EXHIBIT 10.4.6
AMENDMENT NO. 7
TO THE AMENDED AND RESTATED
MASTER LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 7, dated as of November 17, 2004 (this "Amendment"),
to the Amended and Restated Master Loan and Security Agreement, dated as of
November 26, 2003 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Existing Loan Agreement"; as amended, hereby and as further
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "Loan Agreement"), by and among AMERICAN HOME MORTGAGE CORP. ("AHMC"),
AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), AMERICAN HOME
MORTGAGE INVESTMENT CORP. ("AHM Investment"), AMERICAN HOME MORTGAGE HOLDINGS,
INC. ("AHM Holdings") and AMERICAN HOME MORTGAGE SERVICING, INC., formerly known
as Columbia National, Incorporated ("AHM Servicing" and together with AHMC, AHM
Acceptance, AHM Investment and AHM Holdings, collectively, the "Borrowers",
each, a "Borrower"), the lenders from time to time parties thereto (the
"Lenders") and MORGAN STANLEY BANK, as agent for the Lenders (in such capacity,
the "Agent"). Capitalized terms used but not otherwise defined herein shall have
the meanings given to them in the Existing Loan Agreement.
RECITALS
The Borrowers, the Lenders and the Agent are parties to the Existing
Loan Agreement, pursuant to which the Existing Lender has agreed to make and to
permit to remain outstanding certain extensions of credit on the terms and
subject to the conditions of the Existing Loan Agreement.
The Borrowers, the Lenders and the Agent have agreed, subject to the
terms and conditions hereof, that the Existing Loan Agreement shall be modified
to provide for a temporary increase in the amount of the Maximum Credit and to
effect certain other changes as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrowers, the Lenders and the Agent hereby agree as follows:
SECTION 1. Amendments.
(a) Section 1.01 of the Existing Loan Agreement is hereby amended by
inserting in proper alphabetical order the following new defined terms:
"Increase Period" shall mean the period from and including the
Seventh Amendment Effective Date through and including December 31,
2004.
"Seventh Amendment" shall mean that certain Amendment No. 7
and Agreement, dated as of November 17, 2004, by and among the
Borrowers, the Lender and the Agent.
"Seventh Amendment Effective Date" shall mean the "Amendment
Effective Date", as defined in the Seventh Amendment.
(b) Subclauses (ii) through (iv) of the definition of "Collateral
Value" set forth in Section 1.01 of the Existing Loan Agreement shall be deleted
in their entirety and the following new subclauses shall be inserted in lieu
thereof:
"(ii) The aggregate Collateral Value of all California Program
Mortgage Loans included in the Borrowing Base at any time shall not
exceed 5.71% of the Maximum Credit at such time;
(iii) The aggregate Collateral Value of all Interest-Only
Mortgage Loans with an LTV greater than 80% and less than or equal
to 95% included in the Borrowing Base at any time shall not exceed
14.29% of the Maximum Credit at such time;
(iv) The aggregate Collateral Value of all Jumbo Mortgage
Loans which have an original principal value greater than $1,000,000
included in the Borrowing Base at any time shall not exceed 20% of
the Maximum Credit at such time;"
(c) The definition of "Maximum Credit" set forth in Section 1.01 of
the Existing Loan Agreement shall be deleted in its entirety and the following
new definition shall be inserted in lieu thereof:
"Maximum Credit" shall mean (a) solely during the Increase
Period, an amount equal to $500,000,000 and (b) following the
Increase Period, an amount equal to $350,000,000.
(d) Solely during the Increase Period, Schedule 6 to the Existing
Loan Agreement (the "Existing Schedule") shall be superceded and replaced in its
entirety by the document attached hereto as Schedule 6 (the "Temporary
Schedule"). Upon termination of the Increase Period, the Temporary Schedule
shall be deleted in its entirety and the Existing Schedule shall be reinstated
in its entirety as Schedule 6 to the Loan Agreement.
SECTION 2. Conditions Precedent. This Amendment shall become
effective on the first date (the "Amendment Effective Date") on which all of the
following conditions precedent shall have been satisfied:
2.1 Delivered Documents. On the Amendment Effective Date, the Agent
shall have received the following documents, each of which shall be satisfactory
to the Agent in form and substance:
(a) Amendment. This Amendment, executed and delivered by a duly
authorized officer of each of the Borrowers, the Lenders and the Agent;
(b) Note. For the account of MSMCI, a Promissory Note, substantially
in the form of Exhibit A hereto, executed and delivered by a duly authorized
officer of the Borrower;
(c) Resolutions. True, correct and complete copies of the
resolutions of the Sole Director of each of AHMC, AHM Acceptance, AHM Holdings
and AHM Servicing, certified by the Secretary or Assistant Secretary of each
such Borrower, in form and substance satisfactory to the Agent, authorizing (i)
the execution, delivery and performance of this Amendment, and (ii) the
borrowings contemplated under the Loan Agreement; and
(d) Other Documents. Such other documents as the Agent or counsel to
the Agent may reasonably request.
