EXHIBIT 99.3
GMAC MORTGAGE CORPORATION,
as HELOC Back-Up Servicer,
AMERICAN HOME MORTGAGE TRUST 2005-1,
as Issuer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
HELOC BACK-UP SERVICING AGREEMENT
Dated as of March 23, 2005
HELOC Mortgage Loans
American Home Mortgage Investment Trust 2005-1
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions
Section 1.01 Definitions...........................................................................14
Section 1.02 Other Definitional Provisions.........................................................14
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the HELOC Back-Up Servicer...................15
ARTICLE III
Back-Up Servicing of HELOC Mortgage Loans
Section 3.01 Back-Up Servicer to act as Successor HELOC Servicer...................................16
Section 3.02 HELOC Back-Up Servicing Compensation..................................................16
ARTICLE IV
Reporting Obligations
Section 4.01 Remittance Reports....................................................................17
Section 4.02 Annual Statements of Compliance.......................................................17
Section 4.03 Annual Independent Public Accountants' Servicing Report...............................17
Section 4.04 Exchange Act Reporting................................................................18
ARTICLE V
The HELOC Back-Up Servicer
Section 5.01 Liability of the HELOC Back-Up Servicer...............................................19
Section 5.02 Merger or Consolidation of or Assumption of the Obligations of the HELOC Back-Up
Servicer..............................................................................19
Section 5.03 Limitation on Liability of the HELOC Back-Up Servicer and Others......................19
Section 5.04 HELOC Back-Up Servicer Not to Resign..................................................20
Section 5.05 Delegation of Duties..................................................................21
Section 5.06 Indemnification.......................................................................21
ARTICLE VI
Default
Section 6.01 Servicing Default.....................................................................22
Section 6.02 Indenture Trustee to Act; Appointment of Successor....................................24
Section 6.03 Notification to Class IX-A Noteholders................................................25
Section 6.04 Waiver of Defaults....................................................................25
2
ARTICLE VII
Miscellaneous Provisions
Section 7.01 Amendment.............................................................................27
Section 7.02 GOVERNING LAW.........................................................................27
Section 7.03 Notices...............................................................................27
Section 7.04 Severability of Provisions............................................................28
Section 7.05 Third-Party Beneficiaries.............................................................28
Section 7.06 Counterparts..........................................................................29
Section 7.07 Effect of Headings and Table of Contents..............................................29
Section 7.08 Termination...........................................................................29
Section 7.09 No Petition...........................................................................29
Section 7.10 No Recourse...........................................................................29
Section 7.11 Consent to Jurisdiction...............................................................29
3
EXHIBIT A - HELOC MORTGAGE LOAN SCHEDULE.....................................A-1
EXHIBIT B - FORM OF CERTIFICATION TO BE PROVIDED BY
THE HELOC BACK-UP SERVICER WITH FORM 10-K....................................B-1
4
This HELOC Back-Up Servicing Agreement, dated as of March 23,
2005 (the "Agreement"), among GMAC Mortgage Corporation, as HELOC Back-Up
Servicer (the "HELOC Back-Up Servicer"), American Home Mortgage Investment Trust
2005-1, as Issuer (the "Issuer") and Deutsche Bank National Trust Company, as
Indenture Trustee (the "Indenture Trustee").
5
W I T N E S S E T H T H A T :
------------------------------
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase
Agreement and the related Group I, Group II, Group III, Group IV, Group V, Group
VI, Group VII, Group VIII and Group IX Subsequent Mortgage Loan Purchase
Agreement, American Home Mortgage Securities LLC (the "Company" or the
"Depositor") will acquire the Mortgage Loans and the related Group I, Group II,
Group III, Group IV, Group V, Group VI, Group VII, Group VIII and Group IX
Subsequent Mortgage Loans;
WHEREAS, the Company will create American Home Mortgage
Investment Trust 2005-1, a Delaware statutory trust, and will transfer the
Mortgage Loans and the related Subsequent Mortgage Loans and all of its rights
under the Mortgage Loan Purchase Agreement and the related Group I, Group II,
Group III, Group IV, Group V, Group VI, Group VII, Group VIII and Group IX
Subsequent Mortgage Loan Purchase Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement dated as of March 23, 2005 (the "Trust Agreement") among the
Company, as depositor, Wilmington Trust Company, as owner trustee (the "Owner
Trustee") and the Securities Administrator, the Company will convey the Mortgage
Loans to the Issuer in exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the
Issuer will issue and transfer to or at the direction of the Depositor, the
Trust Certificates, 2005-1 (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of
March 23, 2005 (the "Indenture") among the Issuer, the Securities Administrator
and the Indenture Trustee, the Issuer will pledge the Mortgage Loans and issue
