EXHIBIT 10.3.1.
FIRST OMNIBUS AMENDMENT
THIS FIRST OMNIBUS AMENDMENT (this "Amendment"), dated as of December 10,
2004, is entered into by and among CALYON NEW YORK BRANCH (successor in interest
to Credit Lyonnais New York Branch) (together with its successors and assigns,
"Calyon New York"), as the Administrative Agent and as a Bank, DEUTSCHE BANK
NATIONAL TRUST COMPANY (together with its successors and assigns, "Deutsche
Bank"), as Collateral Agent, AMERICAN HOME MORTGAGE CORP. ("AHMC"), as the
Servicer, an Originator and a Seller, AHM SPV I, LLC, as the Borrower and the
Buyer, and AMERICAN HOME MORTGAGE SERVICING, INC. ("AHMS") (formerly known as
Columbia National, Incorporated), as an Originator and a Seller. Capitalized
terms used and not otherwise defined herein are used as defined in the related
Operative Documents (as defined below).
RECITALS
WHEREAS, AHMC and AHMS, as Sellers, and AHM SPV I, LLC, as the Buyer,
entered into that certain Master Repurchase Agreement and Addendum to the Master
Repurchase Agreement incorporated therein, dated as of August 8, 2003 (as the
same may be amended, restated, supplemented or modified from time to time, the
"Repurchase Agreement");
WHEREAS, the Borrower, the Administrative Agent, the Servicer and the
Collateral Agent entered into that certain Collateral Agency Agreement, dated as
of August 8, 2003 (as the same may be amended, restated, supplemented or
modified from time to time, the "Collateral Agency Agreement");
WHEREAS, the Borrower, the Servicer, La Fayette Asset Securitization LLC,
as an Issuer, and Calyon New York, as a Bank and as Administrative Agent,
entered into that certain Loan Agreement dated as of August 8, 2003 (as the same
may be amended, restated, supplemented or modified from time to time, the "Loan
Agreement" and, collectively with the Repurchase Agreement and the Collateral
Agency Agreement, the "Operative Documents");
WHEREAS, the parties hereto that are parties to the Operative Documents
desire to amend the Operative Documents as hereinafter set forth in this
Amendment;
NOW, THEREFORE, the parties agree as follows with respect to the Operative
Documents to which each party hereto is a party:
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Section 1. Amendments to the Loan Agreement.
(a) The definition of "Annual Extension Date" in Section 1.1 of the Loan
Agreement is hereby amended by deleting the words "August 6, 2004" in clause (i)
thereof and replacing them with the words "August 5, 2005".
(b) Section 1.1 of the Loan Agreement is hereby amended by adding the
following definition of "Adjusted Consolidated Funded Debt" immediately after
the definition of "Accepted Servicing Standards":
"Adjusted Consolidated Funded Debt" means, on any date of
determination, the sum of (a) the Consolidated Funded Debt of
American Home Mortgage Investment Corp. and any other Person which
would be reflected on the consolidated balance sheet of American
Home Mortgage Investment Corp. prepared in accordance with GAAP if
such balance sheet were prepared as of such date of determination,
less (b) 50% of any Subordinated Debt, less (c) the mortgage debt
associated with the building and the land located at 538 Broadhollow
Road, Melville, New York. "Subordinated Debt" means the Debt of
American Home Mortgage Investment Corp. and its Subsidiaries
subordinated to the Obligations in the manner and to the extent
required by the Bank of America, N.A., as administrative agent under
the Credit Agreement, pursuant to written subordination agreements
satisfactory in form and substance to the Bank of America, N.A., as
administrative agent under the Credit Agreement. "Obligations" mean
any and all debts, obligations and liabilities of the Sellers, the
Servicer, the Performance Guarantor and American Home Mortgage
Acceptance, Inc. to Bank of America, N.A. as administrative agent
under the Credit Agreement and the lenders from time to time party
thereto (whether now existing or hereafter arising, voluntary or
involuntary, whether or not jointly owed with others, direct or
indirect, absolute or contingent, liquidated or unliquidated, and
whether or not from time to time decreased or extinguished and later
increased, created or incurred), arising out of or related to the
Loan Documents (as defined in the Credit Agreement).
