Performance Guaranty - American Home Mortgage Holdings Inc., American Home Mortgage Investment Corp. and Societe Generale
PERFORMANCE GUARANTY
This Amended and Restated Performance Guaranty (the "Guaranty"), dated as
of October 16, 2006, 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 Societe Generale, as administrative agent for the
Purchasers party to the Mortgage Loan Purchase and Sale Agreement referred to
below (the "Administrative Agent").
WHEREAS, American Home Mortgage Corp., a New York corporation (the
"Seller") and American Home Mortgage Servicing, Inc. (the "Servicer") have
entered into a Mortgage Loan Purchase and Sale Agreement (the "Purchase
Agreement") dated as of October 16, 2006 with the Purchasers and Funding Agents
party thereto from time to time and the Administrative Agent, pursuant to which
(x) the Seller, subject to the terms and conditions therein, may sell certain
Mortgage Loans and related property to the Administrative Agent for the benefit
of the Purchasers and (y) the 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 Purchasers to purchase the Mortgage
Loans and related property from the Seller pursuant to the Purchase Agreement,
the Performance Guarantors have agreed to guaranty the due and punctual
performance of the Seller and the Servicer under the Purchase Agreement;
WHEREAS, it is a condition precedent to the Purchasers agreeing to make
purchases under the Purchase Agreement that the Performance Guarantors execute
and deliver to the Administrative Agent a performance guaranty substantially in
the form hereof; and
WHEREAS, the Performance Guarantors wish to guaranty the due and punctual
performance of the Seller's obligations as "Seller" and of the Servicer's
obligations as "Servicer" to the Administrative Agent, the Funding Agents and
the Purchasers under or in respect of the Purchase 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 Seller and of the Servicer, will
derive substantial benefit from the transactions contemplated under the Purchase
Agreement;
NOW, THEREFORE, each of the Performance Guarantors hereby agrees with the
Administrative Agent and the Purchasers 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.
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"Obligations" means, collectively, all Seller Obligations and all
Servicer Obligations.
"AHM Entities" means, collectively, the Performance Guarantors, the
Servicer, and the Seller.
"Seller Obligations" means collectively, all covenants, agreements,
terms, conditions and indemnities to be performed and observed by the
Seller solely in its capacity as "Seller" under and pursuant to the
Purchase Agreement and each other document executed and delivered by the
Seller as "Seller" pursuant to the Purchase Agreement, including, without
limitation, the due and punctual payment of all sums which are or may
become due and owing by the Seller as "Seller" under the Purchase
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.
"Servicer 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 Purchase Agreement and each other document executed and delivered by
the Servicer as "Servicer" pursuant to the Purchase 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 Purchase
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.
All capitalized terms used herein, and not otherwise herein defined shall
have their respective meanings as defined in the Purchase Agreement.
Section 2. Guaranty of Performance of Obligations. Each of the Performance
Guarantors, jointly and severally, hereby unconditionally guarantees to the
Administrative Agent, the Funding Agents and the Purchasers, the full and
punctual payment and performance by the Seller of the Seller Obligations and by
the Servicer of the Servicer 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, the Funding
Agents or the Purchasers first take any action against the Seller or the
Servicer with respect to the Obligations or attempt to collect any of the
amounts owing by the Seller or the Servicer to the Purchasers, the Funding
Agents or the Administrative Agent from the Seller or the Servicer or resort to
any collateral security, any balance of any deposit account or credit on the
books of any Purchasers in favor of the Seller or the Servicer, any guarantor of
the Obligations, any Approved Takeout Investor or any other Person. Should the
Seller or the Servicer default in the payment or performance of any of the
Obligations, the Administrative Agent or the Required Funding Agents may cause
the immediate performance by each of the Performance Guarantors of the
Obligations and cause any payment
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Obligations to become forthwith due and payable to the Administrative Agent and
the Purchasers, 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 Purchase 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 Purchase 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, any
Funding Agent or any of the Purchasers, (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 Seller or the Servicer, (vi) any change,
restructuring or termination of the corporate structure or existence of the
Seller or the Servicer, or (vii) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Seller, 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 Seller or the
Servicer, or for any other reason, all such Obligations shall be immediately
performed by the Performance Guarantors.
