, and the results of their operations and their cash flows for the quarter then ended. (B) All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved. (C) Neither American Home Mortgage Investment Corp. nor any of its Subsidiaries had, at the date of the most recent financial statements referred to above, any material guarantee obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment (including any interest rate or foreign currency swap or exchange transaction, or other financial derivative), that is not reflected in the foregoing statements or in the notes thereto. (xiii) No Change. Since June 30, 2005, there has been no development or event, nor any prospective development or event, which has had or is reasonably expected to have a Material Adverse Effect. Schedule D-8 (xiv) Corporate Power; Compliance with Law. Seller (a) has the corporate power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee, to carry on its business as now being or as proposed to be conducted, to originate, acquire and own Mortgage Loans, to sell and repurchase such Mortgage Loans pursuant to this Agreement, and to make, deliver and perform the Master Repurchase Agreement, and (b) is in compliance in all material respects with all legal requirements (including environmental law and the Real Estate Settlement Procedures Act, the Home Ownership and Equity Protection Act and related state law). (xv) Enforceability. This Agreement has been duly and validly executed and delivered by Seller and constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). (xvi) Collateral; Collateral Security. (A) If the Transactions are recharacterized as secured financings, the provisions of this Agreement are effective to create in favor of Buyer a valid security interest in all right, title and interest of Seller in, to and under the Collateral. (B) Upon receipt by Custodian of each Mortgage Note, endorsed in blank by a duly authorized officer of Seller, Buyer shall have a fully perfected first priority security interest therein, in the Mortgage Loan evidenced thereby, and Seller's interest in the related Mortgaged Property. (C) Financing Statements on Form UCC-1 having been filed naming Buyer as "Secured Party" and Seller as "Debtor", and describing the Collateral, the security interests granted hereunder in the Collateral (other than Mortgage Notes) will constitute fully perfected first priority security interests under the Uniform Commercial Code in all right, title and interest of Seller in, to and under such Collateral, which can be perfected by filing under the Uniform Commercial Code. (xvii) Taxes. Seller has filed all Federal income tax returns and all other material tax returns that are required to be filed by it and has paid all taxes due pursuant to such returns or pursuant to any claims or assessment received by it, except for any such taxes or assessments, if any, that are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves in conformity with GAAP have been established. No tax lien has been filed against Seller. Schedule D-9 (xviii) Investment Company Act; Other Regulations. Seller is not an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. (xix) Subsidiaries. Seller has provided to Buyer a true, complete and correct schedule of all of its Subsidiaries in existence as of the date hereof. (b) Seller represents and warrants to Buyer that each Mortgage Loan sold hereunder and each pool of Mortgage Loans sold in a Transaction hereunder, as of the related Purchase Date, conforms in all material respects to the representations and warranties set forth in Schedule C attached hereto. It is understood and agreed that the representations and warranties set forth in Schedule C hereto, if any, shall survive delivery of the respective Mortgage File to Buyer or its designee (including Custodian). (c) On the Purchase Date for any Transaction, Seller shall be deemed to have made all the foregoing representations as of such Purchase Date. 8. Events of Default. In addition to the Events of Default set forth in Section 11 of the Master Repurchase Agreement, but solely for purposes of any Transaction for the Mortgage Loans pursuant to this Letter Agreement, the following shall be deemed Events of Default on the part of Seller for all purposes of the Master Repurchase Agreement: (i) any governmental, regulatory, or self-regulatory authority takes any action to remove, limit, restrict, suspend or terminate the rights, privileges, or operations of Seller or any of its Affiliates, including suspension as an issuer, lender or seller/servicer of mortgage loans, which action results in a Material Adverse Effect, and which continues for more than 24 hours; (ii) Seller dissolves, merges or consolidates with another entity (unless (A) it is the surviving party or (B) the entity into which it merges has equity and a market value of at least that of Seller immediately prior to such merger and such entity and expressly assumes its obligations under the Master Repurchase Agreement), or sells, transfers, or