and transfer to or at the direction of the Company the Mortgage-Backed Notes,
Series 2005-1, Class I-A-1, Class I-A-2, Class I-A-3, Class II-A-1, Class
II-A-2, Class III-A-1, Class III-A-2, Class IV-A-1, Class IV-A-2, Class V-A-1,
Class V-A-2, Class VI-A, Class VII-A-1, Class VII-A-2, Class VIII-A-1, Class
VIII-A-2, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class B-1, Class VIII-M-1, Class VIII-M-2, Class VIII-M-3,
Class VIII-M-4, Class VIII-M-5, Class VIII-M-6, Class IX-A, Class B and Class N
Notes; and
WHEREAS, pursuant to the terms of this Agreement, the HELOC
Back-Up Servicer will back-up service the HELOC Mortgage Loans set forth on the
HELOC Mortgage Loan Schedule attached hereto as Exhibit A for the benefit of the
Insurer and the holders of the Class IX-A Notes;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
6
ARTICLE I
Definitions
Section 1.01 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the Indenture which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document, to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
7
ARTICLE II
Representations and Warranties
Section 2.01 REPRESENTATIONS AND WARRANTIES REGARDING THE HELOC BACK-UP
SERVICER. The HELOC Back-Up Servicer represents and warrants to the Issuer and
for the benefit of the Indenture Trustee, as pledgee of the Mortgage Loans, the
Insurer and the Class IX-A Noteholders, as of the Cut-off Date and the Closing
Date, that:
(i) The HELOC Back-Up Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and has the corporate power to own its assets and
to transact the business in which it is currently engaged. The HELOC Back-Up
Servicer is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the HELOC Back-Up
Servicer or the validity or enforceability of the HELOC Mortgage Loans;
(ii) The HELOC Back-Up Servicer has the power and authority to
make, execute, deliver and perform this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the HELOC Back-Up Servicer enforceable in accordance with
its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(iii) The HELOC Back-Up Servicer is not required to obtain the
consent of any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consent, license, approval or
authorization, or registration or declaration, as shall have been obtained or
filed, as the case may be;
(iv) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by the HELOC Back-Up
Servicer will not violate any provision of any existing law or regulation or any
order or decree of any court applicable to the HELOC Back-Up Servicer or any
provision of the certificate of incorporation or bylaws of the HELOC Back-Up
Servicer, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the HELOC Back-Up Servicer is a party or by which
the HELOC Back-Up Servicer may be bound;
(v) No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending (other than
litigation with respect to which pleadings or documents have been filed with a
court, but not served on the HELOC Back-Up Servicer), or to the knowledge of the
HELOC Back-Up Servicer threatened, against the HELOC Back-Up Servicer or any of
its properties or with respect to this Agreement or the Class IX-A Notes or the
8
Certificates which, to the knowledge of the HELOC Back-Up Servicer, has a
reasonable likelihood of resulting in a material adverse effect on the
transactions contemplated by this Agreement; and
(vi) The HELOC Back-Up Servicer is a member of MERS in good
standing, and will comply in all material respects with the rules and procedures
of MERS in connection with the servicing of the HELOC Mortgage Loans that are
registered with MERS.
The foregoing representations and warranties shall survive any
termination of the HELOC Back-Up Servicer hereunder.
ARTICLE III
Back-Up Servicing of HELOCMortgage Loans
Section 3.01 BACK-UP SERVICER TO ACT AS SUCCESSOR HELOC SERVICER . In
the event of a Servicing Default by American Home Mortgage Servicing, Inc., as
HELOC Servicer under the HELOC Servicing Agreement, or upon the occurrence of
any HELOC Servicer Termination Event and the direction of the Insurer in
connection therewith, the HELOC Back-Up Servicer shall terminate the rights and
responsibilities of the HELOC Servicer under the HELOC Servicing Agreement and
assume and succeed to the obligations of the HELOC Servicer under the HELOC
Servicing Agreement.
Notwithstanding the foregoing or anything else to the contrary in this
Agreement, for so long as a Servicing Default or HELOC Servicer Termination
Event is not in effect as provided in the HELOC Servicing Agreement and American
Home Mortgage Servicing, Inc. is the HELOC Servicer, the responsibilities of the
HELOC Back-Up Servicer shall be limited to review pursuant to Section 4.01 of
this Agreement of the Remittance Reports required of the HELOC Servicer pursuant
to Section 4.01 of the HELOC Servicing Agreement, and the HELOC Back-Up
Servicer's obligations under this Section 3.01, and Sections 4.02, 4.03 and 4.04
of this Agreement.
Section 3.02 HELOC BACK-UP SERVICING COMPENSATION. (a) As compensation
for its activities hereunder, the HELOC Back-Up Servicer shall be entitled to
receive the HELOC Back-Up Servicing Fee from full payments of accrued interest
on each HELOC Mortgage Loan. The HELOC Servicer shall remit the HELOC Back-Up
Servicing Fee to the HELOC Back-Up Servicer on each related HELOC Servicer
Remittance Date.
(b) The HELOC Back-Up Servicer shall be required to pay all expenses it
incurs in connection with its back-up servicing activities under this Agreement
and shall not be entitled in connection with servicing activities under this
Agreement to reimbursement except as provided in this Agreement. Expenses to be
paid by the HELOC Back-Up Servicer under this Subsection 3.02(b) shall include
payment of the expenses of the accountants retained pursuant to Section 4.03.