(c) Section 1.1 of the Loan Agreement is hereby amended by adding the
following definition of "Aggregate Collateral Value" immediately after the
definition of "Agent's Account":
"Aggregate Collateral Value" means an amount equal to the sum of the
products of the book values (as determined in accordance with GAAP)
of the consolidated assets of American Home Mortgage
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Investment Corp. and its Subsidiaries, such assets being categorized
in the classes set forth on the calculation schedule that is part of
Exhibit E attached to the Credit Agreement (the "Credit Agreement"),
dated as of August 30, 2004, by and among the Sellers, American Home
Mortgage Acceptance, Inc., certain Lenders from time to time party
thereto, and Bank of America, N.A., times the percentage multiplier
for each such class set forth on such calculation schedule.
(d) Section 1.1 of the Loan Agreement is hereby amended by adding the
following definition of "Consolidated Funded Debt" immediately after the
definition of "Consequential Loss":
"Consolidated Funded Debt" means, with respect to any Person and on
any date of determination, Indebtedness in any of the following
categories:
(i) Debt for borrowed money, including the Obligations;
(ii) Debt constituting an obligation to pay the deferred purchase
price of property;
(iii) Debt evidenced by a bond, debenture, note or similar
instrument;
(iv) Debt constituting, as of any date, any lease of property, real
or personal, which would be capitalized on a balance sheet of the
lessee prepared as of such date in accordance with GAAP, together
with any other lease by such lessee which is in substance a
financing lease, including, without limitation, any lease under
which (i) such lessee has or will have an option to purchase the
property subject thereto at a nominal amount or an amount less than
a reasonable estimate of the fair market value of such property as
of the date such lease is entered into, or (ii) the term of the
lease approximates or exceeds the expected useful life of the
property leased thereunder.
(v) Debt constituting a non-contingent obligation to reimburse the
issuer of any letter of credit or any guarantor or surety for
payments made by such issuer, guarantor or surety; and
(vi) Any obligation under any guaranty with respect to Debt of any
other Person of the types described in clauses (i) through (v)
above.
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(e) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Hedge Report" in its entirety and replacing it with the following
definition:
"Hedge Report" means, with respect to any Conforming Loans included
in the Eligible Mortgage Collateral with respect to which there is no
loan-specific Take-Out Commitment, a report prepared by the Servicer
prepared pursuant to Section 3.6 hereof, showing, as of the close of
business on the previous Business Day, all Take-Out Commitments
obtained by the Originators to cover all closed loans owned by the
Originators or the Borrower, to the extent that such mortgage loans
have been pledged hereunder or pursuant to another lending
arrangement, and certain information with respect to such trades
including information as the Administrative Agent may request, in the
form of Exhibit K hereto. Each such Take-Out Commitment shall have
been pledged to the Administrative Agent; provided, however, that
such Take-Out Commitments may have been pledged previously or may be
pledged in the future by the Originators.
(f) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Maximum Facility Amount" in its entirety and replacing it with
the following definition:
"Maximum Facility Amount" means $250,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of this Agreement.
(g) Section 1.1 of the Loan Agreement is hereby amended by adding the
following definition of "Net Cash Proceeds" immediately after the definition of
"Multiemployer Plan":
"Net Cash Proceeds" means, with respect to the issuance of any
capital stock by American Home Mortgage Investment Corp., the amount
of cash received by American Home Mortgage Investment Corp. in
connection with such transaction after deducting therefrom all fees
(including, without limitation, investment banking fees),
commissions, costs and other expenses to the extent attributable to
such transaction.
(h) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Originator Performance Guaranty" in its entirety and replacing it
with the following:
"Originator Performance Guaranty" means the Amended and Restated
Originator Performance Guaranty, in the form attached hereto as
Exhibit G-2, made by the Performance Guarantor in favor of the
Originators, and assigned to the Administrative Agent for the
benefit of the Lenders.
