Exhibit 10.12


 


EXECUTION VERSION


 


GUARANTY AGREEMENT


 


THIS
GUARANTY AGREEMENT, dated as of November 2, 2010, (as amended,
supplemented and otherwise modified from time to time, this “Guaranty”),
is made by PennyMac Mortgage Investment Trust, a Maryland real estate
investment trust (“Guarantor”) in favor of Wells Fargo Bank, National
Association (“Buyer”).


 


RECITALS


 


A.            Pursuant to the Master Repurchase
Agreement, dated as of  November 2,
2010 (as amended, supplemented or otherwise modified from time to time, the “Repurchase
Agreement”), among PennyMac Corp. (“PMC”), PennyMac Mortgage
Investment Trust Holdings I, LLC (“PMIT”; together with PMC and as more
specifically defined below, each a “Seller” and collectively the “Sellers”),
and Buyer, Buyer has agreed to purchase certain loans, REMIC certificates, REO
entity interests and related assets (as more particularly defined in the
Repurchase Agreement, collectively the “Assets”) from Sellers and
Sellers have agreed to repurchase such Assets upon the terms and subject to the
conditions set forth therein.


 


B.            It is a condition precedent to the
obligation of Buyer to purchase the Assets from Sellers under the Repurchase
Agreement that Guarantor shall have executed and delivered this Guaranty to
Buyer.


 


NOW,
THEREFORE, for good and valuable consideration, receipt of which by the parties
hereto is hereby acknowledged, the parties hereto hereby agree as follows:


 


1.             Defined Terms.


 


(a)           Unless
otherwise defined herein, terms defined in the Repurchase Agreement and used herein
shall have the meanings given to them in the Repurchase Agreement.


 


“ERISA”
shall mean The Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” shall mean any entity, whether or not incorporated, that is a
member of any group of organizations described in Section 414(b), (c), (m) or
(o) of the Code of which Guarantor is a member.


 


“Expiration
Date” shall have the meaning set forth in Section 2(c) hereof.


 


“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA as to which Guarantor or any ERISA Affiliate has made or is required to
make contributions or has any actual or potential liability.


 


“Obligations”
shall mean the obligations and liabilities of each Seller to 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 or any other Repurchase Document,
including without limitation the Repurchase Obligations.


 


“Plan”
shall mean an employee benefit plan as defined in Section 3(3) of
ERISA, subject to Title I of ERISA in respect of which Guarantor or any ERISA
Affiliate thereof has any actual or


 

















 


potential
liability or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be, an “employer” as defined in
Section 3(5) of ERISA.


 


“Recourse
Limit” shall have the meaning assigned thereto in Section 2(e) hereof.


 


“Reportable
Event” shall mean any event set forth in Section 4043(c) of
ERISA, other than an event as to which the notice period is waived under
Pension Benefit Guaranty Corporation Reg. §4043.


 


“Repurchase
Documents” shall mean the “Repurchase Documents” as such term is defined in
the Repurchase Agreement.


“Repurchase
Obligations” shall mean the “Repurchase Obligations” as such term is
defined in the Repurchase Agreement.


 


“Seller”
shall have the meaning set forth in the introductory paragraph hereto.


 


“Single
Employer Plan” shall mean any Plan that is not a Multiemployer Plan.


 


“UCC”
shall mean the Uniform Commercial Code as in effect in the State of New York at
any time.


 


(b)           The
words “hereof”, “herein” and “hereunder” and words of similar import when used
in this Guaranty shall refer to this Guaranty as a whole and not to any
particular provision of this Guaranty, and section and paragraph references are
to this Guaranty unless otherwise specified.


 


(c)           The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.


 


2.             Recourse Guaranty.


 


(a)           Guarantor
hereby, unconditionally and irrevocably, guarantees to Buyer and its
successors, indorsees, transferees and assigns the prompt and complete payment
and performance by Sellers when due (whether at the stated maturity, by
acceleration, demand or otherwise) of the Obligations.


 


(b)           Notwithstanding
the foregoing, Guarantor further agrees to pay any and all expenses (including,
without limitation, all reasonable fees, expenses and disbursements of counsel)
which may be paid or incurred by Buyer in enforcing any rights with respect to,
or collecting, any or all of the Repurchase Obligations and/or enforcing any
rights with respect to, or collecting against, Guarantor under this Guaranty.  This Guaranty shall remain in full force and
effect until the Repurchase Obligations are paid in full, notwithstanding that
from time to time prior thereto one or more Sellers may be free from any
Repurchase Obligations.


