GUARANTY made by RESOURCE CAPITAL CORP. as guarantor, in favor of NATIXIS REAL ESTATE CAPITAL, INC. Dated as of April __, 2007
made
by
as
guarantor,
in
favor
of
NATIXIS
REAL ESTATE CAPITAL, INC.
Dated
as
of April __, 2007
This
GUARANTY
(this
“Guaranty”),
dated
as of April __, 2007, made by RESOURCE
CAPITAL CORP.,
a
Maryland corporation, having an address at 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Guarantor”),
in
favor of NATIXIS
REAL ESTATE CAPITAL, INC.,
a New
York corporation, having an address at 0 Xxxx 00xx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns,
“Buyer”).
R
E C
I T A L S:
A. Pursuant
to that certain Master Repurchase Agreement, dated as of the date hereof (as
the
same may be amended, modified, supplemented or restated from time to time,
the
“Repurchase
Agreement”),
between RCC Real Estate SPE 3, LLC (“Seller”)
and
Buyer, Buyer has agreed, to purchase certain Eligible Loans, Eligible Preferred
Equity Assets and Eligible Securities with a simultaneous agreement from Seller
to repurchase such Eligible Assets on a date certain or on demand in accordance
with the Repurchase Agreement (the “Transaction”);
B. As
a
condition to Buyer’s entering into the Repurchase Agreement, Buyer is requiring
that Guarantor execute and deliver to Buyer this Guaranty; and
C. Guarantor
hereby acknowledges that Guarantor will materially benefit from Buyer’s agreeing
to enter into the Repurchase Agreement;
NOW,
THEREFORE,
in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor agrees
as
follows
1. Definitions.
All
capitalized terms used and not defined herein shall have the respective meanings
given such terms in the Repurchase Agreement.
2. Guaranty.
(a) Guaranty
of Loan Obligations.
Guarantor irrevocably and unconditionally guarantees to Buyer the prompt payment
when due, whether on the Repurchase Date, by acceleration or otherwise, of
all
obligations and liabilities of Seller for which Seller is, or shall become,
personally liable pursuant to the Repurchase Agreement and the other Transaction
Documents as and to the extent provided in Section 31 of the Repurchase
Agreement (collectively, the “Guaranteed
Obligations”).
(b) All
sums
payable to Buyer under this Guaranty shall be payable on demand and without
reduction for any offset, claim, counterclaim or defense.
(c) Guarantor
hereby agrees to indemnify, defend and save harmless Buyer from and against
any
and all actual out-of-pocket costs, losses, liabilities, claims, causes of
action, expenses and damages, including reasonable attorneys’ fees and
disbursements, which Buyer may suffer or which otherwise may arise by reason
of
Seller’s failure to pay any of the Guaranteed Obligations when due, irrespective
of whether such costs, losses, liabilities, claims,
causes of action, expenses or damages are incurred by
Buyer
prior or subsequent to (i) Buyer’s exercising any right to accelerate the
Repurchase Date, (ii) the commencement or completion of any judicial or
non-judicial foreclosure, sale or other proceeding with respect to the Purchased
Assets or (iii) the conveyance of all or any portion of the Purchased Assets
by
transfer-in-lieu of foreclosure or otherwise.
(d) Guarantor
agrees that no portion of any sums applied (other than sums received from
Guarantor in full or partial satisfaction of its obligations hereunder), from
time to time, in reduction of the amounts due with respect to the Transactions
under the Repurchase Agreement or other Transaction Documents (collectively,
the
“Transaction
Obligations”)
shall
be deemed to have been applied in reduction of the Guaranteed Obligations until
such time as the Transaction Obligations have been paid in full, or Guarantor
shall have made the full payment required hereunder, it being the intention
hereof that the Guaranteed Obligations shall be the last portion of the
Transaction Obligations to be deemed satisfied.
3. Representations
and Warranties.
Guarantor hereby represents and warrants to Buyer as follows (which
representations and warranties shall be given as of the date hereof and shall
survive the execution and delivery of this Guaranty):
(a) Organization,
Authority and Execution.
