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 Xxxxxx Brothers
Inc. and Xxxxxx 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.
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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.]
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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/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: EVP, General Counsel and
Secretary
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. X'Xxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxx X. X'Xxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxx
Title: Senior Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Custodian
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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Exhibit 1
CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT, dated as of December 3, 2004, between XXXXXX BROTHERS
INC. AND XXXXXX 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
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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.
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(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:
Xxxxxx Brothers Inc. & Xxxxxx Commercial Paper Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 212-
If to the Seller:
American Home Mortgage Acceptance, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, General Counsel
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to the Custodian:
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Mortgage Custody - AH048C
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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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.
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(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
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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 xxx 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
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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, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX
00000-0000.
(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.
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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:
XXXXXX BROTHERS INC.
By:
-------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Custodian
By:
-------------------------------------
Name:
Title:
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