2.2 No Default. On the Amendment Effective Date, (i) each Borrower
shall be in compliance with all the terms and provisions set forth in the
Existing Loan Agreement on its part to be observed or performed, (ii) the
representations and warranties made and restated by each Borrower pursuant to
Section 3 of this Amendment shall be true and complete on and as of such date
with the same force and effect as if made on and as of such date, and (iii) no
Default or Event of Default shall have occurred and be continuing on such date.
SECTION 3. Representations and Warranties. Each Borrower hereby
represents and warrants to the Agent and the Lenders that it is in compliance
with all the terms and provisions set forth in the Loan Documents on its part to
be observed or performed, and that no Default or Event of Default has occurred
or is continuing, and hereby confirms and reaffirms the representations and
warranties contained in Section 6 of the Loan Agreement.
SECTION 4. Resolutions of AHM Investment. Each Borrower hereby
covenants and agrees that on or before November 24, 2004 (or such later date as
the Agent may agree in writing, the "Delivery Date"), the Agent shall have
received a true, correct and complete copy of the resolutions of the Board of
Directors of AHM Investment, certified by the Secretary or Assistant Secretary
of AHM Investment, authorizing (i) the execution, delivery and performance of
this Amendment, and (ii) the borrowings contemplated under the Loan Agreement,
and such resolutions shall be satisfactory to the Agent in form and substance
satisfactory. From and after the Amendment Effective Date, until such
resolutions have been received by the Agent, no Loans shall be available to be
made to AHM Investment and if the Agent shall not have received such resolutions
as of the Delivery Date, an Event of Default shall be deemed to have occurred
under the Loan Agreement.
SECTION 5. Limited Effect. Except as expressly amended and modified
by this Amendment, the Existing Loan Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms; provided,
however, that upon the Amendment Effective Date, all references therein and
herein to the "Loan Documents" shall be deemed to include, in any event, this
Amendment. Each reference to the Loan Agreement in any of the Loan Documents
shall be deemed to be a reference to the Loan Agreement as amended hereby.
SECTION 6. Counterparts. This Amendment may be executed by each of
the parties hereto on any number of separate counterparts, each of which shall
be an original and all of which taken together shall constitute one and the same
instrument. Delivery of an executed signature page of this Amendment in Portable
Document Format (PDF) or by facsimile transmission shall be effective as
delivery of an executed original counterpart of this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
BORROWERS
AMERICAN HOME MORTGAGE CORP.
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE SERVICING, INC.
(f/k/a Columbia National,
Incorporated)
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
MORGAN STANLEY BANK,
as Agent and Lender
By: /s/ Paul Najarian
--------------------------------
Name: Paul Najarian
Title: Vice President
Schedule 6
COMMITMENTS
Lender Commitment
------ ----------
Morgan Stanley Bank $ 500,000,000
Total $ 500,000,000
Exhibit A
FIFTH AMENDED AND RESTATED PROMISSORY NOTE
$500,000,000 August 2, 2002
amended and restated November ___, 2004
New York, New York
FOR VALUE RECEIVED, each of American Home Mortgage Corp., a New York
corporation, American Home Mortgage Investment Corp., a Maryland corporation,
American Home Mortgage Holdings, Inc., a Delaware corporation, American Home
Mortgage Acceptance, Inc., a Maryland corporation, and American Home Mortgage
Servicing, Inc., formerly known as Columbia National, Incorporated, a Maryland
corporation, (each a "Borrower", collectively the "Borrowers"), hereby promises
to pay, jointly and severally, to the order of MORGAN STANLEY BANK (the
"Lender"), at the principal office of the Lender at 2500 Lake Park Boulevard,
West Valley City, Utah 84120, in lawful money of the United States, and in
immediately available funds, the principal sum of FIVE HUNDRED MILLION DOLLARS
($500,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Lender to the Borrowers under the Loan
Agreement referred to below), on the dates and in the principal amounts provided
in the Loan Agreement, and to pay interest on the unpaid principal amount of
each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at
the rates per annum and on the dates provided in the Loan Agreement.