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(i) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Performance Guarantor" in its entirety and replacing it with the
following:
"Performance Guarantor" means, together, American Home Mortgage
Holdings, Inc., a Delaware corporation, and American Home Mortgage
Investment Corp., a Maryland corporation, and their respective
successors and assigns.
(j) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Performance Guarantor Quarterly Certificate" in its entirety and
replacing it with the following:
"Performance Guarantor Quarterly Certificate" means the forms of
certificate attached hereto as Exhibit H-3 and Exhibit H-4.
(k) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Servicer Default" in its entirety and replacing it with the
following:
"Servicer Default" means (a) any Event of Default, to the extent
relating to the Servicer, arising under Sections 8.1(a), (b), (c),
(d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (u),
(v), (w), (x) or (cc)in each case, without giving effect to any
provisions in such sections that make such sections applicable only
so long as the Servicer is one of the Originators, (b) if the
Servicer is one of the Originators, American Home Mortgage Holdings,
Inc., as a Performance Guarantor, shall cease to own directly 100%
of all of the stock of the Servicer, or (c) if the Servicer is one
of the Originators, (i) the Servicer's Tangible Net Worth shall be
less than $21,000,000 or (ii) the Servicer's Tangible Net Worth,
combined with the Tangible Net Worth of AHMS and American Mortgage
Acceptance, Inc., shall be less than $147,000,000.
(l) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Servicer Performance Guaranty" in its entirety and replacing it
with the following:
"Servicer Performance Guaranty" means the Amended and Restated
Servicer Performance Guaranty, in the form attached hereto as
Exhibit G-1, made by the Performance Guarantor in favor of the
Originators, and assigned to the Administrative Agent for the
benefit of the Lenders.
(m) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of "Tangible Net Worth" in its entirety and replacing it with the
following:
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"Tangible Net Worth" means, with respect to any Person, the excess
of total assets of such Person over the total liabilities of such
Person determined in accordance with GAAP, but excluding from the
determination of total assets: (a) all assets which would be
classified as intangible assets under GAAP, including, without
limitation, goodwill (whether representing the excess cost over book
value of assets acquired or otherwise), patents, trademarks, trade
names, copyrights, franchises and deferred charges (including,
without limitation, unamortized debt discount and expense,
organization costs and research and product development costs), (b)
loans or other extensions of credit to officers, employees,
shareholders or Affiliates of such Person (other than the Servicer,
the Sellers, the Performance Guarantor and American Home Mortgage
Acceptance, Inc.) and (c) investments in Subsidiaries of such Person
(other than the Servicer, the Sellers, the Performance Guarantor and
American Home Mortgage Acceptance, Inc.).
(n) The second paragraph of Section 3.6(a) of the Loan Agreement is hereby
amended by (A) deleting the words "no later than 10:00 a.m. (eastern time) (i)
on the tenth Business Day after delivery of such Assignment relating to such
Mortgage Loan, and (ii) if any changes would be reflected since the last Hedge
Report, on each subsequent Business Day" in the first sentence thereof and
replacing them with the words "no later than 10:00 a.m. (eastern time) (i) on
each Business Day, and (ii) if any changes would be reflected since the last
Hedge Report, on each subsequent Business Day" and (B) deleting the words "tenth
Business Day" in the second sentence thereof and replacing them with the words
"subsequent Business Day".
(o) Clause (c) of Section 3.6(a) of the Loan Agreement is hereby amended
by deleting the words "Upon request of the Administrative Agent at any time" and
replacing them with the words "On each Business Day".
(p) The Loan Agreement is hereby amended by adding the following Section
3.9 immediately after Section 3.8:
Section 3.9. Approved Investor Reporting.
No later than 10:00 a.m. (Eastern time) on the 15th day of each
month (or, if such day is not a Business Day, the next Business
Day), the Borrower shall furnish to the Administrative Agent (by
facsimile or electronic transmission (a hard copy of which shall not
subsequently be mailed, sent or delivered to the Administrative
Agent, unless so requested by the Administrative Agent) a report
which shall provide as of the last day of the previous month (i) a
list of Approved Investors that committed to purchase one or more
Mortgage Loans
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from one of the Originators during such previous month and (ii) the
percentage of the Mortgage Loans each such Approved Investor
committed to purchase either in the form of loan-specific Take-Out
Commitments or forward purchase commitments obtained to hedge
Mortgage Loans.