9
ARTICLE IV
Reporting Obligations
Section 4.01 REMITTANCE REPORTS.. The HELOC Back-Up Servicer shall
receive, review and evaluate the Remittance Report produced by the HELOC
Servicer pursuant to Section 4.01 of the HELOC Servicing Agreement. The HELOC
Back-Up Servicer shall independently and separately reconcile the information
provided in the Remittance Report on a monthly basis and coordinate corrective
adjustments to the HELOC Servicer's and HELOC Back-Up Servicer's records. The
HELOC Back-Up Servicer shall complete its review, evaluation and reconciliation
of the Remittance Report provided by the HELOC Servicer in accordance with this
Section within two (2) Business Days of receipt by the HELOC Back-Up Servicer of
such Remittance Report from the HELOC Servicer. In the event the HELOC Back-Up
Servicer finds a discrepancy in the information contained in the Remittance
Report provided by the HELOC Servicer, the HELOC Back-Up Servicer shall
immediately notify the HELOC Servicer of such discrepancy, and each of the HELOC
Back-Up Servicer and the HELOC Servicer shall cooperate to take any corrective
action necessary with respect to the Remittance Report and the corresponding
remittance furnished and remitted by the HELOC Servicer with respect to the next
succeeding Due Period.
Notwithstanding the foregoing paragraph, the Indenture Trustee and the
Securities Administrator shall be protected in relying upon the amounts
contained in the Remittance Report produced by the HELOC Servicer pursuant to
Section 4.01 of the HELOC Servicing Agreement without any independent check or
verification. The Indenture Trustee and the Securities Administrator shall have
no obligation to recompute, recalculate or verify any information provided to it
by the HELOC Servicer pursuant to Section 4.01 of the HELOC Servicing Agreement.
Section 4.02 ANNUAL STATEMENTS OF COMPLIANCE. No later than March 22 of
each year, commencing in March 2006, the HELOC Back-Up Servicer at its own
expense shall deliver to the Depositor, with a copy to the Insurer, the
Securities Administrator and the Rating Agencies, an Officer's Certificate
stating, as to the signer thereof, that (i) a review of the activities of the
HELOC Back-Up Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, the HELOC Back-Up
Servicer has fulfilled all its obligations under this Agreement for such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof including the steps being taken by the HELOC Back-Up Servicer to remedy
such default. Copies of such statements shall be provided by the HELOC Back-Up
Servicer to the Class IX-A Noteholders upon request.
Section 4.03 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
(a) No later than March 22 of each year, commencing in March 2006, the HELOC
Back-Up Servicer, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants and which is Pricewaterhouse Coopers LLP (or a successor thereof) to
furnish a statement to the HELOC Back-Up Servicer, which will be provided
10
to the Depositor, the Securities Administrator, the Insurer and the Rating
Agencies, to the effect that, in connection with the firm's examination of the
HELOC Back-Up Servicer's financial statements as of the end of the preceding
calendar year, nothing came to their attention that indicated that the HELOC
Back-Up Servicer was not in compliance with this Agreement, except for (i) such
exceptions as such firm believes to be immaterial and (ii) such other exceptions
as are set forth in such statement.
(b) No later than March 22 of each year, commencing in March 2006, the
HELOC Back-Up Servicer, at its expense, shall cause a nationally recognized firm
of independent certified public accountants to furnish to the HELOC Back-Up
Servicer a report stating that (i) it has obtained a letter of representation
regarding certain matters from the management of the HELOC Back-Up Servicer
which includes an assertion that the HELOC Back-Up Servicer has complied with
certain minimum mortgage loan servicing standards (to the extent applicable to
residential mortgage loans) identified in the Uniform Single Attestation Program
for Mortgage Bankers established by the Mortgage Bankers Association of America
with respect to the servicing of mortgage loans similar to the HELOC Mortgage
Loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. Immediately upon receipt of such report,
the HELOC Back-Up Servicer shall furnish a copy of such report to the Depositor,
the Securities Administrator, the Insurer and the Rating Agencies. Any annual
independent public accountants' report furnished pursuant to this Section 4.03
shall be in such form as shall permit such report to be filed with the
Securities and Exchange Commission as part of the Issuer's annual report on Form
10-K filed pursuant to the Securities Exchange Act of 1934, as amended, and no
such annual independent public accountant's report shall contain any language
restricting, limiting or prohibiting such use of such report.
Section 4.04 EXCHANGE ACT REPORTING. For so long as the HELOC Mortgage
Loans are being back-up serviced by the HELOC Back-Up Servicer, by March 22nd of
each year (or if not a Business Day, the immediately preceding Business Day), or
at any other time upon thirty (30) days written request, an officer of the HELOC
Back-Up Servicer shall execute and deliver an Officer's Certificate to the
Depositor for the benefit of the Depositor and its officers, directors and
affiliates in the form of Exhibit C-1.
11
ARTICLE V
The HELOC Back-Up Servicer
Section 5.01 LIABILITY OF THE HELOC BACK-UP SERVICER. The HELOC Back-Up
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the HELOC Back-Up
Servicer herein.
