EXHIBIT 10.37
GUARANTY
GUARANTY, dated as of December 18, 2001 (the "Guaranty"), made
by XXXXXXX FINANCIAL SERVICES CORPORATION (the "Guarantor") in favor of CREDIT
SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer"), party to the Master
Repurchase Agreement referred to below.
RECITALS
Pursuant to the Master Repurchase Agreement dated as of
December 18, 2001, as amended by Annex I thereto (as amended, supplemented or
otherwise modified from time to time, the "Master Repurchase Agreement") between
Origen Special Purpose, L.L.C. (the "Seller") and the Buyer, the Buyer has
agreed to purchase certain manufactured home loans (the "Assets") from the
Seller and the Seller has agreed to repurchase such Assets upon the terms and
subject to the conditions set forth therein. It is a condition precedent to the
obligation of the Buyer to purchase the Assets from the Seller under the Master
Repurchase Agreement that the Guarantor shall have executed and delivered this
Guaranty to the Buyer.
NOW, THEREFORE, in consideration of the premises and to induce
the Buyer to enter into the Master Repurchase Agreement and to induce the Buyer
to purchase the Assets under the Master Repurchase Agreement, the Guarantor
hereby agrees with the Buyer as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Master Repurchase Agreement and used herein shall have the
meanings given to them in the Master Repurchase Agreement.
(b) "Obligations" shall mean the obligations and
liabilities of the Seller and the Guarantor to the Buyer, including, without
limitation, the obligations whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, or out of or in connection with the Master Repurchase Agreement, this
Guaranty, any other Transaction Documents and any other document made, delivered
or given in connection therewith or herewith, whether on account of covenants,
Repurchase Prices, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel to the
Buyer that are required to be paid by the Seller pursuant to the terms of the
Master Repurchase Agreement) or otherwise.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Guaranty shall refer to this Guaranty
as a whole and not to any particular provision of this Guaranty, and section and
paragraph references are to this Guaranty unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guaranty. (a) The Guarantor hereby, unconditionally
and irrevocably, guarantees to the Buyer and its successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Seller (whether at the stated maturity, by acceleration or
otherwise) of the Obligations (the "Guarantee"); provided, however, the amount
payable by the Guarantor under the Guarantee shall not exceed an amount equal to
(x) with respect to the Purchased Securities subject to Transactions at any one
time, 10% of the applicable Repurchase Price, less (y) the aggregate amount of
payments actually made by the Guarantor in respect of such Purchased Securities
pursuant hereto (without regard to any payments actually made by the Guarantor
in respect of either (i) Purchased Securities previously subject to
Transactions, which are no longer subject to Transactions as of such time, or
(ii) previous Transactions to the extent that such Transactions included
Purchased Securities no longer the subject of current Transactions). The
limitation of liability described in the foregoing proviso shall not (i)
constitute a waiver, release or impairment of any obligation evidenced or
secured by the Transaction Documents; (ii) impair the right of Buyer to name the
Guarantor or Seller as a party defendant in any action or suit for judicial
foreclosure and sale under the Transaction Documents; (iii) impair the right of
Buyer to obtain the appointment of a receiver; (iv) impair the right of Buyer to
bring suit (and seek a money judgment therein) with respect to fraud or
intentional misrepresentation by the Guarantor or Seller or any other person or
entity in connection with the Transaction Documents; (v) impair the right of
Buyer to obtain payments on the Purchased Securities received by the Guarantor
or Seller after the occurrence of an Event of Default; (vi) impair the right of
Buyer to bring suit (and seek a money judgment therein) with respect to any
misappropriation by the Guarantor or Seller of payments collected in advance
with respect to the Assets; or (vii) impair the right of Buyer to apply to
losses arising out of any misrepresentation, wilful misconduct or fraud by the
Guarantor or Seller or either of their agents or employees or to any suit or
money judgment related thereto.
(b) The Guarantor further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Buyer in enforcing any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Guarantor under this
Guaranty. This Guaranty shall remain in full force and effect until the
Obligations are paid in full, notwithstanding that from time to time prior
thereto the Seller may be free from any Obligations.
(c) No payment or payments made by the Seller, the
Guarantor, any other guarantor or any other Person or received or collected by
the Buyer from the Seller, the Guarantor, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Guarantor hereunder which shall, notwithstanding any such
payment or payments other than payments made by the Guarantor in respect of the
Obligations or payments received or collected from the Guarantor in respect of
the Obligations, remain liable for the Obligations up to the maximum liability
of the Guarantor hereunder until the Obligations are paid in full and the Master
Repurchase Agreement is terminated.