otherwise disposes of a material portion of its business or assets, except for the sale or transfer of Mortgage Loans in the ordinary course of business; (iii) Buyer, in its reasonable good faith judgment, believes that there has been a material adverse change in the business, operations, corporate structure or financial condition of Seller or that Seller will not meet any of its obligations under the Master Repurchase Agreement or any other agreement between the parties; (iv) Guarantor or any of its Subsidiaries shall fail to perform or shall violate the Master Repurchase Agreement or any other agreement or instrument between any of them and Buyer or any of its Affiliates and such failure or violation continues unremedied after any applicable grace period therefor, or Guarantor or any of Guarantor 's Subsidiaries shall fail to pay when due or within any applicable grace period therefor any portion of any single obligation Schedule D-10 constituting Indebtedness of Guarantor or any of Guarantor's Subsidiaries in excess of $2,500,000; or any default or other event shall occur under or with respect to any agreement under which any single obligation constituting Indebtedness of Guarantor or any of Guarantor's Subsidiaries in excess of $2,500,000 was created or is governed, the effect of which is to cause, or to permit the holder or holder of such indebtedness to cause, such indebtedness to become due prior to its stated maturity; or any single obligation constituting indebtedness of Guarantor or any of Guarantor's Subsidiaries in excess of $2,500,000 shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled payment), prior to the stated maturity thereof; (v) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $2,500,000 is rendered against Seller, and the same remains undischarged or unpaid for a period of thirty (30) days during which execution of such judgment is not effectively stayed; (vi) This Letter Agreement shall for any reason cease to create a valid, first priority security interest in any of the Mortgage Loans purported to be covered hereby; (vii) any Person or entity or any group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of Persons and/or entities, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended), directly or indirectly, in one or more transactions, of securities of Seller (or other securities convertible into such securities) representing more than 50% of the combined voting power of all securities of such entity entitled to vote in the election of directors (other than the Person or entities owning such securities on the date of this Letter Agreement or any other Affiliate of Seller); or (viii) Guarantor revokes its status as a REIT or ceases to qualify as a REIT or Seller ceases to qualify as a qualified REIT subsidiary as defined in Section 856 of the Internal Revenue Code. 9. Remedies. In Section 11(d)(i) of the Master Repurchase Agreement, the phrase in the eighth through tenth lines which reads "the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source," is hereby deleted in its entirety with respect to any Transaction for Mortgage Loans and replaced with the following: "the Market Value of the Mortgage Loans". 10. Guaranty. On the date hereof, American Home Mortgage Investment Corp. (in such capacity, the "Guarantor") shall deliver to the Buyer a Guaranty of the full and timely payment of the Repurchase Price with respect to any Transaction for the Mortgage Loans, the form of which is attached hereto as Schedule D. Schedule D-11 11. Indemnification. Seller agrees to hold Buyer harmless from and indemnify Buyer (and its directors, officers, employees and agents) against all liabilities, losses, damages, judgments, reasonably incurred out-of-pocket costs and expenses of any kind that may be imposed on, incurred by or asserted against Buyer (collectively, the "Costs") relating to or arising out of the Transactions for Mortgage Loans or the Master Repurchase Agreement, including reasonable legal costs and settlement costs, except if a court of competent jurisdiction determines by final and nonappealable judgment that such losses, liabilities, claims, damages or expenses result from the gross negligence or willful misconduct of the indemnified party ("Excluded Causes"). Without limiting the generality of the foregoing, Seller agrees to hold Buyer harmless from and indemnify Buyer against all Costs with respect to all Mortgage Loans relating to or arising out of any violation or alleged violation of any environmental law, rule or regulation or any consumer credit laws, including ERISA, the Truth in Lending Act, the Home Ownership and Equity Protection Act and/or the Real Estate Settlement Procedures Act, that, in each case, results from anything other than Excluded Causes. In any suit, proceeding or action brought by Buyer in connection with any Mortgage Loan for any sum owing thereunder, or to enforce any provisions of any Mortgage Loan, Seller will save, indemnify and hold Buyer harmless from and against all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from Seller. Seller also agrees to reimburse Buyer as and when billed by Buyer for all Buyer's ongoing due diligence and auditing expenses and costs and expenses incurred in connection with the enforcement or the preservation of Buyer's rights under the Master Repurchase Agreement or any Transaction for Mortgage Loans contemplated hereby, including the reasonable fees and disbursements of its counsel and other third party agents. Seller hereby acknowledges that the obligation of Seller hereunder is a recourse obligation of Seller. 