EXHIBIT 10.30
PARENT GUARANTEE
GUARANTEE, dated as of August 2, 2002, made by AMERICAN HOME
MORTGAGE HOLDINGS, INC. (the "Guarantor"), in favor of XXXXXX XXXXXXX BANK (the
"Lender"), parties to the Loan Agreement referred to below.
RECITALS
Pursuant to the Master Loan and Security Agreement, dated as of
August 2, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Loan Agreement"), among American Home Mortgage Corp. (the "Borrower")
and the Lender, the Lender has agreed to make loans to the Borrower upon the
terms and subject to the conditions set forth therein, such loans to be
evidenced by the Notes issued by the Borrower thereunder. The Guarantor owns
directly or indirectly all of the issued and outstanding stock of the Borrower.
It is a condition precedent to the obligation of the Lender to make loans to the
Borrower under the Loan Agreement that the Guarantor shall have executed and
delivered this Guarantee to the Lender.
NOW, THEREFORE, in consideration of the premises and to induce the
Lender to enter into the Loan Agreement and to induce the Lender to make loans
to the Borrower under the Loan Agreement, the Guarantor hereby agrees with the
Lender as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Loan
Agreement and used herein shall have the meanings given to them in the Loan
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 to the Lender and its successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of the Secured
Obligations.
(b) 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 the Lender in enforcing, or obtaining advice of counsel
in respect of, any rights with respect to, or collecting, any or all of the
Secured 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 paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto the Borrower
may be free from any Secured Obligations.
(c) The Guarantor agrees that the Secured Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights and remedies
of any Lender hereunder.
(d) No payment or payments made by the Borrower, the Guarantor, any
other guarantor or any other Person or received or collected by the Lender from
the Borrower, 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 Secured
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
Secured Obligations or payments received or collected from the Guarantor in
respect of the Secured Obligations, remain liable for the Secured Obligations up
to the maximum liability of the Guarantor hereunder until the Secured
Obligations are paid in full.
(e) The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in writing that such payment is made under
this Guarantee for such purpose.
3. Right of Set-off. Upon the occurrence of any Event of Default,
the Guarantor hereby irrevocably authorizes the Lender 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 the Lender to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Lender may elect, against
and on account of the obligations and liabilities of the Guarantor to the Lender
hereunder and claims of every nature and description of the Lender against the
Guarantor, in any currency, whether arising hereunder, under the Loan Agreement,
any Note, any Loan Documents or otherwise, as the Lender may elect, whether or
not the Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Lender shall notify
the Guarantor promptly of any such set-off and the application made by the
Lender; provided, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Lender 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 the Lender, the Guarantor shall not be entitled to be subrogated to any of
the rights of the Lender against the Borrower or any other guarantor or any
collateral security or guarantee or right of offset held by the Lender for the
payment of the Secured Obligations, nor shall the Guarantor seek or be entitled
to seek any contribution or reimbursement from the Borrower or any other
guarantor in respect of payments made by the Guarantor hereunder, until all
amounts owing to Lender by the Borrower on account of the Secured Obligations
are paid in full. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when all of the Secured Obligations shall
not have been paid in full, such amount shall be held by the Guarantor in trust
for the Lender, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Lender in the
exact form received by the Guarantor (duly indorsed by the Guarantor to the
Lender, if required), to be applied against the Secured Obligations, whether
matured or unmatured, in such order as the Lender may determine.
5. Amendments, etc. with respect to the Secured 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 payment of any of the Secured
Obligations made by the Lender may be rescinded by such party and any of the
Secured Obligations continued, and the Secured 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 the Lender, and the Loan
Agreement, the Notes and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Lender may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Lender for the payment of the Secured Obligations
may be sold, exchanged, waived, surrendered or released. The Lender shall not
have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Secured Obligations or for this Guarantee or any
property subject thereto. When making any demand hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, make a similar
demand on the Borrower or any other guarantor, and any failure by the Lender to
make any such demand or to collect any payments from the Borrower or any such
other guarantor or any release of the Borrower 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 the Lender 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
Secured Obligations and notice of or proof of reliance by the Lender upon this
Guarantee or acceptance of this Guarantee, the Secured Obligations, and any of
them, 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 Borrower and the Guarantor, on the one hand, and the
Lender, 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 Borrower or the Guarantor with respect to the Secured
Obligations. The Guarantor understands and agrees that this Guarantee shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of the Loan
Agreement, any Note or any other Loan Document, any of the Secured 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 the Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment of
performance) which may at any time be available to or be asserted by the
Borrower against the Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Secured 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, the Lender may, but shall be under
no obligation to, pursue such rights and remedies as it may have against the
Borrower or any other Person or against any collateral security or guarantee for
the Secured Obligations or any right of offset with respect thereto, and any
failure by the Lender to pursue such other rights or remedies or to collect any
payments from the Borrower 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 Borrower 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 the Lender 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 Lender,
and its respective successors, indorsees, transferees and assigns, until all the
Secured Obligations and the obligations of the Guarantor under this Guarantee
shall have been satisfied by payment in full.