(q) Section 4.1(t) of the Loan Agreement is hereby deleted in its entirety
and replaced with the following Section 4.1(t):
(t) each of the Performance Guarantor Quarterly Certificates,
substantially in the forms of Exhibit H-3 and Exhibit H-4,
respectively.
(r) Section 4.2(h) of the Loan Agreement is hereby deleted in its entirety
and replaced with the following Section 4.2(h):
(h) the most recently due Performance Guarantor Quarterly
Certificate, substantially in the forms of Exhibit H-3 and Exhibit
H-4, respectively, shall have been delivered previously to the
Administrative Agent.
(s) Section 7.10 of the Loan Agreement is hereby deleted in its entirety
and replaced with the word "[Reserved]."
(t) Section 7.16 of the Loan Agreement is hereby deleted in its entirety
and replaced with the following Section 7.16:
Section 7.16. Minimum Tangible Net Worth.
(i) American Home Mortgage Investment Corp. shall not nor shall it
permit any Subsidiary to, at any time, directly or indirectly permit
at any time its Tangible Net Worth to be less than $530,000,000,
plus 75% of the Net Cash Proceeds of any capital stock (including
preferred stock) issued by American Home Mortgage Investment Corp.
after June 30, 2004.
(ii) The Servicer shall not nor shall it permit any Subsidiary to,
at any time, directly or indirectly
a) Permit at any time the Tangible Net Worth of AHMS to be
less than $30,000,000.
b) Permit at any time the Tangible Net Worth of AHMC to be
less than $21,000,000.
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c) Permit at any time the Tangible Net Worth of American Home
Mortgage Acceptance, Inc. to be less than $41,000,000; or
d) Permit at any time the Tangible Net Worth of the Sellers
and American Home Mortgage Acceptance, Inc., on a combined
basis, to be less than $147,000,000.
(u) The Loan Agreement is hereby amended by adding the following Section
7.19 immediately after Section 7.18:
7.19. Collateral Value to Adjusted Consolidated Funded Debt Ratio.
American Home Mortgage Investment Corp. shall not permit at any time
the ratio of its Aggregate Collateral Value to its Adjusted
Consolidated Funded Debt to be less than 1.00 to 1.00.
(v) Exhibit G-1 to the Loan Agreement is hereby deleted in its entirety
and replaced with Annex A attached hereto.
(w) Exhibit G-2 to the Loan Agreement is hereby deleted in its entirety
and replaced with Annex B attached hereto.
(x) Exhibit H-1 to the Loan Agreement is hereby deleted in its entirety
and replaced with Annex C attached hereto.
(y) The Loan Agreement is hereby amended by adding Annex D attached hereto
as Exhibit H-4 to the Loan Agreement.
(z) Exhibit F to the Loan Agreement is hereby deleted in its entirety and
replaced with Annex E attached hereto.
(aa) Schedule I to the Loan Agreement is hereby deleted in its entirety
and replaced with Annex F attached hereto.
Section 2. Amendments to the Repurchase Agreement.
(a) Section 1.01 of the Repurchase Agreement is hereby amended by adding
the following definition of "Adjusted Consolidated Funded Debt" immediately
before the definition of "Administrative Agent":
"Adjusted Consolidated Funded Debt" means, on any date of
determination, the sum of (a) the Consolidated Funded Debt of
American Home Mortgage Investment Corp. and any other Person which
would be reflected on the consolidated balance sheet of
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American Home Mortgage Investment Corp. prepared in accordance with
GAAP if such balance sheet were prepared as of such date of
determination, less (b) 50% of any Subordinated Debt, less (c) the
mortgage debt associated with the building and the land located at
538 Broadhollow Road, Melville, New York. "Subordinated Debt" means
the Debt of American Home Mortgage Investment Corp. and its
Subsidiaries subordinated to the Obligations in the manner and to
the extent required by the Bank of America, N.A., as administrative
agent under the Credit Agreement, pursuant to written subordination
agreements satisfactory in form and substance to the Bank of
America, N.A., as administrative agent under the Credit Agreement.
