Exhibit 10.17.3
ORIGINATOR PERFORMANCE GUARANTY
This Originator Performance Guaranty (the "Guaranty"), dated as of August 8,
2003, is executed by American Home Mortgage Holdings, Inc., a Delaware
corporation (the "Performance Guarantor"), in favor of AHM SPV I, LLC, a
Delaware limited liability company ("SPV").
WHEREAS, SPV has entered into an Addendum to Master Repurchase Agreement dated
as of August 8, 2003 (as amended, restated, supplemented or otherwise modified
from time to time, the "Repurchase Agreement"), with American Home Mortgage
Corp., a New York corporation and Columbia National Incorporated, a Maryland
corporation (collectively, the "Originators"), pursuant to which SPV has agreed
to purchase from time to time certain Mortgage Assets from the Originators;
WHEREAS, as an inducement for SPV to purchase Mortgage Assets pursuant to the
Repurchase Agreement, the Performance Guarantor has agreed to guaranty the due
and punctual performance of the Originators' obligations under the Repurchase
Agreement, including any obligation to repurchase Mortgage Assets as a result of
a breach pursuant to Section 2.05 of the Addendum to the Repurchase Agreement,
provided that the Performance Guarantor shall not guaranty the Originators'
obligations to repurchase Mortgage Assets on the Repurchase Date pursuant to
Sections 3(b) and 3(c) of the Repurchase Agreement;
WHEREAS, it is a condition precedent to SPV agreeing to purchase Mortgage Assets
pursuant to the Repurchase Agreement that the Performance Guarantor execute and
deliver to SPV a performance guaranty substantially in the form hereof; and
WHEREAS, the Performance Guarantor wishes to guaranty the due and punctual
performance of the Originators' obligations to SPV under or in respect of the
Repurchase Agreement as provided herein, and the Performance Guarantor, as the
owner, directly or indirectly, of all of the outstanding shares of capital stock
of the Originators, will derive substantial benefit from the transactions
contemplated under the Repurchase Agreement;
NOW, THEREFORE, the Performance Guarantor hereby agrees with SPV as follows:
Section 1. Definitions.
As used herein:
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C.
Sections 101 et seq., as amended.
"Obligations" means, collectively, all covenants, agreements, terms,
conditions and indemnities to be performed and observed by the Originators
under and pursuant to the Repurchase Agreement and each other document
executed and delivered by the Originators pursuant to the Repurchase
Agreement (other than the Loan Agreement), except for the Originators'
obligation to repurchase Mortgage Assets on the Repurchase Date pursuant
to Sections 3(b) and 3(c) of the Repurchase Agreement, including, without
limitation, the due and punctual payment of all sums which are or may
become due and owing by the Originators under the Repurchase Agreement
whether for repurchase prices
for repurchases pursuant to Section 2.05 of the Addendum to the Repurchase
Agreement, fees, expenses (including counsel fees), indemnified amounts or
otherwise, whether upon any termination or for any other reason, including
any renewals, extensions and modifications thereof.
"Loan Agreement" means that certain Loan Agreement dated as of
August ], 2003 by and among SPV, certain Issuers parties thereto, certain
Banks parties thereto, Credit Lyonnais New York Branch, as administrative
agent for the Issuer and Banks, and American Home Mortgage Corp., as the
servicer thereunder, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"AHM Entities" means, collectively, the Performance Guarantor, the
Originators, and SPV.
All capitalized terms used herein, and not otherwise herein defined shall have
their respective meanings as defined in the Repurchase Agreement.
Section 2. Guaranty of Performance of Obligations. The Performance
Guarantor hereby unconditionally guarantees to SPV, the full and punctual
payment and performance by the Originators of the Obligations.
This Guaranty is an absolute, unconditional and continuing guaranty of the full
and punctual performance of all of the Obligations and is in no way conditioned
upon any requirement that SPV first take any action against the Originators with
respect to the Obligations or attempt to collect any of the amounts owing by the
Originators to SPV from the Originators or resort to any collateral security,
any balance of any deposit account or credit on the books of SPV in favor of the
Originators, any guarantor of the Obligations or any other Person. Should the
Originators default in the payment or performance of any of the Obligations, SPV
may cause the immediate performance by the Performance Guarantor of the
Obligations and cause any payment Obligations to become forthwith due and
payable to SPV, without demand or notice of any nature (other than as expressly
provided herein), all of which are expressly waived by the Performance
Guarantor.
