EXHIBIT 10.1
Published CUSIP Number: ▇▇▇▇▇▇▇▇▇
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 12, 2005
among
AMERICAN HOME MORTGAGE INVESTMENT CORP.
AMERICAN HOME MORTGAGE SERVICING, INC.
AMERICAN HOME MORTGAGE CORP.
and
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.,
as the Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender, and a Lender
and
The Other Lenders Party Hereto
CALYON NEW YORK BRANCH and DEUTSCHE BANK SECURITIES INC.,
as Co-Syndication Agents
CITIBANK, N.A. and JPMORGAN CHASE BANK, N.A.
as Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and Sole Book Manager
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered into
as of August 12, 2005, by and among AMERICAN HOME MORTGAGE INVESTMENT CORP., a
Maryland corporation ("AHMIC"), AMERICAN HOME MORTGAGE SERVICING, INC., a
Maryland corporation ("AHMS"), AMERICAN HOME MORTGAGE CORP., a New York
corporation ("AHMC"), AMERICAN HOME MORTGAGE ACCEPTANCE, INC., a Maryland
corporation ("AHMA") (AHMIC, AHMS, AHMC and AHMA each, a "Borrower" and,
collectively, the "Borrowers"), the lenders from time to time party hereto,
together with their respective successors and assigns (each, a "Lender" and,
collectively, the "Lenders"), and BANK OF AMERICA, N.A., as administrative
agent, or any successor administrative agent (in such capacity, the
"Administrative Agent"). Unless otherwise indicated, (a) all capitalized terms
used herein shall have the meaning set forth in the Glossary attached to the
Existing Credit Agreement (hereinafter defined) as Appendix I (the "Glossary")
and by this reference incorporated herein, (b) all Paragraph, Appendix, Exhibit,
and Schedule references herein are to Paragraphs, Appendices, Exhibits, and
Schedules in or to the Existing Credit Agreement, and (c) all Section references
herein are to Sections in this Agreement.
R E C I T A L S
A. Certain Borrowers have entered into the Credit Agreement (as
modified, amended or supplemented to date, the "Existing Credit Agreement")
dated as of August 30, 2004, with the Lenders party thereto, and the
Administrative Agent, providing for, among other things, a revolving credit
facility in the aggregate principal amount of $700,000,000.
B. The Borrowers have requested that the Existing Credit Agreement be
amended and restated to, among other things, (i) increase the Aggregate Credit
Limit to $1,000,000,000, (ii) add AHMIC as a Borrower, jointly and severally
liable on the Obligations, and (iii) extend the Maturity Date to August 11,
2006, and the Lenders and the Administrative Agent have agreed to so amend and
restate the Existing Credit Agreement.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Amendment and Restatement of Existing Credit Agreement.
(a) Restatement. All of the terms, provisions, and conditions of the
Existing Credit Agreement are incorporated herein by reference, are amended to
the extent set forth or provided in this Section 1, and, as so amended, are
deemed restated in their entirety. The amendment and restatement of the Existing
Credit Agreement hereunder is not intended by the parties to constitute either a
novation or a discharge or satisfaction of the indebtedness, rights, and
obligations under the Existing Credit Agreement or other Loan Documents, which
indebtedness, rights, and obligations under the Existing Credit Agreement and
other Loan Documents shall remain outstanding hereunder on the terms and
conditions of this Agreement.
(b) Definitions.
(i) The following definitions in the Glossary are deleted in
their entirety and the following definitions are substituted therefor:
"Adjusted Consolidated Funded Debt" on any date of
determination shall mean the sum of (a) the Consolidated Funded Debt of
AHMIC and any other Person which would be reflected on the consolidated
balance sheet of AHMIC prepared in accordance with GAAP if such balance
sheet were prepared as of such date of determination, less (b) 50% of
any Subordinated Debt (including Subordinated Debt incurred in
connection with the issuance of "trust preferred securities"), less (c)
the mortgage debt associated with the building and the land located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Aggregate Credit Limit" shall mean at any date the sum of
the Maximum Commitments of the Lenders as the same may be increased or
decreased from time to time as permitted hereunder, with the "Aggregate
Credit Limit" on the Effective Date being $1,000,000,000; provided,
however, that in no event shall the Aggregate Credit Limit be increased
to an amount in excess of the then current Maximum Aggregate Credit
Limit.
"Agreement" shall mean this Amended and Restated Credit
Agreement dated as of August 12, 2005 (which amends and restates that
certain Credit Agreement dated as of August 30, 2004, as amended) by and
among the Borrowers, the Administrative Agent and certain Lenders, as
the same may be amended, extended or replaced from time to time.
"Applicable Margin" shall mean, with respect to the
principal balance of Loans that have been advanced against the following
types of Collateral, the per annum rate set forth opposite each such
Collateral type (provided that, in the event that on any day a
particular item of Collateral may be categorized as more than one type
of Collateral, then the Applicable Margin with respect to such item of
Collateral shall be the highest of the Applicable Margins applicable to
such item of Collateral):
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Collateral Type Applicable Margin
---------------------------
LIBOR Base Rate
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Prime First Mortgage Loans..................... 0.90% 0.00%
Prime Second Mortgage Loans.................... 1.25% 0.00%
Subprime Mortgage Loans........................ 1.25% 0.00%
Impaired Mortgage Loans or Aged Mortgage Loans. 1.25% 0.00%
HUD 203(k) Mortgage Loans...................... 0.90% 0.00%
Construction-to-Perm Mortgage Loans............ 1.625% 0.00%
Bond Agency Program Mortgage Loans............. 1.25% 0.00%
Repurchased Maturing Mortgage Loans............ 1.25% 0.00%
REO Property................................... 1.25% 0.00%
EBO Mortgage Loans............................. 1.25% 0.00%
Mortgage-Backed Securities (AAA or Agency) .... 0.50% 0.00%
Servicing Rights............................... 1.875% 1.00%
Servicing Receivable........................... 1.25% 0.00%
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; provided that, to the extent the Borrower elects to convert any
Servicing Rights Loans to a term loan pursuant to Paragraph 2(d), then the
Applicable Margin for Servicing Rights Loans will be increased on and
after such conversion date by .25%.
