EXHIBIT 10.83
GUARANTY
GUARANTY, dated as of January 9, 2004 (the "Guaranty"), made
by THE NEW YORK MORTGAGE COMPANY, LLC (the "Guarantor") in favor of GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC. (the "Lender"), party to the Loan and Security
Agreement referred to below.
RECITALS
Pursuant to the Loan and Security Agreement dated as of
January 9, 2004, (as amended, supplemented or otherwise modified from time to
time, the "Agreement") between New York Mortgage Funding, LLC (the "Borrower"),
a subsidiary of the Guarantor, and the Lender, the Lender has agreed to make
Advances to the Borrower upon the terms and subject to the conditions set forth
therein. It is a condition precedent to the obligation of the Lender to make the
Advances to the Borrower under the Agreement that the Guarantor shall have
executed and delivered this Guaranty to the Lender.
NOW, THEREFORE, in consideration of the premises and to induce
the Lender to enter into the Agreement and to induce the Lender to make the
Advances to the Borrower under the Agreement, the Guarantor hereby agrees with
the Lender as follows:
1. Defined Terms. Unless otherwise defined
herein, terms defined in the Agreement and used herein shall have the
meanings given to them in the Agreement.
(a) "Change of Control" means with respect to any entity,
the acquisition by any Person, or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of outstanding
shares of voting stock of such entity at any time if after giving effect to such
acquisition (i) such Person or Persons owns twenty percent (20%) or more of such
outstanding voting stock or (ii) Xxxxxx X. Xxxxxxx does not own more than fifty
(50%) of such outstanding shares of voting stock; provided, however, that the
contribution by the members of the Guarantor of their membership interests in
the Guarantor to New York Mortgage Trust, Inc. ("NYMT") under that certain
Contribution Agreement, dated as of December 22, 2003, by and among Xxxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxx, as contributors, and NYMT, upon completion of the
initial public offering of NYMT shall not constitute a Change of Control.
(b) "Obligations " shall mean the obligations and
liabilities of the Borrower to the Lender, 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 Agreement, the Loan Documents and any other document
made, delivered or given in connection therewith or herewith, whether on account
of principal, interest, reimbursement obligations, all Claims (as defined in
Section 101 of the Bankruptcy Code) of the Lender against the Borrower,
fees, indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Lender that are required to be paid by the
Borrower pursuant to the terms of the Agreement) or otherwise.
(c) "Material Adverse Effect" shall mean with respect to
any Person, a material adverse change in the business, operations, property,
condition (financial or otherwise) or prospects of such Person or the validity
or enforceability of this or any of the other documents to which such Person is
a party or the rights or remedies of the Lender thereunder or hereunder.
(d) 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.
(e) 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 Lender and its successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(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 Lender in enforcing any rights
with respect to, or collecting any or all of the obligations or liabilities of
the Guarantor under this Guaranty. The foregoing indemnification shall survive
the termination of the Agreement. This Guaranty shall remain in full force and
effect until the Obligations are paid in full.
(c) Except for payments required to be made by the
Guarantor hereunder, no other payments affect the Guarantor's liability under
the Guaranty. No payment or payments made by the Borrower, the Guarantor, any
other guarantor or any other Person or received or collected by the Lender from
the Borrower, 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 until the Obligations are paid in
full and the Agreement is terminated, subject to the provisions of Section 9
hereof
(d) The Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the Lender on account of its
liability hereunder, it will notify the Lender in writing that such payment is
made under this Guaranty for such purpose.
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3. Representations, Warranties and Covenants of
Guarantor. (a) Guarantor hereby represents and warrants throughout the term of
this Guaranty (i) 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, (ii) that it has power and authority to enter into and
perform this Guaranty, (iii) that 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 articles of incorporation, by-laws,
or any agreement, instrument, indenture or other undertaking to which it is a
party or by which it is bound, (iv) 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, (v)
that this Guaranty has been duly and validly executed and delivered by the
Guarantor and 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, (vi) that no legal proceedings are pending, or threatened, before any
court or governmental agency which would materially and adversely affect its
financial condition, operations or any licenses or its ability to perform under
this Guaranty, (vii) the execution, delivery and performance of this Guaranty
will not violate any Requirement of Law or Contractual Obligation of the
Guarantor or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation,
(viii) that the Guarantor has received and reviewed copies of the Loan
Documents, (ix) that no Default or Event of Default has occurred and is
continuing under this Guaranty, (ix) that the Guarantor has a financial interest
in the Borrower and the Guarantor has determined that it will benefit from the
execution of the Loan Documents, (x) that no Requirement of Law or Contractual
Obligation of the Guarantor or its material subsidiaries has a Material Adverse
Effect, and (xii) that the Guarantor shall not enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation, winding up or dissolution) or sell all or
substantially all of its assets.
