GUARANTY AGREEMENT
THIS
GUARANTY AGREEMENT (as amended, modified or supplemented from time to time, the
“Guaranty”),
made as of August 4, 2010 (the “Effective Date”), by
TWO HARBORS INVESTMENT CORP., a Maryland corporation (the “Guarantor”), in favor
of Xxxxx Fargo Bank, National Association (the “Buyer”).
RECITALS
Pursuant
to that certain master repurchase and securities contract (the “Master Repurchase
Agreement”) of even date herewith between the Buyer and Two Harbors Asset
I, LLC, a Delaware limited liability company (the “Seller”), the Buyer
has agreed from time to time to enter into transactions in which the Seller
agrees to transfer to Buyer RMBS (as defined in the Repurchase Agreement) in
exchange for the transfer of funds by Buyer, with a simultaneous agreement by
Buyer to transfer to Seller such RMBS at a date certain or on demand, in
exchange for the transfer of funds by Seller to Buyer. Each such
transaction shall be referred to herein as a “Transaction”. The
Guarantor is receiving a benefit either directly or indirectly from the Seller
for entering into this Guaranty. The Guarantor is the sole member and
sole managing member of Two Harbors Operating Company LLC which is the sole
member and manager of Seller. It is a condition precedent, among
others, to the obligation of the Buyer to enter into Transactions under the
Master 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 the Master Repurchase Agreement and to enter into Transactions
thereunder, the Guarantor hereby agrees with the Buyer, as follows:
1. Defined
Terms. Unless otherwise defined herein, terms which are
defined in the Master Repurchase Agreement and used herein are so used as so
defined.
(b) “Affiliate” shall mean
with respect to (i) Guarantor, any other Person directly or indirectly
Controlling or Controlled by such Person and (ii) any Person other than
Guarantor, any other Person directly or indirectly Controlling, Controlled by,
or under common Control with, such Person. For the avoidance of
doubt, with respect to Guarantor, “Affiliate” shall not include (i) PRCMLP,
PRCMLLC, Advisers, any subsidiary of PRCMLP, PRCMLLC or Advisers, or any fund
that PRCMLP or Advisers from time to time may manage other than Guarantor or
(ii) any officer or director of Guarantor or Guarantor’s
subsidiaries.
(c) “Guarantor
Obligations” shall mean all Repurchase Obligations, including, without
limitation, the obligations and liabilities of Seller to the 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 Master Repurchase Agreement and any other Repurchase
Documents and any other document made, delivered or given in connection
therewith or herewith, whether on account of principal, interest, 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 a party to the Transaction pursuant to the terms of the Repurchase Documents
and costs of enforcement of this Guaranty) or otherwise.
(d) “Material Adverse
Effect”: A material adverse effect on or change in or to
(i) the property, assets, business, operations, financial condition, credit
quality or prospects of the Guarantor or any Affiliate of the Guarantor, (ii)
the ability of the Guarantor to pay and perform the Guarantor Obligations, (iii)
the validity, legality, binding effect or enforceability of any Repurchase
Document, (iv) the rights and remedies of the Guarantor or any Indemnified
Person under any Repurchase Document, (v) rating (if applicable), liquidity or
other aspect of a material portion of the Purchased Assets, as determined by
Buyer in its discretion, or (vi) the perfection or priority of any Lien granted
under any Repurchase Document.
(e) “Liquidity”: With
respect to Guarantor and any date, the aggregate amount of unrestricted cash or
cash equivalents held by Guarantor (including cash held in the Collection
Account net of amounts payable under clauses first through fourth of Section 5.02 of the
Master Repurchase Agreement on the next following Remittance Date).
(f) “Tangible Net
Worth”: With respect to any Person and any date, all amounts
which would be included under stockholders’ equity (or any like caption) on a
balance sheet of such Person, minus (a) intangible
assets and (b) goodwill.
2. Guaranty. The
Guarantor hereby unconditionally and irrevocably guarantees to the Buyer the
prompt and complete payment and performance by Seller when due (whether at the
stated maturity, by acceleration or otherwise) of the Guarantor
Obligations.