"Borrowers" shall mean AHMIC, AHMS, AHMC, and AHMA; "Borrower" shall
mean any of AHMIC, AHMS, AHMC, or AHMA.
"Effective Date" shall mean August 12, 2005, or such subsequent date
on which each of the conditions set forth in this Agreement is satisfied.
"Existing Credit Agreement" shall mean that certain Credit Agreement
dated as of August 30, 2004, as amended, among the Borrowers (other than
AHMIC), the lenders party thereto and Bank of America, as Administrative
Agent for such lenders.
"Fee Letter" shall mean that certain letter agreement dated July 12,
2005, among the Borrowers, Bank of America and Banc of America Securities
LLC.
"Funding Account" shall mean an account, the last four digits of
which are 8044 (or such other account as Administrative Agent may agree to
in writing), maintained in the Borrowers' names alone with the
Administrative Agent.
"Interim Date" shall mean May 31, 2005.
"Maturity Date" shall mean the earlier of: (a) August 11, 2006, as
such date may be extended from time to time in writing by 100% of the
Lenders, in their sole discretion, and (b) the date the Lenders terminate
their obligation to make further Loans hereunder pursuant to Paragraph 12.
"Maximum Aggregate Credit Limit" shall mean $1,250,000,000.00 as
such amount may be increased or decreased from time to time by written
agreement of the Administrative Agent, the Borrowers, and 100% of the
Lenders.
"Servicing Delinquencies" shall mean the aggregate outstanding
principal balance of Mortgage Loans included in the Borrowers' Eligible
Servicing Portfolio that are 30 days or more past due after the end of the
month in which such Mortgage Loans first became past due (other than any
such Mortgage Loans that are in the process of foreclosure).
"Servicing Rights Credit Sublimit" shall mean, at any time, an
amount not to exceed 35% of the Aggregate Credit Limit.
"Settlement Account" shall mean a "no-access" account, the last four
digits of which are 2748 or 5450 (or such other account as may be agreed
to in writing by Administrative Agent and Collateral Agent), maintained by
the Collateral Agent for the benefit of the Administrative Agent on behalf
of the Lenders, which is designated for receipt of the proceeds of the
sale or other disposition of the Collateral.
"Statement Date" shall mean December 31, 2004.
"Warehouse Borrowing Base" shall mean at any date all Eligible
Mortgage Loans and Eligible Mortgage-Backed Securities in which the
Administrative Agent or the
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Collateral Agent holds for the benefit of the Lenders a first priority
perfected security interest at such date.
(ii) The following definitions in the Glossary are revised as
follows:
(A) The definition of "Collateral Type" is revised to delete
the word "and" at the end of clause (q), replace the "." at the end
of clause (r) with "; and", and to add a new clause (s) as follows:
(s) Eligible Mortgage-Backed Securities.
(B) The definition of "Collateral Value of the Warehouse
Borrowing Base" is revised to delete "and" at the end of the
existing clause (i), to re-letter the existing clause (j) as clause
(k), and to insert a new clause (j) immediately following clause (i)
as follows:
(j) the lesser of (i) the aggregate Unit Collateral
Values of all Mortgage-Backed Securities included in the
Warehouse Borrowing Base and (ii) an amount equal to 100% of
the Aggregate Credit Limit; and
(C) Clause (f)(ii) in the definition of "Eligible Mortgage
Loan" is revised to read as follows:
(ii) is not classified as (a) a "high cost" loan under
HOEPA or (b) a "high cost," "threshold," "covered," or
"predatory" loan under any other applicable state, federal or
local law (or a similarly classified loan using different
terminology under a law, regulation or ordinance imposing
heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates,
points and/or fees).
(D) Clause (l) in the definition of "Eligible Mortgage Loan"
is revised to read as follows:
(l) The date of the underlying promissory note is no
earlier than 90 days prior to the date such Mortgage Loan is
first included in the Warehouse Borrowing Base, unless the
Mortgage Loan is a Construction-to-Perm Mortgage Loan, an EBO
Mortgage Loan, or a modification resulting from an extension
of a Mortgage Loan with a final balloon payment or with an
adjustable interest rate;
(E) The definition of "Eligible Mortgage Loan" is further
revised to delete the last proviso thereto in its entirety.
(F) Clause (c) in the definition of "Eligible Servicing
Portfolio" is revised to read in its entirety as follows:
(c) Each of the applicable Approved Investors (other
than under Servicing Contracts in effect as of the Effective
Date and other than FNMA, FHLMC, and GNMA) under such
Servicing Contracts has consented to the assignment of the
related Servicing Rights to the Administrative Agent, or its
affiliate or designee, for the benefit of the Lenders pursuant
to a written consent
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in form and content satisfactory to the Administrative
Agent including, if and as requested, a Resignation
Letter (or, in the case of Servicing Contracts in effect
as of the Effective Date or FNMA, FHLMC, and GNMA, the
Borrowers have obtained such written consent, or have
undertaken commercially reasonable efforts to obtain
such written consent, within 60 days following the
Effective Date, or such longer period as Administrative
Agent may agree in writing), or in lieu of such written
consent, the Administrative Agent has received evidence
reasonably satisfactory to it that the Servicing Rights
under the applicable Servicing Contracts may be assigned
to the Administrative Agent, or its affiliate or
designee, for the benefit of the Lenders without such
consent;
(G) The definition of "Unit Collateral Value" is revised (x)
to delete the word "lesser" and to replace it with the word "least"
in clauses (d), (e), (f), (i), and (j), (y) to delete the word "or"
before the beginning of clause (j)(iii) and to replace it with the
word "and" and (z) to delete the word "and" at the end of clause
(n), to replace the "." at the end of clause (o) with "; and", and
to add a new clause (p) at the end of the definition as follows:
(p) With respect to an Eligible Mortgage-Backed
Security, 95% of the Fair Market Value of such Eligible
Mortgage-Backed Security.