(b) The Guarantor covenants and agrees with the Lender
that, until the payment in full of the Obligations:
(i) Maintenance of Tangible Net Worth. The
Tangible Net Worth (plus the principal amount of any subordinated debt) of
the Guarantor, on a consolidated basis and on any given day, shall be equal
to or greater than $12,000,000, or such greater amount provided in any
other guaranty, loan agreement, indenture or other material agreement
entered into by the Guarantor and the Lender.
(ii) Maintenance of Ratio of Total Indebtedness
to Tangible Net Worth. The Guarantor shall not permit the ratio of Total
Indebtedness (not taking into account the aggregate outstanding amount
borrowed by the Guarantor under any secured financing facilities for which
adequate collateral has been pledged thereunder
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by the Guarantor) to Tangible Net Worth, on a consolidated basis and on any
given day, to be greater than 20:1;
(iii) Liquidity. The aggregate amount of the
Guarantor's cash, Cash Equivalents and available borrowing capacity on
unencumbered assets that could be drawn against (taking into account
required haircuts) under committed warehouse and repurchase facilities, on
a consolidated basis and on any given day, shall be equal to or greater
than $4,000,000;
(iv) Profitability. The Guarantor shall have a
GAAP after tax net income of at least $1.00 for each fiscal quarter
commencing in the first quarter of 2004;
(v) Restricted Payments. Guarantor shall not
make any Restricted Payments following an Event of Default.
(vi) Financial Statements. The Guarantor shall
deliver to the Lender:
(A)(i) as soon as available and in any event within
30 days after the end of each month, the consolidated balance sheets of
the Guarantor and its consolidated Subsidiaries as at the end of such
month and the related unaudited consolidated statements of income and
retained earnings for the Guarantor and its consolidated Subsidiaries
for such month and the portion of the fiscal year through the end of
such month, setting forth in each case in comparative form the figures
for the previous year, accompanied by a certificate of a Responsible
Officer of the Guarantor, which certificate shall state that said
consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Guarantor and its
Subsidiaries in accordance with GAAP, consistently applied, as at the
end of, and for, such month (subject to normal year-end audit
adjustments);
(ii) as soon as available and in any event within
45 days after the end of each of the first three quarterly fiscal
periods of each fiscal year of the Guarantor, the consolidated balance
sheets of the Guarantor and its consolidated Subsidiaries as at the end
of such period and the related unaudited consolidated statements of
income and retained earnings for the Guarantor and its consolidated
Subsidiaries for such period and the portion of the fiscal year through
the end of such period, setting forth in each case in comparative form
the figures for the previous year, accompanied by a certificate of a
Responsible Officer of the Guarantor, which certificate shall state
that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of the
Guarantor and its Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments);
(B) as soon as available and in any event within 90 days
after the end of each fiscal year of the Guarantor, the consolidated
balance sheets of the
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Guarantor and its consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and of cash flows for the Guarantor and its
consolidated Subsidiaries for such year, setting forth in each case in
comparative form the figures for the previous year, accompanied by an
opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall not be qualified as
to scope of audit or going concern and shall state that said
consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Guarantor and its
consolidated Subsidiaries at the end of, and for, such fiscal year in
accordance with GAAP, and a certificate of such accountants stating
that, in making the examination necessary for their opinion, they
obtained no knowledge, except as specifically stated, of any Default or
Event of Default;
(C) from time to time such other information regarding
the financial condition, operations, or business of the Guarantor or
the Borrower as the Lender may reasonably request; and
(D) as soon as reasonably possible, and in any event
within thirty (30) days after a Responsible Officer knows, or with
respect to any Plan or Multiemployer Plan to which the Guarantor or any
of its Subsidiaries makes direct contributions, has reason to believe,
that any of the events or conditions specified below with respect to
any Plan or Multiemployer Plan has occurred or exists, a statement
signed by a senior financial officer of the Guarantor setting forth
details respecting such event or condition and the action, if any, that
the Guarantor or its ERISA Affiliate proposes to take with respect
thereto (and a copy of any report or notice required to be filed with
or given to PBGC by the Guarantor or an ERISA Affiliate with respect to
such event or condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation or
otherwise waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty (30) days of the occurrence of such
event (provided that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before
its due date a required installment under Section 412(m) of the
Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); and any request for a waiver under
Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c) of
ERISA of a notice of intent to terminate any Plan or any action
taken by the Guarantor or an ERISA Affiliate to terminate any
Plan;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer,
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any Plan, or the receipt by the Guarantor or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has been
taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Guarantor or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by the Guarantor or
any ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the Guarantor or any
ERISA Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the trust
of which such Plan is a part if the Guarantor or an ERISA
Affiliate fails to timely provide security to such Plan in
accordance with the provisions of said Sections.
