Exhibit 10.2
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GUARANTY
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THIS GUARANTY, dated May 27, 2004, is made and given by American Home Mortgage
Investment Corp., a Maryland corporation ("Guarantor"), to RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation, as credit agent ("Credit Agent") for the
lenders ("Lenders") party to the Agreement (as defined below).
RECITALS
1) Credit Agent and Lenders have agreed to make certain accommodations ("Loan")
to Columbia National, Incorporated, a Maryland corporation, AMERICAN HOME
MORTGAGE CORP., a New York corporation, and AMERICAN HOME MORTGAGE ACCEPTANCE,
INC., a Maryland corporation (collectively referred to as "Borrowers" and
individually referred to as "Borrower").
2) The Loan is evidenced by Borrowers' Warehousing Notes and Sublimit Notes and
Term Loan Notes, each dated as of May 27, 2004 (as amended, supplemented or
otherwise modified, including any other instruments executed and delivered in
renewal, extension, rearrangement or otherwise in replacement of any of those
promissory notes, the "Notes")" and provided pursuant to a Second Amended and
Restated Warehousing Credit, Term Loan and Security Agreement (Syndicated) dated
as of May 27, 2004 between Borrowers, Lenders and Credit Agent (as amended,
restated, renewed or replaced, including any other instruments executed and
delivered in renewal, extension, rearrangement or otherwise in replacement of
that agreement, the "Agreement").
3) Guarantor is the direct or indirect sole shareholder of each Borrower and
will derive substantial benefits from the Loan.
4) Lenders refuse to make the Loan until Credit Agent receives this Guaranty.
5) In order to induce Credit Agent and Lenders to accept the Notes and the
Agreement and to induce Lenders to make the Loan to Borrowers, Guarantor is
willing to execute and deliver this Guaranty to Credit Agent.
AGREEMENT
NOW, THEREFORE, Guarantor agrees with Credit Agent and Lenders as follows:
6) Definitions; Rules of Construction. Unless otherwise defined in this
Guaranty, all capitalized terms have the meanings given to those terms in the
Agreement. Defined terms may be used in the singular or the plural, as the
context requires. The words "include," "includes" and "including" are deemed to
be followed by the phrase "without limitation." Unless the context in which it
is used otherwise clearly requires, the word "or" has the inclusive meaning
represented by the phrase "and/or." References to Sections are to Sections of
this Guaranty unless otherwise expressly provided.
7) Guaranty of Payment and Performance. Guarantor irrevocably, unconditionally
and absolutely guarantees to Credit Agent and Lenders the due and prompt payment
(and not just the collectibility) by Borrowers of a) the principal, and b) all
interest, fees, late charges and other indebtedness arising under the Notes and
the Agreement, when due, whether at maturity, by reason of acceleration or
otherwise, all at the times, places and at the rates described in, and otherwise
according to the terms of, the Notes and the Agreement, and all whether
currently existing or created or arising after the date of this Guaranty.
Guarantor also irrevocably, unconditionally and absolutely guarantees to Credit
Agent and Lenders the
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due and prompt performance by Borrowers of all other duties and obligations of
Borrowers contained in the Notes and the Agreement, and the due and prompt
payment of all costs and expenses incurred by Credit Agent or any Lender
(including attorneys' fees, court costs and other litigation expenses such as
expert witness fees, exhibit preparation and courier, postage, communication and
document copying expenses) to enforce the payment and performance of the Notes,
the Agreement and this Guaranty. The payment and performance of the items set
forth in this Section are collectively referred to as the "Guaranteed Debt." Any
sum payable by Guarantor to Credit Agent under this Guaranty will bear interest
from the date due until paid at a per annum rate of interest equal to the
highest Default Rate then applicable under the Agreement.
c) Limitations on Scope of Guaranty. Notwithstanding anything to the contrary
contained in this Guaranty or in any of the Loan Documents, the Guarantor's
liability for payment of the Guaranteed Debt shall be limited to the aggregate
of (a) Error! Unknown document property name., (b) interest on such amount from
the date demanded until the date paid at a per annum rate of interest equal to
the highest Interest Rate then applicable under the Agreement and (c) all costs
and expenses incurred by the Lender (including reasonable attorneys' fees) in
enforcing this Guaranty, which amount may be comprised of any portion of the
Guaranteed Debt, to be determined at the sole discretion of the Lender."