Section 5.02 MERGER OR CONSOLIDATION OF OR ASSUMPTION OF THE
OBLIGATIONS OF THE HELOC BACK-UP SERVICER. Any corporation into which the HELOC
Back-Up Servicer may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the HELOC Back-Up Servicer shall be a party, or any
corporation succeeding to the business of the HELOC Back-Up Servicer, shall be
the successor of the HELOC Back-Up Servicer 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; PROVIDED, HOWEVER, that the
successor or surviving Person to the HELOC Back-Up Servicer shall be qualified
to sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac.
The HELOC Back-Up Servicer may assign its rights and delegate its
duties and obligations under this Agreement; PROVIDED, that the Person accepting
such assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, is reasonably
satisfactory to the Indenture Trustee (as pledgee of the Mortgage Loans) and the
Company (in its sole discretion), is willing to service the HELOC Mortgage Loans
and executes and delivers to the Indenture Trustee and the Company an agreement,
in form and substance reasonably satisfactory to the Indenture Trustee and the
Company, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the HELOC Back-Up Servicer under this Agreement; PROVIDED, FURTHER,
that each Rating Agency's rating of the applicable Class IX-A Notes in effect
immediately prior to such assignment and delegation will not be qualified,
reduced, or withdrawn as a result of such assignment and delegation (as
evidenced by a letter to such effect from each Rating Agency) or considered to
be below investment grade.
Section 5.03 LIMITATION ON LIABILITY OF THE HELOC BACK-UP SERVICER AND
OTHERS. Neither the HELOC Back-Up Servicer nor any of the directors or officers
or employees or agents of the HELOC Back-Up Servicer shall be under any
liability to the Company, the Issuer, the Owner Trustee, the Securities
Administrator, the Indenture Trustee or the Class IX-A Noteholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, PROVIDED, HOWEVER, that this provision shall not
protect the HELOC Back-Up Servicer or any such Person against any liability
which would otherwise be imposed by reason of its willful misfeasance, bad faith
or gross negligence in the performance of its duties hereunder or by reason of
its reckless disregard of its obligations and duties hereunder. The HELOC
Back-Up Servicer and any director or officer or employee or agent of the HELOC
Back-Up Servicer may rely in good faith on any document of any kind PRIMA FACIE
properly executed and submitted by any Person respecting any matters arising
hereunder. The HELOC Back-Up Servicer and any director
12
or officer or employee or agent of the HELOC Back-Up Servicer shall be
indemnified by the Trust Estate and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Class IX-A Notes, including any amount paid to the Owner Trustee, the
Securities Administrator or the Indenture Trustee pursuant to Section 5.06(b),
other than any loss, liability or expense related to any specific HELOC Mortgage
Loan or HELOC Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of its willful misfeasance, bad faith or
gross negligence in the performance of its duties hereunder or by reason of its
reckless disregard of its obligations and duties hereunder. The HELOC Back-Up
Servicer shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties to service the HELOC Mortgage
Loans in accordance with this Agreement, and which in its opinion may involve it
in any expense or liability; PROVIDED, HOWEVER, that the HELOC Back-Up Servicer
may in its sole discretion undertake any such action which it may deem necessary
or desirable in respect of this Agreement, and the rights and duties of the
parties hereto and the interests of the Securityholders hereunder. In such
event, the reasonable legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
Estate, and the HELOC Back-Up Servicer shall be entitled to be reimbursed
therefor. The HELOC Back-Up Servicer's right to indemnity or reimbursement
pursuant to this Section 5.03 shall survive any resignation or termination of
the HELOC Back-Up Servicer pursuant to Sections 5.04 or 6.01 with respect to any
losses, expenses, costs or liabilities arising prior to such resignation or
termination (or arising from events that occurred prior to such resignation or
termination).
Section 5.04 HELOC BACK-UP SERVICER NOT TO RESIGN. Subject to the
provisions of Section 5.02, the HELOC Back-Up Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) upon determination that
the performance of its obligations or duties hereunder are no longer permissible
under applicable law (any such determination permitting the resignation of the
HELOC Back-Up Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Indenture Trustee) or (ii) upon satisfaction of the
following conditions: (a) the HELOC Back-Up Servicer has proposed a successor
back-up servicer to the Depositor in writing and such proposed successor back-up
servicer is reasonably acceptable to the Depositor; and (b) each Rating Agency
shall have delivered a letter (obtained by and at the expense of the HELOC
Back-Up Servicer) to the Depositor prior to the appointment of the successor
back-up servicer stating that the proposed appointment of such successor back-up
servicer as HELOC Back-Up Servicer hereunder will not result in the reduction,
qualification or withdrawal of the then current rating of the Class IX-A Notes;
PROVIDED, HOWEVER, that no such resignation by the HELOC Back-Up Servicer shall
become effective until such successor back-up servicer shall have assumed the
HELOC Back-Up Servicer's responsibilities and obligations hereunder or another
successor HELOC Back-Up Servicer has been appointed in accordance with Section
6.02 and has accepted such appointment. Any such resignation shall not relieve
the HELOC Back-Up Servicer of responsibility for any of the obligations
specified in Sections 6.01 and 6.02 as obligations that survive the resignation
or termination of the HELOC Back-Up Servicer. The HELOC Back-Up Servicer shall
have no claim (whether by subrogation or otherwise) or other action against any
Noteholder for any amounts paid by the HELOC Back-Up Servicer pursuant to any
provision of this Agreement.
