EX-10.2.1 3 am110905-ex10_21.txt CONTRACT 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 (b) Schedule 6 to the Existing Loan Agreement shall be superceded and replaced in its entirety by the document attached hereto as Schedule 6.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 ---------------------------------------------------------------------- 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 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- --------------------------------------------------------------------------------