"Obligations" mean any and all debts, obligations and liabilities of
the Servicer, the Sellers, the Performance Guarantor and American
Home Mortgage Acceptance, Inc. to Bank of America, N.A. as
administrative agent under the Credit Agreement and the lenders from
time to time party thereto (whether now existing or hereafter
arising, voluntary or involuntary, whether or not jointly owed with
others, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or
extinguished and later increased, created or incurred), arising out
of or related to the Loan Documents (as defined in the Credit
Agreement).
(b) Section 1.01 of the Repurchase Agreement is hereby amended by adding
the following definition of "Aggregate Collateral Value" immediately after the
definition of "Affiliate":
"Aggregate Collateral Value" means an amount equal to the sum of the
products of the book values (as determined in accordance with GAAP)
of the consolidated assets of American Home Mortgage Investment
Corp. and its Subsidiaries, such assets being categorized in the
classes set forth on the calculation schedule that is part of
Exhibit E attached to the Credit Agreement (the "Credit Agreement"),
dated as of August 30, 2004, by and among the Sellers, American Home
Mortgage Acceptance, Inc., certain Lenders from time to time party
thereto, and Bank of America, N.A., times the percentage multiplier
for each such class set forth on such calculation schedule.
(c) Section 1.01 of the Repurchase Agreement is hereby amended by adding
the following definition of "Consolidated Funded Debt" immediately after the
definition of "Conforming Loan":
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"Consolidated Funded Debt" means, with respect to any Person and on
any date of determination, Indebtedness in any of the following
categories:
(i) Debt for borrowed money, including the Obligations;
(ii) Debt constituting an obligation to pay the deferred purchase
price of property;
(iii) Debt evidenced by a bond, debenture, note or similar
instrument;
(iv) Debt constituting, as of any date, any lease of property, real
or personal, which would be capitalized on a balance sheet of the
lessee prepared as of such date in accordance with GAAP, together
with any other lease by such lessee which is in substance a
financing lease, including, without limitation, any lease under
which (i) such lessee has or will have an option to purchase the
property subject thereto at a nominal amount or an amount less than
a reasonable estimate of the fair market value of such property as
of the date such lease is entered into, or (ii) the term of the
lease approximates or exceeds the expected useful life of the
property leased thereunder;
(v) Debt constituting a non-contingent obligation to reimburse the
issuer of any letter of credit or any guarantor or surety for
payments made by such issuer, guarantor or surety; and
(vi) Any obligation under any guaranty with respect to Debt of any
other Person of the types described in clauses (i) through (v)
above.
(d) Section 1.01 of the Repurchase Agreement is hereby amended by deleting
the definition of "Hedge Report" in its entirety and replacing it with the
following:
"Hedge Report" means, with respect to any Conforming Loans included
in the Eligible Mortgage Collateral with respect to which there is
no loan-specific Take-Out Commitment, a report prepared by the
Servicer prepared pursuant to Section 3.6 of the Loan Agreement,
showing, as of the close of business on the previous Business Day,
all Take-Out Commitments obtained by the Originators to cover all
closed loans owned by the Originators or the Borrower, to the extent
that such mortgage loans have been pledged hereunder or pursuant to
another lending arrangement, and certain information with respect to
such trades including information as the Administrative Agent may
request, in the form of Exhibit K of the Loan Agreement. Each such
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Take-Out Commitment shall have been pledged to the Administrative
Agent; provided, however, that such Take-Out Commitments may have
been pledged previously or may be pledged in the future by the
Originators.
(e) Section 1.01 of the Repurchase Agreement is hereby amended by adding
the following definition of "Net Cash Proceeds" immediately after the definition
of "Multiemployer Plan":
"Net Cash Proceeds" means, with respect to the issuance of any
capital stock by American Home Mortgage Investment Corp., the amount
of cash received by American Home Mortgage Investment Corp. in
connection with such transaction after deducting therefrom all fees
(including, without limitation, investment banking fees),
commissions, costs and other expenses to the extent attributable to
such transaction.