(iii) The following definitions are added to the Glossary in the
appropriate alphabetical order:
"Eligible Mortgage-Backed Security" shall mean a
Mortgage-Backed Security with respect to which each of the
following are accurate and complete (and the Borrowers by
including such Mortgage-Backed Security in any computation of
the Collateral Value of the Warehouse Borrowing Base shall be
deemed to so represent and warrant to the Administrative
Agent, the Collateral Agent, and the Lenders at and as of the
date of such computation):
(a) Such Mortgage-Backed Security is in full force
and effect, and is valid, binding, and enforceable, in
accordance with its terms, without offset, counterclaim,
defense, or right of rescission or avoidance of any
kind, whether by operation of law or otherwise;
(b) Such Mortgage-Backed Security is issued or
guaranteed by GNMA, FNMA, or FHLMC, or, in the
alternative, has a rating of no less than AAA (or its
equivalent) by each of (and at least two of) Fitch
Investors Service, L.P., ▇▇▇▇▇'▇ Investors Service,
Inc., or Standard & Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc., or any of their
respective successors, except to the extent that one
(but not more than one) of the above-listed rating
agencies has not issued a rating for such
Mortgage-Backed Security;
(c) Such Mortgage-Backed Security is owned by
AHMIC;
(d) Such Mortgage-Backed Security is free from
default;
(e) Such Mortgage-Backed Security has either been
deposited with and is held by the Collateral Agent or an
agent, bailee,
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and custodian of the Collateral Agent under the Security
Agreement (or by a Person who has executed a custodial
agreement acceptable to Administrative Agent), properly
endorsed in blank for transfer or, if such
Mortgage-Backed Security is a Book-Entry MBS, such
Mortgage-Backed Security is the subject of a Perfected
Assignment;
(f) Such Mortgage-Backed Security is free and
clear of all Liens, encumbrances, charges, rights and
interests of any kind, except in favor of the
Administrative Agent or the Collateral Agent for the
benefit of the Lenders. There are (i) no outstanding
rights, options, warrants or agreements for a purchase,
sale or issuance, in connection with the Mortgage-Backed
Security, (ii) no agreements on the part of any Borrower
to issue, sell or distribute the Mortgage-Backed
Security, and (iii) no obligations on the part of any
Borrower (contingent or otherwise) to purchase, redeem
or otherwise acquire any securities or any interest
therein or to pay any dividend or make any distribution
in respect of the Mortgage-Backed Security;
(g) If such Mortgage-Backed Security is
certificated and has been withdrawn from the possession
of the Collateral Agent on terms and subject to
conditions set forth in the Security Agreement, and if
such certificated Mortgage-Backed Security was shipped
by the Collateral Agent directly to a permanent investor
for purchase, the full amount required to be paid on
account thereof (as set forth on the schedule attached
to the related transmittal letter) has been received
into the Settlement Account (in which case such
Mortgage-Backed Security shall cease to be an Eligible
Mortgage-Backed Security), or such Mortgage-Backed
Security has been returned to the Collateral Agent, in
either case within two (2) days from the date of
shipment by the Collateral Agent;
(h) The Required Documents for such
Mortgage-Backed Security have been delivered to the
Collateral Agent prior to the inclusion of such
Mortgage-Backed Security in the Warehouse Borrowing Base
such that such Mortgage-Backed Security is a
Warehouse-Related MBS;
(i) Either (1) such Mortgage-Backed Security was
issued at least 31 days prior to such Mortgage-Backed
Security being deposited with the Collateral Agent or
otherwise being subject to a Perfected Assignment, or
(2) if such Mortgage-Backed Security was issued within
such aforementioned 31 day period, no Lender or
Affiliate of any Lender was a member of the selling
syndicate or group with respect to such Mortgage-Backed
Security, as described in Section 11(d)(1) of the
Securities Exchange Act of 1934, as amended;
(j) Such Mortgage-Backed Security is not an
interest-only security or strip;
(k) To the best of each Borrower's knowledge the
Governing Agreement for such Mortgage-Backed Security
and any other agreement executed and delivered in
connection with such Mortgage-
6
Backed Security are genuine, and each is the legal,
valid and binding obligation of the maker thereof
enforceable in accordance with its terms. The Governing
Agreement for such Mortgage-Backed Security is in full
force and effect, and the enforceability of such
Governing Agreement has not been contested by the
Trustee;
(l) The terms of the Governing Agreement for such
Mortgage-Backed Security and such Mortgage-Backed
Security have not been impaired, altered or modified in
any material respect other than as disclosed to the
Administrative Agent;
(m) The related Borrower has not waived the
performance by the Trustee of any action, if the
Trustee's failure to perform such action would cause the
Governing Agreement for such Mortgage-Backed Security to
be in default, nor has the related Borrower waived any
default resulting from any action or inaction by the
Trustee;
(n) To the best of the related Borrower's
knowledge there is no default, breach, violation or
event of acceleration existing under the Governing
Agreement for such Mortgage-Backed Security and no event
has occurred which, with the passage of time or giving
of notice or both and the expiration of any grace or
cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and
neither the related Borrower nor its predecessors in
interest have waived any such default, breach, violation
or event of acceleration; and
(o) Such Mortgage-Backed Security is assignable to
the Administrative Agent or the Collateral Agent for the
benefit of the Lenders subject to any documents required
to be delivered pursuant to the Governing Agreement for
such Mortgage-Backed Security, and the Governing
Agreement for such Mortgage-Backed Security permits the
related Borrower to pledge such Mortgage-Backed Security
to the Administrative Agent or the Collateral Agent for
the benefit of the Lenders.
