EXHIBIT 10.3.3
AMENDED AND RESTATED SERVICER PERFORMANCE GUARANTY
This Amended and Restated Servicer Performance Guaranty (the "Guaranty"),
dated as of December 10, 2004, is executed by American Home Mortgage Holdings,
Inc., a Delaware corporation, and American Home Mortgage Investment Corp., a
Maryland corporation (each, a "Performance Guarantor" and together, the
"Performance Guarantors"), in favor of Calyon New York Branch, as administrative
agent for the Lenders party to the Loan Agreement referred to below (the
"Administrative Agent") and the Lenders.
WHEREAS, American Home Mortgage Corp., a New York corporation, and
American Home Mortgage Servicing, Inc. (formerly known as Columbia National,
Incorporated), a Maryland corporation (collectively, the "Originators") have
entered into an Addendum to Master Repurchase Agreement with AHM SPV I, LLC, a
Delaware limited liability company ("SPV"), dated as of August 8, 2003 (the
"Repurchase Agreement "), pursuant to which the Originators, subject to the
terms and conditions therein, have agreed to sell certain Mortgage Assets to
SPV, subject to the right and obligation of the Originators to repurchase such
Mortgage Assets.
WHEREAS, SPV has entered into a Loan Agreement dated as of August 8, 2003
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement") by and among SPV, the Issuers party thereto,
certain Banks parties thereto, the Administrative Agent and American Home
Mortgage Corp., a New York corporation, as the servicer thereunder (in such
capacity, the "Servicer"), pursuant to which (x) the Lenders, subject to the
terms and conditions contained therein, have agreed to make certain revolving
loans to SPV and (y) Servicer, pursuant to the terms and conditions contained
therein, has agreed to perform the duties and obligations as "Servicer"
thereunder either directly or through an Affiliate of the Servicer;
WHEREAS, as an inducement for the Lenders to make revolving loans to SPV
pursuant to the Loan Agreement, which in turn will enable SPV to purchase the
Mortgage Assets from the Servicer, the Performance Guarantors have agreed to
guaranty the due and punctual performance of the Servicer as "Servicer" either
directly or through an Affiliate of the Servicer under the Loan Agreement;
WHEREAS, it is a condition precedent to the Lenders agreeing to make
revolving loans pursuant to the Loan Agreement that the Performance Guarantors
execute and deliver to the Administrative Agent a performance guaranty
substantially in the form hereof; and
WHEREAS, the Performance Guarantors wish to guaranty the due and punctual
performance of the Servicer's obligations as "Servicer" to the Administrative
Agent and the Lenders under or in respect of the Loan Agreement as provided
herein, and the Performance Guarantors, as the owners, directly or indirectly,
of all of the outstanding shares of capital stock of the Servicer, will derive
substantial benefit from the transactions contemplated under the Loan Agreement;
NOW, THEREFORE, each of the Performance Guarantors hereby agrees with the
Administrative Agent and the Lenders as follows:
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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 Servicer
solely in its capacity as "Servicer" under and pursuant to the Loan
Agreement and each other document executed and delivered by the Servicer
as "Servicer" pursuant to the Loan Agreement, including, without
limitation, the due and punctual payment of all sums which are or may
become due and owing by the Servicer as "Servicer" under the Loan
Agreement, whether for the deposit of collections received by it or for
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.
"AHM Entities" means, collectively, the Performance Guarantors, the
Servicer, the Originators, and the SPV.
All capitalized terms used herein, and not otherwise herein defined shall
have their respective meanings as defined in the Loan Agreement.