(f) Section 1.01 of the Repurchase Agreement is hereby amended by deleting
the definition of "Originator Performance Guaranty" in its entirety and
replacing it with the following definition:
"Originator Performance Guaranty" means the Amended and Restated
Originator Performance Guaranty, in the form attached to the Loan
Agreement as Exhibit G-2, made by the Performance Guarantor in favor
of the Originators, and assigned to the Administrative Agent for the
benefit of the Lenders.
(g) Section 1.01 of the Repurchase Agreement is hereby amended by deleting
the definition of "Performance Guarantor" in its entirety and replacing it with
the following definition:
"Performance Guarantor" means, together, American Home Mortgage
Holdings, Inc., a Delaware corporation, and American Home Mortgage
Investment Corp., a Maryland corporation, and their respective
successors and assigns.
(h) Section 1.01 of the Repurchase Agreement is hereby amended by deleting
the definition of "Servicer Performance Guaranty" in its entirety and replacing
it with the following definition:
"Servicer Performance Guaranty" means the Amended and Restated
Servicer Performance Guaranty, in the form attached to the Loan
Agreement as Exhibit G-1, made by the Performance Guarantor in favor
of the Originators, and assigned to the Administrative Agent for the
benefit of the Lenders.
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(i) Section 1.01 of the Repurchase Agreement is hereby amended by deleting
the definition of "Tangible Net Worth" in its entirety and replacing it with the
following definition:
"Tangible Net Worth" means, with respect to any Person, the excess
of total assets of such Person over the total liabilities of such
Person determined in accordance with GAAP, but excluding from the
determination of total assets: (a) all assets which would be
classified as intangible assets under GAAP, including, without
limitation, goodwill (whether representing the excess cost over book
value of assets acquired or otherwise), patents, trademarks, trade
names, copyrights, franchises and deferred charges (including,
without limitation, unamortized debt discount and expense,
organization costs and research and product development costs), (b)
loans or other extensions of credit to officers, employees,
shareholders or Affiliates of such Person (other than the Servicer,
the Sellers, the Performance Guarantor and American Home Mortgage
Acceptance, Inc.) and (c) investments in Subsidiaries of such Person
(other than the Servicer, the Sellers, the Performance Guarantor and
American Home Mortgage Acceptance, Inc.).
(j) The definition of "Termination Date" in Section 1.01 of the Repurchase
Agreement is hereby amended by deleting the words "August 6, 2004" in clause (a)
thereof and replacing them with the words "August 5, 2005".
(k) Section 5.19 of the Repurchase Agreement is hereby amended by
inserting "(a)" before the sentence therein and adding the following clause (b):
(b) The Sellers shall not nor shall they permit any Subsidiary to,
at any time, directly or indirectly
(i) Permit at any time the Tangible Net Worth of American Home
Mortgage Investment Corp. to be less than $530,000,000, plus
75% of the Net Cash Proceeds of any capital stock (including
preferred stock) issued by American Home Mortgage Investment
Corp. after June 30, 2004;
(ii) Permit at any time the Tangible Net Worth of AHMS to be
less than $30,000,000;
(iii) Permit at any time the Tangible Net Worth of AHMC to be
less than $21,000,000;
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(iv) Permit at any time the Tangible Net Worth of American
Home Mortgage Acceptance, Inc. to be less than $41,000,000; or
(v) Permit at any time the Tangible Net Worth of the Sellers
and American Home Mortgage Acceptance, Inc., on a combined
basis, to be less than $147,000,000.
(l) The Repurchase Agreement is hereby amended by deleting Section 5.22 in
its entirety and replacing it with the word "[Reserved]."
(m) The Repurchase Agreement is hereby amended by adding the following
Section 5.32 immediately after Section 5.31:
7.19. Collateral Value to Adjusted Consolidated Funded Debt Ratio.
American Home Mortgage Investment Corp. shall not permit at any time
the ratio of its Aggregate Collateral Value to its Adjusted
Consolidated Funded Debt to be less than 1.00 to 1.00.