 


(c)           No
payment or payments made by any Seller or any other Person or received or
collected by 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
Guarantor hereunder.  Guarantor shall
remain liable under this Guaranty until the Repurchase Obligations are
satisfied and paid in full and the Repurchase Agreement and the other Repurchase
Documents are 


 


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terminated (such date, the “Expiration Date”),
notwithstanding any payment or payments referred to in the foregoing sentence.


 


(d)           Guarantor
agrees that whenever, at any time, or from time to time, it shall make any
payment to Buyer on account of its liability hereunder, it will notify Buyer in
writing that such payment is made under this Guaranty for such purpose.


 


(e)           Notwithstanding
the foregoing or anything contained in this Guaranty to the contrary, the
Guarantor’s liability hereunder on any date of determination solely regarding
Obligations with respect to the Purchased Assets consisting of REO Entity
Interests shall not exceed an amount equal to the excess (if any) of (x) the
product of (i) ten percent (10%) and (ii) the sum of the aggregate
Purchase Price (calculated as of the Purchase Date) of all REO Properties then
owned by the REO SPE, over (y) the amount of all payments previously made
by the Guarantor on or at any time prior to such date of determination pursuant
to the terms hereof with respect to such Obligations (the “Recourse Limit”);
provided that such Recourse Limit shall not (i) constitute a waiver,
release or impairment of any obligation evidenced or secured by the Repurchase
Documents; (ii) impair the right of Buyer to name the Guarantor or any
Seller as a party or defendant in any action or suit for judicial foreclosure
and sale under the Repurchase Documents; (iii) impair the right of Buyer
to obtain the appointment of a receiver; (iv) impair the right of Buyer to
bring suit (and seek a money judgment therein) with respect to breach of
contract, tort, fraud or intentional misrepresentation by the Guarantor or any
Seller or any other person or entity in connection with the Repurchase
Documents; (v) impair the right of Buyer to obtain payments on the REO
Equity Interests or with respect to any such REO Properties received by the
Guarantor or any Seller after the occurrence of an Event of Default under the
Repurchase Agreement; (vi) impair the right of Buyer to bring suit (and
seek a money judgment therein) with respect to any misappropriation by the
Guarantor or any Seller of payments collected in advance with respect to the
REO Equity Interests or with respect to any such REO Properties; (vii) impair
the right of Buyer to apply to losses arising out of any misrepresentation,
willful misconduct or fraud by the Guarantor or any Seller or any of their
agents or employees, any suit or money judgment related thereto; (viii) limit
Guarantor’s liability for any Repurchase Obligations as they relate to a breach
of the representations and warranties set forth on Schedule 1-B of the
Repurchase Agreement with respect to the REO Equity Interests or with respect
to any such REO Properties; or (ix) limit the Guarantor’s liability for
any amount paid to the Buyer by any Seller that is avoided pursuant to any
insolvency, bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or decision thereunder. For the avoidance of doubt,
Guarantor’s liability hereunder shall be full recourse and the Recourse Limit
shall not apply with respect to any Repurchase Obligations with respect to
Mortgage Loans and REMIC Certificates (insofar as such Repurchase Obligations
are Obligations of PMC and PMIT).


 


3.             Representations and Warranties of Guarantor.  Guarantor hereby represents and warrants
that:


 


(a)           Guarantor.  Guarantor has been duly organized and validly
exists in good standing as a real estate investment trust under the laws of the
jurisdiction of its formation. Guarantor (i) has all requisite power,
authority, legal right, licenses and franchises, (ii) is duly qualified to
do business in all jurisdictions necessary, and (iii) has been duly authorized
by all necessary action, to (x) own, lease and operate its properties and
assets, (y) conduct its business as presently conducted and
(z) execute, deliver and perform its obligations under this Guaranty.  Guarantor’s exact legal name is set forth in
the preamble and signature pages of this Guaranty.  Guarantor’s tax identification number is
27-0186273.  Guarantor has the following
subsidiaries:  PennyMac GP OP, Inc.,
PennyMac Operating Partnership, L.P., PennyMac Mortgage Investment Trust
Holdings I, LLC, PennyMac Corp., and PC REO Trust.  The fiscal year of the Guarantor is the
calendar year.


 


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(b)           Licenses.  Guarantor is duly licensed or is otherwise
qualified in each jurisdiction in which it transacts business for the business
which it conducts and is not in default of any applicable federal, state or
local laws, rules and regulations.


 


(c)           Power.  Guarantor has all requisite corporate or
other power, and has all governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted.