Section 3. Performance Guarantors' Further Agreements to Pay. Each of the
Performance Guarantors further agrees, jointly and severally, in the event the
Performance Guarantors fail to perform their obligations under this Guaranty, to
pay to the Administrative Agent, the Funding Agents and the Purchasers,
forthwith upon demand all reasonable costs and expenses (including court costs
and legal expenses) incurred or expended by the Administrative Agent, the
Funding Agents and the Purchasers in connection with the enforcement of this
Guaranty.
Section 4. Waivers by Performance Guarantors; Administrative Agent's,
Funding Agents' and Purchasers' Freedom to Act. Each of the Performance
Guarantors waives notice of (a) acceptance of this Guaranty, (b) any action
taken or omitted by the Administrative Agent, any Funding Agent or any Purchaser
in reliance on this Guaranty, and (c) any requirement that the Administrative
Agent, the Funding Agents or the Purchasers be diligent or prompt in making
demands under this Guaranty, giving notice of any Potential Termination Event,
Termination Event or Servicer Termination Event, default or omission by the
Seller or the Servicer or asserting any other rights of the Administrative
Agent, any Funding Agent or any Purchaser under this Guaranty. To the maximum
extent permitted by applicable law, each of the Performance Guarantors also
irrevocably waives all defenses that at any time may be available in respect of
the Obligations by virtue of any statute of limitations, valuation, stay,
moratorium law or other similar law now or thereafter in effect.
The Administrative Agent shall be at liberty, upon its own initiative or
at the request of the Required Funding Agents, without giving notice to or
obtaining the assent of the Performance Guarantors and without relieving either
of the Performance Guarantors of any
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liability under this Guaranty, to deal with the Seller and 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 Required Funding Agents in their sole
discretion deem fit, and to this end each of the Performance Guarantors agrees
that the validity and enforceability of this Guaranty, including without
limitation, the provisions of Section 8 hereof, shall not be impaired or
affected by any of the following: (a) any extension, modification or renewal of,
or indulgence with respect to, or substitutions for, the Obligations or any part
thereof or any agreement relating thereto at any time; (b) any failure or
omission to enforce any right, power or remedy with respect to the Obligations
or any part thereof or any agreement relating thereto, or any collateral
securing the Obligations or any part thereof; (c) any waiver of any right, power
or remedy or of any Potential Termination Event, Termination Event or Servicer
Termination Event 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 Seller or of the Servicer, any part thereof or
amounts which are not covered by this Guaranty even though the Administrative
Agent, the Funding Agents or the Purchasers might lawfully have elected to apply
such payments to any part or all of the payment Obligations of the Seller or the
Servicer or to amounts which are not covered by this Guaranty; (g) the existence
of any claim, setoff or other rights which either of the Performance Guarantors
may have at any time against the Seller or 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 Seller or the
Servicer to perform or comply with any term of the Purchase Agreement or any
other document executed in connection therewith or delivered thereunder, all
whether or not the Performance Guarantors shall have had notice or knowledge of
any act or omission referred to in the foregoing clauses (a) through (i) of this
Section.
Section 5. Unenforceability of Obligations Against the Seller or the
Servicer. Notwithstanding (a) any change of ownership of the Seller or the
Servicer or the insolvency, bankruptcy or any other change in the legal status
of the Seller or 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 Seller, the Servicer or either of the
Performance Guarantors to maintain in full force, validity or effect or to
obtain or renew when required all governmental and other approvals, licenses or
consents required in connection with the Obligations or this Guaranty, or to
take any other action required in connection with the performance of all
obligations pursuant to the Obligations or this Guaranty; or (d) if any of the
moneys included in the Obligations have become unrecoverable from the Seller or
the Servicer for any reason other than final payment in full of the payment
Obligations in accordance with their terms, this Guaranty shall nevertheless be
binding on each of the Performance Guarantors. This Guaranty shall be in
addition to any other guaranty or other security for the Obligations, and it
shall not be rendered unenforceable by the invalidity of any such other guaranty
or security.