(n) The Repurchase Agreement is hereby amended by deleting Section 5.29 in
its entirety and replacing it with the following Section 5.29:
Section 5.29. Take-Out Commitments.
Each of the Sellers shall obtain, and maintain in full force and
effect, (a) Take-Out Commitments reflecting total Approved Investor
obligations, as of each determination, with an aggregate purchase
price at least equal to the total of the original principal balances
of such Seller's entire portfolio of Mortgage Loans and the mortgage
loans sold to the Buyer by such Seller, but in each case only to the
extent such mortgage loans are pledged to secure a borrowing and (b)
forward purchase commitments (which may include options to sell
Mortgage Loans to Approved Investors, so long as the Approved
Investor is bound thereby) issued by Approved Investors and
obligating such Approved Investors to purchase a portion of such
Seller's subsequently acquired Mortgage Loans. Each of the Take-Out
Commitments specified in clause (a) above shall reflect only those
terms and conditions as are permitted hereunder or are acceptable to
the Administrative Agent.
Section 3. Amendments to the Collateral Agency Agreement.
(a) The Collateral Agency Agreement is amended by inserting the following
Section 3.13 immediately after Section 3.12 therein:
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Section 3.13. Release Letters.
To the extent that the Administrative Agent's approval is required
for the release of any Mortgage Loan hereunder, the Administrative
Agent hereby appoints the Borrower, as agent for the Administrative
Agent, its attorney in fact, with full power of substitution, for
and on behalf and in the name of the Administrative Agent, to
release the documents related to such Mortgage Loan to the extent
permitted hereunder. The powers and authorities herein conferred on
the Borrower may be exercised by the Borrower through any Person
who, at the time of the execution of a particular instrument, is an
authorized officer or agent of the Borrower. All Persons dealing
with the Borrower, any officer thereof, or any substitute attorney,
acting pursuant hereto shall be fully protected in treating the
powers and authorities conferred by this Section 3.13 as existing
and continuing in full force and effect until advised by the
Borrower that the Obligations have been fully and finally paid and
satisfied and all Bank Commitments have been terminated.
(b) Exhibit D-1 to the Collateral Agency Agreement is hereby amended by
deleting the definition of "Hedge Report" in its entirety and replacing it with
the following definition:
"Hedge Report" means, with respect to any Conforming Loans included
in the Eligible Mortgage Collateral with respect to which there is
no loan-specific Take-Out Commitment, a report prepared by the
Servicer prepared pursuant to Section 3.6 of the Loan Agreement,
showing, as of the close of business on the previous Business Day,
all Take-Out Commitments obtained by the Originators to cover all
closed loans owned by the Originators or the Borrower, to the extent
that such mortgage loans have been pledged hereunder or pursuant to
another lending arrangement, and certain information with respect to
such trades including information as the Administrative Agent may
request, in the form of Exhibit K of the Loan Agreement. Each such
Take-Out Commitment shall have been pledged to the Administrative
Agent; provided, however, that such Take-Out Commitments may have
been pledged previously or may be pledged in the future by the
Originators.
(c) The definition of "Mortgage Assets" in Exhibit D-2 to the Collateral
Agency Agreement is hereby amended by deleting clause (d) in its entirety and
replacing it with the following definition:
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(d) (i) any and all Take-Out Commitments, to the extent pledged to
the Administrative Agent hereunder or pursuant to another lending
arrangement (and which may have been pledged previously or may be
pledged in the future by the Originators), whether or not such
Take-Out Commitments pertain to Mortgage Loans that are pledged and
assigned to the Secured Party, for the benefit of the holders of the
Obligations, as collateral for the Obligations, or in which the
Secured Party has a security interest to secure the Obligations and
(ii) Closing Protection Rights, to the extent pledged to the
Administrative Agent, that pertain to Mortgage Loans that are
pledged and assigned to the Secured Party, for the benefit of the
holders of the Obligations, as collateral for the Obligations, or in
which the Secured Party has a security interest to secure the
Obligations;
(d) Exhibit D-1 to the Collateral Agency Agreement is hereby amended by
deleting the definition of "Maximum Facility Amount" in its entirety and
replacing it with the following definition:
"Maximum Facility Amount" means $250,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of the Loan Agreement.