 


(d)           Guaranty.  This Guaranty has been duly executed and
delivered by Guarantor and constitutes the legal, valid and binding obligation
of Guarantor enforceable against Guarantor in accordance with its terms, except
as such enforceability may be limited by Insolvency Laws and general principles
of equity.  The execution, delivery and
performance by Guarantor of this Guaranty does not and will not (i) conflict
with, result in a breach of, or constitute (with or without notice or lapse of
time or both) a default under, any (x) Governing Document, Indebtedness,
Guarantee Obligation or Contractual Obligation applicable to Guarantor or any
of its properties or assets, (y) Requirements of Law, or
(z) approval, consent, judgment, decree, order or demand of any
Governmental Authority, or (ii) result in the creation of any Lien on any
of the properties or assets of Guarantor. 
All approvals, authorizations, consents, orders, filings, notices or
other actions of any Person or Governmental Authority required for the
execution, delivery and performance by Guarantor of this Guaranty have been
obtained, effected, waived or given and are in full force and effect.


 


(e)           Solvency;
Fraudulent Conveyance.  Guarantor is
solvent and will not be rendered insolvent by the transactions contemplated
hereby.  Guarantor does not intend to
incur, nor does it believe that it has incurred, debts beyond its ability to
pay such debts as they mature and is not contemplating the commencement of
insolvency, bankruptcy, liquidation or consolidation proceedings or the
appointment of a receiver, liquidator, conservator, trustee or similar official
in respect of such entity or any of its assets.


 


(f)            Compliance
with Law.  Guarantor has complied in
all respects with all Requirements of Law. 
Guarantor  (i) is not an “enemy”
or an “ally of the enemy” as defined in the Trading with the Enemy Act of 1917,
(ii) is not in violation of any Anti-Terrorism Laws, (iii) is not a
blocked person described in Section 1 of Executive Order 13224 or to its
knowledge engages in any dealings or transactions or is otherwise associated
with any such blocked person, (iv) is not in violation of any country or
list based economic and trade sanction administered and enforced by the Office
of Foreign Assets Control, (v) is not a Sanctioned Entity, (vi) does
not have more than 10% of its assets located in Sanctioned Entities, or
(vii) does not derive more than 10% of its operating income from
investments in or transactions with Sanctioned Entities.  Neither Guarantor nor any Affiliate of
Guarantor (x) is a “broker” or “dealer” as defined in, or could be subject
to a liquidation proceeding under, the Securities Investor Protection Act of
1970, or (y) is subject to regulation by any Governmental Authority
limiting its ability to incur the Obligations. 
No properties presently or previously owned or leased by Guarantor, any
Affiliate of Guarantor or their respective predecessors contain or previously
contained any Materials of Environmental Concern that constitute or constituted
a violation of Environmental Laws or reasonably could be expected to give rise
to liability of Guarantor thereunder. 
Guarantor has no Knowledge of any violation, alleged violation,
non-compliance, liability or potential liability of Guarantor under any
Environmental Law.  Materials of
Environmental Concern have not been released, transported, generated, treated,
stored or disposed of in violation of Environmental Laws or in a manner that
reasonably could be expected to give rise to liability of Guarantor
thereunder.  Guarantor and all Affiliates
of Guarantor are in compliance with the Foreign Corrupt Practices Act of 1977
and any foreign counterpart thereto. 
Neither Guarantor nor any Affiliate of Guarantor has made, offered,
promised or authorized a payment of money or anything else of value (1) in
order to assist in obtaining or retaining business for or with, or directing
business to, any foreign official, foreign political party, party official or
candidate for foreign political office, (2) to any foreign official,
foreign political party, party official or candidate for foreign political 


 


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office, or (3) with the intent to induce the
recipient to misuse his or her official position to direct business wrongfully
to Guarantor, any Affiliate of Guarantor or any other Person, in violation of
the Foreign Corrupt Practices Act.


 


(g)           True
and Complete Disclosure.  All
information, reports, exhibits, schedules, financial statements or certificates
of Guarantor or any of its officers furnished or to be furnished to Buyer in
connection with the initial or any ongoing due diligence of Guarantor or any
officer thereof, negotiation, preparation, or delivery of this Guaranty are
true and complete and do not omit to disclose any material facts necessary to
make the statements herein or therein, in light of the circumstances in which
they are made, not misleading.


 


(h)           Approvals.  No consent, approval, authorization or order
of, registration or filing with, or notice to any governmental authority or
court is required under applicable law in connection with the execution,
delivery and performance by Guarantor of this Guaranty.


 


(i)            Litigation.  There is no material litigation, proceeding
or investigation pending or, to the knowledge of Guarantor threatened, against
Guarantor before any Governmental Authority (i) asserting the invalidity
of any this Guaranty, or (ii) seeking any determination or ruling that
could reasonably be expected to have a Material Adverse Effect.