(b) The
Guarantor further agrees to pay any and all expenses (including, without
limitation, all 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 Guarantor 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 Guarantor Obligations are paid in full,
notwithstanding that from time to time prior thereto Seller may be free from any
Guarantor Obligations.
(c) No
payment or payments made by Seller or any other Person or received or collected
by the Buyer from 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 Guarantor 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,
remain liable for the amount of the Guarantor Obligations until the Guarantor
Obligations are paid in full.
-2-
(d) The
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.
3. Right of Set-off. In
addition to any rights now or hereafter granted under the Repurchase Documents,
the Guarantor, on behalf of itself and each Affiliate of the Guarantor, hereby
grants to Buyer and each Indemnified Person, to secure repayment of the
Guarantor Obligations, a right of set off upon any and all of the following:
monies, securities, collateral or other property of the Guarantor and each
Affiliate of the Guarantor and any proceeds from the foregoing, now or hereafter
held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for
the account of such Guarantor or such Affiliate of the Guarantor, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, and also
upon any and all deposits (general, specified, special, time, demand,
provisional or final) and credits, claims or Indebtedness of the Guarantor or
any Affiliate of the Guarantor at any time existing, and any obligation owed by
Buyer or any Affiliate of Buyer to the Guarantor or any Affiliate of the
Guarantor and to set–off against any Guarantor Obligations or Indebtedness owed
by the Guarantor or any Affiliate of the Guarantor and any Indebtedness owed by
Buyer or any Affiliate of Buyer to the Guarantor or any Affiliate of the
Guarantor, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, whether or not arising under the Repurchase Documents and
irrespective of the currency, place of payment or booking office of the amount
or obligation and in each case at any time held or owing by Buyer, any Affiliate
of Buyer or any Indemnified Person to or for the credit of the Guarantor or any
Affiliate of the Guarantor, without prejudice to Buyer’s right to recover any
deficiency. Each of Buyer, each Affiliate of Buyer and each
Indemnified Person is hereby authorized upon any amount becoming due and payable
by the Guarantor or any Affiliate of the Guarantor to Buyer or any Indemnified
Person under the Repurchase Documents, the Guarantor Obligations or otherwise or
upon the occurrence of an Event of Default, to set–off, appropriate, apply and
enforce such right of set–off against any and all items hereinabove referred to
against any amounts owing to Buyer or any Indemnified Person by the Guarantor or
any Affiliate of the Guarantor under the Repurchase Documents and the Guarantor
Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any
Indemnified Person shall have made any demand under the Repurchase Documents and
regardless of any other collateral securing such amounts, and in all cases
without waiver or prejudice of Buyer’s rights to recover a
deficiency. ANY AND ALL RIGHTS TO REQUIRE BUYER, ANY AFFILIATE OF
BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES UNDER
THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET–OFF,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY THE GUARANTOR AND
EACH AFFILIATE OF THE GUARANTOR.
Buyer or
any Indemnified Person shall promptly notify the Guarantor or Affiliate of the
Guarantor of any such set–off and application made by Buyer or such Indemnified
Person, provided that the failure to give such notice shall not affect the
validity of such set–off and application. If an amount or obligation
is unascertained, Buyer may in good faith estimate that obligation and set-off
in respect of the estimate, subject to the relevant party accounting to the
other party when the amount or obligation is ascertained. Nothing in
this Section 3
shall be effective to create a charge or other security
interest. This Section 3 shall be
without prejudice and in addition to any right of set-off, combination of
accounts, Lien or other rights to which any party is at any time otherwise
entitled.
-3-
4. Subrogation. Notwithstanding
any payment or payments made by the Guarantor hereunder or any set-off or
application of funds of the Guarantors by the Buyer, the Guarantor shall not be
entitled to be subrogated to any of the rights of the Buyer against Seller or
any other guarantor or any collateral security or guarantee or right of offset
held by the Buyer for the payment of the Guarantor Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from
Seller or any other guarantor in respect of payments made by the Guarantor
hereunder, until all amounts owing to the Buyer by Seller on account of the
Guarantor Obligations are 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 Guarantor 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 Guarantor
Obligations, whether matured or unmatured, in such order as the Buyer may
determine.
