EXHIBIT 10.3
GUARANTY
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to AMERICAN HOME MORTGAGE SERVICING,
INC., a Maryland corporation ("AHMS"), AMERICAN HOME MORTGAGE CORP., a New York
corporation ("AHMC"), AMERICAN HOME ACCEPTANCE, INC., a Maryland corporation
("AHMA") (AHMS, AHMC and AHMA each a "Borrower" and, collectively, the
"Borrowers"), by certain Lenders from time to time party to that certain Credit
Agreement dated as of even date herewith, by and among the Borrowers, such
Lenders and Bank of America, N.A., acting in its capacity as administrative
agent (in such capacity, the "Administrative Agent") for such Lenders (as
amended, extended and replaced from time to time, the "Credit Agreement," and
with capitalized terms not otherwise defined herein used with the meanings given
such terms in the Credit Agreement, the undersigned Guarantors (each a
"Guarantor" and, collectively, the "Guarantors", jointly and severally hereby
agree as follows:
1. Guaranty. The Guarantors hereby absolutely and unconditionally guarantee to
the Lenders and the Administrative Agent (collectively, the "Beneficiaries"), as
a guarantee of payment and not merely as a guarantee of collection, prompt
payment when due, whether at stated maturity, upon acceleration or otherwise due
pursuant to the Credit Agreement, and at all times thereafter, of the
Obligations under the Loan Documents (including all renewals, extensions and
modifications thereof and all out-of-pocket expenses, including reasonable
attorneys' fees and expenses incurred by the Beneficiaries in connection with
the collection or enforcement thereof) (collectively, the "Guaranteed
Obligations"). The Beneficiaries' books and records showing the amount of the
Guaranteed Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon the Guarantors and conclusive for the
purpose of establishing the amount of the Guaranteed Obligations. This Guaranty
shall not be affected by the genuineness, validity, regularity or enforceability
of the Obligations or the Guaranteed Obligations or any instrument or agreement
evidencing any Guaranteed Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor, or by any fact
or circumstance relating to the Guaranteed Obligations which might otherwise
constitute a defense to the obligations of the Guarantors under this Guaranty.
The obligations of any Guarantor hereunder shall be limited to an aggregate
amount equal to the largest amount that would not render its obligations
hereunder subject to avoidance under Section 548 of the Bankruptcy Code (Title
11, United States Code) or any comparable provisions of any applicable state
law.
2. No Setoff or Deductions; Taxes. The Guarantors represent and warrant that
they are incorporated and residents in the United States of America. All
payments by the Guarantors hereunder shall be paid in full, without setoff or
counterclaim or any deduction or withholding whatsoever, including, without
limitation, for any and all present and future taxes. If the Guarantors must
make a payment under this Guaranty, the Guarantors represent and warrant that
they will make the payment from one of its U.S. resident offices to the
Beneficiaries so that no withholding tax is imposed on the payment. If
notwithstanding the foregoing, the Guarantors make a payment under this Guaranty
to which withholding tax applies, or any taxes (other than taxes on net income
(a) imposed by the country or any subdivision of the country in which any of the
Beneficiaries' principal office or actual lending office is located and (b)
measured by the United States taxable income the applicable Beneficiary would
have received if all payments under or in respect of this Guaranty were exempt
from taxes levied by the Guarantors' country) are at any time imposed on any
payments under or in respect of this Guaranty including, but not limited to,
payments made pursuant to this Paragraph 2, the Guarantors shall pay all such
taxes to the relevant authority in accordance with applicable law such that the
Beneficiaries receive the sum they would have received had no such deduction or
withholding been made and shall also pay to the applicable Beneficiaries, on
demand, all additional amounts which the applicable Beneficiaries specify as
necessary to preserve the after-tax yield the applicable Beneficiaries would
have received if such taxes had not been imposed. The Guarantors shall promptly
provide the applicable Beneficiaries with an original receipt or certified copy
issued by the relevant authority evidencing the payment of any such amount
required to be deducted or withheld.
3. No Termination. This Guaranty is a continuing and irrevocable guaranty of all
Guaranteed Obligations now or hereafter existing and shall remain in full force
and effect until all Guaranteed Obligations and any other amounts payable under
this Guaranty are indefeasibly paid and performed in full and any commitments of
the Lenders or facilities provided by the Lenders with respect to the Guaranteed
Obligations are terminated. All payments under this Guaranty shall be made to
the Administrative Agent for the benefit of the Beneficiaries in U.S. dollars.
