Exhibit 10.3
GUARANTY
GUARANTY, dated as of May 29, 2001 (the "Guaranty"), made by
XXXXXXX FINANCIAL SERVICES CORPORATION (the "Guarantor") in favor of CREDIT
SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer"), party to the Master
Repurchase Agreement referred to below.
RECITALS
Pursuant to the Master Repurchase Agreement dated as of May
29, 2001, as amended by Annex I thereto (as amended, supplemented or otherwise
modified from time to time, the "Master Repurchase Agreement") between Origen
Special Holdings Corporation (the "Seller") and the Buyer, the Buyer has agreed
to purchase certain manufactured home loans (the "Assets") from the Seller and
the Seller has agreed to repurchase such Assets upon the terms and subject to
the conditions set forth therein. It is a condition precedent to the obligation
of the Buyer to purchase the Assets from the Seller under the Master Repurchase
Agreement that the Guarantor shall have executed and delivered this Guaranty to
the Buyer.
NOW, THEREFORE, in consideration of the premises and to induce
the Buyer to enter into the Master Repurchase Agreement and to induce the Buyer
to purchase the Assets under the Master Repurchase Agreement, the Guarantor
hereby agrees with the Buyer as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Master Repurchase Agreement and used herein shall have the
meanings given to them in the Master Repurchase Agreement.
(b) "Obligations" shall mean the obligations and liabilities
of the Seller and the Guarantor to the Buyer, including, without limitation, the
obligations 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 Master Repurchase Agreement, this Guaranty, any other
Transaction Documents and any other document made, delivered or given in
connection therewith or herewith, whether on account of covenants, Repurchase
Prices, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel to the
Buyer that are required to be paid by the Seller pursuant to the terms of the
Master Repurchase Agreement) or otherwise.
(c) 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.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guaranty. (a) The Guarantor hereby, unconditionally and
irrevocably, guarantees to the Buyer and its successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Seller
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations (the "Guarantee"); provided, however, the amount payable by the
Guarantor under the Guarantee shall not exceed an amount equal to (x) with
respect to the Purchased Securities subject to Transactions at any one time, 10%
of the applicable Repurchase Price, less (y) the aggregate amount of payments
actually made by the Guarantor in respect of such Purchased Securities pursuant
hereto (without regard to any payments actually made by the Guarantor in respect
of either (i) Purchased Securities previously subject to Transactions, which are
no longer subject to Transactions as of such time, or (ii) previous Transactions
to the extent that such Transactions included Purchased Securities no longer the
subject of current Transactions). The limitation of liability described in the
foregoing proviso shall not (i) constitute a waiver, release or impairment of
any obligation evidenced or secured by the Transaction Documents; (ii) impair
the right of Buyer to name the Guarantor or Seller as a party defendant in any
action or suit for judicial foreclosure and sale under the Transaction
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 fraud or intentional misrepresentation by the
Guarantor or Seller or any other person or entity in connection with the
Transaction Documents; (v) impair the right of Buyer to obtain payments on the
Purchased Securities received by the Guarantor or Seller after the occurrence of
an Event of Default; (vi) impair the right of Buyer to bring suit (and seek a
money judgment therein) with respect to any misappropriation by the Guarantor or
Seller of payments collected in advance with respect to the Assets; or (vii)
impair the right of Buyer to apply to losses arising out of any
misrepresentation, wilful misconduct or fraud by the Guarantor or Seller or
either of their agents or employees or to any suit or money judgment related
thereto.
(b) The Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Buyer in enforcing 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. This Guaranty shall remain in full force and effect until the
Obligations are paid in full, notwithstanding that from time to time prior
thereto the Seller may be free from any Obligations.
(c) No payment or payments made by the Seller, the Guarantor,
any other guarantor or any other Person or received or collected by the Buyer
from the Seller, the Guarantor, any other guarantor 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 the Guarantor hereunder which shall, notwithstanding any such
payment or payments other than payments made by the Guarantor in respect of the
Obligations or payments received or collected from the Guarantor in respect of
the Obligations, remain liable for the Obligations up to the maximum liability
of the Guarantor hereunder until the Obligations are paid in full and the Master
Repurchase Agreement is terminated.
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(e) The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Buyer on account of its liability
hereunder, it will notify the Buyer in writing that such payment is made under
this Guaranty for such purpose.
3. Representations and Warranties of the Guarantor. The
Guarantor hereby represents and warrants (a) that it is duly organized and
validly existing in good standing under the laws of the jurisdiction under which
it is organized and is duly qualified to do business and is in good standing in
every other jurisdiction as to which the nature of the business conducted by it
makes such qualification necessary, (b) that it has the power and authority to
enter into and perform this Guaranty, (c) that the execution, delivery and
performance of this Guaranty by it have been duly authorized by proper action
and are not in contravention of law or of the terms of its organizational
documents, or any agreement, instrument, indenture or other undertaking to which
it is a party or by which it is bound, and (d) that all registrations and
approvals of any governmental agency, department or commission necessary for the
execution, delivery and performance of this Guaranty and for the validity and
enforceability thereof, have been obtained and are in full force and effect. The
Guarantor hereby represents and warrants (x) that this Guaranty is the legal,
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, subject to bankruptcy, insolvency and similar laws
and to the availability of equitable remedies, (y) that except as previously
disclosed to Buyer no legal proceedings are pending, or threatened, before any
court or governmental agency which would adversely affect its financial
condition, operations or any licenses or its ability to perform under this
Guaranty, and (z) that the Guarantor has received and reviewed copies of the
Master Repurchase Agreement.