(e) Certificate of a Responsible Officer of the
Guarantor. At the time that the Guarantor delivers financial statements to the
Lender in accordance with Section 3(b) (vi) hereof, the Guarantor shall forward
to the Lender a certificate of a Responsible Officer of the Guarantor which
demonstrates that the Guarantor is in compliance with the covenants set forth in
Sections 3(b) (i)-(iv) above.
4. True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Guarantor to the Lender in connection with the negotiation,
preparation or delivery of the Agreement, this Guaranty and the other Loan
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole, do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by or on
behalf of the Guarantor to the Lender in connection with the Agreement, this
Guaranty and the other Loan Documents and the transactions contemplated hereby
and thereby will be true, complete and accurate in all material respects or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. There is no fact known to a Responsible
Officer of the Guarantor that would reasonably be expected to have a Material
Adverse Effect that has not been disclosed herein, in the other Loan Documents
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to the Lender in connection with the transactions
contemplated hereby or thereby.
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5. Right of Set-off. The Guarantor hereby irrevocably
authorizes the Lender 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 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 Lender 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 Lender or
any of its affiliates may elect, against and on account of the Obligations and
liabilities of the Guarantor to the Lender hereunder and claims of every nature
and description of the Lender or any of its affiliates against the Guarantor, in
any currency, whether arising hereunder, under the Agreement as the Lender may
elect, whether or not the Lender has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured. The
Lender shall notify the Guarantor promptly of any such set-off and the
application made by the Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Lender may
have.
6. Existence, Etc. The Guarantor will at all times
during the term of this Guaranty:
(a) preserve and maintain its legal existence
and all of its material rights, privileges, licenses and franchises;
(b) comply with the requirements of all
applicable laws, rules, regulations and orders of Governmental Authorities if
failure to comply with such requirements would be reasonably likely (either
individually or in the aggregate) to have a Material Adverse Effect and
promptly, and in any event within 7 days after receipt of notice on any of the
following, give to the Lender notice of all legal or arbitrable proceedings
affecting the Guarantor or any of its Subsidiaries that questions or challenges
the validity or enforceability of any of the Loan Documents or as to which there
is a reasonable likelihood of adverse determination which would result in a
Material Adverse Effect;
(c) keep adequate records and books of account,
in which complete entries will be made in accordance with GAAP consistently
applied;
(d) pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained; and
(e) permit representatives of the Lender, during
normal business hours upon three (3) Business Days prior written notice at a
mutually desirable time (or at any time and from time to time during the
continuance of a Default or an Event of Default), to examine, copy and make
extracts from its books and records, to
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inspect any of its Properties, and to discuss its business and affairs with its
officers, all to the extent reasonably requested by the Lender; provided that
such representatives are party to or otherwise bound by a confidentiality
agreement sufficient to ensure compliance with relevant securities laws.
7. Notices. The Guarantor shall give notice to the
Lender promptly:
(a) upon the Guarantor becoming aware of, and in any
event within seven (7) Business Days after, the occurrence of any Default or
Event of Default or any event of default or default under any other material
agreement of the Guarantor;
(b) upon, and in any event within three (3) Business Days
after receipt of notice by the Guarantor or any agent thereof in respect of any
legal or arbitrable proceedings affecting the Guarantor or any of their
Subsidiaries (i) that questions or challenges the validity or enforceability of
any of the Loan Documents or (ii) in which the amount in controversy exceeds
$1,000,000;
(c) upon the Guarantor becoming aware of any Material
Adverse Effect and any event or change in circumstances which should reasonably
be expected to have a Material Adverse Effect; and
(d) upon the entry of an uninsured judgment or decree
against the Guarantor in an amount in excess of $1,000,000.