"Governing Agreement" shall mean, with respect to any
Eligible Mortgage-Backed Security, the agreement or
agreements which govern the issuance and the payment of
such Eligible Mortgage-Backed Security, which may
include without limitation, any pooling and servicing
agreement and any trust agreement.
"RFC Credit Agreement" shall mean that certain Second
Amended and Restated Warehousing Credit, Term Loan and
Security Agreement (Syndicated) dated as of May 27,
2004, among certain of the Borrowers, the lenders party
thereto and Residential Funding Corporation, as credit
agent for such lenders.
"Trustee" shall mean the person responsible for
administering a Mortgage-Backed Security under its
Governing Agreement.
(c) Other Amendments. The following provisions of the Existing Credit
Agreement are amended as follows:
7
(i) The text of the first sentence of Paragraph 5(b) is revised to
add the words "and on the Maturity Date" at the end of such sentence
immediately prior to the period.
(ii) The text of Paragraph 5(k) is deleted in its entirety and
replaced with the following:
The Borrowers shall pay to the Administrative Agent, to be
allocated to the Lenders pro rata in accordance with their
respective Percentage Shares for the applicable calculation period,
quarterly in arrears, on the last Business Day of each September,
December, March and June, commencing September 30, 2005, and on the
Maturity Date, a non-refundable facility fee equal to (1) the
Aggregate Credit Limit in effect on the payment date therefor,
multiplied by (2) 0.125% per annum.
(iii) The text of Paragraph 6(a) is deleted in its entirety and
replaced with the following:
The Borrowers represent, warrant, covenant and agree that,
other than the initial Loans funded hereunder on the Effective Date
which shall be utilized to refinance and extend in full all
Indebtedness of the Borrowers outstanding under the Existing Credit
Agreement (including to allow any Lender to purchase a ratable share
of the outstanding Loans of any "Lender" under the Existing Credit
Agreement that is not extending its Commitment under this
Agreement), the proceeds of all Loans shall be utilized by the
Borrowers solely for the purpose of originating and/or acquiring
Mortgage Loans and Mortgage-Backed Securities (and to repay Swing
Line Loans) and rights under Servicing Contracts that will be part
of the Eligible Servicing Portfolio and to support working capital
needs.
(iv) Paragraph 6(b)(1) is amended to replace each reference to
"9:30 a.m." with "10:30 a.m."
(v) Paragraph 6(b)(2) is amended to replace the reference to
"12:00 p.m." with "1:30 p.m."
(vi) Paragraph 6(d)(1) is amended to add the following
sentence at the end of such paragraph:
The Borrowers shall further cause the sum of the
aggregate Unit Collateral Values of all Mortgage-Backed
Securities included in the Warehouse Borrowing Base to be not
less than the sum of the aggregate outstanding amount of the
Loans advanced for the account of AHMIC.
(vii) Paragraphs 6(d)(4) and 6(d)(5) are deleted in their
entirety and replaced with the following:
(4) The Borrowers shall promptly (and in any event no
later than one Business Day after such demand) prepay, upon
telephonic demand by the Administrative Agent: (i) Warehouse
Loans and/or Swing Line Loans to the Administrative Agent on
behalf of the Lenders or the Swing Line Lender, as the case
may be, on any day in the amount of any shortfall in the
Collateral Value of the Warehouse Borrowing Base or the
aggregate Unit Collateral Values of the Eligible
Mortgage-Backed Securities included in
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the Warehouse Borrowing Base, as determined pursuant to
subparagraph (1) above, (ii) Servicing Rights Loans to the
Administrative Agent on behalf of the Lenders on any day in
the amount of any shortfall in the Collateral Value of the
Servicing Rights Borrowing Base, as determined pursuant to
subparagraph (2) above (including after any of the Servicing
Rights Loans are converted to a term loan pursuant to
Paragraph 2(d)), and (iii) Working Capital Loans to the
Administrative Agent on behalf of the Lenders on any day in
the amount of any shortfall in the Collateral Value of the
Working Capital Borrowing Base, as determined pursuant to
subparagraph (3) above.
(5) If, but only if, at such time as the Borrowers shall
be required to prepay Loans under subparagraph (4)(i) of this
Paragraph 6(d) there shall not have occurred and be continuing
an Event of Default or Potential Default, in lieu of prepaying
the Warehouse Loans or Swing Line Loans, the Borrowers may
deliver to the Collateral Agent additional Eligible Mortgage
Loans or Eligible Mortgage-Backed Securities (to support Loans
for the account of AHMIC) with aggregate Unit Collateral
Values such that the Borrowers shall be in compliance with the
requirement of subparagraph (1) above.
(viii) The text of Paragraphs 6(g)(1) and 6(g)(1)(ii) is
amended to add the words ", Eligible Mortgage-Backed Securities,"
immediately following the words "Eligible Mortgage Loans".
(ix) The text of Paragraph 6(i)(1) is deleted in its entirety
and replaced with the following:
(1) Provided there exists no Event of Default or
Potential Default, upon notice to the Administrative Agent
(which shall promptly notify the Lenders), the Borrowers may,
from time to time, request an increase in the Aggregate Credit
Limit by an amount (for all such requests) not exceeding
$250,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $25,000,000, and (ii)
the Borrowers may make a maximum of four such requests. At the
time of delivering such notice, the Borrowers (in consultation
with the Administrative Agent) shall specify the time period
within which each Lender is requested to respond (which shall
in no event be less than ten Business Days from the date of
delivery of such notice to the Lenders).
