EXHIBIT 10.2.1
AMENDMENT NO. 9
TO THE AMENDED AND RESTATED
MASTER LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 9, dated as of September 2, 2005 (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 join Morgan Stanley Mortgage Capital Inc. ("MSMCI") as a Lender with a
commitment of $250,000,000.
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) 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 an amount equal to $750,000,000.
(b) Schedule 6 to the Existing Loan Agreement shall be superceded
and replaced in its entirety by the document attached hereto as Schedule 6.
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 each Borrower;
(c) Resolutions. True, correct and complete copies of the
resolutions of each Borrower, 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) Legal Opinion. One or more legal opinions of in-house counsel to
the Borrowers, in form and substance satisfactory to the Agent.
(e) 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. 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 5. 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 6. 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/ Craig Pino
--------------------------------------
Name: Craig Pino
Title: Senior Vice President and Treasurer
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ Craig Pino
--------------------------------------
Name: Craig Pino
Title: Senior Vice President and Treasurer
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: /s/ Craig Pino
--------------------------------------
Name: Craig Pino
Title: Senior Vice President and Treasurer
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
By: /s/ Craig Pino
--------------------------------------
Name: Craig Pino
Title: Senior Vice President and Treasurer
AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a
Columbia National, Incorporated)
By: /s/ Craig Pino
--------------------------------------
Name: Craig Pino
Title: Senior Vice President and Treasurer
MORGAN STANLEY BANK,
as the Agent and as a Lender
By: /s/ Paul Najarian
--------------------------------------
Name: Paul Najarian
Title: Vice President
MORGAN STANLEY MORTGAGE CAPITAL INC., as a Lender
By: /s/ Paul Najarian
--------------------------------------
Name: Paul Najarian
Title: Vice President
Schedule 6
COMMITMENTS
Lender Commitment
Morgan Stanley Bank $ 500,000,000
Morgan Stanley Mortgage Capital Inc. $ 250,000,000
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Total $ 750,000,000
Exhibit A
PROMISSORY NOTE
$250,000,000
September [__], 2005
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 MORTGAGE CAPITAL
INC. (the "Lender"), at the principal office of the Lender at 1221 Avenue of the
Americas, 27th Floor, New York, New York 10020, in lawful money of the United
States, and in immediately available funds, the principal sum of TWO HUNDRED
FIFTY MILLION DOLLARS ($250,000,000) (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 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.
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 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
By:____________________________________
Name:
Title:
AMERICAN HOME MORTGAGE SERVICING, INC. (f/k/a
Columbia National, Incorporated),
as a Borrower
By:____________________________________
Name:
Title:
Exhibit A
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 Unpaid
Amount Interest Amount Paid Principal Notation
Date Made of Loan Rate or Prepaid Amount Made by
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