5. Amendments, etc. with
Respect to the Guarantor 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 Guarantor Obligations made by
the Buyer may be rescinded by the Buyer, and any of the Guarantor Obligations
continued, and the Guarantor 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
the other Repurchase Documents 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 Guarantor 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 Guarantor
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 Seller
and any failure by the Buyer to make any such demand or to collect any payments
from Seller or any release of 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 and any written or oral
notification transmitted to the Guarantor or Seller for the Guarantor to perform
its obligations hereunder.
6. Guaranty Absolute and
Unconditional. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Guarantor Obligations and
notice of or, proof of reliance by the Buyer upon this Guaranty or acceptance of
this Guaranty; the Guarantor 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
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. The Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon
Seller or the Guaranty with respect to the Guarantor
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 Master Repurchase Agreement, the other
Repurchase Documents, any of the Guarantor 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 or performance) which may at any
time be available to or be asserted by Seller against the Buyer, or (iii) any
other, circumstance whatsoever (with or without notice to or knowledge of Seller
or the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of Seller for the Guarantor Obligations, or 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 Seller or any other Person or
against any collateral security or guarantee for the Guarantor 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 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 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 its successors and assigns thereof, and shall
inure to the benefit of the Buyer, and successors, endorsees, transferees and
assigns, until all the Guarantor Obligations and the obligations of the
Guarantor under this Guaranty shall have been satisfied by payment in full,
notwithstanding that from time to time during the term of the Master Repurchase
Agreement Seller may be free from any Guarantor Obligations.
-4-
(b) Without
limiting the generality of the foregoing, the Guarantor hereby agrees,
acknowledges, covenants, and represents and warrants to the Buyer as
follows:
(i) The
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 such 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) The
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 Guarantor 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. Absent a written request for such information by the
Guarantor to the Buyer, the Guarantor hereby waives its right, if any, to
require the Buyer to disclose to the Guarantor any information which the Buyer
may now or hereafter acquire concerning such condition or circumstances
including, but not limited to, the release of or revocation by any other
guarantor; and
-5-
(iii) The
Guarantor has independently reviewed the Master Repurchase Agreement, the
Repurchase Documents 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, the 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 Guarantor 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. The
Guarantor hereby agrees that the Guarantor Obligations will be paid to the Buyer
without set-off or counterclaim in U.S. Dollars.
9. Representations and
Warranties. The Guarantor hereby 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;
(b) it
has the power and authority and the legal right to execute and deliver, and to
perform its obligations under, this Guaranty and the Master Repurchase
Agreement, and has taken all necessary action to authorize its execution,
delivery and performance of this Guaranty and the Master Repurchase
Agreement;
(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 its 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;
-6-
(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 (ii) which has any reasonable likelihood of
having a Material Adverse Effect;
(g) the
Guarantor has filed or caused to be filed all tax returns which are required to
be filed (giving due regard to extensions) and has paid all taxes shown to be
due and payable on said returns or on any assessments made against it or any of
the Guarantor’s property and all other taxes, fees or other charges imposed on
it 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 applicable reserves 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;
(h) all
financial statements of the Guarantor, copies of which have been furnished to
Buyer, (i) are, as of the dates and for the periods referred to therein,
complete and correct in all material respects, (ii) present fairly the
consolidated financial condition and the results of operations of the Guarantor
as of the dates and for the periods indicated in all material respects and (iii)
with respect to financial statements, have been prepared in accordance with GAAP
consistently applied, except as noted therein;
(i) since
the date of the most recent financial statements furnished to Buyer, there has
been no Material Adverse Effect; and
(j) commencing
with its taxable year ended December 31, 2009, the Company has been organized
and operating in conformity with the requirements for qualification and taxation
as a real estate investment trust under the Code.
The
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 Master Repurchase Agreement on and as of such Purchase Date and at all times
RMBS is subject to a Transaction.
-7-
10. Covenants.
(a) The
Guarantor covenants and agrees that such Guarantor will not change its legal
name or primary residence without having provided to the Buyer prior written
notice of any such change.
