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Exhibit
10.17.3
SECOND AMENDED AND
RESTATED SERVICER PERFORMANCE GUARANTY
This Second Amended and
Restated Servicer Performance Guaranty (the “ Guaranty
”), dated as of November 21, 2006, is executed by
American Home Mortgage Investment Corp., a Maryland corporation
(the “ Performance Guarantor ”), in favor of
Calyon New York Branch (the “ Administrative Agent
”), as administrative agent for the Purchasers as defined in
and under the Repurchase Agreement referred to below and the
Purchasers.
WHEREAS, American Home
Mortgage Corp., a New York corporation, American Home Mortgage
Servicing, Inc., a Maryland corporation, American Home Mortgage
Acceptance, Inc., a Maryland corporation and American Home Mortgage
Investment Corp., a Maryland corporation (collectively, the “
Sellers ”), have entered into a Repurchase Agreement
with the Servicer (as defined below), the Administrative Agent and
the Banks, Issuers and Managing Agents parties thereto, dated as of
November 21, 2006 (the “ Repurchase Agreement
”), pursuant to which the Sellers, subject to the terms and
conditions therein, have agreed to sell certain Mortgage Assets to
the Purchasers, subject to the right and obligation of the Sellers
to repurchase such Mortgage Assets and American Home Mortgage
Servicing, Inc., as the servicer thereunder (in such capacity, the
“ Servicer ”) has agreed to perform the duties
and obligations as “Servicer” thereunder either
directly or through an Affiliate of the Servicer;
WHEREAS, as an inducement for
the Purchasers to make Purchases pursuant to the Repurchase
Agreement, the Performance Guarantor has agreed to guaranty the due
and punctual performance of the Servicer as “Servicer”
either directly or through an Affiliate of the Servicer under the
Repurchase Agreement;
WHEREAS, it is a condition
precedent to the Purchasers agreeing to make Purchases pursuant to
the Repurchase Agreement that the Performance Guarantor executes
and delivers to the Administrative Agent a performance guaranty
substantially in the form hereof; and
WHEREAS, the Performance
Guarantor wishes to guaranty the due and punctual performance of
the Servicer’s obligations as “Servicer” to the
Administrative Agent and the Purchasers under or in respect of the
Repurchase Agreement as provided herein, and the Performance
Guarantor, as the owner, directly or indirectly, of all of the
outstanding shares of capital stock of the Servicer, will derive
substantial benefit from the transactions contemplated under the
Repurchase Agreement;
NOW, THEREFORE, the
Performance Guarantor 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.
“ 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 Repurchase Agreement and each other
document executed and
delivered by the Servicer as “Servicer” pursuant to the
Repurchase 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 Repurchase
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.
“ AHM Entities
” means, collectively, the Performance Guarantor and the
Sellers.
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 . The Performance Guarantor
hereby unconditionally guarantees to the Administrative Agent and
the Purchasers, the full and punctual payment and performance by
the Servicer 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 the Administrative Agent or the
Purchasers first take any action against the Servicer with respect
to the Obligations or attempt to collect any of the amounts owing
by the Servicer to the Purchasers from 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 Servicer, any
guarantor of the Obligations or any other Person. Should the
Servicer default in the payment or performance of any of the
Obligations, the Administrative Agent or the Majority Banks may
cause the immediate performance by the Performance Guarantor of the
Obligations and cause any payment 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 the
Performance Guarantor.
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 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 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 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 Servicer,
(vi) any change, restructuring or termination of the corporate
structure or existence of the Servicer, or (vii) any other
circumstance which might otherwise constitute a defense available
to, or a discharge of, 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 Servicer, or for
any other reason, all such Obligations shall be immediately
performed by the Performance Guarantor.
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Section 3.
Performance Guarantor’s Further Agreements to Pay .
The Performance Guarantor further agrees, in the event the
Performance Guarantor fails to perform its obligations under this
Guaranty, to pay to the Administrative Agent and the Purchasers,
forthwith upon demand all reasonable costs and expenses (including
court costs and legal expenses) incurred or expended by the
Administrative Agent and the Purchasers in connection with the
enforcement of this Guaranty.
Section 4. Waivers by
Performance Guarantor; Administrative Agent’s and
Purchaser’s Freedom to Act . The Performance Guarantor
waives notice of (a) acceptance of this Guaranty, (b) any
action taken or omitted by the Administrative Agent or any
Purchaser in reliance on this Guaranty, and (c) any
requirement that the Administrative Agent or the Purchasers be
diligent or prompt in making demands under this Guaranty, giving
notice of any Default, Event of Default or Servicer Default,
default or omission by the Servicer or asserting any other rights
of the Administrative Agent or any Purchaser under this Guaranty.
To the maximum extent permitted by applicable law, the Performance
Guarantor 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 Majority Banks, without giving notice to or obtaining the
assent of the Performance Guarantor and without relieving the
Performance Guarantor of any liability under this Guaranty, to deal
with 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 Majority Banks in their sole discretion
deem fit, and to this end the Performance Guarantor 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, Servicer Default 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 Servicer,
any part thereof or amounts which are not covered by this Guaranty
even though the Administrative Agent or the Purchasers might
lawfully have elected to apply such payments to any part or all of
the payment Obligations of the Servicer or to amounts which are not
covered by this Guaranty; (g) the existence of any claim,
setoff or other rights which the Performance Guarantor may have at
any time against the Servicer in connection herewith or any
unrelated
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transaction; (h) any assignment or
transfer of the Obligations or any part thereof; or (i) any
failure on the part of the Servicer 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
the 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 Servicer .
Notwithstanding (a) any change of ownership of the Servicer or
the insolvency, bankruptcy or any other change in the legal status
of 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 Servicer or the Performance Guarantor
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 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 the Performance Guarantor. 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 . The Performance Guarantor 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 . The Performance Guarantor has the
corporate power and authority to execute and deliver this Guaranty,
perform its obligations hereunder and consummate the transactions
herein contempl
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