13
Section 5.05 DELEGATION OF DUTIES. In the ordinary course of business,
the HELOC Back-Up Servicer at any time may delegate any of its duties hereunder
to any Person, including any of its Affiliates, who agrees to conduct such
duties in accordance with standards comparable to those with which the HELOC
Back-Up Servicer complies pursuant to Section 3.01. Such delegation shall not
relieve the HELOC Back-Up Servicer of its liabilities and responsibilities with
respect to such duties and shall not constitute a resignation within the meaning
of Section 5.04.
Section 5.06 INDEMNIFICATION. The HELOC Back-Up Servicer agrees to
indemnify the Indenture Trustee, the Insurer, the Securities Administrator and
the Owner Trustee for, and to hold the Indenture Trustee, the Securities
Administrator and the Owner Trustee, as the case may be, harmless against, any
claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred
without negligence (gross negligence in the case of the Owner Trustee) or
willful misconduct on its part, arising out of, or in connection with, the
failure by the HELOC Back-Up Servicer to perform its duties in compliance with
this Agreement, including the costs and expenses (including reasonable legal
fees and expenses) of defending against any claim in connection with the
exercise or performance of any of its powers or duties under any Basic Document,
provided that:
(i) with respect to any such claim, the Indenture Trustee, the
Insurer, the Securities Administrator or Owner Trustee, as the case may be,
shall have given the HELOC Back-Up Servicer written notice thereof promptly
after the Indenture Trustee, the Securities Administrator or Owner Trustee, as
the case may be, shall have actual knowledge thereof, it being understood that
failure to give such notice shall not relieve the HELOC Back-Up Servicer of its
indemnification obligations hereunder;
(ii) while maintaining control over its own defense, the
Company, the Insurer, the Indenture Trustee, the Securities Administrator or
Owner Trustee, as the case may be, shall cooperate and consult fully with the
HELOC Back-Up Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the
contrary, the HELOC Back-Up Servicer shall not be liable for settlement of any
claim by the Indenture Trustee, the Insurer, the Securities Administrator or the
Owner Trustee, as the case may be, entered into without the prior consent of the
HELOC Back-Up Servicer, which consent shall not be unreasonably withheld or
delayed.
This Section 5.06 shall survive the termination of this Agreement and
the earlier removal or resignation of the Indenture Trustee.
14
ARTICLE VI
Default
Section 6.01 SERVICING DEFAULT. If any one of the following events
(each, a "Servicing Default") shall occur and be continuing:
(i) Failure on the part of the HELOC Back-Up Servicer duly to
observe or perform in any material respect any representation or warranty of the
HELOC Back-Up Servicer or any other covenants or agreements of the HELOC Back-Up
Servicer set forth in this Agreement, which failure, in each case, materially
and adversely affects the interests of Class IX-A Noteholders and which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, and stating that such
notice is a "Notice of Default" hereunder, shall have been given to the HELOC
Back-Up Servicer by the Company, the Issuer, the Insurer or the Indenture
Trustee; or
(ii) The entry against the HELOC Back-Up Servicer of a decree
or order by a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
(iii) The HELOC Back-Up Servicer shall voluntarily go into
liquidation, consent to the appointment of a conservator, receiver, liquidator
or similar person in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings of or relating to the HELOC Back-Up
Servicer or of or relating to all or substantially all of its property, or a
decree or order of a court, agency or supervisory authority having jurisdiction
in the premises for the appointment of a conservator, receiver, liquidator or
similar person in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the HELOC Back-Up Servicer and such
decree or order shall have remained in force undischarged, unbonded or unstayed
for a period of 60 days; or the HELOC Back-Up Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations;
then, and in every such case, so long as a Servicing Default shall not have been
remedied by the HELOC Back-Up Servicer, either the holders of at least 51% of
the aggregate Note Principal Balance of the Class IX-A Notes or the Issuer may,
or may direct the Indenture Trustee to, by notice then given to the HELOC
Back-Up Servicer, terminate all of the rights and obligations of the HELOC
Back-Up Servicer under this Agreement other than its right to receive servicing
compensation and expenses for back-up servicing the HELOC Mortgage Loans
hereunder during any period prior to the date of such termination and the Issuer
may exercise any and all other remedies available at law or equity. Any such