 


(j)            Material
Adverse Change.  There has been no
material adverse change in the business, operations, financial condition,
properties or prospects of Guarantor since the date set forth in the most
recent financial statements supplied to Buyer.


 


(k)           Taxes.  Guarantor has timely filed all tax returns
that are required to be filed by it and has paid all taxes, except for any such
taxes as are being appropriately contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves
have been provided.  The charges,
accruals and reserves on the books of Guarantor in respect of taxes and other
governmental charges are, in the opinion of Guarantor, adequate.  No tax liens have been filed against any
assets of the Guarantor or any Affiliate thereof.


 


(l)            Investment
Company.  Neither Guarantor nor any
of its Subsidiaries is required to register as an “investment company”, or as a
company “controlled” by an “investment company,” within the meaning of the
Investment Company Act of 1940, as amended.


 


(m)          Chief
Executive Office; Jurisdiction of Organization.  On the date hereof, Guarantor’s chief
executive office, is, and has been, located at 27001 Agoura Road, Calabasas,
California 91301.  Guarantor does not
have a trade name.  On the date hereof,
Guarantor’s jurisdiction of organization is Maryland. During the preceding five
(5) years, Guarantor has not been known by or done business under any
other name, corporate or fictitious, and has not filed or had filed against it
any bankruptcy receivership or similar petitions nor has it made any
assignments for the benefit of creditors.


 


(n)           Location
of Books and Records.  The location
where Guarantor keeps its books and records is its chief executive office.


 


(o)           Compliance
with ERISA.  With respect to
Guarantor or any ERISA Affiliate thereof, during the immediately preceding five
(5) year period, (i) neither a Reportable Event nor an “accumulated
funding deficiency” nor “an unpaid minimum required contribution” as defined in
the Code or ERISA has occurred, (ii) each Plan has complied in all
material respects with the applicable provisions of the Code and ERISA,
(iii) no termination of a Single Employer Plan has occurred resulting in
any liability that has remained underfunded, and (iv) no Lien in favor of
the PBGC or a Plan has arisen.  The 


 


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present value of all accumulated benefit obligations
under each Single Employer Plan (based on the assumptions used for the purposes
of Financial Accounting Statement Bulletin 87) relating to Guarantor or any
ERISA Affiliate thereof did not, as of the last annual valuation date prior to
the date hereof, exceed the value of the assets of such Plan allocable to such
accumulated benefit obligations.  Neither
Guarantor nor any Affiliate of Guarantor is currently subject to any liability
for a complete or partial withdrawal from a Multiemployer Plan.  Guarantor does not provide any medical or
health benefits to former employees other than as required by the Consolidated
Omnibus Budget Reconciliation Act, as amended, or similar state or local law
(collectively, “COBRA.”) at no cost to the employer.  None of the assets of Guarantor are deemed to
be plan assets within the meaning of 29 C.F.R. 2510.3-101 as modified by Section 3(42)  of ERISA.


 


(p)           Agreements.  Guarantor is not a party to any agreement,
instrument, or indenture or subject to any restriction materially and adversely
affecting its business, operations, assets or financial condition.  Guarantor is not in default in the
performance, observance or fulfillment of any of the  Obligations, covenants or conditions
contained in any agreement, instrument, or indenture which default could have a
material adverse effect on the business, operations, properties, or financial
condition of Guarantor as a whole.  No
holder of any indebtedness of Guarantor has given notice of any asserted
default thereunder.


 


(q)           No
Reliance.  Guarantor has made its own
independent decisions to enter into this Guaranty based upon its own judgment
and upon advice from such advisors (including without limitation, legal counsel
and accountants) as it has deemed necessary, and Guarantor is not relying upon
any advice from Buyer as to any aspect of this Guaranty.


 


(r)            Repurchase
Agreement.  Guarantor has received
and reviewed copies of the Repurchase Agreement.


 


(s)           Financial
Representations and Warranties.


 


(i)            Guarantor’s Adjusted Tangible Net Worth is greater than
or equal to the sum of (x) $265,000,000 and (y) 75% of the aggregate
net proceeds received by Guarantor in connection with any future equity
issuances;


 


(ii)           Guarantor’s unrestricted cash is greater than or equal to
$5,000,000;


 


(iii)          The ratio of Guarantor’s Total Indebtedness to Tangible Net
Worth is less than 3:1.