8) Right of Set-Off. After an Event of Default occurs, Credit Agent or any
Lender may, without notice or demand to Guarantor (which notice or demand
Guarantor expressly waives), set-off and apply any property of Guarantor in
Credit Agent's or such Lender's possession or control, or standing to the credit
of Guarantor, to the payment of the Guaranteed Debt.
9) Other Transactions. Guarantor (a) consents to all modifications of the terms
and conditions of the Guaranteed Debt and to all extensions or renewals of the
time of payment or performance of the Guaranteed Debt by Borrowers; (b) agrees
that Credit Agent and Lenders need not resort to legal remedies against any
Borrower or take action against any other Person obligated (an "Obligor") for
the payment or performance of the Guaranteed Debt or against any collateral for
the Guaranteed Debt before proceeding against Guarantor under this Guaranty; (c)
agrees that no release of any Borrower or any other guarantor or Obligor, and no
release, exchange or nonperfection of any collateral for the Guaranteed Debt,
whether by operation of law or by any act or failure to act of Credit Agent,
with or without notice to Guarantor, shall release Guarantor; (d) waives
presentment, demand, notice of demand, dishonor, notice of dishonor, protest,
and notice of protest and any other notice with respect to the Guaranteed Debt
and this Guaranty, and promptness in commencing suit against any party to or
liable on the Guaranteed Debt or in giving any notice to or making any claim or
demand upon Guarantor under this Guaranty; (e) waives any defense arising by
reason of any disability or other defense of any Borrower for payment of all or
any part of the Guaranteed Debt or by reason of the cessation from any cause
whatsoever of the liability of any Borrower for the Guaranteed Debt other than
full payment; and (f) waives, to the extent permitted by law, all benefit of
valuation, appraisement and exemptions under the laws of the State of Minnesota
or any other state or territory of the United States.
10) Continuing Guaranty. Guarantor's obligations under this Guaranty are
primary, absolute and unconditional. Only full and irrevocable payment and
performance of the Guaranteed Debt will discharge Guarantor's obligations under
this Guaranty. Guarantor's obligations under this Guaranty are not impaired or
affected by: (a) the genuineness, validity, regularity or enforceability of, or
any amendment or change in the Agreement or the other Loan Documents, or any
change in or extension of the manner, place or terms of payment of, all or any
portion of the Guaranteed Debt; (b) Credit Agent's or any Lender's taking or
failure to take any action to enforce the Agreement or the other Loan Documents,
or Credit Agent's or any Lender's exercise or failure to exercise any remedy,
power or privilege contained in the Loan Documents or available at law or
otherwise, or the waiver by Credit Agent or any Lender of any provisions of the
Agreement or the other Loan Documents; (c) any impairment, modification, change,
release or limitation in any manner of the liability of any Borrower or its
estate in bankruptcy, or of any remedy for the enforcement of any Borrower's
liability, resulting from the operation of any present or future provision of
the bankruptcy laws or any other statute or regulation, or the dissolution,
bankruptcy,
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insolvency or reorganization of any Borrower; (d) the merger or consolidation of
any Borrower, or any sale or transfer by any Borrower of all or any part of its
assets or property; (e) any claim Guarantor may have against any other Obligor,
including any claim of contribution; (f) the release, in whole or in part, of
any other guarantor (if more than one), any Borrower or any other Obligor; (g)
any settlement or compromise with any Obligor with respect to any Guaranteed
Debt or the subordination of the payment of all or any part of the Guaranteed
Debt to the payment of any other debts or claims that may at any time be due and
owing to Credit Agent or any Lender or any other Person; or (h) any other action
or circumstance that may (with or without notice to or knowledge of Guarantor)
in any manner or to any extent vary the risks of Guarantor under this Guaranty
or otherwise constitute a legal or equitable discharge or defense. Guarantor's
obligations under this Guaranty are in addition to Guarantor's obligations under
any other guaranties of the Guaranteed Debt or any other obligations of any
Borrower or any other Persons, and this Guaranty does not affect or invalidate
those other guaranties. Guarantor's liability to Credit Agent and Lenders is
deemed to be the aggregate liability of Guarantor under the terms of this
Guaranty and any other guaranties made in favor of Credit Agent or any Lender
before or after the date of this Guaranty.
