EXHIBIT 10.7
EXECUTION COPY
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of June 28, 2006, between CHARTERMAC, a
statutory trust duly organized and validly existing under the laws of the State
of Delaware (the "GUARANTOR") and IXIS FINANCIAL PRODUCTS INC. (the "INVESTOR").
WHEREAS, the Investor, Charter Mac Corporation (the "CHARTER MEMBER")
and Centerbrook Holdings LLC (the "ISSUER") are parties to the Unitholder and
Warrant Agreement dated as of the date hereof (the "WARRANT AGREEMENT"),
pursuant to which, among other things, the Issuer has agreed to issue Warrants
(as defined therein) to the Investor on the date hereof and the Charter Member
has agreed to make certain payments to the Investor, in each case on and subject
to the terms and conditions set forth therein.
WHEREAS, the Investor and the Charter Member are parties to the
Amended and Restated Operating Agreement of the Issuer dated as of the date
hereof (the "OPERATING AGREEMENT" and, together with the Warrant Agreement, the
"GUARANTEED DOCUMENTS"), pursuant to which, among other things, the Charter
Member has agreed to make capital contributions to the Issuer on and subject to
the terms and conditions set forth therein.
WHEREAS, to induce the Investor to enter into the Warrant Agreement
and the Operating Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor has
agreed to guarantee the Guaranteed Obligations (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. DEFINITIONS, ETC. Terms used herein and not otherwise
defined herein are used herein as defined in the Warrant Agreement. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Sections shall be construed to refer to Sections of
this Agreement, (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights
and (f) references to any law, constitution, statute, treaty, regulation, rule
or ordinance, including any section or other part thereof (each, for purposes of
this Section 1, a "law"), shall refer to that law as amended from time to time
and shall include any successor law.
Section 2. THE GUARANTEE.
2.01 THE GUARANTEE. The Guarantor hereby guarantees to the Investor
and its successors and assigns the prompt payment in full when due of all
amounts whatsoever from time to time owing to the Investor by the Charter Member
under the Guaranteed Documents in accordance with the terms thereof and
including all interest and expenses accrued or incurred subsequent to the
commencement of any bankruptcy or insolvency proceeding with respect to the
Charter Member, whether or not such interest or expenses are allowed as a claim
in such proceeding (such obligations being herein collectively called the
"GUARANTEED OBLIGATIONS"). The Guarantor hereby further agrees that if the
Charter Member shall fail to pay in full when due any of the Guaranteed
Obligations, the Guarantor will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
2.02 OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantor under
Section 2.01 are absolute and unconditional irrespective of the value,
genuineness, validity, regularity or enforceability of any Guaranteed Document
or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 2.02 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantor hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the Guarantor,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of any
Guaranteed Document or any other agreement or instrument referred to herein
or therein shall be done or omitted (it being understood that this clause
(ii) shall not be construed to require the Guarantor to satisfy its
obligations under Section 2.01 if the Guaranteed Obligations are not due);
or
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any Guaranteed
Document or any other agreement or instrument referred to herein or therein
shall be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in part
or otherwise dealt with.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Investor
exhaust any right, power or remedy or proceed against the Charter Member under
any Guaranteed Document or any other agreement or instrument referred to herein
or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
2.03 REINSTATEMENT. The obligations of the Guarantor under this
Section 2 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Charter Member in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantor agrees that it will
indemnify the Investor on demand for all costs and expenses (including fees of
counsel) incurred by the Investor in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
2.04 SUBROGATION. The Guarantor hereby agrees that until the payment
and satisfaction in full of all Guaranteed Obligations it shall not exercise any
right or remedy arising by reason of any performance by it of its guarantee in
Section 2.01, whether by subrogation or otherwise, against the Charter Member or
any other guarantor of any of the Guaranteed Obligations or any security for any
of the Guaranteed Obligations.
2.05 CONTINUING GUARANTEE. The guarantee in this Section 2 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.06 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Guarantor under Section 2.01
would otherwise be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 2.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by the Guarantor, the Investor or any other Person, be automatically
limited and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
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Section 3. REPRESENTATIONS AND WARRANTIES. The Guarantor represents
and warrants to the Investor that:
3.01 EXISTENCE. Each of the Guarantor and its Subsidiaries (a) is an
entity duly organized and validly existing under the laws of the jurisdiction of
its organization, (b) has all requisite trust, corporate or other organizational
power, and has all material 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 and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a material adverse effect on the
consolidated financial condition, operations or business taken as a whole of the
Guarantor and its Subsidiaries.