4. Right of Set-off. Upon the occurrence of any Event of
Default, the Guarantor hereby irrevocably authorizes the Buyer and each of its
affiliates at any time and from time to time without notice to the Guarantor,
any such notice being expressly waived by the Guarantor, to set-off and
appropriate and apply any and all assets, at any time held or owing by the
Guarantor or any of its affiliates to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Buyer or any of its
affiliates may elect, against and on account of the obligations and liabilities
of the Guarantor to the Buyer hereunder and claims of every nature and
description of the Buyer or any of its affiliates against 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 to or for the credit or the
account of the Guarantor, or any part thereof in such amounts as the Buyer may
elect, against and on account of the obligations and liabilities of the
Guarantor to the Buyer hereunder and claims of every nature and description of
the Buyer against the Guarantor, in any currency, whether arising hereunder,
under the Master Repurchase Agreement as the Buyer may elect, whether or not the
Buyer has made any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured; provided, however, that such rights
shall not exceed the maximum amount due hereunder at the time. 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
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the Buyer under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Buyer may
have.
5. No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by the Buyer, the Guarantor shall not be entitled to be subrogated to
any of the rights of the Buyer against the Seller or any other guarantor or any
collateral security or guarantee or right of offset held by the Buyer or any of
its affiliates for the payment of the Obligations, nor shall the Guarantor seek
or be entitled to seek any contribution or reimbursement from the Seller or any
other guarantor in respect of payments made by the Guarantor hereunder, until
all amounts owing to the Buyer by the Seller on account of the Obligations are
paid in full and the Master Repurchase Agreement is terminated. 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 amount 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.
6. Amendments, Etc. with Respect to the Obligations. The
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 Master 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 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 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 the Guarantor, the Buyer may,
but shall be under no obligation to, make a similar demand on the Seller or any
other guarantor, and any failure by the Buyer to make any such demand or to
collect any payments from the Seller or any such other guarantor or any release
of the Seller or such other guarantor 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.
7. Waiver of Rights. The 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 the Buyer upon this Guaranty or acceptance of this
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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 and the
Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty. The Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Seller or the
Guarantor with respect to the Obligations.
8. Guaranty Absolute and Unconditional. The 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 by the Seller of the Obligations and not of their collectibility
only and is in no way conditioned upon any requirement that the Buyer first
attempt to collect any of the Obligations from the Seller without regard to (a)
the validity, regularity or enforceability of the Master Repurchase Agreement,
any of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Buyer, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Seller against the Buyer, or (c) 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 from the Obligations, or of the Guarantor from 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 as it 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 the successors and assigns
thereof, and shall inure to the benefit of the Buyer, and its successors,
indorsees, transferees and assigns, until all the Obligations and the
obligations of the Guarantor under this Guaranty shall have been satisfied by
payment in full and the Master Repurchase Agreement shall be terminated,
notwithstanding that from time to time during the term of the Master Repurchase
Agreement the Seller may be free from any 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 the Buyer upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Seller or the Guarantor, 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 the Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
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10. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Buyer without set-off or counterclaim in U.S.
Dollars in accordance with the wiring instructions of the Buyer.
11. Notices. All notices, requests and other communications
provided for herein (including without limitation any modifications of, or
waivers, requests or consents under, this Guaranty) shall be given or made in
writing (including without limitation by telex or telecopy) and delivered to the
intended recipient at the "Address for Notices" specified below; or, as to any
party, at such other address as shall be designated by such party in a written
notice to each other party.
If to the Guarantor:
XXXXXXX FINANCIAL SERVICES CORPORATION
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Buyer:
Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone : (000) 000-0000
Facsimile: (000) 000-0000
All such communications shall be deemed to have been duly given when
transmitted by telex or telecopy or personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as aforesaid.
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. Integration. This Guaranty and the Master Repurchase
Agreement represent the agreement of the Guarantor with respect to the subject
matter hereof and thereof and there are no promises or representations by the
Buyer relative to the subject matter hereof or thereof not reflected herein or
therein.
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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
the Guarantor and the Buyer, provided that any provision of this Guaranty may be
waived by the Buyer.
(b) The Buyer shall not 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 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.
(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 assigns of the Guarantor and shall inure to the benefit
of the Buyer and its successors and assigns. This Guaranty may not be assigned
by the Guarantor without the express written consent of the Buyer.
17. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY NEW YORK
LAW WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
18. SUBMISSION TO JURISDICTION; WAIVERS. THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY AND THE MASTER REPURCHASE
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW,
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WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD
OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH
OTHER ADDRESS OF WHICH THE BUYER SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
19. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY, THE MASTER REPURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
20. Recording. The Buyer and the Guarantor shall have the
right (but not the obligation) from time to time to make or cause to be made
tape recordings of communications between its employees and those of the other
party with respect to Transactions. The Buyer and the Guarantor consent to the
admissibility of such tape recordings in any court, arbitration, or other
proceedings. The parties agree that a duly authenticated transcript of such a
tape recording shall be deemed to be a writing conclusively evidencing the
parties' agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
XXXXXXX FINANCIAL SERVICES
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: President and CEO
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