Exhibit 10.17.4
SERVICER PERFORMANCE GUARANTY
This Servicer Performance Guaranty (the "Guaranty"), dated as of August 8, 2003,
is executed by American Home Mortgage Holdings, Inc., a Delaware corporation
(the "Performance Guarantor") in favor of Credit Lyonnais 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 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 Issuer parties 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;
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 Guarantor has agreed to
guaranty the due and punctual performance of the Servicer as "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 Guarantor execute and
deliver to the Administrative Agent a performance guaranty substantially in the
form hereof; and
WHEREAS, the Performance Guarantor wishes 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 Guarantor, as the owner, 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, the Performance Guarantor hereby agrees with the Administrative
Agent and the Lenders as follows:
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 Guarantor, 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. The Performance
Guarantor 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 the Performance
Guarantor 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 the Performance Guarantor.
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 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 Guarantor.
Section 3. Performance Guarantor's Further Agreements to Pay. The
Performance Guarantor further agrees, in the event the Performance Guarantor
fails to perform its 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 Guarantor; Administrative Agent's and
Lenders' Freedom to Act. The Performance Guarantor 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, the Performance Guarantor
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 Guarantor and without relieving the Performance Guarantor 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 the Performance Guarantor 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 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 the Performance Guarantor 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 Guarantor 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 the Performance Guarantor 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 the Performance Guarantor. 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. The Performance Guarantor 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. The Performance Guarantor 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 the Performance Guarantor 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 the Performance
Guarantor enforceable against the 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).
Section 6.3. No Conflict; Government Consent. Neither the execution and
delivery by the Performance Guarantor 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 the 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
the Performance Guarantor's certificate of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the 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 the 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 the Performance Guarantor 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 the Performance Guarantor 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 March 31, 2003, there has been
no change in the business, properties, financial condition or results of
operations of the Performance Guarantor 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 the Performance Guarantor and
the other AHM Entities taken as a whole, (ii) the ability of the 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. The Performance Guarantor 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 the
Performance Guarantor 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 Guarantor and the other AHM Entities
taken as a whole, (ii) the ability of the 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, and no claims are being asserted in writing with
respect to any such taxes. The charges, accruals and reserves on the books of
the Performance Guarantor and the other AHM Entities in respect of any taxes or
other governmental charges are adequate.
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 the 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 the Performance Guarantor and
the other AHM Entities taken as a whole, (ii) the ability of the 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. The Performance Guarantor has
no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 6.4.
Section 7. Covenants. The Performance Guarantor hereby covenants and
agrees 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 the 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 the 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 the
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, the 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 the Performance Guarantor, and
within 120 days after the close of the Performance Guarantor's fiscal year,
completed officer's certificates in the form of Exhibit H-3 attached to the Loan
Agreement, executed by the treasurer or other Financial Officer of the
Performance Guarantor.
Section 8. Subrogation; Subordination. The Performance Guarantor shall not
enforce or otherwise exercise any right of subrogation to any of the rights of
the 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, the Performance Guarantor 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 the
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, the
Performance Guarantor will not claim any setoff, recoupment or counterclaim
against the Servicer in respect of any
liability of the Performance Guarantor to the Servicer; and the 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 the Performance Guarantor is hereby subordinated to
the prior payment in full of all of the Obligations. The Performance Guarantor
agrees that, after the occurrence, and during the continuation, of any default
in the payment or performance of any of the Obligations, the Performance
Guarantor will not demand, xxx for or otherwise attempt to collect any such
indebtedness of the Servicer to the Performance Guarantor until all of the
Obligations shall have been paid and performed in full. If, notwithstanding the
foregoing sentence, the Performance Guarantor 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 the 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 the 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 the Performance Guarantor.
Section 9. Termination of Guaranty. 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 the Performance Guarantor 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 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 Guarantor
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 Guarantor (any such notice
being expressly waived by the Performance Guarantor) and to the fullest extent
permitted by law, to set off and apply such deposits and other sums against the
obligations of the Performance Guarantor 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 the Performance Guarantor
hereunder shall be made free and clear of any deduction or withholding. If the
Performance Guarantor 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. The Performance Guarantor 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 the Performance Guarantor's Treasurer or
Controller, with respect to the Performance Guarantor's business, finances,
accounts and affairs. 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 the Performance Guarantor as the Administrative Agent and the
Lenders may reasonably request. The Performance Guarantor 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
the Performance Guarantor, 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. The Performance Guarantor may not
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 the Performance
Guarantor therefrom shall be effective unless the same shall be in writing and
signed by the Administrative Agent and the Performance Guarantor. 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 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 Guarantor, at the address set forth beneath
its signature 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. THE PERFORMANCE GUARANTOR 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
THE PERFORMANCE GUARANTOR 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 THE PERFORMANCE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 19. Miscellaneous. This Guaranty constitutes the entire agreement
of the Performance Guarantor 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 the Performance Guarantor hereunder
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of the 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 the
Performance Guarantor, the Administrative Agent or any Lender, be automatically
limited and reduced to the 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]
IN WITNESS WHEREOF, the Performance Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
AMERICAN HOME MORTGAGE HOLDINGS,
INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