3.02 LITIGATION. There are no legal or arbitral proceedings or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Guarantor) threatened against the Guarantor
or any of its Subsidiaries that, if adversely determined, could (either
individually or in the aggregate) have a material adverse effect on the
consolidated financial condition, operations or business taken as a whole of the
Guarantor and its Subsidiaries.
3.03 NO BREACH. None of the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated or compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter, by-laws or other organizational
documents of the Guarantor or any of its Subsidiaries, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which the
Guarantor or any of its Subsidiaries is a party or by which any of them is bound
or to which any of them is subject, or constitute a default under any such
agreement or instrument, or result in the creation or imposition of any Lien
upon any of the revenues or assets of the Guarantor or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
3.04 TRUST ACTION. The Guarantor has all necessary trust power and
authority to execute, deliver and perform its obligations under this Agreement;
the execution, delivery and performance by the Guarantor of this Agreement have
been duly authorized by all necessary trust action on its part; and this
Agreement has been duly and validly executed and delivered by the Guarantor and
constitutes its legal, valid and binding obligation, enforceable in accordance
with its terms.
3.05 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange are necessary for the execution, delivery or
performance by the Guarantor of this Agreement or for the validity or
enforceability hereof.
3.06 BUSINESS ACTIVITIES. The Guarantor derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the Delaware
Statutory Trust Act (12 DEL. C. ss. 3801, ET SEQ.) and filing documents with the
Secretary of State of the State of Delaware) or employees in the State of
Delaware
Section 4. COVENANTS. The Guarantor agrees that, until the payment and
satisfaction in full of the Guaranteed Obligations:
4.01 FINANCIAL INFORMATION. The Guarantor shall deliver to the
Investor from time to time such information regarding the financial condition,
operations or business of the Guarantor or any of its Subsidiaries as the
Investor may reasonably request.
4.02 EXISTENCE, ETC. The Guarantor will (a) preserve and maintain its
organizational existence and, except where failure to do so could not (either
individually or in the aggregate) materially and adversely affect the
consolidated financial condition, operations or business of the Guarantor, all
of its rights, privileges and franchises and (b) comply with the requirements of
all applicable laws, rules, regulations and orders of governmental or regulatory
authorities if failure to comply with such requirements could (either
individually or in the aggregate) materially and adversely affect the
consolidated financial condition, operations or business of the Guarantor.
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Section 5. MISCELLANEOUS.
5.01 NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and delivered in accordance with Section 10.03 of the
Warrant Agreement (using, in the case of the Guarantor, the address set forth
under the "Address for Notices" specified beneath its name on the signature
pages hereto) or, as to either party, at such other address as shall be
designated by such party in a notice to each other party.
5.02 NO WAIVER. No failure on the part of the Investor to exercise,
and no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Investor of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
5.03 AMENDMENTS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the
Guarantor and the Investor. Any such amendment or waiver shall be binding upon
the Investor, each holder of any of the Guaranteed Obligations and the
Guarantor.
5.04 EXPENSES. The Guarantor agrees to reimburse the Investor for all
costs and expenses of the Investor (including the fees and expenses of legal
counsel) in connection with (i) any default under any Guaranteed Document and
any enforcement or collection proceeding resulting therefrom, including all
manner of participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
5.04.
5.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Guarantor,
the Investor and each holder of any of the Guaranteed Obligations, PROVIDED that
the Guarantor shall not assign or transfer its rights or obligations hereunder
without the prior written consent of the Investor.
5.06 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.07 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall
be governed by, and construed in accordance with, the law of the State of New
York. The Guarantor hereby submits, for itself and its property, to the
non-exclusive jurisdiction of the United States District Court for the Southern
District of New York and of the Supreme Court of the State of New York sitting
in New York County (including its Appellate Division) and of any other appellate
court in the State of New York for the purposes of all legal proceedings arising
out of or relating to this Agreement or the transactions contemplated hereby.
The Guarantor hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of
the venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum.
5.08 WAIVER OF JURY TRIAL. EACH OF THE GUARANTOR AND THE INVESTOR
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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.09 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Investor in order
to carry out the intentions of the parties hereto as nearly as may be possible
and (b) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
5.10 CAPTIONS. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
CHARTERMAC
By: /S/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
IXIS FINANCIAL PRODUCTS INC.
By: /S/ X. XXXXXXX
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Name: X. Xxxxxxx
Title: Managing Director
By: /S/ XXXXXXXXXXX XXXXXX
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Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