11) Application of Payments. Credit Agent has the exclusive right to determine
the application of all payments and credits (whether derived from Borrowers or
from any other source) to be made on the Guaranteed Debt and any other
indebtedness owed by any Borrower or any other Obligor to Credit Agent or any
Lender. Credit Agent and Lenders have no obligation to marshal any assets in
favor of Guarantor or in payment of all or any part of the Guaranteed Debt.
12) Recovery of Payments. Guarantor's obligations under this Guaranty continue
to be effective, or are automatically reinstated, as the case may be, if at any
time the performance or the payment, in whole or in part, of any of the
Guaranteed Debt is rescinded or must otherwise be restored or returned by Credit
Agent or any Lender (as a preference, fraudulent conveyance or otherwise) upon
or as a result of (a) the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower, Guarantor or any other Person, (b) the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to any Borrower, Guarantor or any other Person, (c) the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to any substantial part of any Borrower's, Guarantor's or
any other Person's property, or (d) any other action or event, all as though
those payments had not been made. If an Event of Default exists and a case or
proceeding against Guarantor or any Borrower under a bankruptcy or insolvency
law prevents Credit Agent or any Lender from declaring a default and
accelerating Guarantor's obligations under this Guaranty or from declaring a
default and accelerating any Guaranteed Debt, Guarantor's obligations under this
Guaranty will be deemed to have been declared in default and accelerated with
the same effect as if this Guaranty and those obligations had been declared in
default and accelerated in accordance with their respective terms, and Guarantor
must immediately perform or pay, as the case may be, as required under the terms
of this Guaranty without further notice or demand.
13) No Subrogation. Until the Guaranteed Debt has been irrevocably paid and
performed in full, Guarantor irrevocably waives any claims or other rights that
Guarantor now has or may acquire against any Borrower that arise from the
existence, payment, performance or enforcement of Guarantor's obligations under
this Guaranty, including any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of Credit Agent or any Lender against any Borrower or any collateral that
Credit Agent or any Lender now has or may acquire, whether or not that claim,
remedy or right arises in equity or under contract, statute or common law,
including the right to take or receive from any Borrower, directly or
indirectly, in cash or other property or by set-off or in any manner, payment or
security on account of that claim or other right. In addition, to the extent
permitted by law, Guarantor irrevocably releases and waives any such subrogation
rights or rights of reimbursement, exoneration, contribution or indemnity to the
extent any such rights give rise to a claim under the U.S. Bankruptcy Code that
payments or transfers to Credit Agent or any Lender with respect to the
Guaranteed Debt constitute a preference in favor of Guarantor or a claim under
the U.S. Bankruptcy Code that the preference is recoverable from Credit Agent or
any Lender. Any amount paid to Guarantor
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in violation of the preceding two sentences is deemed to have been paid to
Guarantor for the benefit of, and held in trust for, Credit Agent and Lenders
and must immediately be paid to Credit Agent to be credited and applied to the
Guaranteed Debt, whether matured or unmatured. Notwithstanding the blanket
waiver of subrogation rights set forth above, Guarantor specifically
acknowledges that any subrogation rights that Guarantor may have against any
Borrower or any collateral that Credit Agent or any Lender now has or may
acquire may be destroyed by a nonjudicial foreclosure of the collateral. Without
limiting the foregoing, Guarantor waives all rights and defenses arising out of
Credit Agent's or any Lender's election of remedies, even though that election
of remedies (such as a nonjudicial foreclosure with respect to security for any
Guaranteed Debt) may destroy Guarantor's rights of subrogation and reimbursement
against any Borrower. To the extent permitted by Part 6 of Article 9 of the
Uniform commercial Code of Minnesota or of any other applicable jurisdiction
("Part 6"), Guarantor also waives the right to require Credit Agent or any
Lender to comply with the provisions of Part 6 in connection with Credit Agent's
enforcement of any security interest securing the payment or performance of the
Guaranteed Debt. Guarantor specifically acknowledges that Guarantor will receive
direct and indirect benefits from the arrangements contemplated by the
Agreement and that the waivers set forth in this Section are knowingly made in
contemplation of those benefits. Guarantor agrees that Credit Agent and Lenders
will incur no liability as a result of the commercially reasonable sale or other
disposition of all or any portion of the Collateral at any public or private
sale or other disposition. Guarantor waives (to the extent permitted by law) any
claims Guarantor may have against Credit Agent or any Lender arising by reason
of the fact that the price at which the Collateral may have been sold at a
private sale was less than the price that Credit Agent might have obtained at a
public sale, or was less than the aggregate amount of the Guaranteed Debt, even
if Credit Agent accepts the first offer received and does not offer the
Collateral to more than one offeree. Guarantor agrees that any sale of
Collateral under the terms of a Purchase Commitment, or any other disposition of
Collateral arranged by any Borrower, whether before or after the occurrence of
an Event of Default, will be deemed to have been made in a commercially
reasonable manner. Guarantor acknowledges that Mortgage Loans are collateral of
a type that is the subject of widely distributed standard price quotations and
that Mortgage-backed Securities are collateral of a type that is customarily
sold on a recognized market. Guarantor waives any right Guarantor may have to
prior notice of the sale of Pledged Securities, and agrees that Credit Agent or
any Lender may purchase Pledged Loans and Pledged Securities at a private sale
of such Collateral.