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all necessary power and
authority to own its properties and to conduct its business as presently
conducted or proposed to be conducted and to enter into and perform this
Guaranty and all other agreements and instruments to be executed by it in
connection herewith. This Guaranty has been duly executed and delivered by
Guarantor.
(b) Enforceability.
This
Guaranty constitutes a legal, valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally.
(c) No
Violation.
The
execution, delivery and performance by Guarantor of its obligations under this
Guaranty have been duly authorized by all necessary action, and do not and
will
not violate any law, regulation, order, writ, injunction or decree of any court
or governmental body, agency or other instrumentality applicable to Guarantor,
or result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any
mortgage, lien, charge or encumbrance of any nature whatsoever upon any of
the
assets of Guarantor pursuant to the terms of Guarantor’s articles of
organization, or any mortgage, indenture, agreement or instrument to which
Guarantor is a party or by which it or any of its properties is bound. Guarantor
is not in default under any other guaranty, if any, which it has provided to
Buyer.
(d) No
Litigation.
There
are no actions, suits or proceedings at law or at equity, pending or, to
Guarantor’s actual knowledge, threatened against or affecting Guarantor or which
involve or might involve the validity or enforceability of this Guaranty or
which might materially adversely affect the financial condition of Guarantor
or
the ability of Guarantor to perform any of its obligations under this Guaranty.
Guarantor is not in default beyond any
applicable
grace or cure period with respect to any order, writ, injunction, decree
or
demand of any Governmental Authority which might materially adversely affect
the
financial condition of Guarantor or the ability of Guarantor to perform any
of
its obligations under this Guaranty.
(e) Consents.
All
consents, approvals, orders or authorizations of, or registrations, declarations
or filings with, all Governmental Authorities (collectively, the “Consents”)
that
are required in connection with the valid execution, delivery and performance
by
Guarantor of this Guaranty have been obtained and Guarantor agrees that all
Consents required in connection with the carrying out or performance of any
of
Guarantor’s obligations under this Guaranty will be obtained when
required.
(f) Financial
Statements and Other Information.
All
financial statements of Guarantor heretofore delivered to Buyer are true and
correct in all material respects and fairly present the financial condition
of
Guarantor as of the respective dates thereof, and no materially adverse change
has occurred in the financial conditions reflected therein since the respective
dates thereof. None of the aforesaid financial statements or any certificate
or
statement furnished to Buyer by or on behalf of Guarantor in connection with
the
transactions contemplated hereby, and none of the representations and warranties
in this Guaranty contains any untrue statement of a material fact. Guarantor
is
not insolvent within the meaning of the United States Bankruptcy Code or any
other applicable law, code or regulation and the execution, delivery and
performance of this Guaranty will not render Guarantor insolvent.
(g) Consideration.
Guarantor is the owner, directly or indirectly, of all of the legal and
beneficial equity interests in Seller.
4. Financial
Statements.
Guarantor shall deliver to Buyer, (a) within 120 days after the end of each
fiscal year of Guarantor, a complete copy of Guarantor’s annual financial
statements audited by Xxxxx Xxxxxxxx LLP, a “big four” accounting firm or
another independent certified public accountant reasonably acceptable to Buyer,
(b) within 60 days after the end of each fiscal quarter of Guarantor, financial
statements (including a balance sheet as of the end of such fiscal quarter
and a
statement of income and expense for such fiscal quarter) certified by the chief
financial officer of Guarantor and in form, content, level of detail and scope
reasonably satisfactory to Buyer, and (c) 20 days after request by Buyer, such
other financial information with respect to Guarantor as Buyer may reasonably
request.
5. Unconditional
Character of Obligations of Guarantor.
