EXHIBIT 10.4.8
FIFTH AMENDED AND RESTATED PROMISSORY NOTE
$500,000,000 August 2, 2002
amended and restated November ___, 2004
New York, New York
FOR VALUE RECEIVED, each of American Home Mortgage Corp., a New York
corporation, American Home Mortgage Investment Corp., a Maryland corporation,
American Home Mortgage Holdings, Inc., a Delaware corporation, American Home
Mortgage Acceptance, Inc., a Maryland corporation, and American Home Mortgage
Servicing, Inc., formerly known as Columbia National, Incorporated, a Maryland
corporation, (each a "Borrower", collectively the "Borrowers"), hereby promises
to pay, jointly and severally, to the order of MORGAN STANLEY BANK (the
"Lender"), at the principal office of the Lender at 2500 Lake Park Boulevard,
West Valley City, Utah 84120, in lawful money of the United States, and in
immediately available funds, the principal sum of FIVE HUNDRED MILLION DOLLARS
($500,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Lender to the Borrowers under the Loan
Agreement referred to below), on the dates and in the principal amounts provided
in the Loan Agreement, and to pay interest on the unpaid principal amount of
each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at
the rates per annum and on the dates provided in the Loan Agreement.
The date, amount and interest rate of each Loan made by the Lender
to the Borrowers, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this
Note, endorsed by the Lender on the schedule attached hereto or any continuation
thereof; provided, that the failure of the Lender to make any such recordation
or endorsement shall not affect the obligations of the Borrowers to make a
payment when due of any amount owing under the Loan Agreement or hereunder in
respect of the Loans made by the Lender.
This Fifth Amended and Restated Promissory Note is one of the
"Notes" referred to in the Master Loan and Security Agreement, dated as of
August 2, 2002, which was amended and restated in its entirety by that certain
Amended and Restated Master Loan and Security Agreement, dated as of November
26, 2003 (as amended, restated, supplemented or otherwise modified and in effect
from time to time, the "Loan Agreement"), among the Borrowers, the Lenders from
time to time parties thereto and the Morgan Stanley Bank, as Agent for the
Lenders, and evidences the Loans made thereunder by the Lender to the Borrowers.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Loan Agreement.
The Borrowers agree, jointly and severally, to pay all the Lender's
costs of collection and enforcement (including reasonable attorneys' fees and
disbursements of Lender's counsel) in respect of this Note when incurred,
including, without limitation, reasonable attorneys' fees through appellate
proceedings.
Notwithstanding the pledge of the Collateral, each Borrower hereby
acknowledges, admits and agrees that the Borrowers' obligations under this Note
are recourse obligations of the Borrowers to which each Borrower pledges its
full faith and credit.
Each Borrower, and any endorsers or guarantors hereof, (a) severally
waive diligence, presentment, protest and demand and also notice of protest,
demand, dishonor and nonpayments of this Note, (b) expressly agree that this
Note, or any payment hereunder, may be extended from time to time, and consent
to the acceptance of further Collateral, the release of any Collateral for this
Note, the release of any party primarily or secondarily liable hereon, and (c)
expressly agree that it will not be necessary for the Lender, in order to
enforce payment of this Note, to first institute or exhaust the Lender's
remedies against the Borrowers or any other party liable hereon or against any
Collateral for this Note. No extension of time for the payment of this Note, or
any installment hereof, made by agreement by the Lender with any person now or
hereafter liable for the payment of this Note, shall affect the liability under
this Note of any Borrower, even if such Borrower is not a party to such
agreement; provided, however, that the Lender and each Borrower, by written
agreement between them, may affect the liability of the Borrowers.
This Fifth Amended and Restated Promissory note amends and restates
in its entirety the Fourth Amended and Restated Promissory Note, dated as of
November 26, 2003, made by the Borrowers in favor of the Lender in the maximum
principal sum of $350,000,000 (the "Existing Promissory Note") and is given as a
continuation, rearrangement and extension, and not a novation, release or
satisfaction of the Existing Promissory Note. Each Borrower hereby acknowledges
and agrees that simultaneously with the Borrowers' execution and delivery of
this Fifth Amended and Restated Promissory Note to the Lender, the Lender has
delivered to American Home Mortgage Corp. the Existing Promissory Note.
Any reference herein to the Lender shall be deemed to include and
apply to every subsequent holder of this Note. Reference is made to the Loan
Agreement for provisions concerning optional and mandatory prepayments,
Collateral, acceleration and other material terms affecting this Note.
Each Borrower hereby acknowledges and agrees that such Borrower
shall be jointly and severally liable to the maximum extent permitted by
applicable law for all representations, warranties, covenants, obligations and
indemnities of the Borrowers under the Loan Documents.
This Fifth Amended and Restated Promissory Note shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New York, whose laws each Borrower expressly elects to apply to this Note. Each
Borrower agrees that any action or proceeding brought to enforce or arising out
of this Note may be commenced in the Supreme Court of the State of New York,
Borough of Manhattan, or in the District Court of the United States for the
Southern District of New York.
[SIGNATURES FOLLOW]
AMERICAN HOME MORTGAGE CORP., as a
Borrower
By: /s/ Alan B. Horn
--------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE INVESTMENT
CORP., as a Borrower
By: /s/ Alan B. Horn
--------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE HOLDINGS, INC.,
as a Borrower
By: /s/ Alan B. Horn
--------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE ACCEPTANCE,
INC., as a Borrower
By: /s/ Alan B. Horn
--------------------------------------
Name: Alan B. Horn
Title: Executive Vice President
AMERICAN HOME MORTGAGE SERVICING, INC.
(f/k/a Columbia National,
Incorporated), as a Borrower
By: /s/ Alan B. Horn
--------------------------------------
Name: Alan B. Horn
Title: Executive Vice President