14) Remedies. Credit Agent's or any Lender's postponement or delay in the
enforcement of any right under this Guaranty is not a waiver of that right and
all of Credit Agent's and Lenders' rights under this Guaranty are cumulative and
not alternative and are in addition to any other rights granted to Credit Agent
or any Lender in any other agreement or by law. Guarantor understands and
acknowledges that time is of the essence with respect to the performance of
Guarantor's obligations under this Guaranty.
15) Reaffirmation. When requested by Credit Agent, Guarantor must promptly
execute and deliver a written reaffirmation of this Guaranty in such form as
Credit Agent may require.
16) Representations, Warranties and Covenants. Guarantor represents, warrants to
Credit Agent and Lenders and agrees for the benefit of Credit Agent and Lenders,
as follows:
a) Organization and Good Standing. Guarantor is a Maryland
corporation duly organized, validly existing and in good
standing under the laws of the State of and has the full legal
power and authority to own its property and to carry on its
business as currently conducted. Guarantor is duly qualified
as a foreign corporation to do business and is in good
standing in each jurisdiction in which the transaction of its
business makes qualification necessary, except in
jurisdictions, if any, where a failure to be in good standing
has no material adverse effect on Guarantor's business,
operations, assets or financial condition as a whole. For the
purposes of this Guaranty, good standing includes
qualification for any and all licenses and payment of any and
all taxes required in the jurisdiction of its corporation and
in each jurisdiction in which Guarantor transacts business.
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b) Authority and Authorization. Guarantor has the power and
authority to execute, deliver and perform this Guaranty. The
execution, delivery and performance by Guarantor of this
Guaranty has been duly and validly authorized by all necessary
corporate action on the part of Guarantor (none of which
actions has been modified or rescinded, and all of which
actions are in full force and effect). The execution, delivery
and performance by Guarantor of this Guaranty do not and will
not conflict with or violate any provision of law, any
judgments binding upon Guarantor, or the articles of
incorporation or by laws of Guarantor, and do not and will not
conflict with or result in a breach of or constitute a default
or require any consent under any agreement, instrument or
indenture to which Guarantor is a party or by which Guarantor
or its property may be bound or affected. This Guaranty
constitutes the legal, valid, and binding obligation of
Guarantor, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights.
c) Financial Statements. All financial statements and other
information given to Credit Agent with respect to Guarantor
fairly and accurately present the financial condition of
Guarantor as of the date of those financial statements and
that information, and there has been no material adverse
change in the financial condition of Guarantor since the date
of those financial statements and that information. Guarantor
must promptly deliver to Credit Agent (or to Borrowers in time
for Borrowers to deliver to Credit Agent) all financial
statements, tax returns and other information about Guarantor
that are required by the Agreement or requested by Credit
Agent.
d) No Default. Guarantor is not in default with respect to any
order, writ, injunction, decree or demand of any court or
other governmental authority, in the payment of any material
debt for borrowed money or under any material agreement
evidencing or securing any such debt.
e) Solvency. Guarantor is now solvent, and there are no
bankruptcy or insolvency proceedings pending or contemplated
by or, to the best of Guarantor's knowledge, against
Guarantor.