The Performance Guarantor's liability under this Guaranty shall be absolute and
unconditional irrespective of (i) any lack of validity or enforceability of the
Repurchase Agreement, the Loan Agreement or any other document executed in
connection therewith or delivered thereunder, (ii) any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to departure
from the Repurchase Agreement, the Loan Agreement or any other document executed
in connection therewith or delivered thereunder, (iii) any taking, exchange,
release or non-perfection of any collateral, or any taking, release or amendment
or waiver of or consent to departure from any other guaranty, for all or any of
the Obligations, (iv) any law, regulation or order of any jurisdiction affecting
any term of all or any Obligations or the rights of SPV, (v) any manner of
application of collateral, or proceeds thereof, to all or any of the
Obligations, or any manner of sale or other disposition of any collateral for
all or any of the Obligations or any other assets of the Originators, (vi) any
change, restructuring or termination of the corporate structure or existence of
the Originators, or (vii) any other circumstance which might otherwise
constitute a
defense available to, or a discharge of, the Originators or a guarantor. In the
event that performance of any of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Originators, or for any other reason, all
such Obligations shall be immediately performed by the Performance Guarantor.
Section 3. Performance Guarantor's Further Agreements to Pay. The
Performance Guarantor further agrees, in the event the Performance Guarantor
fails to perform its obligations under this Guaranty, to pay to SPV, forthwith
upon demand all reasonable costs and expenses (including court costs and legal
expenses) incurred or expended by SPV in connection with the enforcement of this
Guaranty.
Section 4. Waivers by Performance Guarantor; SPV's Freedom to Act. The
Performance Guarantor waives notice of (a) acceptance of this Guaranty, (b) any
action taken or omitted by SPV in reliance on this Guaranty, and (c) any
requirement that SPV be diligent or prompt in making demands under this
Guaranty, giving notice of any Default, Event of Default, default or omission by
the Originators or asserting any other rights of SPV under this Guaranty. To the
maximum extent permitted by applicable law, the Performance Guarantor also
irrevocably waives all defenses that at any time may be available in respect of
the Obligations by virtue of any statute of limitations, valuation, stay,
moratorium law or other similar law now or thereafter in effect.
SPV shall be at liberty, without giving notice to or obtaining the assent of the
Performance Guarantor and without relieving the Performance Guarantor of any
liability under this Guaranty, to deal with the Originators and with each other
party who now is or after the date hereof becomes liable in any manner for any
of the Obligations, in such manner as SPV in its sole discretion deems fit, and
to this end the Performance Guarantor agrees that the validity and
enforceability of this Guaranty, including without limitation, the provisions of
Section 8 hereof, shall not be impaired or affected by any of the following: (a)
any extension, modification or renewal of, or indulgence with respect to, or
substitutions for, the Obligations or any part thereof or any agreement relating
thereto at any time; (b) any failure or omission to enforce any right, power or
remedy with respect to the Obligations or any part thereof or any agreement
relating thereto, or any collateral securing the Obligations or any part
thereof; (c) any waiver of any right, power or remedy or of any Default, Event
of Default, default with respect to the Obligations or any part thereof or any
agreement relating thereto; (d) any release, surrender, compromise, settlement,
waiver, subordination or modification, with or without consideration, of any
other obligation of any person or entity with respect to the Obligations or any
part thereof; (e) the enforceability or validity of the Obligations or any part
thereof or the genuineness, enforceability or validity of any agreement relating
thereto or with respect to the Obligations or any part thereof; (f) the
application of payments received from any source to the payment of any payment
Obligations of the Originators, any part thereof or amounts which are not
covered by this Guaranty even though SPV might lawfully have elected to apply
such payments to any part or all of the payment Obligations of the Originators
or to amounts which are not covered by this Guaranty; (g) the existence of any
claim, setoff or other rights which the Performance Guarantor may have at any
time against the Originators in connection herewith or any unrelated
transaction; (h) any assignment or transfer of the Obligations or any part
thereof; or (i) any failure on the part of the Originators to perform or comply
with any term of the Repurchase Agreement or any other document executed in
connection therewith or delivered thereunder, all whether or not the
Performance Guarantor shall have had notice or knowledge of any act or omission
referred to in the foregoing clauses (a) through (i) of this Section.