Section 6. Representations and Warranties.
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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 Performance
Guarantor or any of the other AHM Entities, except where such contravention or
conflict would not reasonably be expected to have a Material Adverse Effect, or
such Performance Guarantor's certificate of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which such Performance
Guarantor is a party or is subject, or by which it, or its property, is bound,
except where such contravention or conflict would not reasonably be expected to
have a Material Adverse Effect, or result in the creation or imposition of any
Lien in, of or on the property of such Performance Guarantor or any of its
subsidiaries pursuant to the terms of any such indenture, instrument or
agreement.
Section 6.4. Financial Statements. The consolidated financial statements
of American Home Mortgage Investment Corp. and its Subsidiaries, heretofore
delivered to the Purchasers as required by the Purchase 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 June 30, 2006, there has been
no change in the business, properties, financial condition or results of
operations of either of the Performance Guarantors and its Subsidiaries which is
reasonably likely to have a Material Adverse Effect on (i) the business,
properties, financial condition or results of operations of such Performance
Guarantor and the other AHM Entities taken as a whole, (ii) the ability of such
Performance Guarantor to perform its obligations under this Guaranty, or (iii)
the validity or enforceability of any portion of this Guaranty or the rights or
remedies of the Administrative Agent or the Purchasers hereunder.
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Section 6.6. Taxes. Each of the Performance Guarantors and the other AHM
Entities have filed all United States federal tax returns and all other tax
returns which are required to be filed, except where the failure to file would
not reasonably be expected to have a Material Adverse Effect, and have paid all
taxes due pursuant to said returns or pursuant to any assessment received by
either of the Performance Guarantors or any of the other AHM Entities, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. No tax liens have been filed which are
reasonably likely to have a Material Adverse Effect on (i) the business,
properties, financial condition or results of operations of the Performance
Guarantors and the other AHM Entities taken as a whole, (ii) the ability of
either of the Performance Guarantors to perform its obligations under this
Guaranty, or (iii) the validity or enforceability of any portion of this
Guaranty or the rights or remedies of the Administrative Agent, the Funding
Agents or the Purchasers 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 Performance Guarantor or its Subsidiaries which is reasonably
likely to have a material adverse effect on (i) the business, properties,
financial condition or results of operations of such Performance Guarantor and
the other AHM Entities taken as a whole, (ii) the ability of such Performance
Guarantor to perform its obligations under this Guaranty, or (iii) the validity
or enforceability of any portion of this Guaranty or the rights or remedies of
the Administrative Agent or the Purchasers hereunder. Neither of the Performance
Guarantors have any material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 6.4.
Section 7. Covenants. Each of the Performance Guarantors hereby covenants
and agrees, jointly and severally, for the benefit of the Administrative Agent
and the Purchasers, until the Obligations have been satisfied in full and the
Purchase Agreement has been terminated, as follows:
(a) to promptly notify the Administrative Agent upon (i) any dispute
between such Performance Guarantor and any Governmental Authority or any other
Person that, if adversely determined, would have a Material Adverse Effect; (ii)
any material adverse change in the business, operations or financial condition
of such Performance Guarantor, including, without limitation, such Performance
Guarantor's insolvency; (iii) any event or condition known to it that, if
adversely determined, would have a Material Adverse Effect; and (iv) the receipt
of any notice of any final judgment or order for payment of money applicable to
such Performance Guarantor in excess of $10,000,000;
(b) to pay and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or upon any of its Property
as well as all claims of any kind (including claims for labor, materials,
supplies and rent) that, if unpaid, might become a Lien upon any or all of its
Property; provided, however, such Performance Guarantor shall not be required to
pay any such tax, assessment, charge, levy or claim if the amount, applicability
or validity thereof shall currently be contested in good faith by appropriate
proceedings diligently
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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) in the case of AHMIC, 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, a completed officer's certificate in the form of
Exhibit I-3, attached to the Purchase Agreement, executed by the treasurer or
other Financial Officer of AHMIC.