4. Waiver of Notices. The Guarantors waive notice of the acceptance of this
Guaranty and of the extension or continuation of the Guaranteed Obligations or
any part thereof. The Guarantors further waive presentment, protest, notice,
dishonor or default, demand for payment, and any other notices to which the
Guarantors might otherwise be entitled.
5. Subrogation. The Guarantors shall exercise no right of subrogation,
contribution or similar rights with respect to any payments it makes under this
Guaranty until all of the Guaranteed Obligations and any amounts payable under
this Guaranty are indefeasibly paid and performed in full and any commitments of
the Lenders or facilities provided by the Lenders with respect to the Guaranteed
Obligations are terminated. If any amounts are paid to the Guarantors in
violation of the foregoing limitation, then such amounts shall be held in trust
for the benefit of the Beneficiaries and shall forthwith be paid to the
Administrative Agent to reduce the amount of the Guaranteed Obligations, whether
matured or unmatured.
6. Waiver of Suretyship Defenses. The Guarantors agree that the Beneficiaries
may, at any time and from time to time, and without notice to the Guarantors
make any agreement with any or all of the Borrowers or with any other person or
entity liable on any of the Guaranteed Obligations or providing collateral as
security for the Guaranteed Obligations, for the extension, renewal, payment,
compromise, discharge or release of the Guaranteed Obligations or any collateral
(in whole or in part), or for any modification or amendment of the terms thereof
or of any instrument or agreement evidencing the Guaranteed Obligations or the
provision of collateral, all without in any way impairing, releasing,
discharging, or otherwise affecting the obligations of the Guarantors under this
Guaranty. Each Guarantor waives any defense arising by reason of any disability
or other defense of any other guarantor, and waives the benefit of any statute
of limitations affecting the liability of the Guarantors hereunder. Further, to
the maximum extent permitted by applicable law, the Guarantors consent to the
taking of, or failure to take, any action which might in any manner or to any
extent vary the risks of the Guarantors under this Guaranty or which, but for
this provision, might operate as a discharge of the Guarantors.
7. Exhaustion of Other Remedies Not Required. The obligations of the Guarantors
hereunder are those of primary obligors, and not merely as sureties, and are
independent of the Guaranteed Obligations. The Guarantors waive diligence by the
Beneficiaries and action on delinquency in respect of the Guaranteed Obligations
or any part thereof, including, without limitation any provisions of law
requiring the Beneficiaries to exhaust any right or remedy or to take any action
against the Borrowers, any other guarantor or any other Person, or Property
before enforcing this Guaranty against the Guarantors.
8. Reinstatement. Notwithstanding anything in this Guaranty to the contrary,
this Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any portion of the Guaranteed Obligations is
revoked, terminated, rescinded or reduced or must otherwise be restored or
returned upon the insolvency, bankruptcy or reorganization of any Borrower or
any other Person, as if such payment had not been made and whether or not the
Lenders are in possession of or has released this Guaranty and regardless of any
prior revocation, rescission, termination or reduction.
9. Subordination. The Guarantors hereby subordinate the payment of all
obligations and indebtedness of the Borrowers owing to the Guarantors, whether
now existing or hereafter arising, including but not limited to any obligation
of the Borrowers to the Guarantors as subrogees of the Lenders or resulting from
the Guarantors' performance under this Guaranty, to the indefeasible payment in
full of all Guaranteed Obligations. If the Administrative Agent so requests, any
such obligation or indebtedness of the Borrowers to the Guarantors shall be
enforced and performance received by the Guarantors as trustees for the
Beneficiaries and the proceeds thereof shall be paid over to the Administrative
Agent on account of the Guaranteed Obligations, but without reducing or
affecting in any manner the liability of the Guarantors under this Guaranty.
10. Information. The Guarantors agree to furnish promptly to the Administrative
Agent and the Lenders any and all financial or other information regarding the
Guarantors or their property as the Administrative Agent of any of the Lenders
may reasonably request in writing.