Section 5. Unenforceability of Obligations Against the Originators.
Notwithstanding (a) any change of ownership of either of the Originators or the
insolvency, bankruptcy or any other change in the legal status of either of the
Originators; (b) the change in or the imposition of any law, decree, regulation
or other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Obligations; (c) the
failure of either of the Originators or the Performance Guarantor to maintain in
full force, validity or effect or to obtain or renew when required all
governmental and other approvals, licenses or consents required in connection
with the Obligations or this Guaranty, or to take any other action required in
connection with the performance of all obligations pursuant to the Obligations
or this Guaranty; or (d) if any of the moneys included in the Obligations have
become unrecoverable from either of the Originators for any reason other than
final payment in full of the payment Obligations in accordance with their terms,
this Guaranty shall nevertheless be binding on the Performance Guarantor. This
Guaranty shall be in addition to any other guaranty or other security for the
Obligations, and it shall not be rendered unenforceable by the invalidity of any
such other guaranty or security.
Section 6. Representations and Warranties.
Section 6.1. Existence and Standing. The Performance Guarantor is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite corporate
authority to conduct its business in each jurisdiction in which its business is
conducted.
Section 6.2. Authorization; Validity. The Performance Guarantor has the
corporate power and authority to execute and deliver this Guaranty, perform its
obligations hereunder and consummate the transactions herein contemplated. The
execution and delivery by the Performance Guarantor of this Guaranty, the
performance of its obligations and consummation of the transactions contemplated
hereunder have been duly authorized by proper corporate proceedings, and this
Guaranty constitutes the legal, valid and binding obligation of the Performance
Guarantor enforceable against the Performance Guarantor in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles (whether considered as a proceeding at law or in
equity).
Section 6.3. No Conflict; Government Consent. Neither the execution and
delivery by the Performance Guarantor of this Guaranty, nor the consummation of
the transactions herein contemplated, nor compliance with the provisions hereof
will contravene or conflict with any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Performance Guarantor or
any of the other AHM Entities, except where such contravention or conflict would
reasonably be expected to have a Material Adverse Effect, or the Performance
Guarantor's certificate of incorporation or by-laws or the provisions of any
indenture, instrument or agreement to which the Performance Guarantor is a party
or is subject, or by which it, or its property, is bound, except where such
contravention or conflict would not reasonably be expected to have a Material
Adverse Effect, or result in the creation or imposition of any Lien in,
of or on the property of the Performance Guarantor or any of its Subsidiaries
pursuant to the terms of any such indenture, instrument or agreement.
Section 6.4. Financial Statements. The consolidated financial statements
of the Performance Guarantor and its Subsidiaries, heretofore delivered to SPV
as required by the Loan Agreement, were prepared in accordance with generally
accepted accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and operations
of the Performance Guarantor and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
Section 6.5. Material Adverse Change. Since March 31, 2003, there has been
no change in the business, properties, financial condition or results of
operations of the Performance Guarantor and its Subsidiaries which is reasonably
likely to have a Material Adverse Effect on (i) the business, properties,
financial condition or results of operations of the Performance Guarantor and
its subsidiaries taken as a whole, (ii) the ability of the Performance Guarantor
to perform its obligations under this Guaranty, or (iii) the validity or
enforceability of any portion of this Guaranty or the rights or remedies of SPV
hereunder.