12. Expenses. Seller shall be responsible for (a) all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the preparation, execution, delivery and administration of this Letter Agreement and any amendment or waiver with respect thereto (including reasonable fees and disbursements and other charges of counsel), (b) all out-of-pocket costs and expenses incurred by Buyer in connection with the enforcement of this Letter Agreement (including the fees and disbursements and other reasonable charges of counsel) and (c) ongoing due diligence and auditing expenses of Buyer (including reasonable fees and disbursements of third party agents). 13. Servicing. Seller (directly or through an Affiliate of Seller) shall service the Mortgage Loans in accordance with standards as are customary with other prudent mortgage lenders with respect to mortgage loans similar to the Mortgage Loans and are acceptable to Buyer. In the event that Buyer must liquidate the Mortgage Loans after an Event of Default, Seller acknowledges such Mortgage Loans may be sold on a servicing-released basis and that no servicing termination fee will be payable to Seller or any sub-servicers, if applicable. Any sub-servicer that is not an Affiliate of Seller must be approved by Buyer. 14. Collateral Information. On each Purchase Date (with respect to Mortgage Loans purchased on such date) and by no later than the fifth business day of each month (with respect to all Mortgage Loans subject to Transactions as of the last day of the preceding month), Seller Schedule D-12 shall deliver to Buyer, either by direct modem electronic transmission or via a computer diskette, information in Excel format with respect to each Mortgage Loan the following data: (i) loan ID, (ii) borrower name, (iii) property address, (iv) property city and state, (v) property zip code, (vi) credit limit, (vii) current drawn balance, (viii) current interest rate, (ix) index, (x) margin, (xi) interest rate adjustment frequency, (xii) maximum rate adjustment (lifetime cap), (xiii) any other interest rate caps, (xiv) teaser rate and expiry (if applicable), (xv) original term to maturity, (xvi) draw/repayment period, (xvii) max draw, (xviii) paydown, (xix) draw in most recent period, (xx) total draws, (xxi) origination date, (xxii) first payment date, (xxiii) lien position, (xxiv) appraisal value (and purchase price if applicable), (xxv) appraisal type, (xxvi) type of AVM used (if applicable), (xxvii) senior lien balance(s), (xxviii) combined loan-to-value (or LTV as applicable), (xxix) property type, (xxx) occupancy status, (xxxi) loan purpose, (xxxii) document type (full, limited, stated, etc.), (xxxiii) asset verification (yes/no), (xxxiv) FICO Score (current and original), (xxxv) date of FICO score, (xxxvi) payment history, (xxxvii) prepayment penalty type & duration (if applicable), and (xxxviii) flag for employee accounts. Schedule D-13 Please indicate your agreement to the terms and conditions of this Letter Agreement in the space provided below where upon this Letter Agreement shall become a binding agreement between us. Very truly yours, LEHMAN BROTHERS INC. By: /s/ Thomas J. O'Hara ------------------------------------ Name: Thomas J. O'Hara Title: Senior Vice President LEHMAN COMMERCIAL PAPER INC. By: /s/ Thomas J. O'Hara ------------------------------------ Name: Thomas J. O'Hara Title: Senior Vice President Accepted and Agreed as of the date first above written: AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan Horn ------------------------------------ Name: Alan Horn Title: Executive Vice President Secretary, and General Counsel Schedule D-14 EX-10.6.2 11 am110905-ex10_62.txt CONTRACT EXHIBIT 10.6.2 SECOND AMENDMENT TO CUSTODIAL AGREEMENT This Second Amendment dated as of September 13, 2005 (the "Amendment") to the Custodial Agreement, dated as of December 3, 2004 (the "Agreement", a copy of which is attached hereto as Exhibit 1), is made by and among Lehman Brothers Inc. and Lehman Commercial Paper Inc. (collectively, "Buyer"), American Home Mortgage Acceptance, Inc. ("Seller") and Deutsche Bank National Trust Company ("Custodian"). RECITALS WHEREAS, Custodian, Seller and Buyer (each, a "Party" and, collectively, the "Parties"), have agreed to enter into this Amendment; and WHEREAS, the Parties (other than the Custodian) have entered into a Master Repurchase Agreement, dated as of March 29, 2004, as amended by those certain letter agreements, dated December 3, 2004, June 10, 2005 and September 13, 2005 (collectively, the "Repurchase Agreement"), pursuant to which Buyer has agreed, subject to the terms and conditions set forth in the Repurchase Agreement, to purchase certain mortgage loans identified on Exhibit 2 hereto ("Mortgage Loans") owned by Seller, including, without limitation, all rights of Seller to service and administer such Mortgage Loans; and WHEREAS, Seller and Buyer have entered into the Agreement relating to the Repurchase Agreement; and WHEREAS, the Parties wish to amend the Agreement to add the Mortgage Loans as assets to be delivered and held thereunder. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as set forth below. Terms used but not defined herein shall have the respective meanings ascribed to such terms in the Agreement, as amended hereby. Section 1. Amendments. 1.1 References in the Agreement to "this Agreement" or words of similar import (including direct references to the Agreement) shall, without limitation, be deemed to be references to the Agreement as amended by this Amendment. 1.2 Notwithstanding anything to the contrary in the Agreement, all references in the Agreement to the "Mortgage Loans" shall be deemed to refer to and include the Mortgage Loans (and not to the "Mortgage Loans" as such term was defined in the Agreement based upon the mortgage loans identified on Schedule 1 thereto). All provisions of the Agreement with respect to mortgage loans shall apply to the Mortgage Loans as if the Mortgage Loans had been identified on a schedule attached to the original Agreement. Section 2. Covenants, Representations and Warranties of the Parties. 1 2.1 Except as amended by Section 1 hereof, the Agreement remains unaltered and in full force and effect. Each of the Parties hereby affirms all terms and covenants made in the Agreement as amended hereby. 2.2 Each of the Parties hereby represents and warrants to the other that (a) this Amendment constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, and (b) the execution and delivery by such Party of this Amendment has been duly authorized by all requisite limited liability company or corporate action on the part of such Party. Section 3. Effect upon the Agreement. 3.1 Except as set forth herein, the Agreement shall remain in full force and effect and is hereby ratified and confirmed. 3.2 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Party under the Agreement, or any other document, instrument or agreement executed and/or delivered in connection therewith. Section 4. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED, INTERPRETED AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS OR PRINCIPLES THEREOF. Section 5. Counterparts. This Amendment may be executed in any number of counterparts, and any such counterparts shall together constitute the same agreement. [Remainder of Page Intentionally Left Blank.] 2 IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed as of the day and year first above written. AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: /s/ Alan Horn ------------------------------------- Name: Alan Horn Title: EVP, General Counsel and Secretary LEHMAN BROTHERS INC. By: /s/ Thomas J. O'Hara ------------------------------------- Name: Thomas J. O'Hara Title: Senior Vice President LEHMAN COMMERCIAL PAPER INC. By: /s/ Thomas J. O'Hara ------------------------------------- Name: Thomas J. O'Hara Title: Senior Vice President DEUTSCHE BANK NATIONAL TRUST COMPANY, not in its individual capacity but solely as Custodian By: /s/ Norma L. Catone ------------------------------------- Name: Norma L. Catone Title: Vice President 3 Exhibit 1 CUSTODIAL AGREEMENT CUSTODIAL AGREEMENT, dated as of December 3, 2004, between LEHMAN BROTHERS INC. AND LEHMAN COMMERCIAL PAPER INC. (collectively, "Buyer"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC. (the "Seller") and DEUTSCHE BANK NATIONAL TRUST COMPANY (the "Custodian"). WITNESSETH: WHEREAS, the Seller has entered into a Master Repurchase Agreement with the Buyer, dated as of March 29, 2004 (as amended, the "Repurchase Agreement"), pursuant to which the Seller agrees to transfer to the Buyer securities and other assets (the "Securities") against the transfer of funds by the Buyer, with a simultaneous agreement by the Buyer to transfer to the Seller such Securities at a date certain or on demand against the transfer of funds by the Seller; WHEREAS, the Seller has entered that certain letter agreement with Buyer, dated as of December 3, 2004 (the "Letter Agreement"), pursuant to which the Seller and the Buyer agreed upon the terms and conditions under which the mortgage loans identified on Schedule 1 hereto ("Mortgage Loans") may be included as Securities under the Repurchase Agreement; WHEREAS, the Seller has agreed to deliver such Mortgage Loans to the Custodian; WHEREAS, capitalized terms used herein but not defined herein shall have the meaning given in the Repurchase Agreement (or if not defined in the Repurchase Agreement, then in the Letter Agreement); and