GUARANTY
THIS GUARANTY, dated April 12, 2005, is made and given by
MORTGAGEIT HOLDINGS,
INC., a Maryland corporation ("Guarantor"), to RESIDENTIAL FUNDING
CORPORATION,
a Delaware corporation ("Lender").
RECITALS
A. Lender has agreed to make certain accommodations ("Loan") to
MORTGAGEIT,
INC., a New York corporation ("Borrower").
B. The Loan is evidenced by Borrower's Warehousing Note dated as of
April 12,
2005 (as amended, supplemented or otherwise modified, including any
other
instruments executed and delivered in renewal, extension,
rearrangement or
otherwise in replacement of that promissory note, the "Note") and
by a First
Amended and Restated Warehousing Credit and Security Agreement
dated as of April
12, 2005 (as amended, restated, renewed or replaced, including any
other
instruments executed and delivered in renewal, extension,
rearrangement or
otherwise in replacement of that agreement, the "Agreement").
C. Guarantor is a shareholder of Borrower and will derive
substantial benefits
from the Loan.
D. Lender refuses to make the Loan until Lender receives this
Guaranty.
E. In order to induce Lender to accept the Note and the Agreement
and to make
the Loan to Borrower, Guarantor is willing to execute and deliver
this Guaranty
to Lender.
AGREEMENT
NOW, THEREFORE, Guarantor agrees with Lender as follows:
1. Definitions; Rules of Construction. Unless otherwise defined in
this
Guaranty, all capitalized terms have the meanings given to those
terms in the
Agreement. Defined terms may be used in the singular or the plural,
as the
context requires. The words "include," "includes" and "including"
are deemed to
be followed by the phrase "without limitation." Unless the context
in which it
is used otherwise clearly requires, the word "or" has the inclusive
meaning
represented by the phrase "and/or." References to Sections are to
Sections of
this Guaranty unless otherwise expressly provided.
2. Guaranty of Payment and Performance. Guarantor irrevocably,
unconditionally
and absolutely guarantees to Lender the due and prompt payment (and
not just the
collectibility) by Borrower of (a) the principal, and (b) all
interest, fees,
late charges and other indebtedness arising under the Note and the
Agreement,
when due, whether at maturity, by reason of acceleration or
otherwise, all at
the times, places and at the rates described in, and otherwise
according to the
terms of, the Note and the Agreement, and all whether currently
existing or
created or arising after the date of this Guaranty. Guarantor also
irrevocably,
unconditionally and absolutely guarantees to Lender the due and
prompt
performance by Borrower of all other duties and obligations of
Borrower
contained in the Note and the Agreement, and the due and prompt
payment of all
costs and expenses incurred by Lender (including attorneys' fees,
court costs
and other litigation expenses such as expert witness fees, exhibit
preparation
and courier, postage, communication and document copying expenses)
to enforce
the payment and performance of the Note, the Agreement and this
Guaranty. The
payment and performance of the items set forth in this Section are
collectively
referred to as the "Guaranteed Debt." Any sum payable by Guarantor
to Lender
under this Guaranty will bear interest from the date due until paid
at a per
annum rate of interest equal to the highest Default Rate then
applicable under
the Agreement.
3. Right of Set-Off. After an Event of Default occurs, Lender may,
without
notice or demand to Guarantor (which notice or demand Guarantor
expressly
waives), set-off and apply any property of Guarantor in Lender's
possession or
control, or standing to the credit of Guarantor, to the payment of
the
Guaranteed Debt.