f) Relationship to Borrowers. The consideration received or to be
received by Guarantor as a result of the Loan is worth as much
or more than the liabilities and obligations incurred by
Guarantor under this Guaranty. Guarantor has had full and
complete access to the Agreement and the Notes and all other
Loan Documents relating to the Guaranteed Debt, has reviewed
them and is fully aware of the meaning and effect of those
documents. Guarantor is fully informed of all facts and
circumstances that bear upon the risks of executing this
Guaranty, including all facts that a diligent inquiry would
reveal. Guarantor has the ability to obtain from Borrowers on
a continuing basis information concerning each Borrower's
financial condition, and Guarantor is not relying on Credit
Agent or any Lender to provide such information. Except as
specifically required by this Guaranty, Credit Agent and
Lenders have no obligation to advise or notify Guarantor or to
provide Guarantor with any data or information about any
Borrower. Credit Agent and Lenders have not agreed to make,
extend or modify any loan or other financial accommodation to
or for Guarantor in consideration of Guarantor's execution and
delivery of this Guaranty.
g) Litigation. There is no action, suit or proceeding at law or
in equity or by or before any administrative agency pending or
contemplated by or, to the best of Guarantor's knowledge,
against Guarantor that, if adversely determined, would result
in a material adverse change in Guarantor's financial
condition.
h) Taxes. Guarantor has filed all federal, state, provincial,
county, municipal and other income, excise, property and other
tax returns required to have been filed by Guarantor.
Guarantor has paid all taxes that have become due pursuant to
those returns or pursuant to any assessments received by
Guarantor, and Guarantor has no knowledge of any
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basis for any material additional assessment against Guarantor
with respect to those taxes.
Guarantor's representations and warranties in this Guaranty and in any other
agreement between Guarantor and Credit Agent or any Lender will survive the
execution, delivery and performance of this Guaranty and the creation and
payment of the Guaranteed Debt.
17) Subordination of Borrower Debt. All indebtedness of Borrowers (or any of
them) to Guarantor ("Subordinated Debt") is subordinated to the Guaranteed Debt.
Upon Credit Agent's request, Guarantor must collect, enforce and receive
payments on the Subordinated Debt as trustee for Credit Agent and Lenders, and
pay over those amounts to Credit Agent on account of the Guaranteed Debt. The
collection and payment of those amounts to Credit Agent does not reduce or limit
Guarantor's liability under any other provision of this Guaranty.
18) Governing Law. This Guaranty is governed by the laws of the State of
Minnesota, without reference to its principles of conflicts of laws.
19) Severability. Any provision of this Guaranty declared to be illegal or
unenforceable in any respect is null and void and of no force and effect to the
extent of the illegality or unenforceability, but all other covenants, terms,
conditions and provisions of this Guaranty continue to be valid and enforceable.
20) Successors and Assigns. The terms and provisions of this Guaranty are
binding upon and inure to the benefit of Credit Agent, Guarantor and their
respective heirs, executors, administrators, personal representatives,
successors and assigns.
21) Waivers and Amendments. This Guaranty may not be amended, modified or
supplemented unless the amendment, modification or supplement is set forth in a
writing signed by both Guarantor and Credit Agent. No waiver of any provision of
this Guaranty nor consent to any departure by Guarantor from the terms of this
Guaranty will be effective unless the same is in writing and signed by Credit
Agent, and then that waiver or consent is effective only in the specific
instance and for the specific purpose for which given. No notice to or demand on
Guarantor shall in any case entitle Guarantor to any other or further notice or
demand in similar or other circumstances.
22) Notices. All notices and communications required or permitted to be given or
made under this Guaranty must be in writing and must be sent by manual delivery,
overnight courier or United States registered or certified mail, return receipt
requested (postage prepaid, including registration or certification charges),
addressed as follows (or at such other address as may be designated by Guarantor
or Credit Agent in a notice to the other):
If to Guarantor:
American Home Mortgage Investment, Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Credit Agent:
Residential Funding Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Director
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All periods of notice will be measured from the date of delivery if manually
delivered, from the first Business Day after the date of sending if sent by
overnight courier or from 4 days after the date of mailing if sent by United
States mail, except that notices of changes of address are not effective until
actually received.
23) Entire Agreement. This Guaranty represents the final agreement of guaranty
between Guarantor and Credit Agent and Lenders. This Guaranty may not be
contradicted by evidence of prior or contemporaneous oral agreements, and there
are no oral agreements between Guarantor and Credit Agent or any Lender with
respect to the subject matter of this Guaranty. No course of prior dealings
between Guarantor and Credit Agent or any Lender, no usage of trade and no
parole or extrinsic evidence of any nature may be used to contradict or modify
the terms and provisions of this Guaranty.
