Exhibit 10.2
GUARANTY
GUARANTY, dated as of September 13, 2006 (as amended, supplemented, or
otherwise modified from time to time, this "Guaranty"), made by American Home
Mortgage Holdings, Inc., a Delaware corporation (the "Guarantor"), in favor of
Credit Suisse First Boston Mortgage Capital, LLC (the "Buyer").
RECITALS
Pursuant to the Master Repurchase Agreement, dated as of September 13,
2006 (as amended, supplemented or otherwise modified from time to time, the
"Repurchase Agreement"), among American Home Mortgage Corp., American Home
Mortgage Acceptance, Inc., American Home Mortgage Servicing, Inc., and American
Home Mortgage Investment Corp. (the "Sellers"), the Guarantor and the Buyer, the
Buyer has agreed from time to time to enter into transactions in which the
Sellers agree to transfer to Buyer Eligible Assets against the transfer of funds
by Buyer, with a simultaneous agreement by Buyer to transfer to Sellers such
Purchased Assets at a date certain or on demand, against the transfer of funds
by Sellers. Each such transaction shall be referred to herein as a
"Transaction". It is a condition precedent to the obligation of the Buyer to
enter into Transactions under the Repurchase Agreement that the Guarantor shall
have executed and delivered this Guaranty to the Buyer.
NOW, THEREFORE, in consideration of the foregoing premises, to induce
the Buyer to enter into the Repurchase Agreement and to enter into Transactions
thereunder, the Guarantor hereby agrees with the Buyer, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms which are
defined in the Repurchase Agreement and used herein are so used as so defined.
(b) For purposes of this Guaranty, "Obligations" shall mean all
obligations and liabilities of the Sellers to the Buyer, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, or out of or in connection with the
Repurchase Agreement and any other Program Agreements and any other document
made, delivered or given in connection therewith or herewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all reasonable fees and disbursements
of counsel to the Buyer that are required to be paid by a party to the
Transaction pursuant to the terms of the Program Agreements and costs of
enforcement of this Guaranty) or otherwise.
2. Guaranty. (a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Buyer the prompt and complete payment and performance by the
Sellers when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(b) The Guarantor further agrees to pay any and all reasonable expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Buyer, in good faith, in enforcing, or obtaining
advice of counsel in respect of,
any rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Guarantor under
this Guaranty. This Guaranty shall remain in full force and effect until the
later of (i) the termination of the Repurchase Agreement or (ii) the Obligations
are paid in full, notwithstanding that from time to time prior thereto a Seller
may be free from any Obligations.
(c) No payment or payments made by any Seller or any other Person or
received or collected by the Buyer from any Seller or any other Person by virtue
of any action or proceeding or any set-off or appropriation or application, at
any time or from time to time, in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
the Guarantor hereunder which shall, notwithstanding any such payment or
payments (other than payments made by Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the
Obligations), remain liable for the amount of the Obligations until the
Obligations are paid in full.
(d) Guarantor agrees that whenever, at any time, or from time to time,
the Guarantor shall make any payment to the Buyer on account of the Guarantor's
liability hereunder, the Guarantor will notify the Buyer in writing that such
payment is made under this Guaranty for such purpose.
3. Right of Set-off. Upon the occurrence of an Event of Default, the
Buyer is hereby irrevocably authorized at any time and from time to time without
notice to the Guarantor, any such notice being hereby waived by the Guarantor,
to set off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, contingent, matured or unmatured, at any time held or owing by the
Buyer or any affiliate thereof 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 hereunder,
whether or not the Buyer has made any demand for payment and although such
Obligations and 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
paragraph are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Buyer may have.
4. Subrogation. Notwithstanding any payment or payments made by the
Guarantor hereunder or any set-off or application of funds of the Guarantor by
the Buyer, the Guarantor shall not be entitled to be subrograted to any of the
rights of the Buyer against any Seller or any other guarantor or any collateral
security or guarantee or right of offset held by the Buyer for the payment of
the Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from any Seller or any other guarantor in respect
of payments made by the Guarantor hereunder, until all amounts owing to the
Buyer by each Seller on account of the Obligations are paid in full and the
Repurchase Agreement is terminated. If any amount shall be paid to the Guarantor
on account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amounts shall be held by the Guarantor in
trust for the Buyer, segregated from other funds of the Guarantor, and shall,
forthwith upon
-2-
receipt by the Guarantor, be turned over to the Buyer in the exact form received
by the Guarantor (duly indorsed by the Guarantor to the Buyer, if required), to
be applied against the Obligations, whether matured or unmatured, in such order
as the Buyer may determine in accordance with the terms of the Repurchase
Agreement.