WHEREAS, Buyer and the Seller wish to retain the Custodian to perform certain services in connection with taking possession of the Mortgage Loans; NOW, THEREFORE, the Seller hereby authorizes the Custodian to hold the Mortgage Loans and authorizes the Custodian to perform the following functions and duties, and the Custodian agrees to perform such functions and duties: (a) Safekeeping of the Mortgage Loans. The Custodian hereby agrees to perform the following services as agent for the Buyer with respect to the Mortgage Loans: (i) To hold under its exclusive control the documents constituting the Mortgage Loans identified on Schedule 2 hereto (or any other documents delivered in connection therewith which shall be itemized on a transmittal letter accompanying such other documents) (the "Mortgage File"), such Mortgage Loans to be held in a segregated manner (i.e., the assets of the Seller shall not be commingled); (ii) Upon the written demand of the Seller and with the consent of Buyer, to deliver and immediately release to or at the direction of Buyer any and all of the Mortgage File at the time held by Custodian; any such delivery and 4 release shall be accomplished with respect to any Mortgage File as soon as reasonably practicable of the request and at the expense of the Seller; and (iii) Upon three (3) Business Days' prior notice, to permit inspection (but not removal from the Custodian's possession other than as otherwise permitted under this Agreement) at all reasonable times in Custodian's offices during normal business hours by the Seller and Buyer or its agents (including its auditors) of the Mortgage File. The Custodian shall segregate and maintain continuous custody and control of the Mortgage Files received by it in secure and fire-resistant facilities in accordance with customary standards for such custody. The parties hereto agree that the Custodian shall hold and possess the Mortgage Loans and the Mortgage Files pursuant to this Agreement in the Custodian's capacity as bailee and agent for the Buyer, and that the Custodian shall have no right to possession of the Mortgage Loans or the Mortgage Files except as specified herein. (b) Release of Mortgage Loans. The Custodian may only release the Mortgage Loans and the Mortgage Files held for Buyer under this Agreement and all related information and documentation held by the Custodian at the written direction of the Seller with the consent of Buyer; provided that, no consent of Buyer will be required after the satisfaction in full of all requirements of the Repurchase Agreement with respect to the Transactions for the Mortgage Loans as notified to the Custodian in writing by Buyer; provided further that, if an Event of Default by the Seller shall occur and be continuing, of which a Responsible Officer of the Custodian has received written notice, the Custodian may only release such Mortgage Loans and Mortgage Files and all related information and documentation upon the sole discretion and direction of Buyer. (c) Compensation. The Seller shall, pay to the Custodian the fees and reimburse the expenses of the Custodian as set forth in a separate letter agreement, for performing the functions of Custodian hereunder. (d) Waiver of Certain Rights. To the extent permissible by law, the Custodian hereby waives, relinquishes and releases any rights which it may have by way of contract or law, whether through exercise of a right of set-off, security interest, counterclaim or otherwise, to obtain any property or payment under the Mortgage Loans held hereunder. (e) Authorizations. Any authorized officer of the Custodian is authorized to act for the Custodian whenever written directions or requests are required of the Custodian under this Agreement. (f) Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. (g) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York. 5 (h) Binding Effect. To the extent provided herein, this Agreement shall be binding upon Buyer, the Seller and the Custodian and shall inure to the benefit of Buyer, the Seller and the Custodian and their respective successors and assigns; provided, however, that the Custodian shall not assign its rights and obligations under this Agreement without the prior written consent of Buyer and the Seller. (i) Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof (j) Amendments, Changes and Modifications. This Agreement maybe amended by the written consent of the parties hereto. (k) Addresses for Notices. Any notice required or permitted to be given under or in connection with this Agreement shall be in writing and shall be mailed by first-class mail, express mail or overnight courier service, postage prepaid, or sent by telecopy ox other similar form of rapid transmission confirmed by mailing (by first-class mail) at substantially he same time as such vapid transmission, or personally delivered to an officer of the receiving party. All such communications shall be mailed, sent or delivered, If to Buyer: Lehman Brothers Inc. & Lehman Commercial Paper Inc. 