GUARANTY
Exhibit 10.10
GUARANTY, dated as of June 22, 2007 (as amended, supplemented, or otherwise modified from time
to time, this “Guaranty”), made by NY CREDIT OPERATING PARTNERSHIP, LP, a limited
partnership having offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Guarantor”),
in favor of XXXXXXX XXXXX MORTGAGE LENDING, INC. (the “Buyer”).
RECITALS
Pursuant to the Master Repurchase Agreement, dated as of the date hereof (as further amended,
supplemented or otherwise modified from time to time, the “Repurchase Agreement”), among NY
Credit Funding II, LLC (the “Seller”), the Buyer and the Guarantor, the Buyer has agreed
from time to time to enter into transactions in which the Seller agrees to transfer to Buyer
Purchased Assets against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to
transfer to Seller such Purchased Assets at a date certain or on demand, against the transfer of
funds by Seller. Each such transaction shall be referred to herein as a “Transaction”. It
is a condition precedent to the obligation of the Buyer to enter into Transactions under the
Repurchase Agreement that the Guarantor shall have executed and delivered this Guaranty to the
Buyer.
NOW, THEREFORE, in consideration of the foregoing premises, to induce the Buyer to
enter into Transactions under the Repurchase Agreement, the Guarantor hereby agrees with the Buyer,
as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are defined in the
Repurchase Agreement and used herein are so used as so defined.
(a) For purposes of this Guaranty, “Obligations” shall mean any amount due and payable
to the Buyer under the Repurchase Agreement or any other Program Agreement.
2. Guaranty. (a) The Guarantor hereby unconditionally and irrevocably guarantees to
the Buyer the prompt and complete payment and performance by the Seller when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations subject to any applicable grace
period under the Repurchase Agreement.
(a) The Guarantor further agrees to pay any and all out-of-pocket expenses (including, without
limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by the
Buyer in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guaranty.
(b) In the event that any of the Purchased Assets are unable to be deposited into the CDO
Transaction due to limitations imposed by any Rating Agency, the Guarantor further
agrees to purchase, or cause the purchase of, such Purchased Assets from the Buyer in
immediately available funds no later than the Closing Date.
(c) This Guaranty shall remain in full force and effect until the later of (i) the termination
of the Repurchase Agreement or (ii) the Obligations have been satisfied in full.
(d) Guarantor agrees that whenever, at any time, or from time to time, the Guarantor shall
make any payment to the Buyer on account of the Guarantor’s liability hereunder, the Guarantor will
notify the Buyer in writing that such payment is made under this Guaranty for such purpose.
(e) Notwithstanding anything herein to the contrary, the Guarantor hereby indemnifies and
holds harmless the Buyer and its successors with respect to any losses arising from the failure of
such party to fulfill its future funding obligations under any related Future Funding Commitment.
3. Right of Set-off. The Buyer is hereby irrevocably authorized at any time and from
time to time without notice to the Guarantor, any such notice being hereby waived by the Guarantor,
to set off and appropriate and apply any and all monies and other property of the Guarantor,
deposits (general or special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by the Buyer of any affiliate
thereof to or for the credit or the account of the Guarantor, or any part thereof in such amounts
as the Buyer may elect, on account of the Obligations. The Buyer shall notify the Guarantor
promptly of any such set-off and the application made by the Buyer, provided that the failure to
give such notice shall not affect the validity of such set-off and application. The rights of the
Buyer under this paragraph are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Buyer may have.
4. Subrogation. The Guarantor will not exercise any rights that it may acquire by way
of subrogation until all Obligations to the Buyer shall have been paid in full. If any amount
shall be paid to the Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amounts shall be held by the Guarantor in trust
for the Buyer, segregated from other funds of the Guarantor, and shall, forthwith upon receipt by
the Guarantor, be turned over to the Buyer in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Buyer, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Buyer may determine.