(x) The caption and first sentence of Paragraph 8(a) are
amended in their entirety to read as follows:
First Loan under Existing Credit Agreement. The
obligations of each Lender to make its initial Loan under the
Existing Credit Agreement is subject to satisfaction of the
following conditions precedent:
(xi) The text of Paragraph 8(a)(1)(i) is deleted and replaced
with the following:
A duly executed copy of the Existing Credit Agreement;
(xii) Paragraph 8(a)(1)(xiii) is amended to replace the
defined term "Existing Credit Agreement" with the defined term "RFC
Credit Agreement".
(xiii) The text of Paragraph 8(b)(4)(ii) is amended by
deleting the word "and" before the "E" and adding a new clause (F)
at the end as follows:
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(F) the aggregate principal amount of Warehouse Loans
and Swing Line Loans outstanding for the account of AHMIC will
not exceed the aggregate Unit Collateral Values of the
Eligible Mortgage-Backed Securities; and
(xiv) The text of Paragraph 8(b)(5) is deleted in its entirety
and replaced with the following:
(5) Since December 31, 2004, there shall not have
occurred a material adverse change in the business, assets,
liabilities (actual or contingent), operations, financial
condition, or business prospects of the Loan Parties taken as
a whole.
(xv) The text of Paragraph 8(b)(6) is deleted in its entirety
and replaced with the following:
(6) By inclusion of any Mortgage Loan, Mortgage-Backed
Security, REO Property, Servicing Receivable, or Servicing
Right, as applicable, in any computation of the Collateral
Value of the Warehouse Borrowing Base, the Collateral Value of
the Servicing Rights Borrowing Base, or the Collateral Value
of the Working Capital Borrowing Base, as applicable, on any
Borrowing Base Certificate delivered to the Collateral Agent
or the Administrative Agent, the Borrowers shall be deemed to
represent and warrant to the Administrative Agent, the
Collateral Agent, and the Lenders at and as of the date of
such computation that each of the criteria specifically set
forth in the respective definitions of each Collateral Type is
true and correct; provided that, in the event that any
Mortgage Loan, Mortgage-Backed Security, REO Property,
Servicing Receivable, or Servicing Right fails to meet the
criteria set forth in the respective definitions of such
Collateral Type, such Collateral Type shall be deemed to have
an Appraisal Value or Unit Collateral Value (as the case may
be) of $0, but such failure shall not, in and of itself,
constitute an Event of Default. This representation and
warranty by the Borrowers shall be deemed to have been made on
any day that a Warehouse Loan is made to refund a Swing Line
Loan.
(xvi) A new Paragraph 8(c) - Conditions to Effectiveness of
Amended and Restated Credit Agreement is added to read as follows:
8(c) Conditions to Effectiveness of Amended and Restated
Credit Agreement. The obligation of each Lender to make its
initial Loan under this Agreement is subject to satisfaction
of the following conditions precedent:
(1) The Administrative Agent's receipt of the following,
each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan
Party, each dated the Effective Date (or, in the case of
certificates of governmental officials, a recent date before
the Effective Date) and each in form and substance
satisfactory to the Administrative Agent:
(i) A duly executed copy of this Agreement;
(ii) Duly executed originals of each of the Notes;
(iii) All financing statements and other documents,
instruments and agreements, properly executed, as
appropriate, deemed necessary or appropriate
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by the Administrative Agent, in its reasonable
discretion, to create in favor of the Administrative
Agent for the pro rata, pari passu benefit of the
Lenders a first priority perfected security interest in
and lien upon the Collateral;
(iv) Certified copies of resolutions of the Board
of Directors of each of the Loan Parties approving the
execution and delivery of the Loan Documents to which it
is a party, the performance of the Obligations and the
consummation of the transactions contemplated thereby;
(v) A certificate of the Secretary or an Assistant
Secretary of each of the Loan Parties certifying the
names and true signatures of the officers of such Loan
Party authorized to execute the Loan Documents to which
it is a party;
(vi) A copy of the Articles or Certificate of
Incorporation of each of the Loan Parties, certified by
the Secretary of State of the state of its incorporation
as of a recent date, or, if previously delivered and
certified, a certificate of a Secretary or Assistant
Secretary certifying that there have been no changes
since the certificate previously delivered;
(vii) A copy of the Bylaws of each of the Loan
Parties, certified by the Secretary or an Assistant
Secretary of such Loan Party as of the date of this
Agreement as being accurate and complete, or, if
previously delivered and certified, a certificate of a
Secretary or Assistant Secretary certifying that there
have been no changes since the certificate previously
delivered;
(viii) A certificate of the appropriate
Governmental Authority of each state in which each of
the Loan Parties is required to be authorized to do
business to the effect that such Loan Party is so
qualified and in good standing as of a recent date;
(ix) A certificate of a Responsible Financial
Officer of each of the Loan Parties, demonstrating in
detail satisfactory to the Administrative Agent such
Loan Party's compliance with the financial covenants set
forth in Paragraphs 11(h), (i), (j) and (k) at and as of
May 31, 2005;
(x) Evidence in form and substance reasonably
satisfactory to the Administrative Agent that AHMH
continues to be a MERS Member and that the Borrowers, as
affiliates of AHMH, continue to be approved by MERS as
authorized users of the MERS System pursuant to the
membership of AHMH;
(xi) Evidence reasonably satisfactory to the
Administrative Agent of the payment by the Borrowers of
all interest, fees and other amounts (other than
principal of Loans) accrued to the Effective Date under
the Existing Credit Agreement, under this Agreement or
under the Fee Letter;
(xii) An opinion of counsel to the Loan Parties
with respect to such matters as the Administrative Agent
may request;
(xiii) A duly completed and executed Borrowing
Base Certificate dated as of the date of the first Loan
hereunder;
11
(xiv) A certificate executed by a duly authorized
officer of AHMIC certifying as to the policies and
procedures relating to the Borrowers' Hedging
Arrangements and the Borrowers' underwriting and
servicing guidelines; and
(xv) Such other documents, instruments,
agreements, certificates and evidences as the
Administrative Agent may reasonably request.