Section 2. Guaranty of Performance of Obligations. Each of the Performance
Guarantors, jointly and severally, hereby unconditionally guarantees to the
Administrative Agent and the Lenders, the full and punctual payment and
performance by the Servicer 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 the Administrative Agent or the Lenders
first take any action against the Servicer with respect to the Obligations or
attempt to collect any of the amounts owing by the Servicer to the Lenders from
the Servicer or resort to any collateral security, any balance of any deposit
account or credit on the books of any Lenders in favor of the Servicer, any
guarantor of the Obligations or any other Person. Should the Servicer default in
the payment or performance of any of the Obligations, the Administrative Agent
or the Majority Banks may cause the immediate performance by each of the
Performance Guarantors of the Obligations and cause any payment Obligations to
become forthwith due and payable to the Administrative Agent and the Lenders,
without demand or notice of any nature (other than as expressly provided
herein), all of which are expressly waived by each of the Performance
Guarantors.
Each of the Performance Guarantor's liability under this Guaranty shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of 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 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
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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 the Administrative Agent or any
of the Lenders, (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 Servicer, (vi) any change, restructuring or termination of the
corporate structure or existence of the Servicer, or (vii) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Servicer or a guarantor. In the event that performance of any
of the Obligations is stayed upon the insolvency, bankruptcy or reorganization
of the Servicer, or for any other reason, all such Obligations shall be
immediately performed by the Performance Guarantors.
Section 3. Performance Guarantors' Further Agreements to Pay. Each of the
Performance Guarantors further agrees, jointly and severally, in the event the
Performance Guarantors fail to perform their obligations under this Guaranty, to
pay to the Administrative Agent and the Lenders, forthwith upon demand all
reasonable costs and expenses (including court costs and legal expenses)
incurred or expended by the Administrative Agent and the Lenders in connection
with the enforcement of this Guaranty.
Section 4. Waivers by Performance Guarantors; Administrative Agent's and
Lenders' Freedom to Act. Each of the Performance Guarantors waives notice of (a)
acceptance of this Guaranty, (b) any action taken or omitted by the
Administrative Agent or any Lender in reliance on this Guaranty, and (c) any
requirement that the Administrative Agent or the Lenders be diligent or prompt
in making demands under this Guaranty, giving notice of any Default, Event of
Default or Servicer Default, default or omission by the Servicer or asserting
any other rights of the Administrative Agent or any Lender under this Guaranty.
To the maximum extent permitted by applicable law, each of the Performance
Guarantors 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.
The Administrative Agent shall be at liberty, upon its own initiative or
at the request of the Majority Banks, without giving notice to or obtaining the
assent of the Performance Guarantors and without relieving either of the
Performance Guarantors of any liability under this Guaranty, to deal with the
Servicer 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 the
Administrative Agent in its sole discretion deems fit or the Majority Banks in
their sole discretion deem fit, and to this end each of the Performance
Guarantors 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, Servicer Default or
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
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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 Servicer, any part thereof or amounts which are not covered by this Guaranty
even though the Administrative Agent or the Lenders might lawfully have elected
to apply such payments to any part or all of the payment Obligations of the
Servicer or to amounts which are not covered by this Guaranty; (g) the existence
of any claim, setoff or other rights which either of the Performance Guarantors
may have at any time against the Servicer 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 Servicer to perform or
comply with any term of the Loan Agreement or any other document executed in
connection therewith or delivered thereunder, all whether or not the Performance
Guarantors 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 Servicer.
Notwithstanding (a) any change of ownership of the Servicer or the insolvency,
bankruptcy or any other change in the legal status of the Servicer; (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
the Servicer or either of the Performance Guarantors 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 the Servicer 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 each of the Performance Guarantors. 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. Each of the Performance Guarantors 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. Each of the Performance Guarantors
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 each of the Performance Guarantors
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 each of the Performance Guarantors, enforceable against
such 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).
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Section 6.3. No Conflict; Government Consent. Neither the execution and
delivery by either of the Performance Guarantors 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 such Performance
Guarantor or any of the other AHM Entities, except where such contravention or
conflict would not reasonably be expected to have a Material Adverse Effect, or
such Performance Guarantor's certificate of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which such 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 such 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 American Home Mortgage Investment Corp. and its Subsidiaries, heretofore
delivered to the Lenders 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 American Home Mortgage Investment Corp. 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 September 30, 2004, there has
been no change in the business, properties, financial condition or results of
operations of either of the Performance Guarantors 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 such Performance
Guarantor and the other AHM Entities taken as a whole, (ii) the ability of such
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 the Administrative Agent or the Lenders hereunder.