(a) The
obligations of Guarantor hereunder shall be irrevocable, absolute and
unconditional, irrespective of the validity, regularity or enforceability,
in
whole or in part, of the Repurchase Agreement or any provision thereof, or
the
absence of any action to enforce the same, any waiver or consent with respect
to
any provision thereof, the recovery of any judgment against Seller, Guarantor
or
any other Person or any action to enforce the same, any failure or delay in
the
enforcement of the obligations of Seller under the Repurchase Agreement or
Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective
of
any other circumstances which might otherwise limit recourse against Guarantor
by Buyer or constitute a legal or equitable discharge or defense of a guarantor
or surety. Buyer may enforce the obligations of Guarantor under this Guaranty
by
a proceeding at law, in equity or otherwise,
(b) The
obligations of Guarantor under this Guaranty, and the rights of Buyer to enforce
the same by proceedings, whether by action at law, suit in equity or otherwise,
shall not be in any way affected by any of the following:
(i) any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, receivership, conservatorship, winding up or other similar
proceeding involving or affecting Seller, the Purchased Assets or any part
thereof, Guarantor or any other Person;
(ii) any
failure by Buyer or any other Person, whether or not without fault on its part,
to perform or comply with any of the terms of the Repurchase Agreement, or
any
document or instrument relating thereto;
(iii) the
sale,
transfer or conveyance of any of the Purchased Assets or any interest therein
to
any Person, whether now or hereafter having or acquiring an interest in the
Purchased Assets or any interest therein and whether or not pursuant to any
foreclosure, trustee sale or similar proceeding against Seller or any of the
Purchased Assets or any interest therein;
(iv) the
conveyance to Buyer, any Affiliate of Buyer or Buyer’s nominee of any of the
Purchased Assets or any interest therein by a transfer-in-lieu of foreclosure
or
otherwise;
(v) the
release of Seller or any other Person from the performance or observance of
any
of the agreements, covenants, terms or conditions contained in the Repurchase
Agreement or any of the Transaction Documents by operation of law or otherwise;
or
(vi) the
release in whole or in part of any Purchased Assets or any collateral for the
Guaranteed Obligations or for the Transaction Obligations or any portion
thereof.
(c) Except
as
otherwise specifically provided in this Guaranty, Guarantor hereby expressly
and
irrevocably waives all defenses (other than payment and performance) in an
action brought by Buyer to enforce this Guaranty based on claims of waiver,
release, surrender, alteration or compromise and all
setoffs,
reductions, or impairments, whether arising hereunder or otherwise.
(d) Buyer
may
deal with Seller and Affiliates of Seller in the same manner and as freely
as if
this Guaranty did not exist and shall be entitled, among other things, to grant
Seller or any other Person such extension or extensions of time to perform
any
act or acts as may be deemed advisable by Buyer, at any time and from time
to
time, without terminating, affecting or impairing the validity of this Guaranty
or the obligations of Guarantor hereunder.
(e) No
compromise, alteration, amendment, modification, extension, renewal, release
or
other change of, or waiver, consent, delay, omission, failure to act or other
action with respect to, any liability or obligation under or with respect to,
or
of any of the terms, covenants or conditions of the Repurchase Agreement or
any
of the Transaction Documents shall in any way alter, impair or affect any of
the
obligations of Guarantor hereunder, and Guarantor agrees that if the Repurchase
Agreement or any of the Transaction Documents is modified with Buyer’s consent,
the Guaranteed Obligations shall automatically be deemed modified to include
such modifications.
(f) Buyer
may
proceed to protect and enforce any or all of its rights under this Guaranty
by
suit in equity or action at law, whether for the specific performance of any
covenants or agreements contained in this Guaranty or otherwise, or to take
any
action authorized or permitted under applicable law, and shall be entitled
to
require and enforce the performance of all acts and things required to be
performed hereunder by Guarantor. Each and every remedy of Buyer shall, to
the
extent permitted by law, be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in
equity.
(g) No
waiver
shall be deemed to have been made by Buyer of any rights hereunder unless the
same shall be in writing and signed by Buyer, and any such waiver shall be
a
waiver only with respect to the specific matter involved and shall in no way
impair the rights of Buyer or the obligations of Guarantor to Buyer in any
other
respect or at any other time.
(h) At
the
option of Buyer, Guarantor may be joined in any action or proceeding commenced
by Buyer against Seller in connection with the Repurchase Agreement or any
of
the Transaction Documents and recovery may be had against Guarantor in such
action or proceeding or in any independent action or proceeding against
Guarantor to the extent of Guarantor’s liability hereunder, without any
requirement that Buyer first assert, prosecute or exhaust any remedy or claim
against Seller or any other Person, or any security for the obligations of
Seller or any other Person.