(d) The Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the Buyer on account of its
liability hereunder, it will notify the Buyer in writing that such payment is
made under this Guaranty for such purpose.
3. Representations and Warranties of the Guarantor. The
Guarantor hereby represents and warrants (a) that it is duly organized and
validly existing in good standing under the laws of the jurisdiction under which
it is organized and is duly qualified to do business and is in good
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standing in every other jurisdiction as to which the nature of the business
conducted by it makes such qualification necessary, (b) that it has the power
and authority to enter into and perform this Guaranty, (c) that the execution,
delivery and performance of this Guaranty by it have been duly authorized by
proper action and are not in contravention of law or of the terms of its
organizational documents, or any agreement, instrument, indenture or other
undertaking to which it is a party or by which it is bound, and (d) that all
registrations and approvals of any governmental agency, department or commission
necessary for the execution, delivery and performance of this Guaranty and for
the validity and enforceability thereof, have been obtained and are in full
force and effect. The Guarantor hereby represents and warrants (x) that this
Guaranty is the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, subject to
bankruptcy, insolvency and similar laws and to the availability of equitable
remedies, (y) that except as previously disclosed to Buyer no legal proceedings
are pending, or threatened, before any court or governmental agency which would
adversely affect its financial condition, operations or any licenses or its
ability to perform under this Guaranty, and (z) that the Guarantor has received
and reviewed copies of the Master Repurchase Agreement.
4. Right of Set-off. Upon the occurrence of any Event of
Default, the Guarantor hereby irrevocably authorizes the Buyer and each of its
affiliates at any time and from time to time without notice to the Guarantor,
any such notice being expressly waived by the Guarantor, to set-off and
appropriate and apply any and all assets, at any time held or owing by the
Guarantor or any of its affiliates to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Buyer or any of its
affiliates may elect, against and on account of the obligations and liabilities
of the Guarantor to the Buyer hereunder and claims of every nature and
description of the Buyer or any of its affiliates against the Guarantor,
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Buyer to or for the credit or the
account of the Guarantor, or any part thereof in such amounts as the Buyer may
elect, against and on account of the obligations and liabilities of the
Guarantor to the Buyer hereunder and claims of every nature and description of
the Buyer against the Guarantor, in any currency, whether arising hereunder,
under the Master Repurchase Agreement as the Buyer may elect, whether or not the
Buyer has made any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured; provided, however, that such rights
shall not exceed the maximum amount due hereunder at the time. The Buyer shall
notify the Guarantor promptly of any such set-off and the application made by
the Buyer, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Buyer under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Buyer may have.
5. No Subrogation. Notwithstanding any payment or
payments made by the Guarantor hereunder or any set-off or application of funds
of the Guarantor by the Buyer, the Guarantor shall not be entitled to be
subrogated to any of the rights of the Buyer against the Seller or any other
guarantor or any collateral security or guarantee or right of offset held by the
Buyer or any of its affiliates for the payment of the Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Seller or any other guarantor in respect of payments made by the Guarantor
hereunder, until all amounts owing to the Buyer by the Seller on account of the
Obligations are paid in full and the Master Repurchase Agreement is terminated.
If any amount shall be paid to the Guarantor on account of such subrogation
rights at any time when all of the
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Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Buyer, segregated from other funds of the Guarantor,
and shall, forthwith upon receipt by the Guarantor, be turned over to the Buyer
in the exact form received by the Guarantor (duly indorsed by the Guarantor to
the Buyer, if required), to be applied against the Obligations, whether matured
or unmatured, in such order as the Buyer may determine.
6. Amendments, Etc. with Respect to the Obligations. The
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Buyer may be rescinded by the Buyer and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Buyer, and the Master Repurchase Agreement and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Buyer may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Buyer for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. The Buyer shall not have any
obligation to protect, secure, perfect or insure any lien at any time held by it
as security for the Obligations or for this Guaranty or any property subject
thereto. When making any demand hereunder against the Guarantor, the Buyer may,
but shall be under no obligation to, make a similar demand on the Seller or any
other guarantor, and any failure by the Buyer to make any such demand or to
collect any payments from the Seller or any such other guarantor or any release
of the Seller or such other guarantor shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Buyer against
the Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
7. Waiver of Rights. The Guarantor waives any and all
notice of any kind including, without limitation, notice of the creation,
renewal, extension or accrual of any of the Obligations, and notice of or proof
of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guaranty; and all dealings between the Seller and the Guarantor, on
the one hand, and the Buyer, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guaranty. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Seller or the Guarantor with respect to
the Obligations.