 


4.             Covenants of Guarantor.  Guarantor hereby covenants and agrees that:


 


(a)           Existence;
Governing Documents; Conduct of Business. 
Guarantor  shall (i) preserve
and maintain its legal existence, (ii) qualify and remain qualified in
good standing in each jurisdiction where it does business, (iii) comply
with its Governing Documents, (iv) continue to engage in the same (and no
other) general lines of business as presently conducted by it,
(v) maintain and preserve all of its material rights, privileges,
licenses, permits, franchises and other approvals necessary for the operation
of its business and perform its obligations under this Guaranty and (vi) conduct
its business in accordance with applicable law. 
Guarantor shall not (x) change its name, organizational number, tax
identification number, fiscal year, method of accounting, identity, structure
or jurisdiction of organization (or have more than one such jurisdiction) or (y) move
the location of its principal place of business and chief executive office, as
defined in the UCC) from the location referred to in Section 3(m) hereof,
unless Guarantor has given at least thirty (30) days prior notice to
Buyer.


 


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(b)           Litigation.  At all times during the term of this
Guaranty, Guarantor will promptly, and in any event within ten (10) days
after service of process on any of the following, give to Buyer notice of all
litigation, actions, suits, arbitrations, investigations (including, without
limitation, any of the foregoing which are threatened or pending) or other
legal or arbitrable proceedings affecting Guarantor or affecting any of
Guarantor’s Property before any Governmental Authority that (i) questions
or challenges the validity or enforceability of this Guaranty or any action to
be taken in connection with the transactions contemplated hereby, (ii) makes
a claim individually in an amount greater than $1,000,000 or in an aggregate
amount greater than $2,500,000, or (iii) which, individually or in the
aggregate, if adversely determined, could be reasonably likely to have a
Material Adverse Effect.


 


(c)           Prohibition
of Fundamental Changes.  At all times
during the term of this Guaranty, neither Guarantor nor any of its Subsidiaries
shall enter into a merger or consolidation, or liquidate, wind up or dissolve,
or convey, sell, lease, assign, transfer or otherwise dispose of all or
substantially all of its assets or properties (whether now owned or hereafter
acquired) to any Person, or permit any changes in the ownership of its Equity
Interests, without the consent of Buyer in its discretion.  Guarantor shall ensure that all Equity
Interests of Guarantor shall continue to be owned by the owner or owners
thereof as of the date hereof.


 


(d)           Insurance.  Guarantor will continue to maintain insurance
coverage with respect to employee dishonesty, forgery or alteration, theft,
disappearance and destruction, robbery and safe burglary, property (other than
money and securities) and computer fraud in an aggregate amount reasonably
acceptable to Buyer, and shall have added Seller as an additional insured in
connection with any such insurance coverage.


 


(e)           Books.  Guarantor shall keep or cause to be kept in
reasonable detail books and records of account of its assets and business.


 


(f)            Material
Change in Business.  Guarantor shall
not make any material change in the nature of its business as carried on at the
date hereof.  There shall be no material
change in the senior management of Guarantor.


 


(g)           Applicable
Law.  Guarantor shall comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority.


 


(h)           Taxes.  Guarantor shall timely file all tax returns
that are required to be filed by them and shall timely pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which
penalties attach thereto, except for any such tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained.


 


(i)            Transactions
with Affiliates.  Guarantor shall not
(i) enter into transactions, including, without limitation, any purchase,
sale, lease or exchange of property or the rendering of any service, with any
Seller or any Subsidiary unless such transaction is (x) otherwise not
prohibited under any Repurchase Document, (y) in the ordinary course of
Guarantor’s business and (z) upon fair and reasonable terms no less
favorable to Guarantor than it would obtain in a comparable arm’s length
transaction with a Person which is not a Subsidiary, or (ii) make a
payment that is not otherwise pursuant to the transactions permitted by this Section 4(i) to
any Affiliate.


 


(j)            True
and Correct Information.  All
information, reports, exhibits, schedules, financial statements or certificates
of Guarantor or any of its officers furnished to Buyer hereunder and 


 


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during Buyer’s diligence of Guarantor are and will
be true and complete and do not omit to disclose any material facts necessary
to make the statements herein or therein, in light of the circumstances in
which they are made, not misleading.


 


(k)           Bankruptcy.  Guarantor shall not file or cause or suffer
to be filed with respect to any Seller a voluntary petition in bankruptcy to
seek relief for such Seller under any provision of any bankruptcy,
reorganization, moratorium, delinquency, arrangement, insolvency, readjustment
of debt, dissolution or liquidation law of any jurisdiction whether now or
subsequently in effect, or consent to the filing of any petition against any
Seller under any such law, or consent to the appointment of or taking
possession by a custodian, receiver, conservator, trustee, liquidator,
sequestrator or similar official for any Seller, or of all or any part of such
Seller’s Property, or make an assignment for the benefit of any Seller.