(i) Guarantor
agrees that this Guaranty shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment is made by Seller or Guarantor
to
Buyer and such payment is rescinded or must otherwise be returned by Buyer
(as
determined by Buyer in its sole and absolute discretion) upon insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition, dissolution,
receivership, conservatorship, winding up or other similar proceeding involving
or affecting Seller or Guarantor, all as though such payment had not been
made.
(j) In
the
event that Guarantor shall advance or become obligated to pay any sums under
this Guaranty or in connection with the Guaranteed Obligations or in the event
that for any reason whatsoever Seller or any subsequent owner of the Purchased
Assets or any part thereof is now, or shall hereafter become, indebted to
Guarantor, Guarantor agrees that (i) the amount of such sums and of such
indebtedness and all interest thereon shall at all times be subordinate as
to
lien, the time of payment and in all other respects to the Transaction
Obligations, and (ii) Guarantor shall not be entitled to enforce or receive
payment thereof until the Transaction Obligations have been paid in full.
Nothing herein contained is intended or shall be construed to give Guarantor
any
right of subrogation in or under the Transaction Documents or any right to
participate in any way therein, or in the right, title or interest of Buyer
in
or to any Purchased Assets, notwithstanding any payments made by Guarantor
under
this Guaranty, until the actual and irrevocable receipt by Buyer of payment
in
full of the Transaction Obligations. If any amount shall be paid to Guarantor
on
account of such subrogation rights at any time when any such sums due and owing
to Buyer shall not have been fully paid, such amount shall be paid by Guarantor
to Buyer for credit and application against such sums due and owing to
Buyer.
(k) Guarantor’s
obligations hereunder shall survive the exercise by Buyer of any of all of
its
remedies pursuant to the Repurchase Agreement or any of the Transaction
Documents.
6. Covenants.
(a) As
used
in this Section 6, the following terms shall have the respective meanings set
forth below:
(i) “Consolidated
Subsidiaries”
shall
mean each Subsidiary of Guarantor, the financial statements of which shall
be
(or should have been) consolidated with the financial statements of Guarantor
in
accordance with GAAP.
(ii) “GAAP”
shall
mean generally accepted accounting principles, consistently
applied.
(iii) “Net
Worth”
shall
mean, as of a given date, (x) the total assets of Guarantor (including undrawn
capital commitments) as of such date less (y) Guarantor’s total liabilities as
of such date, determined in accordance with GAAP.
(iv) “Subsidiary”
shall
mean any Affiliate of Guarantor that is controlled by Guarantor.
(v) “Liquid
Assets”
shall
mean the sum of (w) assets in the form of cash, cash equivalents, obligations
of
(or fully guaranteed as to principal and interest by) the United States or
any
agency or instrumentality thereof (provided the full faith and credit of the
United States supports such obligation or guarantee), certificates of deposit
issued by a commercial bank having net assets of not less than $500 million,
securities listed and traded on a recognized stock exchange or traded over
the
counter and listed in the National Association of Securities Dealers Automatic
Quotations, or liquid debt instruments that have a readily ascertainable value
and are regularly traded in a recognized financial market, (x) undrawn capital
commitments, (y) borrowing
availability under short-term repurchase facilities with institutional lenders
which are not Affiliates of Guarantor and (z) the amount of interest and
principal owing to Seller
(as shown on Seller’s most recent balance sheet delivered pursuant to Section
12(k) of the Repurchase Agreement), with respect to each Purchased Asset
of
Seller and due
and payable within 30 days of the balance sheet date,
provided that same is not
past due or delinquent.
(vi) “Total
Leverage Ratio”
shall
mean for any Person as of any date, the ratio of (a) the aggregate Indebtedness
to (b) the total assets of such Person as of such date.