Each notice pursuant to this Section 6 (other than 6(e)) shall be accompanied by
a statement of a Responsible Officer of the Guarantor setting forth details of
the occurrence referred to therein and stating what action the Guarantor has
taken or proposes to take with respect thereto.
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) delivered to the intended recipient at
the "Address for Notices" specified below its name on the signature pages of the
Agreement); or, as to any party, at such other address as shall be designated by
such party in a written notice to each other party. 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.
8. Subrogation. Notwithstanding any payment or payments made
by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by the Lender, the Guarantor shall not be entitled to be subrogated to
any of the rights of the Lender against the Borrower or any other guarantor or
any collateral security or guarantee or right of offset held by the Lender 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
Borrower or any other guarantor in respect of payments made by
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the Guarantor hereunder, until all amounts owing to the Lender by the Borrower
on account of the Obligations are paid in full, and the 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 Lender, segregated
from other funds of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the Lender in the exact form received by the
Guarantor (duly indorsed by the Guarantor to the Lender, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Lender may determine.
9. 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, (i) any demand for payment of any of the Obligations
made by the Lender may be rescinded by the Lender and any of the Obligations may
be continued, (ii) 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 Lender, (iii) the 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 Lender may
deem advisable from time to time, and (iv) any collateral security, guarantee or
right of offset at any time held by the Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. The Lender
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 Lender may, but shall be under no obligation to, make a similar
demand on the Borrower or any other guarantor, and any failure by the Lender to
make any such demand or to collect any payments from the Borrower or any such
other guarantor or any release of the Borrower 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 Lender against the Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings. The
Lender may release any Collateral pledged to it in its sole discretion. The
Guarantor hereby further consents to any renewal or modification of any
Obligation or any extension of the time within which such is to be performed and
to any other indulgences, whether before or after the date of this Guaranty, and
waives notice with respect thereto.
10. Waiver of Rights. The 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 Lender upon this Guaranty or
acceptance of this Guaranty; the Obligations, 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 Guarantor
and the Borrower, on the one hand, and the Lender, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
this Guaranty. The Guarantor hereby waives diligence;
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presentment; demand for payment or performance; filing of claims with any court
in case of the insolvency, reorganization or bankruptcy of the Borrower; protest
or notice with respect to the Obligations or the amounts payable by the Borrower
thereunder; and all demands whatsoever; any fact, event or circumstance that
might otherwise constitute a legal or equitable defense to or discharge of the
Guarantor, including (but without typifying or limiting this waiver), failure by
the Lender to perfect a security interest in any collateral securing performance
of any Obligation or to realize the value of any collateral or other assets
which may be available to satisfy any Obligation and any delay by the Lender in
exercising any of its rights hereunder or against the Borrower.
11. 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 Borrower of the Obligations and not only of their
collectibility (a) without regard to (i) the validity, regularity or
enforceability of the 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 Lender, (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 the Borrower against the Lender, (iii)
any defense by the Borrower to the Obligations or any subordination of the Lien
on the Collateral or the priority of the Lender in the Collateral, or (iv) any
other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or the Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower from the
Obligations, or of the Guarantor from this Guaranty, in bankruptcy or in any
other instance and (b) is in no way conditioned upon any requirement that the
Lender first attempt to collect any of the Obligations from the Borrower. The
Guarantor understands and agrees that this Guaranty shall be construed as a
continuing, absolute and unconditional guarantee without regard to waiver,
forbearance, compromise, release, settlement, the dissolution, liquidation,
reorganization or other change regarding the Borrower, or the Borrower being the
subject of any case or proceeding under any bankruptcy or other law for the
protection of debtors or creditors, or any other action or matter that would
release a guarantor. When pursuing its rights and remedies hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the Borrower 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 Lender to pursue such other
rights or remedies or to collect any payments from the Borrower 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 Borrower 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 Lender 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 Lender, 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
Agreement shall be terminated, notwithstanding that from time to time during the
term of
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the Agreement the Borrower may be free from any Obligations and subject to the
provisions of Section 9 hereof.
12. 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 avoided or is restored,
repaid or returned by the Lender for any reason after the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or the
Guarantor, or the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or the Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
13. Events of Default. Each of the following events and
occurrences shall constitute an Event of Default under this Guaranty:
(a) The Guarantor shall (i) fail to make any payment
required to be made to Lender under this Guaranty or (ii) fail to comply with
the requirements of Section 3 of this Guaranty.