Section 6.6. Taxes. The Performance Guarantor and the other AHM Entities
have filed all United States federal tax returns and all other tax returns which
are required to be filed, except where the failure to file would not reasonably
be expected to have a Material Adverse Effect, and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by the
Performance Guarantor or any of the other AHM Entities, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided. No tax liens have been filed which are reasonably likely to have
a Material Adverse Effect on (i) the business, properties, financial condition
or results of operations of the Performance Guarantor and the other AHM Entities
taken as a whole, (ii) the ability of the Performance Guarantor to perform its
obligations under this Guaranty, or (iii) the validity or enforceability of any
portion of this Guaranty or the rights or remedies of SPV hereunder, and no
claims are being asserted in writing with respect to any such taxes. The
charges, accruals and reserves on the books of the Performance Guarantor and the
other AHM Entities in respect of any taxes or other governmental charges are
adequate.
Section 6.7. Litigation and Contingent Obligations. There is no
litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against or
affecting the Performance Guarantor or its Subsidiaries which is reasonably
likely to have a Material Adverse Effect on (i) the business, properties,
financial condition or results of operations of the Performance Guarantor and
the other AHM Entities taken as a whole, (ii) the ability of the Performance
Guarantor to perform its obligations under this Guaranty, or (iii) the validity
or enforceability of any of this Guaranty or the rights or remedies of SPV
hereunder. The Performance Guarantor has no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
6.4.
Section 7. Covenants. The Performance Guarantor hereby covenants and
agrees for the benefit of SPV, until the Obligations have been satisfied in full
and the Repurchase Agreement and the Loan Agreement have been terminated, as
follows:
(a) to promptly notify SPV upon (i) any dispute between the Performance
Guarantor and any Governmental Authority or any other Person that, if adversely
determined, would have a Material Adverse Effect; (ii) any material adverse
change in the business, operations or financial condition of the Performance
Guarantor, including, without limitation, such Performance Guarantor's
insolvency; (iii) any event or condition known to it that, if adversely
determined, would have a Material Adverse Effect; and (iv) the receipt of any
notice of any final judgment or order for payment of money applicable to the
Performance Guarantor in excess of $10,000,000;
(b) to comply with (a) all applicable laws, rules, regulations and orders, and
(b) material agreements, indentures, mortgages and corporate documents, except
to the extent that the failure so to comply would not be reasonably expected to
have a Material Adverse Effect;
(c) to maintain its corporate existence, rights and franchises;
(d) observe and comply in all material respects with all Governmental
Requirements; and
(e) promptly and in any event within 60 days after the end of each of the
first three (3) quarters in each fiscal year of the Performance Guarantor, and
within 120 days after the close of the Performance Guarantor's fiscal year,
completed officer's certificates in the form of Exhibit H-3 attached to the Loan
Agreement, executed by the treasurer or other Financial Officer of the
Performance Guarantor.
Section 8. Subrogation; Subordination. The Performance Guarantor shall not
enforce or otherwise exercise any right of subrogation to any of the rights of
SPV against the Originators, until the Obligations have been indefeasibly paid
in full; notwithstanding anything to the contrary contained herein, until the
Obligations have been indefeasibly paid in full, the Performance Guarantor
hereby waives all rights of subrogation (whether contractual, under Section 509
of the United States Bankruptcy Code, at law or in equity or otherwise) to the
claims of SPV against the Originators and all contractual, statutory or legal or
equitable rights of contribution, reimbursement, indemnification and similar
rights and "claims" (as that term is defined in the United States Bankruptcy
Code) which the Performance Guarantor might now have or hereafter acquire
against the Originators that arises from the existence or performance of the
Performance Guarantor's obligations hereunder; the Performance Guarantor will
not claim any setoff, recoupment or counterclaim against the Originators in
respect of any liability of the Performance Guarantor to the Originators, until
any of the Obligations have been indefeasibly paid in full; and the Performance
Guarantor waives any benefit of and any right to participate in any collateral
security which may be held by SPV. Unless otherwise provided for in the
Subordination Agreement, the payment of any amounts due with respect to any
indebtedness for borrowed money of the Originators now or thereafter owed to the
Performance Guarantor is hereby subordinated to the prior payment in full of all
the Obligations. The Performance Guarantor agrees that, after the occurrence,
and during the continuation, of any default in the payment or performance of any
of the Obligations, the Performance Guarantor will not demand, xxx for or
otherwise attempt to collect any such indebtedness of the Originators to the
Performance Guarantor until all of the Obligations shall have been paid and
performed in full. If, notwithstanding the foregoing sentence, the Performance
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any Obligations are still unperformed or outstanding, such
amounts shall be collected, enforced and received by the Performance
Guarantor as trustee for SPV and be paid over to SPV on account of the
Obligations without affecting in any manner the liability of the Performance
Guarantor under the other provisions of this Guaranty. The provisions of this
Section 8 shall be supplemental to and not in derogation of any rights and
remedies of SPV under any separate subordination agreement that SPV may at any
time and from time to time enter into with the Performance Guarantor.
