EXHIBIT 10.3.2
AMENDED AND RESTATED ORIGINATOR PERFORMANCE GUARANTY
This Amended and Restated Originator 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 AHM SPV I, LLC, a Delaware
limited liability company ("SPV").
WHEREAS, SPV has entered into an Addendum to Master Repurchase Agreement
dated as of August 8, 2003 (as amended, restated, supplemented or otherwise
modified from time to time, the "Repurchase Agreement"), with 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"), pursuant to which SPV has agreed to purchase
from time to time certain Mortgage Assets from the Originators;
WHEREAS, as an inducement for SPV to purchase Mortgage Assets pursuant to
the Repurchase Agreement, the Performance Guarantors have agreed to guaranty the
due and punctual performance of the Originators' obligations under the
Repurchase Agreement, including any obligation to repurchase Mortgage Assets as
a result of a breach pursuant to Section 2.05 of the Addendum to the Repurchase
Agreement, provided that the Performance Guarantors shall not guaranty the
Originators' obligations to repurchase Mortgage Assets on the Repurchase Date
pursuant to Sections 3(b) and 3(c) of the Repurchase Agreement;
WHEREAS, it is a condition precedent to SPV agreeing to purchase Mortgage
Assets pursuant to the Repurchase Agreement that the Performance Guarantors
execute and deliver to SPV a performance guaranty substantially in the form
hereof; and
WHEREAS, the Performance Guarantors wish to guaranty the due and punctual
performance of the Originators' obligations to SPV under or in respect of the
Repurchase 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 Originators, will derive substantial benefit from the transactions
contemplated under the Repurchase Agreement;
NOW, THEREFORE, the each of the Performance Guarantors hereby agrees with
SPV 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 Originators
under and pursuant to
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the Repurchase Agreement and each other document executed and delivered by
the Originators pursuant to the Repurchase Agreement (other than the Loan
Agreement), except for the Originators' obligation to repurchase Mortgage
Assets on the Repurchase Date pursuant to Sections 3(b) and 3(c) of the
Repurchase Agreement, including, without limitation, the due and punctual
payment of all sums which are or may become due and owing by the
Originators under the Repurchase Agreement whether for repurchase prices
for repurchases pursuant to Section 2.05 of the Addendum to the Repurchase
Agreement, 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.
"Loan Agreement" means that certain Loan Agreement dated as of
August 8, 2003 by and among SPV, certain Issuers party thereto, certain
Banks parties thereto, Calyon New York Branch, as administrative agent for
the Issuer and the Banks, and American Home Mortgage Corp., as the
servicer thereunder, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"AHM Entities" means, collectively, the Performance Guarantors, the
Originators, and SPV.
All capitalized terms used herein, and not otherwise herein defined shall
have their respective meanings as defined in the Repurchase Agreement.
Section 2. Guaranty of Performance of Obligations. Each of the Performance
Guarantors hereby, jointly and severally, unconditionally guarantees to SPV the
full and punctual payment and performance by the Originators 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 SPV first take any action against the
Originators with respect to the Obligations or attempt to collect any of the
amounts owing by the Originators to SPV from the Originators or resort to any
collateral security, any balance of any deposit account or credit on the books
of SPV in favor of the Originators, any guarantor of the Obligations or any
other Person. Should the Originators default in the payment or performance of
any of the Obligations, SPV may cause the immediate performance by either of the
Performance Guarantors of the Obligations and cause any payment Obligations to
become forthwith due and payable to SPV, 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 Repurchase Agreement, 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 Repurchase Agreement, 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
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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 SPV, (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 Originators, (vi) any change, restructuring or termination
of the corporate structure or existence of the Originators, or (vii) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Originators or a guarantor. In the event that performance of
any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Originators, 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, in the event the Performance Guarantors
fail to perform their obligations under this Guaranty, to pay to SPV, forthwith
upon demand all reasonable costs and expenses (including court costs and legal
expenses) incurred or expended by SPV in connection with the enforcement of this
Guaranty.
Section 4. Waivers by Performance Guarantors; SPV's Freedom to Act. Each
of the Performance Guarantors waives notice of (a) acceptance of this Guaranty,
(b) any action taken or omitted by SPV in reliance on this Guaranty, and (c) any
requirement that SPV be diligent or prompt in making demands under this
Guaranty, giving notice of any Default, Event of Default, default or omission by
the Originators or asserting any other rights of SPV 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.
SPV shall be at liberty, 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 Originators
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 SPV in its sole
discretion deems 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, 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 Originators, any part thereof or amounts which are not covered by this
Guaranty even though SPV might lawfully have elected to apply such payments to
any part
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or all of the payment Obligations of the Originators or to amounts which are not
covered by this Guaranty; (g) the existence of any claim, setoff or other rights
which such Performance Guarantor may have at any time against the Originators 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
Originators to perform or comply with any term of the Repurchase Agreement or
any other document executed in connection therewith or delivered thereunder, all
whether or not such 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 Originators.
Notwithstanding (a) any change of ownership of either of the Originators or the
insolvency, bankruptcy or any other change in the legal status of either of the
Originators; (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 either of the Originators 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 either of the Originators 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).
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
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Performance Guarantor or any of the other AHM Entities, except where such
contravention or conflict would 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 SPV 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 its subsidiaries 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 SPV 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
such 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 either 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 SPV 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.