 


(l)            ERISA.  Guarantor shall immediately notify Buyer of
the occurrence of any of the following of which Guarantor has Knowledge,
together with a certificate of a Responsible Officer of Guarantor setting forth
details of such occurrence and any action Guarantor has taken or proposes to
take with respect thereto any Reportable Event or failure to meet the minimum
funding standard of Section 412 of the Code or Sections 302 or 303 of
ERISA, includes the failure to make on or before its due date a required
installment under Section 430(j) of the Code or Section 303(j) of
ERISA, or any request for a waiver under Section 412(c) of the Code
for any Plan; a notice of intent to terminate any Plan or any action taken by
Guarantor or an ERISA Affiliate to terminate any Plan or the institution by
PBGC of proceedings under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan, or the receipt by
Guarantor or any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such Multiemployer Plan; the
complete or partial withdrawal from a Multiemployer Plan by Guarantor or any
ERISA Affiliate that results in liability under Section 4201 or 4204 of
ERISA (including the obligation to satisfy secondary liability as a result of a
purchaser default) or the receipt by Guarantor or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA or the institution of a proceeding
by a fiduciary of any Multiemployer Plan against Guarantor or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; and the adoption of an amendment to any Plan that, pursuant to Section 401(a)(29)
of the Code, would result in the loss of tax-exempt status of the trust of
which such Plan is a part.


 


(m)          Use
of Employee Plan Assets. No assets of an employee benefit plan subject to
any provision of ERISA shall be used by either party in a connection with this
Guaranty.


 


(n)           Financial
Covenants.


 


(i)            Guarantor’s Adjusted Tangible Net Worth shall at all
times be greater than or equal to the sum of (i) $265,000,000 and (ii) 75%
of the aggregate net proceeds received by Guarantor in connection with any
future equity issuances;


 


(ii)           Guarantor’s unrestricted cash shall at all times be
greater than or equal to $5,000,000;


 


(iii)          The ratio of Guarantor’s Total Indebtedness to Tangible Net
Worth shall at all times be less than 3:1.


 


(o)           Financial
Statements. Guarantor shall deliver its financial statements to Buyer
pursuant to the terms of the Repurchase Agreement.


 


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5.             No Subrogation.  Notwithstanding any payment or payments made
by Guarantor hereunder or any set-off or application of funds of Guarantor by
Buyer or any of its Affiliates, Guarantor shall not be entitled to be
subrogated to any of the rights of Buyer against any related Seller or any
collateral security or guarantee or right of offset held by Buyer for the
payment of the Obligations, nor shall Guarantor seek or be entitled to seek any
contribution or reimbursement from any related Seller in respect of payments
made by Guarantor hereunder, until all amounts owing to Buyer by the related
Sellers on account of the Obligations are paid and satisfied in full and the
Repurchase Agreement is terminated.  If
any amount shall be paid to Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid and satisfied in
full, such amount shall be held by Guarantor in trust for Buyer, segregated
from other funds of Guarantor, and shall, forthwith upon receipt by Guarantor,
be turned over to Buyer in the exact form received by Guarantor (duly indorsed
by Guarantor to Buyer, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Buyer may determine.


 


6.             Amendments, Etc. with Respect to the Obligations.  Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against Guarantor and
without notice to or further assent by Guarantor, any demand for payment of any
of the Obligations made by Buyer may be rescinded by 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,
terminated, waived, surrendered or released by Buyer, and the Repurchase
Agreement and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, as
Buyer may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by Buyer for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released.  Buyer shall not have any 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
Guarantor, Buyer may, but shall be under no obligation to, make a similar
demand on any related Seller, and any failure by Buyer to make any such demand
or to collect any payments from any related Seller or any release of any related
Seller shall not relieve 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 Buyer against Guarantor. 
For the purposes hereof “demand” shall include the commencement and
continuance of any legal proceedings.


 


7.             Waiver of Rights.  Except as otherwise expressly provided
herein, Guarantor waives any and all notice of any kind including, without
limitation, notice of the creation, renewal, extension or accrual of any of the
Obligations, and notice of or proof of reliance by 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 related Seller and Guarantor, on the one hand, and Buyer,
on the other hand, likewise shall 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 related Seller or Guarantor with respect to its Repurchase
Obligations or the Obligations, respectively. 
In addition, Guarantor waives any requirement that Buyer exhaust any
right, power or remedy or proceed against any related Seller.