8. Guaranty Absolute and Unconditional. The Guarantor
understands and agrees that this Guaranty shall be construed as a continuing,
absolute and unconditional guarantee of the full and punctual payment and
performance by the Seller of the Obligations and not of their collectibility
only and is in no way conditioned upon any requirement that the Buyer first
attempt to collect any of the Obligations from the Seller without regard to (a)
the validity, regularity or enforceability of the Master Repurchase Agreement,
any of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Buyer, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Seller against the Buyer, or (c) any other
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circumstance whatsoever (with or without notice to or knowledge of the Seller or
the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Seller from the Obligations, or of the
Guarantor from this Guaranty, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against the Guarantor, the Buyer may,
but shall be under no obligation to, pursue such rights and remedies as it may
have against the Seller or any other Person or against any collateral security
or guarantee for the Obligations or any right of offset with respect thereto,
and any failure by the Buyer to pursue such other rights or remedies or to
collect any payments from the Seller or any such other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Seller or any such other Person or any such
collateral security, guarantee or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Buyer against the Guarantor. This Guaranty shall remain in full force and effect
and be binding in accordance with and to the extent of its terms upon the
Guarantor and the successors and assigns thereof, and shall inure to the benefit
of the Buyer, and its successors, endorsees, transferees and assigns, until all
the Obligations and the obligations of the Guarantor under this Guaranty shall
have been satisfied by payment in full and the Master Repurchase Agreement shall
be terminated, notwithstanding that from time to time during the term of the
Master Repurchase Agreement the Seller may be free from any Obligations.
9. Reinstatement. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Buyer upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Seller or the Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Seller or the Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
10. Payments. The Guarantor hereby guarantees that
payments hereunder will be paid to the Buyer without set-off or counterclaim in
U.S. Dollars in accordance with the wiring instructions of the Buyer.
11. Notices. All notices, requests and other
communications provided for herein (including without limitation any
modifications of, or waivers, requests or consents under, this Guaranty) shall
be given or made in writing (including without limitation by telex or telecopy)
and delivered to the intended recipient at the "Address for Notices" specified
below; or, as to any party, at such other address as shall be designated by such
party in a written notice to each other party.
If to the Guarantor:
XXXXXXX FINANCIAL SERVICES CORPORATION
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Buyer:
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Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All such communications shall be deemed to have been duly
given when transmitted by telex or telecopy or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
12. Severability. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Integration. This Guaranty and the Master Repurchase
Agreement represent the agreement of the Guarantor with respect to the subject
matter hereof and thereof and there are no promises or representations by the
Buyer relative to the subject matter hereof or thereof not reflected herein or
therein.
14. Amendments in Writing; No Waiver, Cumulative
Remedies. (a) None of the terms or provisions of this Guaranty may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Guarantor and the Buyer, provided that any provision of this
Guaranty may be waived by the Buyer.
(b) The Buyer shall not by any act (except by a written
instrument pursuant to Section 14(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Buyer, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Buyer of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Buyer would otherwise have
on any future occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
15. Section Headings. The section headings used in this
Guaranty are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to the
benefit of the Buyer and its successors and
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assigns. This Guaranty may not be assigned by the Guarantor without the express
written consent of the Buyer.
17. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY NEW
YORK LAW WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
18. SUBMISSION TO JURISDICTION; WAIVERS. THE GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS GUARANTY AND THE MASTER
REPURCHASE AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION
OF THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD
OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH
OTHER ADDRESS OF WHICH THE BUYER SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
19. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE MASTER REPURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
20. Recording. The Buyer and the Guarantor shall have the
right (but not the obligation) from time to time to make or cause to be made
tape recordings of communications between its employees and those of the other
party with respect to Transactions. The Buyer and the Guarantor consent to the
admissibility of such tape recordings in any court, arbitration, or other
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proceedings. The parties agree that a duly authenticated transcript of such a
tape recording shall be deemed to be a writing conclusively evidencing the
parties' agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
XXXXXXX FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Chief Executive Officer
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