EXHIBIT 10.2
EXECUTION VERSION
AMENDMENT NO. 1
TO AMENDED AND RESTATED LIMITED
GUARANTY
Amendment No. 1, dated as of
January 22, 2007 (this “ Amendment ”), by and
between BEAR STEARNS MORTGAGE CAPITAL CORPORATION (the “
Buyer ”) and HOMEBANC CORP. (the “ Limited
Guarantor ”).
RECITALS
The Limited Guarantor has made a
Limited Guaranty in favor of the Buyer pursuant to that certain
Amended and Restated Limited Guaranty, dated as of May 31, 2006
(the “ Existing Limited Guaranty ” as amended by
this Amendment, the “ Limited Guaranty ”).
Capitalized terms used but not otherwise defined herein shall have
the meanings given to them in the Existing Limited
Guaranty.
The Limited Guarantor and the Buyer
have agreed, subject to the terms and conditions of this Amendment,
that the Existing Limited Guaranty be amended to reflect certain
agreed upon revisions to the terms of the Existing Limited
Guaranty.
Accordingly, the Buyer and the
Limited Guarantor hereby agree, in consideration of the mutual
promises and mutual obligations set forth herein, that the Existing
Limited Guaranty is hereby amended as follows:
SECTION
1. Guarantees . The Limited
Guaranty is hereby amended by deleting clause (i) of Section 10(e)
thereto and replacing it with the following language:
“(i) Guarantees . The
Limited Guarantor shall not create, incur, assume or suffer to
exist any Guarantees, other than (i) this Guaranty; (ii) those
Guarantees listed on Exhibit A hereto; and (iii) to the
extent the aggregate Guarantees of the Limited Guarantor (without
regard to the Guarantees referred to in clauses (i) and (ii) above)
do not exceed $100,000,000; but in all instances, to the extent
reflected in the Limited Guarantor’s financial statements or
notes thereto.”
SECTION 2.
Exhibits . The Limited Guaranty is hereby amended by adding
Exhibit A hereto as Exhibit A thereto.
SECTION
3. Conditions Precedent . This
Amendment shall become effective on the date hereof (the “
Amendment Effective Date ”) subject to the
satisfaction of the following conditions precedent:
3.1
Delivered Documents . On the Amendment Effective Date, the
Buyer shall have received the following documents, each of which
shall be satisfactory to the Buyer in form and
substance:
(a) this
Amendment, executed and delivered and duly authorized officers of
the Buyer and the Limited Guarantor; and
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(b) such
other documents as the Buyer or counsel to the Buyer may reasonably
request.
SECTION 4.
Representations and Warranties . The Limited Guarantor
hereby represents and warrants to the Buyer that it is in
compliance with all the terms and provisions set forth in the
Existing Limited Guaranty on its part to be observed or performed,
and that no “event of default” has occurred or is
continuing, and hereby confirms and reaffirms the representations
and warranties contained in Section 10 of the Existing Limited
Guaranty.
SECTION
5. Fees . The Limited
Guarantor agrees to pay as and when billed by the Buyer all of the
reasonable fees, disbursements and expenses of counsel to the Buyer
in connection with the development, preparation and execution of,
this Amendment or any other documents prepared in connection
herewith and receipt of payment thereof shall be a condition
precedent to