5. Amendments, etc. with Respect to the Obligations. Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights against the Guarantor, and
without notice to or further assent by the Guarantor, any demand for payment of any of the
Obligations made by the Buyer may be rescinded by the 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,
waived, surrendered or released by the Buyer, and the Repurchase
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Agreement, and the other Program Agreements and any other document in connection therewith may
be amended, modified, supplemented or terminated, in whole or in part, as the Buyer may deem
advisable from time to time, and any collateral security, guarantee or right of offset at any time
held by the Buyer for the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. The Buyer shall have no 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 the Guarantor, the Buyer may, but shall be under
no obligation to, make a similar demand on the Seller and any failure by the Buyer to make any
such demand or to collect any payments from the Seller or any release of the Seller shall not
relieve the 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 the Buyer against the
Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any
legal proceedings.
6. Guaranty Absolute and Unconditional. (a) Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the 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 the Seller or
the Guarantor, on the one hand, and the Buyer, on the other, shall likewise 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
the Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to (i) the validity or
enforceability of the Repurchase Agreement, the other Program Agreements, any of the Obligations or
any collateral security therefor or guarantee or right of offset with respect thereto at any time
or from time to time held by the Buyer, (ii) any defense, set-off or counterclaim (other than a
defense of payment) which may at any time be available to or be asserted by the Seller against the
Buyer, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of the
Seller or the Guarantor) which constitutes, or might be construed to constitute, an equitable or
legal discharge of the Seller for the Obligations, or of the Guarantor under this Guaranty, in
bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Buyer may, but shall be under no obligation, to pursue such rights and remedies that
they may have against the Seller or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and any failure by the
Buyer to pursue such other rights or remedies or to collect any payments from the Seller or any
such other Person or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Seller or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the Guarantor and
their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors,
indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor
under this Guaranty
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shall have been satisfied by payment in full, notwithstanding that from time to time during
the term of the Repurchase Agreement the Seller may be free from any Obligations.
(a) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges,
and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to
assert against the Buyer any claim or defense based upon, an election of remedies by the
Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes
Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor
for reimbursement or contribution, and/or any other rights of the Guarantor to proceed
against the Seller, against any other guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of
all other circumstances which diligent inquiry would reveal and which bear upon the risk of
nonpayment of the Obligations. The Guarantor hereby covenants that it will make its own
investigation and will continue to keep itself informed of the Seller’s financial condition,
the status of other guarantors, if any, of all other circumstances which bear upon the risk
of nonpayment and that it will continue to rely upon sources other than the Buyer for such
information and will not rely upon the Buyer for any such information.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related
agreements and has made an independent determination as to the validity and enforceability
thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any
manner relying upon the validity, and/or enforceability, and/or attachment, and/or
perfection of any Liens or security interests of any kind or nature granted by the Seller or
any other guarantor to the Buyer, now or at any time and from time to time in the future.
7. 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 the Buyer upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Seller or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer for, the Seller or any
substantial part of its property, or otherwise, all as though such payments had not been made.
8. Payments. Guarantor hereby agrees that the Obligations will be paid to the Buyer
without set-off in U.S. Dollars.
9. Representations and Warranties. Guarantor represents and warrants that:
(a) it is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the power and authority and the legal right to own and
operate its property, to lease the property it operates as lessee and to conduct the business in
which it is currently engaged;
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(b) it has the power and authority and the legal right to execute and deliver, and to perform
its obligations under, this Guaranty and has taken all necessary action to authorize its execution,
delivery and performance of this Guaranty;
(c) this Guaranty has been duly executed and delivered by the Guarantor and constitutes a
legal, valid and binding obligation of the Guarantor enforceable in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity (whether enforcement is sought in proceedings in equity or at law);
(d) the execution, delivery and performance of this Guaranty will not violate any provision of
the charter, by-laws or other organizational documents of the Guarantor, or any law, treaty, rule
or regulation or determination of an arbitrator, a court or other governmental authority,
applicable to or binding upon the Guarantor or any of its property or to which the Guarantor or any
of its property is subject (“Requirement of Law”), or any provision of any security issued
by the Guarantor or of any agreement, instrument or other undertaking to which the Guarantor is a
party or by which it or any of its property is bound (“Contractual Obligation”), and will
not result in or require the creation or imposition of any Lien on any of the properties or
revenues of the Guarantor pursuant to any Requirement of Law or Contractual Obligation of the
Guarantor;
(e) no consent or authorization of, filing with, notice to, or other act by or in respect of,
any Governmental Authority or any other Person (including, without limitation, any stockholder or
creditor of the Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty;
(f) no litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Guarantor, threatened by or against the Guarantor
or against any of the Guarantor’s properties or revenues (i) with respect to this Guaranty or any
of the transactions contemplated hereby or thereby, or (ii) which has any reasonable likelihood of
having a Material Adverse Effect on the business, operations, property or financial or other
condition of the Guarantor; and
(g) the Guarantor has filed or caused to be filed all tax returns which, to the knowledge of
the Guarantor, are required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against him or any of the Guarantor’s property and all other
taxes, fees or other charges imposed on him or any of the Guarantor’s property by any Governmental
Authority (other than any the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Guarantor); no tax Lien has been filed, and, to the knowledge of
the Guarantor, no claim is being asserted, with respect to any such tax, fee or other charge.