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 of the Performance Guarantors 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 of this Guaranty or
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the rights or remedies of SPV hereunder. Neither of the Performance Guarantors
has 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 for the benefit of SPV, until the Obligations have been satisfied in
full and the Repurchase Agreement and the Loan Agreement have 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 comply with (a) all applicable laws, rules, regulations and orders,
and (b) material agreements, indentures, mortgages and corporate documents,
except to the extent that the failure so to comply would not be reasonably
expected to have a Material Adverse Effect;
(c) to maintain its corporate existence, rights and franchises;
(d) 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 form 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. Neither of the Performance
Guarantors shall enforce or otherwise exercise any right of subrogation to any
of the rights of SPV against the Originators, 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 SPV against the Originators 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 Originators that arises from the
existence or performance of such Performance Guarantor's obligations hereunder;
such Performance Guarantor will not claim any setoff, recoupment or counterclaim
against the Originators in respect of any liability of the Performance Guarantor
to the Originators, until any of the Obligations have been indefeasibly paid in
full; and such Performance Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by SPV. Unless
otherwise provided for in the
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Subordination Agreement, the payment of any amounts due with respect to any
indebtedness for borrowed money of the Originators now or thereafter owed to
either of the Performance Guarantors is hereby subordinated to the prior payment
in full of all 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, ▇▇▇ for or otherwise attempt to collect any such indebtedness of the
Originators 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 SPV and be paid over to
SPV 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 SPV under any separate subordination agreement that
SPV 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 Guarantors'
obligations hereunder shall continue in full force and effect until all
Obligations are finally paid and satisfied in full and the Repurchase Agreement
and Loan Agreement are 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 either of the Originators, or otherwise, as though such
payment had not been made or other satisfaction occurred, whether or not SPV 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 Guarantors under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive the
insolvency of either of the Originators and the commencement of any case or
proceeding by or against either of the Originators 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 either of the Originators is subject shall
postpone the obligations of either of the Performance Guarantors under this
Guaranty.
Section 11. Setoff. SPV is not authorized at any time to set off and apply
any deposits or other sums against the obligations of either of the Performance
Guarantors under this Guaranty.
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
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withholding, SPV receives a net sum equal to the sum which it would have
received had no deduction or withholding been made.
Section 13. Further Assurances. Each of the Performance Guarantors agrees
that it will permit SPV or any of its 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 Guarantors agree that it will, from time to time, at the request of
SPV, provide to SPV information relating to the business and affairs of such
Performance Guarantor as SPV may reasonably request. Each of the Performance
Guarantors also agrees to do all such things and execute all such documents as
SPV may reasonably consider necessary or desirable to give full effect to this
Guaranty and to perfect and preserve the rights and powers of SPV 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 SPV and its successors, transferees and
assigns. Neither of the Performance Guarantors may assign or transfer any of its
obligations hereunder without the prior written consent of SPV and any attempted
assignment shall be null and void.
SPV (and any assignee of SPV) may at any time assign any and all of its
rights hereunder to any other person or entity without the consent of the
Performance Guarantors or the Originators, whereupon (i) each reference herein
to SPV shall mean and be a reference to such assignee and (ii) such assignee may
enforce the Guaranty to the fullest extent as if it were a named party hereto.
Without limiting the generality of the foregoing, each of the Performance
Guarantors acknowledges and consents to the assignment by SPV, under and in
connection with the Loan Agreement, of all of SPV's right, title and interest
in, to and under this Guaranty to the Administrative Agent for the benefit of
the Lenders, and each of the Performance Guarantors agrees that at all times
that the Loan Agreement shall be in effect (i) any claim made by SPV hereunder
shall be deemed made for the benefit of the Administrative Agent and Lenders and
(ii) any payment or remittance to be made hereunder by such Performance
Guarantor in respect of any claim being made by or in respect of SPV or SPV's
interest under the Repurchase Agreement shall be paid or remitted to the
Administrative Agent for the benefit of the Lenders.
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 SPV and the Performance Guarantors. No failure on the part
of SPV 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 Guarantors, at the address set forth beneath
their
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respective signatures hereto, and if to SPV at its address specified in the
Repurchase 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 REPURCHASE
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 SPV OR ANY OF ITS ASSIGNS 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 or SPV, 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.
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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/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
General Counsel
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
General Counsel
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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ASSIGNMENT OF
AMENDED AND RESTATED ORIGINATOR PERFORMANCE GUARANTY
The undersigned hereby assigns all of its right, title and interest in and
to the foregoing Amended and Restated Originator Performance Guaranty to Calyon
New York Branch, in its capacity as administrative agent (the "Administrative
Agent") for the "Lenders" under and as defined in that certain Loan Agreement
dated as of August 8, 2003 by and among AHM SPV I, LLC ("SPV"), certain parties
thereto, the Administrative Agent and American Home Mortgage Corp., as servicer
thereunder, as the same may be amended, restated, supplemented or otherwise
modified from time to time. Each of American Home Mortgage Holdings, Inc.
("AHMI") and American Home Mortgage Investment Corp. ("AHMIC") acknowledges such
assignment, and agrees that the Administrative Agent may further assign, without
notice, its right, title and interest in and to the Amended and Restated
Originator Performance Guaranty without the consent of any person or entity. The
Administrative Agent, as the assignee of SPV, shall have the right to enforce
the Amended and Restated Originator Performance Guaranty and to directly
exercise all of SPV's rights and remedies under the Amended and Restated
Originator Performance Guaranty, and each of AHMI and AHMIC agrees to cooperate
fully with the Administrative Agent in the exercise of such rights and remedies
thereunder. Each of AHMI and AHMIC further agrees to give the Administrative
Agent copies of all notices it is required to give to SPV under the Amended and
Restated Originator Performance Guaranty.
Dated: December 10, 2004
AHM SPV I, LLC
By:
---------------------------------
Name:
Title:
Acknowledged and agreed to this 10th day of December, 2004:
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By:
---------------------------
Name:
Title:
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By:
---------------------------
Name:
Title:
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