745 Seventh Avenue New York, New York 10019 Attention: Fred Madonna Telephone: 212-526-9249 Telecopier: 212- If to the Seller: American Home Mortgage Acceptance, Inc. 538 Broadhollow Road Melville, NY 11747 Attention: Alan B. Horn, General Counsel Telephone: 516-396-7703 Telecopier: 800-209-7276 If to the Custodian: Deutsche Bank National Trust Company 1761 East St. Andrew Place Santa Ana, CA 92705-4934 Attention: Mortgage Custody - AH048C Telephone: (714) 247-6000 Telecopier: (714) 247-6035 6 or as to each party at such other address or numbers as shall be designated by such party in written notice to the other party. (l) Trust Receipt. The Custodian shall execute and deliver to the Buyer, with a copy to Seller, a trust receipt substantially in the form of Schedule 3 to evidence its possession of the Mortgage Loans and the Mortgage Files and its certification that each such document in the Mortgage Files is complete and appears regular on its face and each such document in the Mortgage Files purporting to be an original appears on its face to be so. (m) Indemnification. The Custodian and any director, officer, employee representative or agent, shall be indemnified by the Seller and held harmless against any claim, loss, liability expense, damage, injury (to person, property or natural resources), penalties, stamp or other similar taxes, actions, suits, judgements, reasonable costs and expenses (including reasonable attorney's and agent's fees and expenses) of whatever kind regardless of their merit, incurred in connection with any claim or legal action or any pending or threatened claim or legal action relating to this Agreement or the Mortgage Files, or any claim or legal action or any pending or threatened claim or legal action relating to the performance of the Custodian's duties hereunder, other than any claim, loss, liability or expense incurred by reason of willful misfeasance, bad faith or gross negligence in the performance of the Custodian's obligations and duties under this Agreement. The provisions of this Section(m) shall survive the termination of this Agreement or the earlier resignation or removal of the Custodian. (n) Patriot Act. In order to comply with its duties under the U.S.A. Patriot Act, the Custodian shall obtain and verify certain information and documentation from the other parties hereto including, but not limited to, each parties' name, address, and other identifying information. (o) Miscellaneous. (i) Written instructions as to the method of shipment and shipper(s) that Custodian is directed to utilize in connection with transmission of Mortgage Files in the performance of the Custodian's duties hereunder shall be delivered by the Seller or the Buyer to Custodian prior to any shipment of any Mortgage Files hereunder. Seller will arrange for the provision of such services at its sole cost and expense and will maintain such insurance against loss or damage to the Mortgage Files as the requesting party deems appropriate. Without limiting the generality of the provisions below, it is expressly agreed that in no event shall Custodian have any liability for any losses or damages to any person, arising out of actions of Custodian in accordance with instructions of the requesting party, unless such performance constitutes gross negligence, lack of good faith or willful misconduct on the part of the Custodian or any of its directors, officers, agents or employees. In the absence of written instructions from the Seller, the Custodian may ship the related Mortgage Files using any nationally recognized courier service and shall be indemnified as provided in Section (m) in connection therewith. 7 (ii) The Custodian undertakes to perform such duties and only such duties as are specifically set forth this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Custodian. (iii) In the absence of bad faith on its part, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Custodian and conforming to the requirements of this Agreement; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement. (iv) The Custodian may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Custodian shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder. (v) The Custodian may consult with counsel and any opinion of counsel or any advice of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. (vi) The Custodian shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto unless the Custodian has had offered to it security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby. (vii) The Custodian shall not be required 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 or powers, if there is reasonable ground for believing that the repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Custodian to perform, or be responsible or liable for the manner of performance of, any obligations of the Buyer or the Seller under this Agreement or any of the Relevant Documents. (viii) The Custodian may conclusively rely on, and shall be fully protected in relying upon, any document believed