 


8.             Guaranty Absolute and Unconditional.  Guarantor understands and agrees that this
Guaranty shall be construed as a continuing, absolute and unconditional
guarantee of the full and punctual payment and performance of the Obligations
and not of their collectibility only and is in no way conditioned upon any
requirement that Buyer first attempt to collect any of the Obligations from any
related Seller, without regard to (a) the validity, regularity or
enforceability of the Repurchase Agreement


 


9














 


or any other Repurchase Document, any of the
Obligations therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by Buyer, (b) any defense, set-off,
deduction, abatement, recoupment, reduction or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by any related Seller against Buyer, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any related
Seller or Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of Guarantor from this Guaranty, in bankruptcy or
in any other instance. When pursuing its rights and remedies hereunder against
Guarantor, Buyer may, but shall be under no obligation to, pursue such rights,
powers, privileges and remedies as it may have against any related Seller or
any other Person or any right of offset with respect thereto, and any failure
by Buyer to pursue such other rights or remedies or to collect any payments
from any related Seller or any such other Person or to exercise any such right
of offset, or any release of any related Seller or any such other Person or
right of offset, shall not relieve Guarantor of any liability hereunder, and
shall not impair or affect the rights, powers, privileges and remedies, whether
express, implied or available as a matter of law or equity, of Buyer against
Guarantor.  This Guaranty shall remain in
full force and effect and be binding in accordance with and to the extent of
its terms upon Guarantor and the successors and assigns thereof, and shall
inure to the benefit of Buyer, and its successors, indorsees, transferees and
assigns, until all the Repurchase Obligations and the Obligations of Guarantor
under this Guaranty shall have been satisfied by performance and payment in
full and the Repurchase Agreement and the other Repurchase Documents shall have
been terminated, notwithstanding that from time to time during the term of the
Repurchase Agreement, one or more Sellers may be free from any Repurchase
Obligations.


 


9.             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 Buyer upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of any related Seller or Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, any related Seller or Guarantor or any substantial part of
its property, or otherwise, all as though such payments had not been made.


 


10.          Payments.  Guarantor hereby guarantees that payments
hereunder will be paid to Buyer without deduction, abatement, recoupment,
reduction, set-off or counterclaim, in U.S. Dollars and in accordance with the
wiring instructions of Buyer.


 


11.          Notices.  Any and all notices statements, demands or
other communications hereunder may be given by a party to the other by mail,
facsimile, messenger or otherwise to the address specified at the “Address for
Notices” specified on the signature page for Guarantor or specified below
for Buyer, or so sent to such party at any other place specified in a notice of
change of address hereafter received by the other.  All notices, demands and requests hereunder
may be made orally, to be confirmed promptly in writing, or by other
communication as specified in the preceding sentence.


 


Address
for Notices to Buyer:


 


Wells
Fargo Bank, National Association


301
S. College St.


MAC
D1053-082


Charlotte,
North Carolina 28288


Attention:
Goetz Rokahr


Telephone:
(704) 374-3455


 


12.          Entire Agreement; Severability.  This Guaranty shall supersede any existing
agreements between the parties containing general terms and conditions for
repurchase transactions.  Each 


 


10

















 


provision and agreement herein shall be treated as
separate and independent from any other provision or agreement herein and shall
be enforceable notwithstanding the unenforceability of any such other provision
or agreement


 


13.          Integration.  This Guaranty represents the agreement of
Guarantor with respect to the subject matter hereof and thereof and there are
no promises or representations by Buyer relative to the subject matter hereof
or thereof not reflected herein or therein.


 


14.          Amendments in Writing; No Waiver; Cumulative Remedies.


 


(a)           None
of the terms or provisions of this Guaranty may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
Guarantor, and Buyer; provided that any provision of this Guaranty may be
waived in writing by Buyer.


 


(b)           Buyer
shall not be deemed by any act (except by a written instrument pursuant to
Section 14(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right, power, privilege or remedy hereunder or to
have acquiesced in any Default or Event of Default under the Repurchase
Agreement 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 Buyer, any right, power, remedy or privilege
hereunder shall operate as a waiver thereof. 
No single or partial exercise of any right, power, remedy or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by Buyer of any right, power,
privilege or remedy hereunder on any one occasion shall not be construed as a
bar to any right, power, privilege or remedy which Buyer would otherwise have
on any future occasion.


 


(c)           The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.


 


15.          Section Headings.  The section 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.


 


16.          Successors and Assigns.  This Guaranty shall be binding upon the
successors and permitted assigns of Guarantor and shall inure to the benefit of
Buyer and its successors and assigns. 
This Guaranty may not be assigned by Guarantor without the express
written consent of Buyer in its sole discretion and any attempt to assign or
transfer this Guaranty without such consent shall be null and void and of no
effect whatsoever.


 


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 CONFLICTS OF LAWS PRINCIPLES THEREOF OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL GOVERN.