5. Amendments, etc. with Respect to the Obligations. Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Buyer
may be rescinded by the Buyer, and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Buyer, and the Repurchase Agreement, and the other Program Agreements and
any other document in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Buyer may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the Buyer for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. The Buyer shall have no obligation
to protect, secure, perfect or insure any Lien at any time held by it as
security for the Obligations or for this Guaranty or any property subject
thereto. When making any demand hereunder against the Guarantor, the Buyer may,
but shall be under no obligation to, make a similar demand on any Seller or any
other guarantor, and any failure by the Buyer to make any such demand or to
collect any payments from any Seller or any such other guarantor or any release
of any Seller or such other guarantor shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Buyer against
the Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
6. Guaranty Absolute and Unconditional. (a) Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Buyer upon this Guaranty
or acceptance of this Guaranty; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived in reliance upon this Guaranty; and all dealings
between any Seller or the Guarantor, on the one hand, and the Buyer, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Guaranty. Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon any
Seller or the Guaranty with respect to the Obligations. This Guaranty shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (i) the validity or enforceability of the Repurchase
Agreement, the other Program Agreements, any of the Obligations or any
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Buyer, (ii) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by any Seller against the Buyer,
or (iii) any other circumstance whatsoever (with or without notice to or
knowledge of any Seller or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of a Seller for the
Obligations, or of the Guarantor under this Guaranty, in bankruptcy or in any
-3-
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Buyer may, but shall be under no obligation, to pursue such
rights and remedies that they may have against any Seller or any other Person or
against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by the Buyer to pursue such other
rights or remedies or to collect any payments from any Seller or any such other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of any Seller or any such
other Person or any such collateral security, guarantee or right of offset,
shall not relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and their successors and assigns thereof, and shall
inure to the benefit of the Buyer, and successors, indorsees, transferees and
assigns, until all the Obligations and the obligations of the Guarantor under
this Guaranty shall have been satisfied by payment in full, notwithstanding that
from time to time during the term of the Repurchase Agreement any Seller may be
free from any Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby
agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any
and all right to assert against the Buyer any claim or defense based upon,
an election of remedies by the Buyer which in any manner impairs, affects,
reduces, releases, destroys and/or extinguishes Guarantor's subrogation
rights, rights to proceed against any Seller or any other guarantor for
reimbursement or contribution, and/or any other rights of the Guarantor to
proceed against any Seller, against any other guarantor, or against any
other person or security.
(ii) Guarantor is presently informed of the financial condition of each
Seller and of all other circumstances which diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Obligations. The
Guarantor hereby covenants that it will make its own investigation and
will continue to keep itself informed of each Seller's financial
condition, the status of other guarantors, if any, of all other
circumstances which bear upon the risk of nonpayment and that it will
continue to rely upon sources other than the Buyer for such information
and will not rely upon the Buyer for any such information. Absent a
written request for such information by the Guarantor to the Buyer,
Guarantor hereby waives its right, if any, to require the Buyer to
disclose to Guarantor any information which the Buyer may now or hereafter
acquire concerning such condition or circumstances including, but not
limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and
related agreements and has made an independent determination as to the
validity and enforceability thereof, and in executing and delivering this
Guaranty to the Buyer, Guarantor is not in any manner relying upon the
validity, and/or enforceability, and/or attachment, and/or perfection of
any Liens or security interests of any kind or nature
-4-
granted by any Seller or any other guarantor to the Buyer, now or at any
time and from time to time in the future.
7. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Buyer upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Seller or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Seller or any substantial part of its property, or otherwise, all as though such
payments had not been made.
8. Payments. Guarantor hereby agrees that the Obligations will be paid
to the Buyer without set-off or counterclaim in U.S. Dollars.
9. Event of Default. If an Event of Default under the Repurchase
Agreement shall have occurred and be continuing, the Guarantor agrees that, as
between the Guarantor and Buyer, the Obligations may, in good faith, be declared
to be due for purposes of this Guaranty notwithstanding any stay, injunction or
other prohibition which may prevent, delay or vitiate any such declaration as
against any Seller and that, in the event of any such declaration (or attempted
declaration), such Obligations shall forthwith become due by the Guarantor for
purposes of this Guaranty.
10. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. Headings. The paragraph headings used in this Guaranty are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
12. No Waiver; Cumulative Remedies. The Buyer shall not by any act
(except by a written instrument pursuant to paragraph 13 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Buyer, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Buyer of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Buyer would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
13. Waivers and Amendments; Successors and Assigns; Governing Law. None
of the terms or provisions of this Guaranty may be waived, amended, supplemented
or otherwise
-5-
modified except by a written instrument executed by the Guarantor and the Buyer,
provided that any provision of this Guaranty may be waived by the Buyer in a
letter or agreement executed by the Buyer or by facsimile or electronic
transmission from the Buyer. This Guaranty shall be binding upon the heirs,
personal representatives, successors and assigns of the Guarantor and shall
inure to the benefit of the Buyer and its respective successors and assigns.
14. Notices. Notices by the Buyer to the Guarantor may be given by
mail, or by telecopy transmission, addressed to the Guarantor at the Guarantor's
respective address or transmission number set forth under its signature below
and shall be effective (a) in the case of mail, five days after deposit in the
postal system, first class certified mail and postage pre-paid, (b) one Business
Day following timely delivery to a nationally recognized overnight courier
service for next Business Day delivery and (c) in the case of telecopy
transmissions, when sent, transmission electronically confirmed.
15. JURISDICTION.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) GUARANTOR HEREBY WAIVES TRIAL BY JURY. GUARANTOR HEREBY IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY ACTION OR
PROCEEDING. GUARANTOR HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE
TO, EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN THE COURTS OF THE STATE OF NEW
YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM
AGREEMENTS.
16. Integration. This Guaranty represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Buyer relative to the subject matter hereof not reflected
herein.
17. Acknowledgments. Guarantor hereby acknowledges that:
(a) Guarantor has been advised by counsel in the negotiation, execution
and delivery of this Guaranty and the other Program Agreements;
(b) the Buyer does not have any fiduciary relationship to the
Guarantor, and the relationship between the Buyer and the Guarantor is solely
that of surety and creditor; and
(c) no joint venture exists between the Buyer and the Guarantor or
among the Buyer, any Seller and the Guarantor.
-6-
[ Signature pages follow ]
-7-
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered as of the date first above written.
American Home Mortgage Holdings, Inc.,
as Guarantor
By: /s/ Alan B. Horn
-------------------------------------
Name: Alan B. Horn
Title: Executive Vice President,
General Counsel & Secretary
Address for Notices:
American Home Mortgage Holdings, Inc.
538 Broadhollow Road
Melville, NY 11747
Attn: Craig Pino
Telecopier: (516) 495-5411
Telephone: (516) 495-7026
With a copy to Alan B. Horn,
General Counsel at the above address.