Section 6.6. Taxes. Each of the Performance Guarantors 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
either of the Performance Guarantors 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
Guarantors and the other AHM Entities taken as a whole, (ii) the ability of
either of the Performance Guarantors 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 the Administrative Agent or the Lenders
hereunder, and no claims are being asserted in writing with respect to any such
taxes. The charges, accruals and reserves on the books of each of the
Performance Guarantors and the other AHM Entities in respect of any taxes or
other governmental charges are adequate.
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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 either 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 such Performance Guarantor and
the other AHM Entities taken as a whole, (ii) the ability of such 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
the Administrative Agent or the Lenders hereunder. Neither of the Performance
Guarantors have any material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 6.4.
Section 7. Covenants. Each of the Performance Guarantors hereby covenants
and agrees, jointly and severally, for the benefit of the Administrative Agent
and the Lenders, until the Obligations have been satisfied in full and the Loan
Agreement has been terminated, as follows:
(a) to promptly notify SPV upon (i) any dispute between such 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 such 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 such
Performance Guarantor in excess of $10,000,000;
(b) to pay and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or upon any of its Property
as well as all claims of any kind (including claims for labor, materials,
supplies and rent) that, if unpaid, might become a Lien upon any or all of its
Property; provided, however, such Performance Guarantor shall not be required to
pay any such tax, assessment, charge, levy or claim if the amount, applicability
or validity thereof shall currently be contested in good faith by appropriate
proceedings diligently conducted by it or on its behalf and if it shall have set
up reserves therefor adequate under GAAP;
(c) to maintain its corporate existence, rights and franchises; and
(d) to 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 such Performance Guarantor, and
within 120 days after the close of such Performance Guarantor's fiscal year,
completed officer's certificates in the forms of Exhibit H-3 and Exhibit H-4,
respectively, attached to the Loan Agreement, executed by the treasurer or other
Financial Officer of such Performance Guarantor.
Section 8. Subrogation; Subordination. Each of the Performance Guarantors
shall not enforce or otherwise exercise any right of subrogation to any of the
rights of the
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Administrative Agent or the Lenders against the Servicer, 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,
each of the Performance Guarantors 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 the Administrative Agent or any
Lender against the Servicer 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
such Performance Guarantor might now have or hereafter acquire against the
Servicer that arises from the existence or performance of the Servicer'
obligations hereunder; until the Obligations have been indefeasibly paid in
full, neither Performance Guarantor will claim any setoff, recoupment or
counterclaim against the Servicer in respect of any liability of such
Performance Guarantor to the Servicer; and such Performance Guarantor waives any
benefit of and any right to participate in any collateral security which may be
held by the Administrative Agent or any Lender. Unless otherwise provided for in
the Subordination Agreement, the payment of any amounts due with respect to any
indebtedness for borrowed money of the Servicer now or thereafter owed to either
of the Performance Guarantors is hereby subordinated to the prior payment in
full of all of the Obligations. Each of the Performance Guarantors agrees that,
after the occurrence, and during the continuation, of any default in the payment
or performance of any of the Obligations, such Performance Guarantor will not
demand, xxx for or otherwise attempt to collect any such indebtedness of the
Servicer to such Performance Guarantor until all of the Obligations shall have
been paid and performed in full. If, notwithstanding the foregoing sentence,
either of the Performance Guarantors 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 such Performance Guarantor as trustee for the Lenders and be paid
over to the Administrative Agent on account of the Obligations without affecting
in any manner the liability of such 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 the
Administrative Agent and the Lenders under any separate subordination agreement
which the Administrative Agent and the Lenders may at any time and from time to
time enter into with either of the Performance Guarantors.