(b) [Reserved.]
(c) The
Guarantor covenants and agrees that it will promptly, and in any event within
five (5) 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 in
writing or pending) or other legal or arbitrable proceedings affecting the
Guarantor or any of its Affiliates or affecting any of the Property of any of
them before any Governmental Authority that (i) questions or challenges the
validity or enforceability of any of the Repurchase Documents or any action to
be taken in connection with the transactions contemplated thereby, (ii) makes a
claim in an individual or 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.
(d) The
Guarantor will make a timely election to be subject to tax as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for its
taxable year ending December 31, 2009.
11. Financial
Covenants. The Guarantor hereby covenants and agrees with the
Buyer as follows:
(a) On
any date, the ratio of the Guarantor’s Total Indebtedness to its Tangible Net
Worth, on a consolidated basis, shall not be greater than 6.00 to
1.00.
(b) On
any date, the Guarantor’s Liquidity, on a consolidated basis, shall not be less
than $15,000,000.
(c) On
any date, the Guarantor’s Tangible Net Worth, on a consolidated basis, shall not
be less than $150,000,000.
12. Event of Default;
Remedies. Any failure by the Guarantor to satisfy at all times
any of the representations, warranties, covenants and other terms set forth in
this Guaranty (including, without limitation, the provisions of paragraph 11) shall
constitute a “Guarantee Default”
and an Event of Default under the Master Repurchase Agreement; provided that
Guarantor shall have one (1) Business Day to cure any breach of paragraph 11(b)
above.
(b) If
an Event of Default under the Master Repurchase Agreement shall have occurred
and be continuing, or in the event of a Guarantee Default, the Guarantor agrees
that, as between the Guarantor and Buyer, the Guarantor 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 Seller and that, in the event of any such declaration (or
attempted declaration), such Guarantor Obligations shall forthwith become due by
the Guarantor for purposes of this Guaranty.
-8-
13. [Reserved.]
14. 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.
15. 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.
16. No Waiver; Cumulative
Remedies. The Buyer shall not by any act (except by a written
instrument pursuant to paragraph 17 hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any 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.
17. Waivers and Amendments;
Successors and Assigns. 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 and delivered either 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.
18. Notices. Notices
to any of the parties hereunder shall be in writing and sent prepaid by hand
delivery, by certified or registered mail, by expedited commercial or postal
delivery service, or by facsimile or email if also sent by one of the foregoing,
addressed as follows:
If to Two Harbors Investment
Corp.:
000
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Attention: Xxxxxxx
X’Xxxxx, General Counsel
-9-
with a
copy to:
Xxxxxxx,
Street and Deinard P.A.
000 Xxxxx
Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxxxxxx
If to Xxxxx Fargo Bank,
National Association:
Xxxxx
Fargo Bank, National Association
c/x Xxxxx
Fargo Securities LLC
000 Xxxxx
Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx
X. Xxxxx
Any of
the foregoing communications shall be effective when delivered or upon the first
attempted delivery on a Business Day.
19. Jurisdiction.
(a) THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(b) THE
GUARANTOR HEREBY WAIVES TRIAL BY JURY. THE 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 REPURCHASE DOCUMENTS IN ANY ACTION
OR PROCEEDING. THE 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 REPURCHASE DOCUMENTS.
(c) [Reserved.]
20. 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.
21. Acknowledgments. The
Guarantor hereby acknowledges that:
(a) The
Guarantor has been advised by counsel in the negotiation, execution and delivery
of this Guaranty; and
-10-
(b) the
execution of this Guaranty does not create a fiduciary relationship between the
Guarantor and the Buyer, and (i) the relationship between the Buyer and the
Guarantor is solely that of surety and creditor and (ii) no joint venture exists
between the Buyer and the Guarantor or among the Buyer, Seller and the
Guarantor.
[Signature
pages follow]
-11-
IN
WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed
and delivered as of the date first above written.
| TWO HARBORS INVESTMENT CORP. | |||
|
|
|
/s/Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Chief Financial Officer |