by it to be genuine and to have been signed or presented by the proper person. The Custodian need not investigate any fact or matter stated in the document. (ix) Before the Custodian acts or refrains from acting, it may require an officers' certificate or an opinion of counsel. The Custodian shall not be liable for 8 any action it takes or omits to take in good faith in reliance on such officers' certificate or opinion of counsel. (x) The Custodian shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (xi) The Custodian shall not be bound to make any investigation into the facts or matters stated in any resolution, officers' certificate, or other certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document. (xii) The Custodian shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of the Buyer or the Seller, except as otherwise set forth herein, but the Custodian may require of the Seller or the Buyer full information and advice as to the performance of the covenants, conditions and agreements contained herein and shall be entitled in connection herewith to examine the books, records and premises of the Buyer or the Seller. (aa) The permissive rights of the Custodian to do things enumerated in this Agreement shall not be construed as a duty and the Custodian shall not be answerable for other than its gross negligence or willful default. (bb) The Custodian shall not be liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined a court of competent jurisdiction that the Custodian was grossly negligent in ascertaining the pertinent facts (cc) Neither the Custodian nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Custodian's gross negligence or willful misconduct, as determined by the final judgement of a court of competent jurisdiction, no longer subject to appeal or review. (dd) The parties each (for itself and any person or entity claiming through 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 gross negligence or willful misconduct. (ee) Anything in this Agreement to the contrary notwithstanding, in no event shall the Custodian be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Custodian has been 9 advised of the likelihood of such loss or damage and regardless of the form of action. (ff) If the Custodian consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Custodian. (p) Definitions. (i) "Corporate Trust Office" means the principal corporate trust office of the Custodian at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Agreement is located at Deutsche Bank National Trust Company, 1761 East St. Andrew Place, Santa Ana, CA 92705-4934. (ii) "Responsible Officer" means any officer assigned to the Corporate Trust Office of the Custodian, including any managing director, principal, vice president, assistant vice president, assistant treasurer, assistant secretary, trust officer or any other officer of the Custodian customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of this Agreement, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. 10 IN WITNESS WHEREOF, this Agreement was duly executed by the parties hereto as of the day and year first above written. AMERICAN HOME MORTGAGE ACCEPTANCE, INC. By: ------------------------------------- Name: Title: LEHMAN BROTHERS INC. By: ------------------------------------- Name: Title: LEHMAN COMMERCIAL PAPER INC. By: ------------------------------------- Name: Title: DEUTSCHE BANK NATIONAL TRUST COMPANY, not in its individual capacity but solely as Custodian By: ------------------------------------- Name: Title: 11 EX-10.6.3 12 am110905-ex10_63.txt CONTRACT EXHIBIT 10.6.3 GUARANTY This GUARANTY, dated as of September 13, 2005, 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 September 13, 2005 (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, as amended by those certain letter agreements, dated December 3, 2004 and June 10, 2005 (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. 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. 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 Horn ------------------------------------- Name: Alan Horn Title: EVP, General Counsel and Secretary EX-31.1 13 am110905-ex31_1.txt CERTIFICATION 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 November 9, 2005 EX-31.2 14 am110905-ex31_2.txt CERTIFICATION 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 November 9, 2005 EX-32.1 15 am110905-ex32_1.txt CERTIFICATION 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 September 30, 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. November 9, 2005 /s/ Michael Strauss ------------------------------------- Michael Strauss Chairman, Chief Executive Officer and President EX-32.2 16 am110905-ex32_2.txt CERTIFICATION 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 September 30, 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. November 9, 2005 /s/ Stephen A. Hozie ----------------------------------------------------- Stephen A. Hozie Executive Vice President and Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----