EXHIBIT 10.37
GUARANTEE
GUARANTEE, dated as of April 15, 2002, made by American Home
Mortgage Holdings, Inc. (the "Guarantor"), on behalf of American Home Mortgage
Corp. (the "Seller"), in favor of CDC Mortgage Capital Inc. ("CDC"), a party to
the Repurchase Agreement and the Custodial Agreement, each referred to below.
RECITALS
Pursuant to that certain Master Repurchase Agreement, dated as of
April 15, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Repurchase Agreement"), between CDC and the Seller, the Seller has
agreed to sell, from time to time, to CDC certain mortgage loans (the "Mortgage
Loans") as whole loans upon the terms and subject to the conditions set forth
therein. The Guarantor owns directly and indirectly all interests in the Seller.
Pursuant to the terms of that certain Custodial and Disbursement Agreement,
dated as of April 15, 2002 (the "Custodial Agreement", and collectively with the
Repurchase Agreement, the "Agreements"), among Seller, CDC, Deutsche Bank
National Trust Company, as custodian (in such capacity, the "Custodian") and
Deutsche Bank National Trust Company, as disbursement agent, Custodian is
required to take possession of the Mortgages and the Mortgage Notes, along with
certain other documents specified in the Agreements, as the Custodian of CDC and
any future purchaser, on several delivery dates, in accordance with the terms
and conditions of the Custodial Agreement. It is a condition precedent to the
obligation of CDC to purchase the Mortgage Loans under the Repurchase Agreement
that the Guarantor shall have executed and delivered this Guarantee with respect
to any and all representations, warranties, covenants and other obligations
(collectively, the "Obligations") of the Seller with respect to CDC under each
of the Repurchase Agreement and the Custodial Agreement.
NOW, THEREFORE, in consideration of the premises and to induce CDC
to enter into the Repurchase Agreement and the Custodial Agreement, the
Guarantor hereby agrees, for the benefit of CDC, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms used and not defined
herein shall have the meanings given to them in the Repurchase Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee.
(a) The Guarantor hereby, unconditionally and irrevocably,
guarantees, for the benefit of CDC and its successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Seller when
such payment is due or performance required in accordance with the Obligations.
(b) Anything herein to the contrary notwithstanding, the maximum
liability of the Guarantor hereunder shall in no event exceed the amount which
can be guaranteed by the Guarantor under applicable federal and state laws
relating to the insolvency of the debtors.
(c) The Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by CDC in enforcing, or obtaining advice of counsel in
respect of, any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
the Guarantor under this Guarantee. This Guarantee shall remain in full force
and effect until the Obligations are performed and/or paid in full and the
Agreements are terminated, notwithstanding that from time to time prior thereto
the Seller may be free from any Obligations.
(d) No actions or payments made by the Seller, the Guarantor, any
other guarantor or any other Person or received or collected by CDC from the
Seller, the Guarantor, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the Obligations,
remain liable for the Obligations hereunder until the Obligations are paid in
full and the Agreements are terminated.
(e) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to CDC on account of its liability hereunder, it
will notify CDC in writing that such payment or performance is made under this
Guarantee for such purpose.
3. Right of Set-off. The Guarantor hereby irrevocably authorizes CDC
at any time and from time to time without notice to the Guarantor, any such
notice being expressly waived by the Guarantor, to set-off and appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by CDC to or for the credit or
the account of the Guarantor, or any part thereof in such amounts as CDC may
elect, against and on account of the obligations and liabilities of the
Guarantor to CDC hereunder and claims of every nature and description of CDC
against the Guarantor, in any currency, whether arising hereunder, or otherwise,
as CDC may elect, whether or not CDC has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. CDC shall notify the Guarantor promptly of any such set-off and the
application made by CDC, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of CDC under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which CDC may have.