(e) Exhibit D-1 to the Collateral Agency Agreement is hereby amended by
deleting the definition of "Performance Guarantor" in its entirety and replacing
it with the following definition:
"Performance Guarantor" means, together, American Home Mortgage
Holdings, Inc., a Delaware corporation, and American Home Mortgage
Investment Corp., a Maryland corporation, and their respective
successors and assigns.
(f) The definition of "Termination Date" in Exhibit D-1 to the Collateral
Agency Agreement is hereby amended by deleting the words "August 6, 2004" in
clause (a) thereof and replacing them with the words "August 5, 2005".
Section 4. Amendments to All of the Operative Documents.
(a) Each reference to "Columbia National, Incorporated" in each of the
Operative Documents, including, without limitation any and all schedules and
exhibits to any of the Operative Documents, shall be deemed to refer to
"American Home Mortgage Servicing, Inc."
(b) Each reference to "Maximum Facility Amount" or "Termination Date" in
each of the Operative Documents, including, without limitation, any and all
schedules and exhibits to any of the Operative Documents, shall be deemed to
refer to the Maximum Facility
15
Amount or Termination Date, respectively, as such terms are defined in this
Amendment for each respective Operative Document.
Section 5. Operative Documents in Full Force and Effect as Amended
Except as specifically amended hereby, all of the provisions of the
Operative Documents and all of the provisions of all other documentation
required to be delivered with respect thereto shall remain in full force and
effect from and after the date hereof.
Section 6. Miscellaneous
(a) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall not constitute a novation of any Operative Document, but shall constitute
an amendment thereof. The parties hereto agree to be bound by the terms and
conditions of each Operative Document, as amended by this Amendment, as though
such terms and conditions were set forth herein.
(b) The descriptive headings of the various sections of this Amendment are
inserted for convenience of reference only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as
provided in each respective Operative Agreement.
(d) This Amendment and the rights and obligations of the parties under
this Amendment shall be governed by, and construed in accordance with, the laws
of the state of New York (without giving effect to the conflict of laws
principles thereof, other than Section 5-1401 of the New York General
Obligations Law, which shall apply hereto).
The remainder of this page is intentionally left blank.
16
IN WITNESS WHEREOF, the parties have agreed to and caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ADMINISTRATIVE AGENT AND
BANK
AGREED: CALYON NEW YORK BRANCH
By: /s/ David C. Fink
--------------------------------------
Name: David C. Fink
Title: Managing Director
By: /s/ Kostantina Kourmpetis
--------------------------------------
Name: Kostantina Kourmpetis
Title: Managing Director
ORIGINATOR, SERVICER
AND SELLER
AGREED: AMERICAN HOME MORTGAGE CORP.
By: /s/ Alan B. Horn
-----------------------------------
Name: Alan B. Horn
Title: Executive Vice President
and General Counsel
ORIGINATOR AND SELLER
AGREED: AMERICAN HOME MORTGAGE SERVICING, INC.
By: /s/ Alan B. Horn
-----------------------------------
Name: Alan B. Horn
Title: Executive Vice President
and General Counsel
BORROWER AND BUYER
AGREED: AHM SPV I, LLC
By: /s/ Alan B. Horn
-----------------------------------
Name: Alan B. Horn
Title: Manager
COLLATERAL AGENT
AGREED: DEUTSCHE BANK NATIONAL TRUST COMPANY
By: /s/ Andrew Hays
--------------------------------------
Name: Andrew Hays
Title: Associate
ANNEX A
Exhibit G-1
ANNEX B
Exhibit G-2
ANNEX F
SCHEDULE I
BANK COMMITMENTS AND PERCENTAGES
Bank Commitment
Bank Bank Commitment Percentage
---- --------------- ---------------
CALYON NEW YORK BRANCH $250,000,000 100%