The date, amount and interest rate of each Loan made by the Lender
to the Borrowers, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this
Note, endorsed by the Lender on the schedule attached hereto or any continuation
thereof; provided, that the failure of the Lender to make any such recordation
or endorsement shall not affect the obligations of the Borrowers to make a
payment when due of any amount owing under the Loan Agreement or hereunder in
respect of the Loans made by the Lender.
This Fifth Amended and Restated Promissory Note is one of the
"Notes" referred to in the Master Loan and Security Agreement, dated as of
August 2, 2002, which was amended and restated in its entirety by that certain
Amended and Restated Master Loan and Security Agreement, dated as of November
26, 2003 (as amended, restated, supplemented or otherwise modified and in effect
from time to time, the "Loan Agreement"), among the Borrowers, the Lenders from
time to time parties thereto and the Morgan Stanley Bank, as Agent for the
Lenders, and evidences the Loans made thereunder by the Lender to the Borrowers.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Loan Agreement.
The Borrowers agree, jointly and severally, to pay all the Lender's
costs of collection and enforcement (including reasonable attorneys' fees and
disbursements of Lender's counsel) in respect of this Note when incurred,
including, without limitation, reasonable attorneys' fees through appellate
proceedings.
Notwithstanding the pledge of the Collateral, each Borrower hereby
acknowledges, admits and agrees that the Borrowers' obligations under this Note
are recourse obligations of the Borrowers to which each Borrower pledges its
full faith and credit.
Each Borrower, and any endorsers or guarantors hereof, (a) severally
waive diligence, presentment, protest and demand and also notice of protest,
demand, dishonor and nonpayments of this Note, (b) expressly agree that this
Note, or any payment hereunder, may be extended from time to time, and consent
to the acceptance of further Collateral, the release of any Collateral for this
Note, the release of any party primarily or secondarily liable hereon, and (c)
expressly agree that it will not be necessary for the Lender, in order to
enforce payment of this Note, to first institute or exhaust the Lender's
remedies against the Borrowers or any other party liable hereon or against any
Collateral for this Note. No extension of time for the payment of this Note, or
any installment hereof, made by agreement by the Lender with any person now or
hereafter liable for the payment of this Note, shall affect the liability under
this Note of any Borrower, even if such Borrower is not a party to such
agreement; provided, however, that the Lender and each Borrower, by written
agreement between them, may affect the liability of the Borrowers.
This Fifth Amended and Restated Promissory note amends and restates
in its entirety the Fourth Amended and Restated Promissory Note, dated as of
November 26, 2003, made by the Borrowers in favor of the Lender in the maximum
principal sum of $350,000,000 (the "Existing Promissory Note") and is given as a
continuation, rearrangement and extension, and not a novation, release or
satisfaction of the Existing Promissory Note. Each Borrower hereby acknowledges
and agrees that simultaneously with the Borrowers' execution and delivery of
this Fifth Amended and Restated Promissory Note to the Lender, the Lender has
delivered to American Home Mortgage Corp. the Existing Promissory Note.
Any reference herein to the Lender shall be deemed to include and
apply to every subsequent holder of this Note. Reference is made to the Loan
Agreement for provisions concerning optional and mandatory prepayments,
Collateral, acceleration and other material terms affecting this Note.
Each Borrower hereby acknowledges and agrees that such Borrower
shall be jointly and severally liable to the maximum extent permitted by
applicable law for all representations, warranties, covenants, obligations and
indemnities of the Borrowers under the Loan Documents.
This Fifth Amended and Restated Promissory Note shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New York, whose laws each Borrower expressly elects to apply to this Note. Each
Borrower agrees that any action or proceeding brought to enforce or arising out
of this Note may be commenced in the Supreme Court of the State of New York,
Borough of Manhattan, or in the District Court of the United States for the
Southern District of New York.
[SIGNATURES FOLLOW]
AMERICAN HOME MORTGAGE CORP., as a
Borrower
By:
------------------------------------
Name:
Title:
AMERICAN HOME MORTGAGE INVESTMENT
CORP., as a Borrower
By:
------------------------------------
Name:
Title:
AMERICAN HOME MORTGAGE HOLDINGS, INC.,
as a Borrower
By:
------------------------------------
Name:
Title:
AMERICAN HOME MORTGAGE ACCEPTANCE,
INC., as a Borrower
v
AMERICAN HOME MORTGAGE SERVICING, INC.
(f/k/a Columbia National,
Incorporated), as a Borrower
By:
------------------------------------
Name:
Title:
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Loan
Agreement to the Borrowers, on the dates, in the principal amounts and bearing
interest at the rates set forth below, and subject to the payments and
prepayments of principal set forth below:
Principal Amount Interest Amount Paid Unpaid Principal Notation
Date Made of Loan Rate or Prepaid Amount Made by
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