24) Consent to Jurisdiction. AT CREDIT AGENT'S OPTION, THIS GUARANTY MAY BE
ENFORCED IN ANY STATE OR FEDERAL COURT WITHIN THE STATE OF MINNESOTA. GUARANTOR
CONSENTS TO THE JURISDICTION AND VENUE OF THOSE COURTS, AND WAIVES ANY OBJECTION
TO THE JURISDICTION OR VENUE OF THOSE COURTS, INCLUDING THE OBJECTION THAT VENUE
IN THOSE COURTS IS NOT CONVENIENT. ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE
COMMENCED AND INSTITUTED BY SERVICE OF PROCESS UPON GUARANTOR BY FIRST CLASS
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO GUARANTOR
AT ITS ADDRESS LAST KNOWN TO CREDIT AGENT. GUARANTOR'S CONSENT AND AGREEMENT
UNDER THIS SECTION DOES NOT AFFECT CREDIT AGENT'S RIGHT TO ACCOMPLISH SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST GUARANTOR IN ANY OTHER JURISDICTION OR COURT. IN THE
EVENT GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY
TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP
CREATED BY THIS GUARANTY, CREDIT AGENT AT ITS OPTION MAY HAVE THE CASE
TRANSFERRED TO A STATE OR FEDERAL COURT WITHIN THE STATE OF MINNESOTA OR, IF A
TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, MAY HAVE GUARANTOR'S
ACTION DISMISSED WITHOUT PREJUDICE.
25) Waiver of Jury Trial. GUARANTOR AND CREDIT AGENT EACH AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND FULLY WAIVES ANY
RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT NOW EXISTS OR ARISES
AFTER THE DATE OF THIS GUARANTY. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY GUARANTOR AND CREDIT AGENT, AND
IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE FOR WHICH THE RIGHT TO
TRIAL BY JURY WOULD OTHERWISE APPLY. CREDIT AGENT OR ANY LENDER IS AUTHORIZED
AND DIRECTED TO SUBMIT THIS GUARANTY TO ANY COURT HAVING JURISDICTION OVER THE
SUBJECT MATTER AND THE PARTIES TO THIS AGREEMENT AS CONCLUSIVE EVIDENCE OF THIS
WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, GUARANTOR CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF CREDIT AGENT OR ANY LENDER, INCLUDING CREDIT AGENT'S
OR ANY LENDER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY OF
GUARANTOR'S REPRESENTATIVES OR AGENTS, INCLUDING GUARANTOR'S COUNSEL, THAT
CREDIT AGENT OR ANY LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
TRIAL BY JURY.
26) Waiver of Punitive, Consequential, Special or Indirect Damages. GUARANTOR
WAIVES ANY RIGHT GUARANTOR MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL OR
INDIRECT DAMAGES FROM CREDIT AGENT, ANY LENDER AND ANY OF CREDIT AGENT'S OR ANY
LENDER'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WITH RESPECT TO
ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY GUARANTOR AGAINST CREDIT AGENT, ANY LENDER OR ANY OF CREDIT AGENT'S
OR ANY LENDER'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS
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WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY.
THIS WAIVER OF THE RIGHT TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL OR INDIRECT
DAMAGES IS KNOWINGLY AND VOLUNTARILY GIVEN BY GUARANTOR, AND IS INTENDED TO
ENCOMPASS EACH INSTANCE AND EACH ISSUE FOR WHICH THE RIGHT TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES WOULD OTHERWISE APPLY. CREDIT AGENT
AND LENDERS ARE AUTHORIZED AND DIRECTED TO SUBMIT THIS GUARANTY TO ANY COURT
HAVING JURISDICTION OVER THE SUBJECT MATTER AS CONCLUSIVE EVIDENCE OF THIS
WAIVER OF THE RIGHT TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL OR INDIRECT
DAMAGES.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty with the intent to be
legally bound as of the date first above written.
American Home Mortgage Investment Corp.,
a Maryland corporation
By: /s/ Xxxxxxx Xxxxxxx
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Its: Xxxxxxx Xxxxxxx, President
and Chief Executive Officer
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Address: 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
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E.I. No.: 00-0000000
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