11. Stay of Acceleration. In the event that acceleration of the time for payment
of any of the Guaranteed Obligations is stayed, upon the insolvency, bankruptcy
or reorganization of the Borrowers or any other Person, all such amounts shall
nonetheless be payable by the Guarantors immediately upon demand by the Lenders.
12. Expenses. The Guarantors shall pay on demand all out-of-pocket expenses
(including reasonable attorneys' fees and expenses) in any way relating to the
enforcement or protection of the Beneficiaries' rights under this Guaranty,
including any incurred in the preservation, protection or enforcement of any
rights of the Lenders in any case commenced by or against the Guarantors under
the Bankruptcy Code (Title 11, United States Code) or any similar or successor
statute. The obligations of the Guarantors under the preceding sentence shall
survive termination of this Guaranty.
13. Amendments. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the
Administrative Agent, on behalf of the Beneficiaries, and the Guarantors.
14. No Waiver; Enforceability. No failure by any of the Beneficiaries to
exercise, and no delay in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy or power hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law or in equity. The
unenforceability or invalidity of any provision of this Guaranty shall not
affect the enforceability or validity of any other provision herein.
15. Assignment; Governing Laws; Jurisdiction. This Guaranty shall (a) bind the
Guarantors and their successors and assigns, provided that the Guarantors may
not assign their rights or obligations under this Guaranty without the prior
written consent of the Beneficiaries (and any attempted assignment without such
consent shall be void), (b) inure to the benefit of the Beneficiaries and their
successors and assigns and the Lenders may, without notice to the Guarantors and
without affecting the Guarantors' obligations hereunder, assign or sell
participations in the Guaranteed Obligations and this Guaranty, in whole or in
part, and (c) be governed by the internal laws of the State of New York. The
Guarantor hereby irrevocably (i) submits to the non-exclusive jurisdiction of
the courts of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York and any appellate
court from any thereof in any action or proceeding arising out of or relating to
this Guaranty, and (ii) waives to the fullest extent permitted by law any
defense asserting an inconvenient forum in connection therewith. Service of
process by the Lenders in connection with such action or proceeding shall be
binding on the Guarantors if sent to the Guarantors by registered or certified
mail at its address specified below. The Guarantors agree that the Lenders may
disclose to any prospective purchaser and any purchaser of all or part of the
Guaranteed Obligations any and all information in the Lenders' possession
concerning the Guarantors, this Guaranty and any security for this Guaranty.
16. Condition of the Borrowers. The Guarantors acknowledge and agree that they
have the sole responsibility for, and has adequate means of, obtaining from the
Borrowers such information concerning the financial condition, business and
operations of the Borrowers as the Guarantors require, and that none of the
Beneficiaries have a duty, and the Guarantors are not relying on any of the
Beneficiaries at any time, to disclose to the Guarantors any information
relating to the business, operations or financial condition of the Borrowers.
17. Setoff. If and to the extent any payment is not made when due hereunder, any
of the Beneficiaries may setoff and charge from time to time any amount so due
against any or all of the Guarantors' accounts or deposits with such
Beneficiary.
18. Other Guarantees. Unless otherwise agreed by the Administrative Agent, the
Lenders, and the Guarantors in writing, this Guaranty is not intended to
supersede or otherwise affect any other guaranty now or hereafter given by the
Guarantors for the benefit of the Lenders or any term or provision thereof.
19. Representations and Warranties. Each Guarantor represents and warrants that,
by virtue of its relationship with the Borrowers, the execution, delivery and
performance of this Guaranty is for the direct benefit of the Guarantors and
they will receive adequate consideration for this Guaranty.
20. ACKNOWLEDGMENT OF CREDIT AGREEMENT. Guarantors acknowledge that certain (a)
representations and warranties in the Credit Agreement are applicable to
Guarantors and confirm that each such representation and warranty is true and
correct, and (b) covenants and other provisions in the Credit Agreement are
applicable to Guarantors or are imposed upon Guarantors and agree to promptly
and properly comply with or be bound by each of them.
21. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY APPLICABLE
LAW, THE GUARANTORS AND THE BENEFICIARIES EACH WAIVE TRIAL BY JURY WITH RESPECT
TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF THIS GUARANTY.
Executed this 30th day of August, 2004.
AMERICAN HOME MORTGAGE
INVESTMENT CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
AMERICAN HOME MORTGAGE
HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