Guarantor agrees that the foregoing representations and warranties shall be deemed to have
been made by the Guarantor on the date of each Transaction under the
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Xxxxxxxxxx Agreement on and as of such Purchase Date as though made hereunder on and as of
such date.
10. Covenants. The Guarantor covenants and agrees that the Guarantor will not change
its legal name or primary residence without having provided to the Buyer prior written notice of
any such change.
11. Event of Default. If an Event of Default under the Repurchase Agreement shall
have occurred and be continuing, the Guarantor agrees that, as between the Guarantor and Buyer, the
Obligations may be declared to be due for purposes of this Guaranty notwithstanding any stay,
injunction or other prohibition which may prevent, delay or vitiate any such declaration as against
a Seller and that, in the event of any such declaration (or attempted declaration), such
Obligations shall forthwith become due by the Guarantor for purposes of this Guaranty.
12. Severability. Any provision of this Guaranty which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
13. Headings. The paragraph 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.
14. No Waiver; Cumulative Remedies. The Buyer shall not by any act (except by a
written instrument pursuant to paragraph 15 hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event
of Default 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 the Buyer, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. A waiver by the Buyer of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Buyer would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns; Governing Law. None of the terms
or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except by
a written instrument executed by the Guarantor and the Buyer, provided that any provision of this
Guaranty may be waived by the Buyer in a letter or agreement executed by the Buyer or by facsimile
or electronic transmission from the Buyer. This Guaranty shall be binding upon the heirs, personal
representatives, successors and assigns of the Guarantor and shall inure to the benefit of the
Buyer and its respective successors and assigns.
16. Notices. Notices by the Buyer to the Guarantor may be given by mail, or by
telecopy transmission, addressed to the Guarantor at the Guarantor’s address or transmission
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number set forth under its signature below and shall be effective (a) in the case of mail,
five days after deposit in the postal system, first class certified mail and postage pre-paid, (b)
one Business Day following timely delivery to a nationally recognized overnight courier service for
next Business Day delivery and (c) in the case of telecopy transmissions, when sent, transmission
electronically confirmed.
17. Jurisdiction.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (DISREGARDING SUCH STATE’S LAW ON CONFLICTS OF LAWS).
(b) GUARANTOR HEREBY WAIVES TRIAL BY JURY. GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS
IN ANY ACTION OR PROCEEDING. GUARANTOR HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO,
EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX AND THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING
OUT OF OR RELATING TO THE PROGRAM AGREEMENTS.
18. Integration. This Guaranty represents the agreement of the Guarantor with respect
to the subject matter hereof and there are no promises or representations by the Buyer relative to
the subject matter hereof not reflected herein.
19. Acknowledgments. Guarantor hereby acknowledges that:
(a) Guarantor has been advised by counsel in the negotiation, execution and delivery of this
Guaranty;
(b) the Buyer does not have any fiduciary relationship to the Guarantor, and the relationship
between the Buyer and the Guarantor is solely that of surety and creditor; and
(c) no joint venture exists between the Buyer and the Guarantor or among the Buyer, the Seller
and the Guarantor.
[ Signature pages follow ]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed and delivered
as of the date first above written.
| NY CREDIT OPERATING PARTNERSHIP LP, as Guarantor | ||||
| By: | NYCC GP LLC, its general partner | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Managing Director | |||
| Address for Notices: | ||
| NY Credit Operating Partnership LP | ||
| c/o NY Credit Advisors, LLC, | ||
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 |