(xvii) The text of Paragraph 9(o) is deleted in its entirety
and replaced with the following:
AHMIC has elected to be treated as a REIT for U.S.
federal income tax purposes. AHMH is a taxable REIT
Subsidiary of AHMIC. AHMS and AHMC are taxable REIT
Subsidiaries of AHMIC. AHMA is a qualified REIT
Subsidiary of AHMIC. Each of AHMIC, AHMH, AHMS, AHMC and
AHMA is in compliance with the provisions of the
Internal Revenue Code of 1986, as amended, governing its
REIT status, as applicable."
(xviii) The text of Paragraph 10(a)(2) is deleted in its
entirety and replaced with the following:
(2) Promptly after available, but in any event within 45
days after the end of each calendar quarter of each fiscal
year of AHMIC, a consolidated and consolidating balance sheet
of AHMIC and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated and consolidating
statements of income or operations, shareholders' equity and
cash flows for the portion of AHMIC's fiscal year then ended,
setting forth in comparative form the figures as of the end of
and for the corresponding portion of the year then ended for
the previous fiscal year, all in reasonable detail, certified
by a Responsible Financial Officer of AHMIC in the
accompanying Covenant Compliance Certificate as fairly
presenting the financial condition, results of operation,
shareholders' equity and cash flows of AHMIC and its
Subsidiaries in accordance with GAAP and with any FNMA, FHLMC
and GNMA requirements, subject only to normal year-end audit
adjustments and the absence of footnotes;
(xix) The delivery requirements reflected for each
sub-paragraph in Paragraph 10(b) referenced in the chart below are
replaced with the amended delivery requirements corresponding with
such sub-paragraph as reflected in the chart below:
========================================================================
Paragraph Amended Delivery Requirement
========================================================================
10(b)(6) Within 45 days after the last day of each month
(or, more frequently as Administrative Agent
may otherwise reasonably request)
------------------------------------------------------------------------
10(b)(7) Within 15 days after the last day of each
fiscal quarter (or, more frequently as
Administrative Agent may otherwise
reasonably
request)
------------------------------------------------------------------------
10(b)(8) Within 15 days after the last day of each
fiscal quarter (or, more frequently as
Administrative Agent may otherwise
reasonably
request)
------------------------------------------------------------------------
10(b)(11) Within 15 days after the last day of each
fiscal quarter (or, more frequently as
Administrative Agent may otherwise
reasonably
request)
------------------------------------------------------------------------
10(b)(12) Within 15 days after the last day of each
fiscal
12
========================================================================
Paragraph Amended Delivery Requirement
========================================================================
quarter (or, more frequently as
Administrative Agent may otherwise
reasonably
request)
------------------------------------------------------------------------
10(b)(13) Within 15 days after the last day of each
fiscal quarter (or, more frequently as
Administrative Agent may otherwise
reasonably
request)
------------------------------------------------------------------------
10(b)(14) Within 15 days after the last day of each
fiscal quarter (or, more frequently as
Administrative Agent may otherwise
reasonably
request)
------------------------------------------------------------------------
(xx) The text of Paragraph 10(b)(17) is deleted in its
entirety and replaced with the following:
(17) At any time as Administrative Agent may request in
its reasonable, sole discretion, an "agreed-upon procedures
report," in form and substance reasonably satisfactory to the
Administrative Agent, with respect to the operations of
Borrowers, the operations of Collateral Agent (with 48 hours
prior notice to the Collateral Agent) with respect to its
services provided pursuant to the Security Agreement, and to
advances made by any of the Borrowers that give rise to
Servicing Receivables, prepared by an independent consultant
reasonably acceptable to the Administrative Agent in
accordance with procedures, guidelines and standards mutually
agreeable to the Borrowers and the Administrative Agent; and
(xxi) Paragraph 10(j) is amended to insert the word "reasonable"
before the word "expenses" in the first place that the word "expenses"
appears.
(xxii) The text of Paragraph 11(c) is deleted in its entirety and
replaced with the following:
Liquidate or dissolve, or enter into any consolidation,
merger, partnership, joint venture, syndicate or other
combination unless: (1) a Loan Party is the survivor in any
consolidation, merger, partnership, joint venture, syndicate,
or other combination to which it is a party, (2) a Subsidiary
of a Loan Party is the survivor in any consolidation, merger,
partnership, joint venture, syndicate, or other combination to
which it is a party if a Loan Party is not also a party
thereto, and (3) no Potential Default or Event of Default
would exist after giving effect to such consolidation, merger,
partnership, joint venture, syndicate or other combination.
(xxiii) The text of Paragraph 11(d) is deleted in its entirety and
replaced with the following:
Purchase or acquire or incur liability for the purchase or
acquisition of any or all of the assets of any Person, other than,
so long as no Event of Default or Potential Default would exist
after giving effect thereto, (i) of a Loan Party or any Subsidiary
of a Loan Party, (ii) in the ordinary course of business (it being
expressly agreed and understood that acquisitions of Mortgage Loans
and Servicing Rights and servicing rights under Sub-Servicing
Contracts and of Persons owning Mortgage Loans and Servicing Rights
and servicing rights under Sub-Servicing Contracts are ordinary
course of business activities), or (iii) the purchase or acquisition
of other assets or businesses which are the same or similar to
current business activities of the Loan Parties or are
13
businesses or assets closely related to the current businesses of
the Loan Parties; provided, however, that in the case of clause
(iii) the aggregate purchase price of all such purchases or
acquisitions from and after the date of this Agreement (x) shall not
exceed $50,000,000 without the prior written consent of the
Administrative Agent and (y) shall not exceed $100,000,000 without
the prior written consent of the Administrative Agent and the
Majority Lenders.
(xxiv) Paragraph 11(f) is amended to change "$2,500,000" to
"$5,000,000."