7. Reinstatement. This Guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Secured Obligations is rescinded or must otherwise be restored or
returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower 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 Borrower or the Guarantor or any substantial part of
its 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 the Lender without set-off or counterclaim in U.S. Dollars at
the office of the Lender specified in of the Loan 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 jurisdiction of its organization 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
the other Loan Documents to which is a party, and has taken all necessary
corporate action to authorize its execution, delivery and performance of this
Guarantee and the other Loan Documents to which is a party;
(c) this Guarantee and each of the other Loan Documents to which the
Guarantor is a party 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) the execution, delivery and performance of this Guarantee and
the other Loan Documents to which the Guarantor is a party will not violate any
provision of any Requirement of Law or Contractual Obligation of the Guarantor
and will not result in or require the creation or imposition of any Lien on any
of the properties or revenues of the Guarantor pursuant to any Requirement of
Law or Contractual Obligation of the Guarantor (other than Liens created by the
Security Documents in favor of the Lender);
(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 or the other Loan Documents to which the
Guarantor is a party;
(f) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor or against any of its
properties or revenues (i) with respect to this Guarantee or any other Loan
Document to which the Guarantor is a party or any of the transactions
contemplated hereby or thereby, or (ii) which could have a material adverse
effect on the business, operations, property or financial or other condition of
the Guarantor;
(g) it has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its real property, and good 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(i) hereof and as are permitted by
Section 7.11 of the Loan Agreement;
(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 the amount or validity of
which are 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;
(i) The consolidated balance sheets of the Guarantor and its
consolidated Subsidiaries as at December 31, 1999 and the related consolidated
statements of income and of cash flows for the fiscal years ended on each such
date, reported on by Deloitte & Touche, copies of which have heretofore been
furnished to the Lender are complete and correct and present fairly the
financial condition of the Guarantor as at such dates, and the results of its
operations and its cash flow for the fiscal years then ended. 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 December 31, 2001, to and including the date
hereof there has been no sale, transfer or other disposition by the Guarantor of
any material party 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
at December 31, 2001.
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Guarantor on the date of
each borrowing by the Borrower under the Loan Agreement on and as of such date
of borrowing as though made hereunder on and as of such date.
10. Notices. All notices, requests and demands to or upon the Lender
or the Guarantor to be effective 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 the Lender, at its address or transmission number for
notices provided in of the Loan Agreement; and
(b) if to the Guarantor, at its address or transmission number for
notices set forth under its signature below.
Each of the Lender 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 and there are no promises or
representations by the Lender relative to the subject matter hereof not
reflected herein.
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 and the Lender, provided that any provision of this
Guarantee may be waived by the Lender in a letter or agreement executed by the
Lender or by telex or facsimile transmission from the Lender.
(b) The Lender shall not by any act (except by a written instrument
pursuant to section 13(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Lender, 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 the Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Lender would otherwise have on any future occasion.
(c) 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 the
Lender and its successors and assigns.
16. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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 other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the 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 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 the Guarantor at
its address set forth under its signature below or at such other address of
which the Lender shall have been notified pursuant hereto;
(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; and
(e) 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 and the other Loan Documents to which it is a party;
(b) The Lender has no fiduciary relationship with or duty to the
Guarantor arising out of or in connection with this Guarantee or any of the
other Loan Documents to which it is a party, and the relationship between the
Guarantor, the Borrower and the other Loan Parties, on one hand, and the Lender,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lender or among the Guarantor, the Borrower, any of the other Loan
Parties and the Lender.
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 LOAN DOCUMENT 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 Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Controller
Address for Notices:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
[Parent Guarantee Signature Page]