Section 9. Termination of Guaranty. The Performance Guarantor's
obligations hereunder shall continue in full force and effect until all
Obligations are finally paid and satisfied in full and the Repurchase Agreement
and Loan Agreement are terminated; provided, however, that this Guaranty shall
continue to be effective or shall be reinstated, as the case may be, if at any
time payment or other satisfaction of any of the Obligations is rescinded or
must otherwise be restored or returned upon the bankruptcy, insolvency, or
reorganization of either of the Originators, or otherwise, as though such
payment had not been made or other satisfaction occurred, whether or not SPV is
in possession of this Guaranty. No invalidity, irregularity or unenforceability
by reason of the Bankruptcy Code or any insolvency or other similar law, or any
law or order of any government or agency thereof purporting to reduce, amend or
otherwise affect the Obligations shall impair, affect, be a defense to or claim
against the obligations of the Performance Guarantor under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive the
insolvency of either of the Originators and the commencement of any case or
proceeding by or against either of the Originators under the federal Bankruptcy
Code or other federal, state or other applicable bankruptcy, insolvency or
reorganization statutes. No automatic stay under the federal Bankruptcy Code or
other federal, state or other applicable bankruptcy, insolvency or
reorganization statutes to which either of the Originators is subject shall
postpone the obligations of the Performance Guarantor under this Guaranty.
Section 11. Setoff. SPV is not authorized at any time to set off and apply
any deposits or other sums against the obligations of the Performance Guarantor
under this Guaranty.
Section 12. Taxes. All payments to be made by the Performance Guarantor
hereunder shall be made free and clear of any deduction or withholding. If the
Performance Guarantor is required by law to make any deduction or withholding on
account of tax or otherwise from any such payment, the sum due from it in
respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, SPV receives a net sum
equal to the sum which it would have received had no deduction or withholding
been made.
Section 13. Further Assurances. The Performance Guarantor agrees that it
will permit SPV or any of its duly authorized representatives, during normal
business hours, and upon reasonable notice to consult and discuss with the
Performance Guarantor's Treasurer or Controller, with respect to the Performance
Guarantor's business, finances, accounts and affairs. The Performance Guarantor
agree that it will, from time to time, at the request of SPV, provide to SPV
information relating to the business and affairs of the Performance Guarantor as
SPV may reasonably request. The Performance Guarantor also agrees to do all such
things and execute all such documents as SPV may reasonably consider necessary
or desirable to give full effect to this Guaranty and to perfect and preserve
the rights and powers of SPV hereunder.
Section 14. Successors and Assigns. This Guaranty shall be binding upon
the Performance Guarantor, its successors and assigns, and shall inure to the
benefit of and be enforceable by SPV and its successors, transferees and
assigns. The Performance Guarantor may not assign or transfer any of its
obligations hereunder without the prior written consent of SPV and any attempted
assignment shall be null and void.