(xxv) Paragraph 11(g) is amended to change "$2,500,000" to
"$5,000,000."
(xxvi) The text of Paragraph 11(h)(1) is deleted in its entirety and
replaced with the following:
(1) Permit at any time the Tangible Net Worth of AHMIC to be
less than $685,000,000, plus 75% of the Net Cash Proceeds of any
capital stock (including preferred stock) issued by AHMIC after June
30, 2005.
(xxvii) Paragraph 11(j)(1) is amended to change "6%" to "4%."
(xxviii) The text of Paragraph 12(e) is deleted in its entirety and
replaced with the following:
12(e) Any of the Loan Parties shall default in any payment of
principal of or interest on any Indebtedness (other than the
Obligations) having a principal balance of $1,500,000 or any other
event shall occur (including any "termination event" or similar
event under any Loan Parties' (or any affiliate thereof) single
seller program, other than such "termination events" which relate to
(1) any failure to maintain an agreement with a "Rated Bidder" as
set forth in Section 11(2)(n) of either (i) the Mortgage Loan
Purchase and Servicing Agreement dated as of May 27, 2004, by and
among Broadhollow Funding, LLC, as purchaser, American Home Mortgage
Corp., as seller, Columbia National, Incorporated, as servicer, and
American Home Mortgage Investment Corp., as performance guarantor,
or (ii) the Mortgage Loan Purchase and Servicing Agreement dated as
of May 27, 2004, by and among Melville Funding, LLC, as purchaser,
American Home Mortgage Acceptance, Inc., as seller, Columbia
National, Incorporated, as servicer, and American Home Mortgage
Investment Corp., as performance guarantor (collectively, the
"Purchase Agreements"), and (2) any failure to extend a "Swap
Counterparty Agreement" as set forth in Section 11(2)(o) of the
Purchase Agreements) the effect of which other event is to cause or
permit such Indebtedness to be declared or otherwise to become due
prior to its stated maturity or such single seller program to be
terminated (after giving effect to any applicable cure periods and
except as otherwise provided above); or
(xxix) A new Paragraph 15(q) is added as follows:
Existing Credit Agreement. This Agreement entirely amends and
restates the Existing Credit Agreement, and each Borrower, the
Administrative Agent, and each Lender that is party to the Existing
Credit Agreement agrees that, effective as of the Effective Date,
the obligation to extend any credit under the Existing Credit
Agreement is amended and superceded by this Agreement. However, any
fees previously paid to the Lenders for periods through August 29,
2005, are fully earned and non-refundable.
14
(xxx) Schedules I, II, V and VI are entirely deleted and replaced
with the attached Schedules I, II, V and VI, respectively, and all
references to such Schedules in the Loan Documents and all documents
delivered pursuant thereto or in connection therewith or as an amendment,
modification, restatement, or supplement thereto, shall henceforth include
references to the attached Schedules as amended and restated.
(xxxi) Exhibits A-1 and A-2, Exhibit E, Exhibit I, and Exhibit J are
deleted and replaced with the attached Exhibits A-1 and A-2, Exhibit E,
Exhibit I, and Exhibit J, respectively, and all references to such
Exhibits respectively in the Loan Documents and all documents delivered
pursuant thereto or in connection therewith or as an amendment,
modification, restatement, or supplement thereto, shall henceforth include
references to the attached Exhibits.
(d) References. All references in the Loan Documents to the "Agreement" or
the "Credit Agreement," and in all documents delivered pursuant thereto or in
connection therewith or as an amendment, modification, restatement, or
supplement thereto, including in any Note thereto heretofore executed and
delivered by the Borrowers, shall henceforth include references to this
Agreement, and the Schedules, Exhibits, Appendix, and other Loan Documents
modified hereby, as the same may, from time to time, be amended, modified,
supplemented and/or restated.
(e) Conforming Amendments. Any and all of the terms and provisions of the
Loan Documents are hereby amended and modified wherever necessary, even though
not specifically addressed herein, so as to conform to the amendments and
modifications set forth herein.
(f) General Provision Regarding Extension and Restatement. Notwithstanding
the fact that this Agreement is an extension and renewal of the Existing Credit
Agreement, each Lender acknowledges that, to the extent any Lender under the
Existing Credit Agreement decides not to renew its commitment under this
Agreement (a "Non-Renewing Lender"), then, on the Effective Date of this
Agreement, such renewing and extending Lenders and any new Lenders under this
Agreement shall be deemed to have purchased a ratable share of any Non-Renewing
Lender's outstanding Loans such that, after giving effect thereto, each
Non-Renewing Lender no longer holds any interests or commitments under the
Existing Credit Agreement and each continuing and new Lender under this
Agreement has a Maximum Commitment and Percentage Share as described on Schedule
I attached hereto.
(g) Joinder of AHMIC. By execution hereof, AHMIC agrees that it is bound
under the terms of the Existing Credit Agreement and other Loan Documents, as
amended by this Agreement, as a "Borrower" thereunder, as if it had been an
original Borrower signatory thereto.
2. Amendments to Security Agreement and Joinder.
(a) Amendments to Security Agreement.
(i) Paragraph 1 of the Security Agreement is amended to revise the
fourth complete sentence to read as follows:
The Collateral Agent agrees to act in accordance with this
Security Agreement and in accordance with any written instructions
properly delivered pursuant hereto, without further consent of the
Borrowers.
15
(ii) Paragraph 2(b) of the Security Agreement is amended to change
the initial reference to "11:00 a.m." to "1:00 p.m.".
(iii) Paragraph 2(c) of the Security Agreement is amended to change
the second reference to "11:00 a.m." to "1:00 p.m.".
(iv) Paragraph 2(h) of the Security Agreement is amended to change
the reference to "11:00 a.m." to "1:00 p.m.".