Section 9. Termination of Guaranty. Each of 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 Loan Agreement is
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 the
Servicer, or otherwise, as though such payment had not been made or other
satisfaction occurred, whether or not the Administrative Agent 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 each of the Performance Guarantors under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive the
insolvency of the Servicer and the commencement of any case or proceeding by or
against the Servicer under the
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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 the Servicer is subject shall
postpone the obligations of the Performance Guarantors under this Guaranty.
Section 11. Setoff. Regardless of the other means of obtaining payment of
any of the Obligations, each of the Administrative Agent and the Lenders is
hereby authorized at any time and from time to time during the existence of a
Servicer Default, without notice to the Performance Guarantors (any such notice
being expressly waived by the Performance Guarantors) and to the fullest extent
permitted by law, to set off and apply such deposits and other sums against the
obligations of each of the Performance Guarantors under this Guaranty, whether
or not the Administrative Agent and the Lenders shall have made any demand under
this Guaranty and although such obligations may be contingent or unmatured.
Section 12. Taxes. All payments to be made by each of the Performance
Guarantors hereunder shall be made free and clear of any deduction or
withholding. If either of the Performance Guarantors 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, the Administrative Agent and the Lenders receive a net sum equal to
the sum which they would have received had no deduction or withholding been
made.
Section 13. Further Assurances. Each of the Performance Guarantors agrees
that it will permit the Administrative Agent and the Lenders or any of their
duly authorized representatives, during normal business hours, and upon
reasonable notice to consult and discuss with such Performance Guarantor's
Treasurer or Controller, with respect to such Performance Guarantor's business,
finances, accounts and affairs. Each of the Performance Guarantor agrees that it
will, from time to time, at the request of the Administrative Agent and the
Lenders, provide to the Administrative Agent and the Lenders information
relating to the business and affairs of such Performance Guarantor as the
Administrative Agent and the Lenders may reasonably request. Each of the
Performance Guarantors also agrees to do all such things and execute all such
documents as the Administrative Agent and the Lenders may reasonably consider
necessary or desirable to give full effect to this Guaranty and to perfect and
preserve the rights and powers of the Administrative Agent and the Lenders
hereunder.
Section 14. Successors and Assigns. This Guaranty shall be binding upon
each of the Performance Guarantors, its successors and assigns, and shall inure
to the benefit of and be enforceable by the Administrative Agent and the Lenders
and their successors, transferees and assigns. Neither of the Performance
Guarantors may assign or transfer any of its obligations hereunder without the
prior written consent of each of the Lenders and any attempted assignment shall
be null and void.
Section 15. Amendments and Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by either of the
Performance Guarantors therefrom shall be effective unless the same shall be in
writing and signed by the Administrative Agent and the Performance Guarantors.
No failure on the part of the Administrative Agent or any Lender to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor
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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 Guarantors, at the address set forth beneath
their respective signatures hereto, and if to the Administrative Agent and the
Lenders at its address specified in the Loan 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. EACH OF THE PERFORMANCE GUARANTORS
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 LOAN
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED
THEREUNDER AND EACH OF THE PERFORMANCE GUARANTORS 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 THE ADMINISTRATIVE AGENT, ANY MANAGING AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST EITHER OF THE PERFORMANCE GUARANTORS IN THE COURTS OF ANY
OTHER JURISDICTION.
Section 19. Miscellaneous. This Guaranty constitutes the entire agreement
of the Performance Guarantors 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 either of the Performance Guarantors
hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of such 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 such Performance Guarantor, the Administrative Agent or any Lender, be
automatically limited and reduced to the
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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.
[Signatures Follow]
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IN WITNESS WHEREOF, the Performance Guarantors have caused this Guaranty
to be executed and delivered as of the date first above written.
AMERICAN HOME MORTGAGE HOLDINGS,
INC.
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
and General Counsel
Address: 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
AMERICAN HOME MORTGAGE INVESTMENT
CORP.
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
and General Counsel
Address: 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
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