(b) The Guarantor shall fail to observe or perform any
other agreement contained in this Guaranty or any other Loan Document and such
failure to observe or perform shall continue unremedied for a period of one (1)
Business Day.
(c) The Guarantor shall fail to pay any money due under
any other agreement, note, indenture or instrument evidencing, securing,
guaranteeing or otherwise relating to indebtedness of the Guarantor for borrowed
money, or the Guarantor receives notice, or a Responsible Officer has knowledge,
of any other default or event of default other event which with the giving of
notice or the passing of time or both would constitute a default or event of
default under any such agreement or instrument.
(d) A proceeding or case shall be commenced, without the
application or consent of the Guarantor or any of its Subsidiaries, as
applicable, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of the Guarantor, or any
such Subsidiary or of all or any substantial part of its property, or (iii)
similar relief in respect of the Guarantor or any such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of sixty (60) or
more days; or an order for relief against the Guarantor or any such Subsidiary
shall be entered in an involuntary case under the Bankruptcy Code.
(e) The Guarantor or any of its Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its property, (ii)
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make a general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding- up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate or other
action for the purpose of effecting any of the foregoing.
(f) The Guarantor or any Affiliate thereof becomes
insolvent or admits in writing to its inability to pay its debts as they mature.
(g) Any other event shall occur with respect to the
Guarantor which, in the sole good faith discretion of the Lender, has had a
Material Adverse Effect.
(h) Any Change of Control of the Guarantor shall have
occurred. The Lender shall reasonably request, specifying the reasons for such
request, information, and/or written responses to such requests, regarding the
financial well-being of the Guarantor and such information and/or responses
shall not have been provided within three (3) Business Days of such request.
14. Payments. The Guarantor hereby guarantees that
payments hereunder will be paid to the Lender without set-off or counterclaim in
U.S. Dollars in accordance with the wiring ins tructions of the Lender.
15. Maintenance of Separateness. The Guarantor
acknowledges that the Lender is relying upon and will continue to rely on the
separate legal identity and the separate assets of the Borrower as distinguished
from any other Person. The Guarantor agrees that the Borrower's business shall
be operated and its affairs shall be conducted in such a manner that its assets
and liabilities can be readily determined and shall not be substantively
consolidated with those of any other Person in the event of the bankruptcy or
insolvency of the Guarantor or such other Person. Without limiting the
foregoing, the Guarantor acknowledges that the Borrower shall conduct its
business in its own name, maintain its books and records separate from those of
any other Person, maintain its bank accounts separate from those of any other
Person, maintain separate financial statements, showing its assets and
liabilities separate and apart from those of any other Person, pay its own
liabilities and expenses only out of its own funds, enter into a transaction
with an Affiliate only if such transaction is intrinsically fair, commercially
reasonable and on the same terms as would be available in an arm's length
transaction with a Person or entity that is not an Affiliate, allocate fairly
and reasonably any overhead expenses that are shared with an Affiliate, hold
itself out as a separate entity, maintain adequate capital in light of its
contemplated business operations and observe all other appropriate entity and
other organizational formalities.
16 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
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provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. 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 Lender relative to the subject matter hereof
not reflected herein.
18. 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 Lender, provided that any provision of this
Guaranty may be waived by the Lender.
(b) The Lender shall not by any act (except by a written
instrument pursuant to Section 18(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 Lender, 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
Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Lender 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.
19. 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.
20. Successors and Assigns. This Guaranty shall
be binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Lender and its successors and assigns. This Guaranty may not
be assigned by the Guarantor without the express written consent of the Lender
in its sole discretion and any attempt to assign or transfer this Guaranty
without such consent shall be null and void and of no effect whatsoever. Lender
may assign the Guaranty at any time without the consent of the Guarantor.
21. Governing Law. This Guaranty shall be
governed by New York law without reference to choice of law doctrine.
22. 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 AGREEMENT, OR FOR
RECOGNITION AND ENFORCEMENT OF
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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, OR THE COURTS OF THE STATE OF
NEW YORK, WITHIN THE COUNTY OF NEW YORK, IN THE EVENT THE FEDERAL COURT LACKS OR
DECLINES JURISDICTION;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING
MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, 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 LENDER 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.
23. WAIVER OF JURY TRIAL. EACH OF THE GUARANTOR
AND THE LENDER 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, ANY THE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
24. Termination. This Guaranty shall terminate
upon the final payment in full of the Obligations and the termination of the
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.
THE NEW YORK MORTGAGE COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