(v) Paragraph 4(b) of the Security Agreement is amended in its
entirety as follows:
(b) All Warehouse-Related MBSs, now owned and hereafter
acquired by any of the Borrowers, which, if certificated, are
delivered to the Collateral Agent for inclusion as "Collateral"
hereunder, or which, if uncertificated, are subject to Perfected
Assignments pursuant to Paragraph 2(g) of this Security Agreement,
and all right to the payment of monies and non-cash distributions on
account of any of the above and all new, substituted and additional
securities at any time issued with respect thereto;
(vi) Paragraph 5(a) of the Security Agreement is amended to change
the initial reference to "11:00 a.m." to "1:00 p.m." and the second
reference to "11:00 a.m." to "12:00 p.m.".
(vii) Exhibits 1, 2 and 4 to the Security Agreement are deleted and
replaced with the attached Exhibits 1, 2 and 4, respectively, and all
references to such Exhibits respectively in the Loan Documents and all
documents delivered pursuant thereto or in connection therewith or as an
amendment, modification, restatement, or supplement thereto, shall
henceforth include references to the attached Exhibits.
(b) Joinder of AHMIC. By execution hereof, AHMIC agrees that it is bound
under the terms of the Security Agreement as a "Borrower" thereunder, as
if it had been an original Borrower signatory thereto. In furtherance of
the foregoing, AHMIC hereby assigns, pledges, and grants to Administrative
Agent for the benefit of the Secured Parties and to each of the Secured
Parties a first priority, perfected security interest in the Collateral to
secure payment and performance of the Obligations.
(c) Authorization. By execution hereof, each Borrower irrevocably
authorizes the Administrative Agent, the Collateral Agent, or any Secured
Party to file, at any time and from time to time, in any UCC jurisdiction,
any initial financing statement or amendment thereto, as may be desired by
Administrative Agent or Secured Parties in order to perfect a security
interest in favor of the Secured Parties in the Collateral, without any
further consent from any Borrower.
16
3. Miscellaneous.
(a) Acknowledgment and Ratification. As a condition precedent to, and as a
material inducement to the Lenders, the Collateral Agent, and the Administrative
Agent with respect to, this Agreement, the Borrowers and Guarantors (with the
knowledge and intent that the Lenders, the Collateral Agent and the
Administrative Agent are relying upon the same in entering into this Agreement)
jointly and severally (i) consent to the agreements in this Agreement, and (ii)
agree and acknowledge that the execution, delivery, and performance of this
Agreement shall in no way release, diminish, impair, reduce, or otherwise affect
the respective security interests granted under the Loan Documents or
obligations of the Borrowers or the Guarantors under the Loan Documents to which
they are a party, which security interests and obligations are hereby ratified
and confirmed.
(b) Representations. As a condition precedent to, and as a material
inducement to the Lenders, the Collateral Agent, and the Administrative Agent
with respect to, this Agreement, the Borrowers jointly and severally represent
and warrant to the Lenders (with the knowledge and intent that the Lenders, the
Collateral Agent, and the Administrative Agent are relying upon the same in
entering into this Agreement) that as of the Effective Date, (i) all
representations and warranties in the Loan Documents are true and correct in all
material respects as though made on the Effective Date, except to the extent
that (A) any of them speak to a different specific date in which case they were
true and correct in all material respects as of that specific date, or (B) the
facts on which any of them were based have been changed by transactions
contemplated or permitted by the Loan Documents, (ii) no Default or Event of
Default exists, (iii) this Agreement has been duly authorized and approved by
all necessary corporate action and requires the consent of no other Person, and
upon execution and delivery, this Agreement shall be binding and enforceable
against the Borrowers in accordance with its terms, and (iv) since December 31,
2004, there has not occurred a material adverse change in the business, assets,
liabilities (actual or contingent), operations, financial condition, or business
prospects of the Loan Parties taken as a whole.
(c) Expenses. The Borrowers shall pay all costs, fees, and expenses paid
or incurred by the Administrative Agent incident to this Agreement and the other
Loan Documents, including, without limitation, the reasonable fees and expenses
of the Administrative Agent's counsel in connection with the negotiation,
preparation, delivery, and execution of this Agreement and any related
documents.
(d) Parties. This Agreement binds and inures to the benefit of the
Borrowers, the Lenders, the Collateral Agent, and the Administrative Agent and
their respective successors and assigns, subject to the assignment provisions of
Paragraph 14(a).
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
The parties hereto have executed this Agreement in multiple counterparts,
effective as of Effective Date.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
17
SCHEDULE I
INITIAL COMMITMENT SCHEDULE
================================================================================
Maximum Percentage
Lender Commitment Share
--------------------------------------------------------------------------------
Bank of America, N.A. $75,000,000 7.500000000%
Calyon New York Branch 70,000,000 7.000000000%
Citigroup Global Markets Realty Corp. 70,000,000 7.000000000%
Deutsche Bank Trust Company Americas 70,000,000 7.000000000%
JPMorgan Chase Bank, N.A. 70,000,000 7.000000000%
ABN AMRO Bank N.V. 60,000,000 6.000000000%
Barclays Bank plc 60,000,000 6.000000000%
Commerzbank Aktiengesellschaft New York
and Grand Cayman Branches 60,000,000 6.000000000%
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA 60,000,000 6.000000000%
Societe Generale 60,000,000 6.000000000%
US Bank National Association 60,000,000 6.000000000%
The Bank of New York 45,000,000 4.500000000%
BNP Paribas 45,000,000 4.500000000%
Credit Suisse, Cayman Islands Branch 45,000,000 4.500000000%
Sovereign Bank 45,000,000 4.500000000%
WestLB AG, New York Branch 45,000,000 4.500000000%
KBC Bank N.V. 35,000,000 3.500000000%
Bank Hapoalim B.M. 25,000,000 2.500000000%
Total: $1,000,000,000 100.000000000%
================================================================================