Section 8. Subrogation; Subordination. Each of the Performance Guarantors
shall not enforce or otherwise exercise any right of subrogation to any of the
rights of the Administrative Agent or the Purchasers against the Seller or the
Servicer, until the Obligations have been indefeasibly paid in full;
notwithstanding anything to the contrary contained herein, until the Obligations
have been indefeasibly paid in full, each of the Performance Guarantors hereby
waives all rights of subrogation (whether contractual, under Section 509 of the
United States Bankruptcy Code, at law or in equity or otherwise) to the claims
of the Administrative Agent, any Funding Agent or any Purchaser against the
Seller or the Servicer and all contractual, statutory or legal or equitable
rights of contribution, reimbursement, indemnification and similar rights and
"claims" (as that term is defined in the United States Bankruptcy Code) which
such Performance Guarantor might now have or hereafter acquire against the
Seller or the Servicer that arises from the existence or performance of the
Seller's or the Servicer's Obligations; until the Obligations have been
indefeasibly paid in full, neither Performance Guarantor will claim any setoff,
recoupment or counterclaim against the Seller or the Servicer in respect of any
liability of such Performance Guarantor to the Seller or the Servicer; and such
Performance Guarantor waives any benefit of and any right to participate in any
collateral security which may be held by the Administrative Agent or any
Purchaser. The payment of any amounts due with respect to any indebtedness for
borrowed money of the Seller or the Servicer now or thereafter owed to either of
the Performance Guarantors is hereby subordinated to the prior payment in full
of all of the Obligations. Each of the Performance Guarantors agrees that, after
the occurrence, and during the continuation, of any default in the payment or
performance of any of the Obligations, such Performance Guarantor will not
demand, sue for or otherwise attempt to collect any such indebtedness of the
Seller or the Servicer to such Performance Guarantor until all of the
Obligations shall have been paid and performed in full. If, notwithstanding the
foregoing sentence, either of the Performance Guarantors shall collect, enforce
or receive any amounts in respect of such indebtedness while any Obligations are
still unperformed or outstanding, such amounts shall be collected, enforced and
received by such Performance Guarantor as trustee for the Purchasers and be paid
over to the Administrative Agent on account of the Obligations without affecting
in any manner the liability of such Performance Guarantor under the other
provisions of this Guaranty. The provisions of this Section 8 shall be
supplemental to and not in derogation of any rights and remedies of the
Administrative Agent, the Funding Agents and the Purchasers under any separate
subordination agreement which the
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Administrative Agent, the Funding Agents and the Purchasers may at any time and
from time to time enter into with either of the Performance Guarantors.
Section 9. Termination of Guaranty. Each of the Performance Guarantor's
obligations hereunder shall continue in full force and effect until all
Obligations are finally paid and satisfied in full and the Purchase 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
Seller or the Servicer, as applicable, or otherwise, as though such payment had
not been made or other satisfaction occurred, whether or not the Administrative
Agent is in possession of this Guaranty. No invalidity, irregularity or
unenforceability by reason of the Bankruptcy Code or any insolvency or other
similar law, or any law or order of any government or agency thereof purporting
to reduce, amend or otherwise affect the Obligations shall impair, affect, be a
defense to or claim against the obligations of each of the Performance
Guarantors under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive the
insolvency of the Seller or the Servicer and the commencement of any case or
proceeding by or against the Seller or 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 Seller or the Servicer is subject shall
postpone the obligations of the Performance Guarantors under this Guaranty.
Section 11. Setoff. Regardless of the other means of obtaining payment of
any of the Obligations, each of the Administrative Agent, the Funding Agents and
the Purchasers is hereby authorized at any time and from time to time during the
existence of a Termination Event or a Servicer Default, with prompt notice to
the Performance Guarantors (any prior notice being expressly waived by the
Performance Guarantors) and to the fullest extent permitted by law, to set off
and apply such deposits and other sums against the obligations of each of the
Performance Guarantors under this Guaranty, whether or not the Administrative
Agent, the Funding Agents and the Purchasers shall have made any demand under
this Guaranty and although such obligations may be contingent or unmatured.
