EXHIBIT 10.18.3
GUARANTY
This GUARANTY, dated as of March 10, 2006, is made by AMERICAN HOME
MORTGAGE INVESTMENT CORP., a corporation organized under the laws of the State
of Maryland ("Guarantor"), in favor of Barclays Bank PLC (the "Buyer").
As an inducement and in consideration for Buyer to enter into that certain
letter agreement, dated as of March 10, 2006 (the "Letter Agreement") by and
among American Home Mortgage Acceptance, Inc. ("Seller") and Buyer, to the
Master Repurchase Agreement, dated as of March 10, 2006, as amended from time to
time (the "Master Repurchase Agreement"; the Master Repurchase Agreement and the
Letter Agreement, collectively, the "Agreement"; capitalized terms used herein
but not defined herein shall have the meanings given in the Agreement) between
Buyer and the Seller, a wholly-owned subsidiary of the Guarantor, the Guarantor
hereby unconditionally and irrevocably guarantees the punctual payment and
performance when due, whether at stated maturity, by acceleration or otherwise,
of all obligations of the Seller now or hereafter existing under the Agreement
with respect to any and all Transactions for the Mortgage Loans (such
obligations being the "Obligations"), and agrees to pay any and all expenses
incurred by Buyer in enforcing any rights under this Guaranty. This Guaranty is
a guaranty of payment and not of collection. Buyer shall not be required to
exhaust any right to remedy or take any action against Seller, any guarantor,
any other person, any collateral or any credit support.
The Guarantor guarantees that the Obligations will be paid or performed
strictly in accordance with their terms. The liability of the Guarantor under
this Guaranty shall be absolute and unconditional irrespective of any defense
whatsoever available to Seller or the Guarantor, including, but not limited to,
the following: (a) any lack of validity or enforceability or any Obligation or
any agreement or instrument related thereto; (b) any change in the time, manner
or place of payment or performance of, or in any term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to the departure
from any Obligation or any agreement or instrument related thereto; (c) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Obligations; or (d) any law, regulation or order of any
jurisdiction affecting or purporting to affect any terms of any Obligation or of
any agreement or instrument relating thereto or any of Buyer's rights with
respect thereto (including, without limitation, any stay imposed by the Federal
bankruptcy laws).
This Guaranty is a continuing guaranty and shall remain in full force and
effect until the Obligations have been paid in full.
The Guarantor hereby waives promptness, diligence, notice of acceptance,
creation, renewal, extension and any other notice with respect to any of the
Obligations or this Guaranty. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if any payment of any of the Obligations is
rescinded or must otherwise be returned by Buyer upon the insolvency, bankruptcy
or reorganization of Seller or otherwise, all as though such payment had not
been made.
The Guarantor hereby expressly waives all set offs and counterclaims and
all presentments, demands for payment, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor of this
Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller
or the Guarantor, surrender or other handling or disposition of assets subject
to the Master Repurchase Agreement, any requirement that Buyer exhaust any
right, power or remedy or take any action against the Seller or against any
assets subject to the Master Repurchase Agreement, and other formalities of any
kind.
Upon the occurrence of any Event of Default, the Guarantor hereby
irrevocably authorizes the Buyer 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 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 Buyer to or for the credit or the account of the Guarantor, or any
part thereof in such amounts as the Buyer may elect, against and on account of
the obligations and liabilities of the Guarantor to the Buyer hereunder, in any
currency, whether arising hereunder, under the Master Repurchase Agreement, or
other Program Document, as the Buyer may elect, whether or not the Buyer has
made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The Buyer shall notify the Guarantor
promptly of any such set off and the application made by the Buyer, provided
that the failure to give such notice shall not affect the validity of such set
off and application. The rights of the Buyer under this Section are in addition
to other rights and remedies (including, without limitation, other rights of set
off) which the Buyer may have herein.
The Guarantor will not exercise any rights which it may acquire by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until 91 days following the date which all the Obligations shall have been paid
in full. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all the Obligations shall not have been paid
in full, such amount shall be held in trust for the benefit of Buyer and shall
forthwith be paid to Buyer to be applied to the Obligations, whether matured or
unmatured, in accordance with the terms of such Obligations and any related
agreement or instrument.
Any and all payments made by the Guarantor hereunder shall be made free
and clear of and without deduction from any and all present and future taxes,
levies, deductions, charges or withholdings and all liabilities with respect
thereof, excluding taxes imposed on Buyer's income and franchise taxes imposed
on Buyer by the jurisdiction under which Buyer is organized.
The Guarantor hereby represents and warrants to the Buyer that this
Guaranty has been duly and validly executed and delivered by Guarantor and
constitutes a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
This Guaranty shall be binding upon the successors and assigns of the
Guarantor and shall inure to the benefit of the Buyer and its successors and
assigns. This Guaranty may not be assigned by the Guarantor without the express
written consent of the Buyer.
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All notices hereunder shall be in writing and sent or delivered:
if to Buyer:
Barclays Bank PLC
c/o Asset Securitization Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxx
Xxxxxxx Xxxx
Email: xxxx.xxxxx@xxxxxx.xxx
xxxxxxx.xxxx@xxxxxx.xxx
if to the Guarantor:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
or to either party at such other address(es) as may be specified in a written
notice given in accordance herewith.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS (OTHER THAN CONFLICTS LAWS) OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its duly authorized officers as of the date first
above written.
AMERICAN HOME MORTGAGE
INVESTMENT CORP.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Executive Vice President,
General Counsel & Secretary
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