4. Other Transactions. Guarantor (a) consents to all modifications
of the terms
and conditions of the Guaranteed Debt and to all extensions or
renewals of the
time of payment or performance of the Guaranteed Debt by Borrower;
(b) agrees
that Lender need not resort to legal remedies against Borrower or
take action
against any other Person obligated (an "Obligor") for the payment
or performance
of the Guaranteed Debt or against any collateral for the Guaranteed
Debt before
proceeding against Guarantor under this Guaranty; (c) agrees that
no release of
Borrower or any other guarantor or Obligor, and no release,
exchange or
nonperfection of any collateral for the Guaranteed Debt, whether by
operation of
law or by any act or failure to act of Lender, with or without
notice to
Guarantor, shall release Guarantor; (d) waives presentment, demand,
notice of
demand, dishonor, notice of dishonor, protest, and notice of
protest and any
other notice with respect to the Guaranteed Debt and this Guaranty,
and
promptness in commencing suit against any party to or liable on the
Guaranteed
Debt or in giving any notice to or making any claim or demand upon
Guarantor
under this Guaranty; (e) waives any defense arising by reason of
any disability
or other defense of Borrower for payment of all or any part of the
Guaranteed
Debt or by reason of the cessation from any cause whatsoever of the
liability of
Borrower for the Guaranteed Debt other than full payment; and (f)
waives, to the
extent permitted by law, all benefit of valuation, appraisement and
exemptions
under the laws of the State of Minnesota or any other state or
territory of the
United States.
5. Continuing Guaranty. Guarantor's obligations under this Guaranty
are primary,
absolute and unconditional. Only full and irrevocable payment and
performance of
the Guaranteed Debt will discharge Guarantor's obligations under
this Guaranty.
Guarantor's obligations under this Guaranty are not impaired or
affected by: (a)
the genuineness, validity, regularity or enforceability of, or any
amendment or
change in the Agreement or the other Loan Documents, or any change
in or
extension of the manner, place or terms of payment of, all or any
portion of the
Guaranteed Debt; (b) Lender's taking or failure to take any action
to enforce
the Agreement or the other Loan Documents, or Lender's exercise or
failure to
exercise any remedy, power or privilege contained in the Loan
Documents or
available at law or otherwise, or the waiver by Lender of any
provisions of the
Agreement or the other Loan Documents; (c) any impairment,
modification, change,
release or limitation in any manner of the liability of Borrower or
its estate
in bankruptcy, or of any remedy for the enforcement of Borrower's
liability,
resulting from the operation of any present or future provision of
the
bankruptcy laws or any other statute or regulation, or the
dissolution,
bankruptcy, insolvency or reorganization of Borrower; (d) the
merger or
consolidation of Borrower, or any sale or transfer by Borrower of
all or any
part of its assets or property; (e) any claim Guarantor may have
against any
other Obligor, including any claim of contribution; (f) the
release, in whole or
in part, of any other guarantor (if more than one), Borrower or any
other
Obligor; (g) any settlement or compromise with any Obligor with
respect to any
Guaranteed Debt or the subordination of the payment of all or any
part of the
Guaranteed Debt to the payment of any other debts or claims that
may at any time
be due and owing to Lender or any other Person; or (h) any other
action or
circumstance that may (with or without notice to or knowledge of
Guarantor) in
any manner or to any extent vary the risks of Guarantor under this
Guaranty or
otherwise constitute a legal or equitable discharge or defense.
Guarantor's
obligations under this Guaranty are in addition to Guarantor's
obligations under
any other guaranties of the Guaranteed Debt or any other
obligations of Borrower
or any other Persons, and this Guaranty does not affect or
invalidate those
other guaranties. Guarantor's liability to Lender is deemed to be
the aggregate
liability of Guarantor under the terms of this Guaranty and any
other guaranties
made in favor of Lender before or after the date of this Guaranty.
6. Application of Payments. Lender has the exclusive right to
determine the
application of all payments and credits (whether derived from
Borrower or from
any other source) to be made on the Guaranteed Debt and any other
indebtedness
owed by Borrower or any other Obligor to
Lender. Lender has no obligation to marshal any assets in favor of
Guarantor or
in payment of all or any part of the Guaranteed Debt. 7. Recovery
of Payments.
Guarantor's obligations under this Guaranty continue to be
effective, or are
automatically reinstated, as the case may be, if at any time the
performance or
the payment, in whole or in part, of any of the Guaranteed Debt is
rescinded or
must otherwise be restored or returned by Lender (as a preference,
fraudulent
conveyance or otherwise) upon or as a result of (a) the insolvency,
bankruptcy,
dissolution, liquidation or reorganization of Borrower, Guarantor
or any other
Person, (b) the appointment of a custodian, receiver, trustee or
other officer
with similar powers with respect to Borrower, Guarantor or any
other Person, (c)
the appointment of a custodian, receiver, trustee or other officer
with similar
powers with respect to any