notice to the HELOC Back-Up Servicer shall also be given to each Rating Agency,
the Insurer, the Company and the Issuer. On or after the receipt by the HELOC
Back-Up Servicer of such written notice, all authority and power of the HELOC
15
Back-Up Servicer under this Agreement, whether with respect to the Class IX-A
Notes or the HELOC Mortgage Loans or otherwise, shall pass to and be vested in
the Indenture Trustee, pursuant to and under this Section 6.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the HELOC Back-Up Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of each
HELOC Mortgage Loan and related documents, or otherwise. Notwithstanding the
foregoing, the parties hereto and the Securityholders by their acceptance of any
Security, acknowledge and agree that there will be a period of transition before
the actual back-up servicing functions can be fully transferred to the Indenture
Trustee, as successor HELOC Back-Up Servicer, or to a successor HELOC Back-Up
Servicer appointed by the Indenture Trustee pursuant to the provisions hereof,
provided, that the Indenture Trustee shall use its reasonable best efforts to
succeed to the actual back-up servicing functions to the extent specified below
or find a successor HELOC Back-Up Servicer as soon as possible but no later than
90 days after such termination; provided that the Indenture Trustee shall
continue to have the right to appoint a successor HELOC Back-Up Servicer after
such 90-day period in accordance with Section 6.02. If the Indenture Trustee is
unable to appoint a successor HELOC Back-Up Servicer in accordance with this
Section using commercially reasonable efforts within such 90-day period
(provided, however, if the HELOC Servicer has not been terminated, the HELOC
Servicer shall cooperate and assist the Indenture Trustee in finding a successor
HELOC Back-Up Servicer) and succeeds to the actual back-up servicing functions
of the HELOC Back-Up Servicer herein, it shall not assume the obligations of the
HELOC Back-Up Servicer under Section 3.01 and Article IV herein and under the
second paragraph of Section 3.01(a) of the HELOC Servicing Agreement. The HELOC
Back-Up Servicer agrees to cooperate with the Indenture Trustee in effecting the
termination of the responsibilities and rights of the HELOC Back-Up Servicer
hereunder, including, without limitation, the transfer to the Indenture Trustee
or the successor HELOC Back-Up Servicer for administration by it of (i) the
property and amounts which are then or should be part of the Trust Estate or
which thereafter become part of the Trust Estate; (ii) originals or copies of
all documents of the HELOC Back-Up Servicer reasonably requested by the
Indenture Trustee to enable it to assume the HELOC Back-Up Servicer's duties
thereunder and under the HELOC Servicing Agreement; (iii) the rights and
obligations of the HELOC Back-Up Servicer under the HELOC Servicing Agreement
with respect to the HELOC Mortgage Loans; (iv) all cash amounts which shall at
the time be deposited by the HELOC Back-Up Servicer or should have been
deposited to the Collection Account or the Payment Account or thereafter be
received with respect to the HELOC Mortgage Loans; and (v) all costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Indenture Trustee or any successor HELOC Back-Up Servicer to correct any errors
or insufficiencies in the servicing data or otherwise to enable the Indenture
Trustee or successor HELOC Back-Up Servicer to back-up service the HELOC
Mortgage Loans properly and effectively. All reasonable costs and expenses
(including, but not limited to, attorneys' fees and disbursements) incurred by
the Indenture Trustee or a successor HELOC Back-Up Servicer in connection with
its succession as HELOC Back-Up Servicer, including amending this Agreement to
reflect such succession as HELOC Back-
16
Up Servicer pursuant to this Section 6.01 shall be paid by the predecessor HELOC
Back-Up Servicer (or if the predecessor HELOC Back-Up Servicer is the Indenture
Trustee, the initial HELOC Back-Up Servicer) upon presentation of reasonable
documentation of such costs and expenses, and if not so paid by the predecessor
HELOC Back-Up Servicer, shall be reimbursed by the Issuer pursuant to Section
6.07 of the Indenture.
Notwithstanding any termination of the activities of the HELOC Back-Up
Servicer hereunder, the HELOC Back-Up Servicer shall be entitled to receive, out
of any late collection of a payment on a HELOC Mortgage Loan which was due prior
to the notice terminating the HELOC Back-Up Servicer's rights and obligations
hereunder and received after such notice, its HELOC Back-Up Servicing Fee in
respect thereof, and any other amounts payable to the HELOC Back-Up Servicer
hereunder the entitlement to which arose prior to the termination of its
activities hereunder.
The HELOC Back-Up Servicer shall immediately notify the Indenture
Trustee and the Owner Trustee in writing of any Servicing Default.
