RECOURSE AGAINST A PERSON FOR ACTS OR
FAILURES TO ACT BY ANY PERSON WHERE SUCH ACTION OR INACTIVITY IS UNRELATED TO
THE GUARANTEED OBLIGATIONS OR THE AGREEMENT SHALL, IN EACH CASE, NOT BE LIMITED
TO THIS SECTION 20.
SECTION 21.
WAIVER OF CERTAIN DAMAGES. BENEFICIARY, BY ITS
ACCEPTANCE OF THIS GUARANTY, AGREES THAT IT SHALL NOT BE ENTITLED TO RECOVER ANY
DAMAGES OR AMOUNTS OWED HEREUNDER FROM THE GUARANTOR TO THE EXTENT THAT SUCH
DAMAGES OR AMOUNTS OWED ARE SOLELY CAUSED BY OR SOLELY RESULT FROM THE GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR VIOLATION OF APPLICABLE LAW, IN EACH CASE, BY
BENEFICIARY, AS DETERMINED BY A FINAL JUDGMENT OF A COURT OF COMPETENT
JURISDICTION THAT IS NO LONGER SUBJECT TO APPEAL, REHEARING OR OTHER LEGAL
CHALLENGE. THE GUARANTOR (AND, EXCEPT AS OTHERWISE PROVIDED FOR IN THE
AGREEMENT, ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES,
ATTORNEYS, CONSULTANTS OR AGENTS) SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER, ARISING OUT OF OR IN
CONNECTION WITH ITS PERFORMANCE OR NON-PERFORMANCE UNDER THIS GUARANTY OR ANY OF
ITS OBLIGATIONS HEREIN, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY,
WARRANTY, INDEMNITY OR OTHERWISE.
SECTION 22.
AMENDMENTS. NO AMENDMENT OR MODIFICATION HEREOF SHALL BE
EFFECTIVE UNLESS EVIDENCED BY A WRITING SIGNED BY THE GUARANTOR AND THE
BENEFICIARY.
SECTION 23.
SEVERABILITY. IF ANY PROVISION HEREOF IS INVALID AND
UNENFORCEABLE IN ANY JURISDICTION, THEN, TO THE FULLEST EXTENT PERMITTED BY LAW,
(I) THE OTHER PROVISIONS HEREOF SHALL REMAIN IN FULL FORCE AND EFFECT IN SUCH
JURISDICTION AND (II) THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISIONS
HEREOF IN ANY JURISDICTION SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
SUCH PROVISION IN ANY OTHER JURISDICTION.
SECTION 24.
INTEGRATION. THIS GUARANTY EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE GUARANTOR AND THE BENEFICIARY WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
GUARANTOR AND THE BENEFICIARY. ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS WITH RESPECT TO THE SUBJECT MATTER HEREOF, ORAL OR WRITTEN, ARE
MERGED INTO THIS GUARANTY.
SECTION 25.
COUNTERPARTS. THIS GUARANTY MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE
SAME INSTRUMENT, AND ANY OF THE PARTIES HERETO MAY EXECUTE THIS GUARANTY BY
SIGNING ANY SUCH COUNTERPART.
[SIGNATURES FOLLOW]
IN WITNESS WHEREOF, the undersigned has executed this Guaranty, or has caused
this Guaranty to be executed by its duly authorized representative, as of the
date first above written.
FIELDSTONE INVESTMENT
CORPORATION, as Guarantor
By:
/s/ Mark C. Krebs
Name: Mark C. Krebs
Title: Sr. Vice President & Treasurer
Date: October 11, 2005
Accepted and Acknowledged:
LIQUID FUNDING, LTD., as Beneficiary
By:
/s/ Marco Montarsolo
Name: Marco Montarsolo
Title: Alt Director
Date: 12 October 2005