SPV (and any assignee of SPV) may at any time assign any and all of its rights
hereunder to any other person or entity without the consent of the Performance
Guarantor or the Originators, whereupon (i) each reference herein to SPV shall
mean and be a reference to such assignee and (ii) such assignee may enforce the
Guaranty to the fullest extent as if it were a named party hereto. Without
limiting the generality of the foregoing, the Performance Guarantor acknowledges
and consents to the assignment by SPV, under and in connection with the Loan
Agreement, of all of SPV's right, title and interest in, to and under this
Guaranty to the Administrative Agent for the benefit of the Lenders, and the
Performance Guarantor agrees that at all times that the Loan Agreement shall be
in effect (i) any claim made by SPV hereunder shall be deemed made for the
benefit of the Administrative Agent and Lenders and (ii) any payment or
remittance to be made hereunder by the Performance Guarantor in respect of any
claim being made by or in respect of SPV or SPV's interest under the Repurchase
Agreement shall be paid or remitted to the Administrative Agent for the benefit
of the Lenders.
Section 15. Amendments and Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Performance
Guarantor therefrom shall be effective unless the same shall be in writing and
signed by SPV and the Performance Guarantor. No failure on the part of SPV to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
Section 16. Notices. All notices and other communications called for
hereunder shall be made in writing and, unless otherwise specifically provided
herein, shall be deemed to have been duly made or given when delivered by hand
or mailed first class, postage prepaid, or, in the case of telegraphic,
telecopied or telexed notice, when transmitted, answer back received, addressed
as follows: if to the Performance Guarantor, at the address set forth beneath
its signature hereto, and if to SPV at its address specified in the Repurchase
Agreement, or at such other address as either party may designate in writing to
the other.
Section 17. GOVERNING LAW. THIS GUARANTY 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).
Section 18. CONSENT TO JURISDICTION. THE PERFORMANCE GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, THE REPURCHASE AGREEMENT
OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION
THEREWITH OR DELIVERED THEREUNDER AND THE PERFORMANCE GUARANTOR HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF SPV OR ANY OF ITS ASSIGNS TO BRING
PROCEEDINGS AGAINST THE PERFORMANCE GUARANTOR IN THE COURTS OF ANY OTHER
JURISDICTION.
Section 19. Miscellaneous. This Guaranty constitutes the entire agreement
of the Performance Guarantor with respect to the matters set forth herein. The
rights and remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement, and this Guaranty shall be in
addition to any other guaranty of or collateral security for any of the
Obligations. The provisions of this Guaranty are severable, and in any action or
proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Performance Guarantor hereunder
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of the Performance Guarantor's liability under this
Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of such liability shall, without any further action by the
Performance Guarantor or SPV, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding. The invalidity or unenforceability of any one or more sections of
this Guaranty shall not affect the validity or enforceability of its remaining
provisions. Captions are for the ease of reference only and shall not affect the
meaning of the relevant provisions. The meanings of all defined terms used in
this Guaranty shall be equally applicable to the singular and plural forms of
the terms defined.
IN WITNESS WHEREOF, the Performance Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
AMERICAN HOME MORTGAGE HOLDINGS,
INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
ASSIGNMENT OF
ORIGINATOR PERFORMANCE GUARANTY
The undersigned hereby assigns all of its right, title and interest in and to
the foregoing Originator Performance Guaranty to Credit Lyonnais New York
Branch, in its capacity as administrative agent (the "Administrative Agent") for
the "Lenders" under and as defined in that certain Loan Agreement dated as of
August 8, 2003 by and among AHM SPV I, LLC ("SPV"), certain parties thereto, the
Administrative Agent and American Home Mortgage Corp., as servicer thereunder,
as the same may be amended, restated, supplemented or otherwise modified from
time to time. American Home Mortgage Holdings, Inc. ("AHMI") acknowledges such
assignment, and agrees that the Administrative Agent may further assign, without
notice, its right, title and interest in and to the Originator Performance
Guaranty without the consent of any person or entity. The Administrative Agent,
as the assignee of SPV, shall have the right to enforce the Originator
Performance Guaranty and to directly exercise all of SPV's rights and remedies
under the Originator Performance Guaranty, and AHMI agrees to cooperate fully
with the Administrative Agent in the exercise of such rights and remedies
thereunder. AHMI further agrees to give the Administrative Agent copies of all
notices it is required to give to SPV under the Originator Performance Guaranty.
Dated: August 8, 2003
AHM SPV I, LLC
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Acknowledged and agreed to
this 8th day of August, 2003
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