4. No Subrogation. Notwithstanding any payment or payments made by
the Guarantor hereunder or any set off or application of funds of the Guarantor
by CDC, the Guarantor shall not be entitled to be subrogated to any of the
rights of CDC against the Seller or any other guarantor or any collateral
security or guarantee or right of offset held by CDC for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Seller or any other guarantor in respect
of any payments made by the Guarantor hereunder, until all amounts owing to CDC
are paid in full and the Agreements are terminated. If any amount shall be paid
to the Guarantor on account of such subrogation rights at any time when all of
the Obligations shall not have been paid in full, such amount shall be held by
the Guarantor in trust for CDC segregated from other funds of the Guarantor, and
shall, forthwith upon receipt by the Guarantor, be turned over to CDC, in the
exact form received by the Guarantor (duly indorsed by the Guarantor to CDC, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as CDC may determine.
5. Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without notice to or
further assent by the Guarantor, any demand for repurchase or other performance
or payment under any of the Obligations made by CDC may be rescinded by such
party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by CDC, and the
Agreements and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as CDC may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by CDC for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. CDC shall
have no obligation to protect, secure, perfect or insure any lien at any time
held by it as security for the Obligations or for this Guarantee or any property
subject thereto. When making any demand hereunder against the Guarantor, CDC
may, but shall be under no obligation to, make a similar demand on the Seller or
any other guarantor, and any failure by CDC to make any such demand or to
collect any payments from the Seller or any such other guarantor or any release
of the Seller or such other guarantor shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of CDC against the
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by CDC upon this Guarantee or
acceptance of this Guarantee, and any creation, renewal extension or accrual of
any of the Obligations, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Seller and the Guarantor, on
the one hand, and CDC and the Seller, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. The Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Seller or the
Guarantor with respect to the Obligations. The Guarantor understands and agrees
that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment and not of collection without regard to (a)
the validity, regularity or enforceability of the Repurchase Agreement, the
Custodial Agreement, or any other document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by CDC, (b) any defense, set-off
or counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by the Seller against CDC, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Seller or the Guarantor) which constitutes, or might be construed to constitute,
an equitable or legal discharge of the Seller for the Obligations, or of the
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against the Guarantor, CDC may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against the Seller or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto and
any failure by CDC to pursue such other rights or remedies or to collect any
payments from the Seller or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Seller or any such other Person or any such collateral security,
guarantee or right of offset shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of CDC against the Guarantor.
This Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantor and the
successors and assigns thereof, and shall inure to the benefit of CDC, and its
respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Guarantor under this Guarantee shall have
been satisfied by complete performance and payment in full and the Agreements
shall have been terminated, notwithstanding that from time to time during the
term of the Agreements the Guarantor may be free from any Obligations.
7. Reinstatement. This Guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment and/or performance, or
any part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by CDC upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Seller or the Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Seller or the Guarantor or any substantial
part of their respective property, or otherwise, all as though such payments had
not been made.
8. Payments. The Guarantor hereby guarantees that payments hereunder
will be paid to CDC without set-off or counterclaim in U.S. Dollars at the
office of CDC as specified in Section 8 of the Repurchase Agreement.
9. Representations and Warranties. The Guarantor hereby represents
and warrants that:
(a) it is duly organized, validly existing and in good standing
under the laws of the state of Delaware and has the corporate power and
authority and the legal right to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged;
(b) it has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guarantee, and
has taken all necessary corporate action to authorize its execution, delivery
and performance of this Guarantee;
(c) this Guarantee has been duly executed and delivered on behalf of
the Guarantor, and constitutes a legal, valid and binding obligation of the
Guarantor enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered on a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(d) neither the execution and delivery of this Guarantee, nor the
fulfillment of or compliance with the terms and conditions of this Guarantee,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Guarantor's certificate of incorporation or by-laws or any
legal restriction or any agreement or instrument to which the Guarantor is now a
party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Guarantor or its
property is subject;
(e) no consent or authorization of, filing with, notice to, or other
act by or in respect of, any governmental authority or any other Person
(including, without limitation, any stockholder or creditor of the Guarantor) is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guarantee;
(f) there are no actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are pending or
threatened) or other legal or arbitrable proceedings affecting the Guarantor or
any of its subsidiaries or affecting any of its properties before any
governmental authority which (i) questions or challenges the validity or
enforceability of the Agreements or any action to be taken in connection with
the transactions contemplated thereby, (ii) makes a claim or claims in an
aggregate amount greater than $500,000, or (iii) individually or in the
aggregate, if adversely determined, could reasonably be likely to have a
Material Adverse Effect (as defined in the Repurchase Agreement).