Section 12. Taxes. All payments to be made by each of the Performance
Guarantors hereunder shall be made free and clear of any deduction or
withholding. If either of the Performance Guarantors is required by law to make
any deduction or withholding on account of tax or otherwise from any such
payment, the sum due from it in respect of such payment shall be increased to
the extent necessary to ensure that, after the making of such deduction or
withholding, the Administrative Agent, the Funding Agents and the Purchasers
receive a net sum equal to the sum which they would have received had no
deduction or withholding been made.
Section 13. Further Assurances. Each of the Performance Guarantors agrees
that it will permit the Administrative Agent, the Funding Agents and the
Purchasers or any of their duly authorized representatives, during normal
business hours, and upon reasonable notice to consult and discuss with such
Performance Guarantor's Treasurer or Controller, with respect to such
Performance Guarantor's business, finances, accounts and affairs. Each of the
Performance
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Guarantor agrees that it will, from time to time, at the request of the
Administrative Agent, the Funding Agents and the Purchasers, provide to the
Administrative Agent, the Funding Agents and the Purchasers information relating
to the business and affairs of such Performance Guarantor as the Administrative
Agent, the Funding Agents or the Purchasers may reasonably request. Each of the
Performance Guarantors also agrees to do all such things and execute all such
documents as the Administrative Agent, the Funding Agents or the Purchasers 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,
the Funding Agents and the Purchasers hereunder.
Section 14. Successors and Assigns. This Guaranty shall be binding upon
each of the Performance Guarantors, its successors and assigns, and shall inure
to the benefit of and be enforceable by the Administrative Agent, the Funding
Agents and the Purchasers and their successors, transferees and assigns. Neither
of the Performance Guarantors may assign or transfer any of its obligations
hereunder without the prior written consent of each of the Funding Agents and
any attempted assignment shall be null and void.
Section 15. Amendments and Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by either of the
Performance Guarantors therefrom shall be effective unless the same shall be in
writing and signed by the Administrative Agent and the Performance Guarantors.
No failure on the part of the Administrative Agent or any Purchaser 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 respective signatures hereto, and if to the Administrative Agent, the
Funding Agents or any Purchaser at its address specified in the Purchase
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 PURCHASE
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED
THEREUNDER AND EACH OF THE
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PERFORMANCE GUARANTORS HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY MANAGING AGENT OR ANY PURCHASER TO BRING PROCEEDINGS
AGAINST EITHER OF THE PERFORMANCE GUARANTORS IN THE COURTS OF ANY OTHER
JURISDICTION.
Section 19. Miscellaneous. This Guaranty constitutes the entire agreement
of the Performance Guarantors with respect to the matters set forth herein. The
rights and remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement, and this Guaranty shall be in
addition to any other guaranty of or collateral security for any of the
Obligations. The provisions of this Guaranty are severable, and in any action or
proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of either of the Performance Guarantors
hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of such Performance Guarantor's liability
under this Guaranty, then, notwithstanding any other provision of this Guaranty
to the contrary, the amount of such liability shall, without any further action
by such Performance Guarantor, the Administrative Agent, any Funding Agent or
any Purchaser, be automatically limited and reduced to the highest amount that
is valid and enforceable as determined in such action or proceeding. The
invalidity or unenforceabihty 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]
10
<PAGE>
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/ Alan B. Horn
----------------------------------
Name: Alan B. Horn
Title: Executive Vice President,
General Counsel & Secretary
Address: 538 Broadhollow Road
Melville, New York 11747
AMERICAN HOME MORTGAGE INVESTMENT
CORP.
By: /s/ Alan B. Horn
----------------------------------
Name: Alan B. Horn
Title: Executive Vice President,
General Counsel & Secretary
Address: 538 Broadhollow Road
Melville, New York 11747
<PAGE>
Acknowledged and Agreed to as of
the day first above written:
SOCIETE GENERALE,
as Administrative Agent
By: /s/ James F. Ahern
-----------------------------------
Name: James F. Ahern
Title: Managing Director