Section 6.02 INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a)
Within 90 days of the time the HELOC Back-Up Servicer sends a notice pursuant to
clause (i) of Section 5.04, the Indenture Trustee on behalf of the Class IX-A
Noteholders (if it is unable to appoint a successor HELOC Back-Up Servicer in
accordance with Section 6.01), or other successor appointed in accordance with
this Section 6.02, shall be the successor in all respects to the HELOC Back-Up
Servicer in its capacity as HELOC Back-Up Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the HELOC
Back-Up Servicer by the terms and provisions hereof, including but not limited
to the provisions of Article V; provided, however, that the Indenture Trustee as
successor HELOC Back-Up Servicer shall not assume the obligations of the HELOC
Back-Up Servicer under Section 3.01 and Article IV herein and under the second
paragraph of Section 3.01(a) of the HELOC Servicing Agreement. Nothing in this
Agreement shall be construed to permit or require the Indenture Trustee or any
other successor HELOC Back-Up Servicer to (i) be responsible or accountable for
any act or omission of the predecessor HELOC Back-Up Servicer, or (ii) be
responsible for the representations and warranties of the HELOC Back-Up
Servicer, except as provided herein. As compensation therefor, the Indenture
Trustee shall be entitled to such compensation as the HELOC Back-Up Servicer
would have been entitled to hereunder if no such notice of termination had been
given. Notwithstanding the above, (i) if the Indenture Trustee is unwilling to
act as successor HELOC Back-Up Servicer, or (ii) if the Indenture Trustee is
legally unable so to act, the Indenture Trustee on behalf of the Class IX-A
Noteholders may (in the situation described in clause (i)) or shall (in the
situation described in clause (ii)) appoint or petition a court of competent
jurisdiction to appoint any established housing and home finance institution,
bank or other mortgage loan servicer having a net worth of not less than
$10,000,000 as the successor to the HELOC Back-Up Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the HELOC Back-Up Servicer hereunder; provided that the appointment of any such
successor HELOC Back-Up Servicer will not result in the qualification, reduction
or withdrawal of the ratings assigned to the Class IX-A Notes by the Rating
Agencies (as evidenced by a letter to such effect delivered by the Rating
Agencies). Pending appointment of a successor to the HELOC Back-Up Servicer
hereunder, unless the Indenture Trustee is prohibited by law from so acting or
is unwilling to act as such, the
17
Indenture Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the successor shall be entitled
to receive compensation out of payments on HELOC Mortgage Loans in an amount
equal to the compensation which the HELOC Back-Up Servicer would otherwise have
received pursuant to this Agreement (or such lesser compensation as the
Indenture Trustee and such successor shall agree). The appointment of a
successor HELOC Back-Up Servicer shall not affect any liability of the
predecessor HELOC Back-Up Servicer which may have arisen under this Agreement
prior to its termination as HELOC Back-Up Servicer (including, without
limitation, to indemnify the Indenture Trustee pursuant to Section 5.06), nor
shall any successor HELOC Back-Up Servicer be liable for any acts or omissions
of the predecessor HELOC Back-Up Servicer or for any breach by such HELOC
Back-Up Servicer of any of its representations or warranties contained herein or
in any related document or agreement. The Indenture Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
In connection with the termination or resignation of the HELOC Back-Up
Servicer hereunder, the successor HELOC Back-Up Servicer, including the
Indenture Trustee if the Indenture Trustee is acting as successor HELOC Back-Up
Servicer, shall represent and warrant that it is a member of MERS in good
standing and shall agree to comply in all material respects with the rules and
procedures of MERS.
(b) Any successor, including the Indenture Trustee on behalf of the
Class IX-A Noteholders, to the HELOC Back-Up Servicer as back-up servicer shall
during the term of its service as back-up servicer continue to back-up service
and administer the HELOC Mortgage Loans for the benefit of the Securityholders.
(c) Any successor HELOC Back-Up Servicer, including the Indenture
Trustee on behalf of the Class IX-A Noteholders, shall not be deemed to be in
default or to have breached its duties hereunder if the predecessor HELOC
Back-Up Servicer shall fail to cooperate with any required succession hereunder.
(d) Notwithstanding anything else herein to the contrary, in no event
shall the Indenture Trustee be liable for any servicing fee or any differential
in the amount of the servicing fee paid hereunder and the amount necessary to
induce any successor HELOC Back-Up Servicer to act as a successor HELOC Back-Up
Servicer under this Agreement and the transactions set forth or provided for
herein.
Section 6.03 NOTIFICATION TO CLASS IX-A NOTEHOLDERS. Upon any
termination or appointment of a successor to the HELOC Back-Up Servicer pursuant
to this Article VI or Section 5.04, the Indenture Trustee shall give prompt
written notice thereof to the Class IX-A Noteholders, the Owner Trustee, the
Securities Administrator, the Company, the Issuer and the Rating Agencies.
Section 6.04 WAIVER OF DEFAULTS. The Indenture Trustee shall transmit
by mail to the Insurer and all Class IX-A Noteholders, within 10 days after the
occurrence of any Servicing Default known to the Indenture Trustee, unless such
Servicing Default shall have been cured, notice of each such Servicing Default
hereunder of which a Responsible Officer of the Indenture
18
Trustee has actual knowledge. The Insurer, or the holders of at least 51% of the
aggregate Note Principal Balance of the Class IX-A Notes, with the consent of
the Insurer, may waive any default by the HELOC Back-Up Servicer in the
performance of its obligations hereunder and the consequences thereof, except a
default in the making of or the causing to be made any required distribution on
the Class IX-A Notes. Upon any such waiver of a past default, such default shall
be deemed to cease to exist, and any Servicing Default arising therefrom shall
be deemed to have been timely remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived. The HELOC Back-Up
Servicer shall give notice of any such waiver to the Rating Agencies.
19
ARTICLE VII
Miscellaneous Provisions
Section 7.01 AMENDMENT. This Agreement may be amended from time to time
by the parties hereto, provided that any amendment be accompanied by a letter
from the Rating Agencies that the amendment will not result in the downgrading,
qualification or withdrawal of the rating then assigned to the Class IX-A Notes.