(g) it has good and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good and marketable title to,
or a valid leasehold interest in, all its other property, and none of such
property is subject to any lien of any nature whatsoever except such as are
disclosed in the balance sheet referred to in Section 9(h) hereof;
(h) it has filed or caused to be filed all tax returns which, to its
knowledge, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any governmental authority (other than any amount or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Guarantor); no tax lien has been filed, and, to the knowledge of
the Guarantor, no claim is being asserted, with respect to any such tax, fee or
other charge; and
(i) The consolidated balance sheet of the Guarantor as of December
31, 2000 and the related consolidated statements of income and retained earnings
and of cash flows for such fiscal year, reported on by [ACCOUNTANTS], copies of
which have heretofore been furnished to CDC, are complete and correct and
present fairly the financial condition of the Guarantor as at such date, and the
results of its operations and its cash flow for such fiscal year. The
consolidated balance sheet of the Guarantor for the quarterly fiscal period as
of March 31, 2001, June 30, 2001 and September 30, 2001 and the related
consolidated statements of income and retained earnings and of cash flows for
such period, certified by a responsible officer, copies of which have heretofore
been furnished to CDC, are complete and correct and present fairly the financial
condition of the Guarantor as of such date, and the results of its operations
and its cash flows for such periods (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
responsible officer, as the case may be, and as disclosed therein). At the date
of the most recent balance sheet referred to above, the Guarantor had no
material guarantee obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other financial derivative, which is not reflected in the
foregoing statements or in the notes thereto. During the period from October 1,
2001, to and including the date hereof there has been no sale, transfer or other
disposition by the Guarantor of any material part of its business or property
and no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the financial
condition of the Guarantor as of the date hereof.
10. Notices. All notices, requests and demands which are required or
permitted to be given under this Guarantee shall be in writing (or by telex, fax
or similar electronic transfer confirmed in writing) and shall be deemed to have
been duly given or made (1) when delivered by hand or (2) if given by mail, when
deposited in the mails by certified mail, return receipt requested, or (3) if by
telex, fax or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
(a) if to CDC or to the Seller, at their respective addresses or
transmission numbers for notices provided in Section 17 of the Repurchase
Agreement; and
(b) if to the Guarantor, at its address or transmission number for
notices set forth under its signature below.
CDC, the Seller and the Guarantor may change its address and
transmission numbers for notices by notice in the manner provided in this
Section.
11. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof.
13. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Guarantor, the Seller and CDC.
(b) CDC shall not by any act, delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of CDC, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by CDC of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which CDC would otherwise have on
any future occasion.
The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
14. Section Headings. The section headings used in this Guarantee
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
15. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of CDC
and its successors and assigns. This Guarantee may not be assigned by the
Guarantor without the prior written consent of CDC, which consent shall be at
CDC's sole discretion. This Guarantee may be assigned by CDC without the consent
of the Guarantor to any assignee of the Repurchase Agreement.
16. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPALS.
17. Submission To Jurisdiction; Waivers. The Guarantor hereby
irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND THE AGREEMENTS, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH CDC SHALL HAVE
BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION.
(e) CDC AND GUARANTOR HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE, THE AGREEMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(f) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
18. Acknowledgments. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Guarantee;
(b) CDC does not have any fiduciary relationship with or duty to the
Guarantor arising out of or in connection with this Guarantee, and the
relationship among the Guarantor, the Seller and CDC; and
(c) no joint venture is created hereby or otherwise exists by virtue
of the transactions contemplated hereby among the Guarantor, the Seller and CDC.
19. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE OR ANY OTHER DOCUMENT RELATING HERETO OR THE MORTGAGE LOANS
AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
AMERICAN HOME MORTGAGE HOLDINGS,
INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
Address for Notices:
000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000
Telex: 000-000-0000
Fax: 000-000-0000