 


18.          Waiver Of Jury Trial; Consent To Jurisdiction And Venue;
Service Of Process. 
Buyer irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of the State of New
York sitting in the Borough of Manhattan and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Guaranty, or for recognition or enforcement of any judgment, and each party
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such State court or, to the
fullest extent permitted by applicable law, in such Federal court.  Each party agrees that a final judgment in
any such action or 


 


11

















 


proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law.  Nothing in this Guaranty shall
affect any right that Buyer may otherwise have to bring any action or
proceeding arising out of or relating to this Guaranty against Guarantor or its
properties in the courts of any jurisdiction. 
Guarantor irrevocably and unconditionally waives, to the fullest extent
permitted by Requirements of Law, any objection that it may now or hereafter
have to the laying of venue of any action or proceeding arising out of or
relating to this Guaranty in any court referred to above, and the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.  Each party irrevocably consents
to service of process in the manner provided for notices in Section 11.  Nothing in this Guaranty will affect the
right of any party hereto to serve process in any other manner permitted by
applicable law.


 


19.          Waivers.


 


(a)           GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN
ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY BUYER.


 


(b)           TO THE EXTENT PERMITTED BY
REQUIREMENTS OF LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE BETWEEN
THEM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH OR RELATED TO THIS GUARANTY, ANY DEALINGS OR COURSE OF CONDUCT
BETWEEN THEM, OR ANY STATEMENTS (WRITTEN OR ORAL) OR OTHER ACTIONS OF EITHER
PARTY.  NEITHER PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.  INSTEAD, ANY
SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A
JURY.


 


(c)           TO THE EXTENT PERMITTED BY REQUIREMENTS OF LAW, GUARANTOR
HEREBY WAIVES ANY RIGHT TO CLAIM OR RECOVER IN ANY LITIGATION WHATSOEVER
INVOLVING BUYER, ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES, WHETHER SUCH WAIVED DAMAGES ARE BASED
ON STATUTE, CONTRACT, TORT, COMMON LAW OR ANY OTHER LEGAL THEORY, WHETHER THE
LIKELIHOOD OF SUCH DAMAGES WAS KNOWN AND REGARDLESS OF THE FORM OF THE
CLAIM OF ACTION, INCLUDING ANY CLAIM OR ACTION ALLEGING GROSS NEGLIGENCE,
RECKLESS DISREGARD, WILLFUL OR WONTON MISCONDUCT, FAILURE TO EXERCISE
REASONABLE CARE OR FAILURE TO ACT IN GOOD FAITH.  BUYER SHALL NOT BE LIABLE FOR ANY DAMAGES
ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER
MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER
INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS GUARANTY.


 


(d)           GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF BUYER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BUYER WOULD NOT
SEEK TO ENFORCE ANY OF THE WAIVERS IN THIS SECTION 19 IN THE EVENT
OF LITIGATION OR OTHER CIRCUMSTANCES. 
THE SCOPE OF SUCH WAIVERS IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE 


 


12

















 


FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS GUARANTY, REGARDLESS OF THEIR LEGAL
THEORY.


 


(e)           EACH PARTY ACKNOWLEDGES THAT THE WAIVERS IN THIS SECTION 19
ARE A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SUCH
PARTY HAS ALREADY RELIED ON SUCH WAIVERS IN ENTERING INTO THIS GUARANTY, AND
THAT SUCH PARTY WILL CONTINUE TO RELY ON SUCH WAIVERS IN THEIR RELATED FUTURE
DEALINGS.  EACH PARTY FURTHER REPRESENTS
AND WARRANTS THAT IT HAS REVIEWED SUCH WAIVERS WITH ITS LEGAL COUNSEL AND THAT
IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL AND OTHER RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.


 


(f)            THE WAIVERS IN THIS SECTION 19 ARE
IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND SHALL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS THIS GUARANTY.  IN THE
EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.


 


20.          Agents.  Buyer may employ agents and attorneys-in-fact
in connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by them in good
faith.


 


21.          Counterparts.  This Guaranty may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.  The parties
agree that this Guaranty, any documents to be delivered pursuant to this
Guaranty and any notices hereunder may be transmitted between them by email
and/or facsimile. The parties intend that faxed signatures and electronically
imaged signatures such as .pdf files shall constitute original signatures and
are binging on all parties.


 


[SIGNATURE PAGE TO FOLLOW]


 


13

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty to be duly
executed and delivered as of the day and year first above written.


 


	
   

  	
  PENNYMAC
  MORTGAGE INVESTMENT TRUST, as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  27001
  Agoura Road

  
	
   

  	
  Calabasas,
  CA 91301

  
	
   

  	
  Attn:
  Chief Legal Officer

  



 


Guarantee Agreement — Wells Fargo-PennyMac