Section 7.02 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if when
delivered to:
(a) in the case of the HELOC Back-Up Servicer:
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: 215.682.1467
(b) in the case of Rating Agencies:
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 41st Floor
New York, New York 10041
Attention: Asset Backed Surveillance Group
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
(c) in the case of the Owner Trustee, the Corporate Trust Office:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
(d) in the case of the Issuer, to American Home Mortgage Investment
Trust 2005-1:
20
c/o American Home Mortgage Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
(e) in the case of the Indenture Trustee: its Corporate Trust Office
(f) in the case of the Insurer,
Financial Guaranty Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Research and Risk Management
(g) in the case of the Securities Administrator:
▇▇▇▇▇ Fargo Bank, N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or, in the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 21045) (Attention: Corporate Trust Services - AHMIT
2005-1), facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may
hereafter be furnished to the other parties hereto in writing;)
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Noteholder receives such
notice. Any notice or other document required to be delivered or mailed by the
Indenture Trustee to the Rating Agencies shall be given on a reasonable efforts
basis and only as a matter of courtesy and accommodation and the Indenture
Trustee shall have no liability for failure to deliver such notice or document
to the Rating Agencies.
The HELOC Back-Up Servicer shall designate a Person who shall be
available to the Insurer to provide reasonable access to information regarding
the HELOC Mortgage Loans.
Section 7.04 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Class IX-A
Notes or the rights of the Class IX-A Noteholders thereof.
Section 7.05 THIRD-PARTY BENEFICIARIES. This Agreement will inure to
the benefit of and be binding upon the parties hereto, the Class IX-A
Noteholders, the Insurer, the Owner Trustee, the Securities Administrator, the
Depositor and its any of their officers and directors, and
21
their respective successors and permitted assigns. Except as otherwise provided
in this Agreement, no other Person will have any right or obligation hereunder.
The Indenture Trustee shall have the right to exercise all rights of the Issuer
under this Agreement. The Depositor and its officers and directors (in their
corporate or individual capacity) shall have the right to bring an action
against the HELOC Back-Up Servicer as it relates to a failure of the HELOC
Back-Up Servicer to comply with its obligations under Section 4.04 of this
Agreement.
Section 7.06 COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 7.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 7.08 TERMINATION. The respective obligations and
responsibilities of the HELOC Back-Up Servicer and the Issuer created hereby
shall terminate upon the satisfaction and discharge of the Indenture pursuant to
Section 4.10 thereof.
Section 7.09 NO PETITION. The HELOC Back-Up Servicer, by entering into
this Agreement, hereby covenants and agrees that it will not at any time
institute against the Issuer, or join in any institution against the Issuer, any
bankruptcy proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations of the Issuer. This section shall
survive the satisfaction and discharge of the Indenture by one year.
Section 7.10 NO RECOURSE. The HELOC Back-Up Servicer acknowledges that
no recourse may be had against the Issuer, except as may be expressly set forth
in this Agreement.
Section 7.11 CONSENT TO JURISDICTION. The parties to this Agreement
each hereby irrevocably submits to the non exclusive jurisdiction of any New
York State or federal court sitting in the Borough of Manhattan in The City of
New York in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby, and all such parties hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such New York State or federal court and hereby
irrevocably waive, to the fullest extent that they may legally do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
22
IN WITNESS WHEREOF, the HELOC Back-Up Servicer, the Issuer and the
Indenture Trustee have caused this Agreement to be duly executed by their
respective officers or representatives all as of the day and year first above
written.
GMAC MORTGAGE CORPORATION
as HELOC Back-Up Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
AMERICAN HOME MORTGAGE INVESTMENT
TRUST 2005-1,
as Issuer
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Financial Services Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
23
EXHIBIT A
HELOC MORTGAGE LOAN SCHEDULE
(FILED MANUALLY)
EXHIBIT B
FORM OF CERTIFICATION TO BE PROVIDED BY THE HELOC BACK-UP SERVICER
WITH FORM 10-K
Re:American Home Mortgage Investment Trust 2005-1
Mortgage-Backed Notes, Series 2005-1
I, [identify the certifying individual], certify that:
l. Based on my knowledge, the information in the Annual
Statement of Compliance and the Annual Independent Public Accountants' Servicing
Report submitted to the Depositor, the Indenture Trustee, the Insurer and the
Securities Administrator taken as a whole, 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 as of the last day of the period covered by the Annual
Statement of Compliance;
2. Based on my knowledge, the servicing information required
to be provided to the Depositor, the Indenture Trustee, the Insurer and the
Securities Administrator by the HELOC Back-Up Servicer under the Agreement is
included in these reports;
3. I am responsible for reviewing the activities performed by
the HELOC Back-Up Servicer under the Agreement and based upon the review
required under the Agreement, and except as disclosed in the report, the HELOC
Back-Up Servicer has fulfilled its obligations under the Agreement; and
4. I have disclosed to the Registrant's certified public
accountants all significant deficiencies relating to the HELOC Back-Up
Servicer's compliance with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar standard as set forth in the Agreement.
Capitalized terms used but not defined herein have the
meanings ascribed to them in Appendix A to the Indenture, dated as of March 23,
2005, among American Home Mortgage Investment Trust 2005-1, as issuer, ▇▇▇▇▇
Fargo Bank, N.A. as securities administrator and Deutsche Bank National Trust
Company, as indenture trustee.
GMAC MORTGAGE CORPORATION
By:____________________________
Name:
Title:
Date:
24