(b) Until
all
of the Guaranteed Obligations have been paid in full, Guarantor (i) shall
maintain (A) a Net Worth in excess of $250,000,000, (B) Liquid Assets having
a
market value of at least $10,000,000, and (C) a Total Leverage Ratio not to
exceed 90%, (ii) shall not sell, pledge, mortgage or otherwise transfer any
of
its assets, or any interest therein, on terms materially less favorable than
would be obtained in an arms-length transaction and (iii) shall deliver to
Buyer, concurrently with the delivery of each quarterly or annual financial
statement required to be delivered by Guarantor hereunder, a certificate of
the
chief financial officer of Guarantor setting forth in reasonable detail
Guarantor’s Net Worth, Liquid Assets and Total Leverage Ratio, based on such
financial statement.
(c) Guarantor
shall not, at any time while a default in the payment of the Guaranteed
Obligations has occurred and is continuing, either (i) enter into or effectuate
any transaction with any Affiliate which would reduce the Net Worth of
Guarantor, including the payment of any dividend or distribution to a
shareholder, or the redemption, retirement, purchase or other acquisition for
consideration of any stock in Guarantor or (ii) sell, pledge, mortgage or
otherwise transfer to any Person any of Guarantor’s assets, or any interest
therein.
7. Entire
Agreement/Amendments.
This
instrument represents the entire agreement between the parties with respect
to
the subject matter hereof. The terms of this Guaranty shall not be waived,
altered, modified, amended, supplemented or terminated in any manner whatsoever
except by written instrument signed by Buyer and Guarantor.
8. Successors
and Assigns.
This
Guaranty shall be binding upon Guarantor, and Guarantor’s estate, heirs,
personal representatives, successors and assigns, may not be assigned or
delegated by Guarantor and shall inure to the benefit of Buyer and its
successors and assigns.
9. Applicable
Law and Consent to Jurisdiction.
This
Guaranty shall be governed by, and construed in accordance with, the substantive
laws of the State of New York. Guarantor irrevocably (a) agrees that any suit,
action or other legal proceeding arising out of or relating to this Guaranty
may
be brought in a court of record in the City and County of New York or in the
Courts of the United States of America located in the Southern District of
New
York, (b) consents to the jurisdiction of each such court in any such suit,
action or proceeding and (c) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts
and
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. Guarantor irrevocably consents to the service of any and
all
process in any such suit, action or proceeding by service
of
copies of such process to Guarantor at its address provided in Section 14
hereof. Nothing in this Section 9, however, shall affect the right of Buyer
to
serve legal process in any other manner permitted by law or affect the right
of
Buyer to bring any suit, action or proceeding against Guarantor or its property
in the courts of any other jurisdictions.
10. Section
Headings.
The
headings of the sections and paragraphs of this Guaranty have been inserted
for
convenience of reference only and shall in no way define, modify, limit or
amplify any of the terms or provisions hereof.
11. Severability.
Any
provision of this Guaranty which may be determined by any competent authority
to
be 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. To the extent
permitted by applicable law, Guarantor hereby waives any provision of law which
renders any provision hereof prohibited or unenforceable in any
respect.
12. WAIVER
OF TRIAL BY JURY.
GUARANTOR HEREBY WAIVES THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION, ACTION
OR
PROCEEDING ARISING HEREUNDER OR IN CONNECTION THEREWITH.
13. Other
Guaranties.
The
obligations of Guarantor hereunder are separate and distinct from, and in
addition to, the obligations of Guarantor now or hereafter arising under any
other Guaranties, pursuant to which Guarantor has guaranteed payment and
performance of certain other obligations of Seller described
therein.
14. Notices.
All
notices, demands, requests, consents, approvals or other communications
(collectively called “Notices”)
required or permitted to be given hereunder to Buyer or Guarantor or which
are
given to Buyer or Guarantor with respect to this Guaranty shall be in writing
and shall be sent by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as set forth below, or personally
delivered with receipt acknowledged to such address, or in either case, to
such
other address(es) as the party in question shall have specified most recently
by
like Notice.
If
to
Buyer, to:
NATIXIS
REAL ESTATE CAPITAL, INC.
0
Xxxx
00xx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Real Estate Administration (Xxxx XxXxxxxxxx)
with
a
copy to:
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxx, Esq.
If
to
Guarantor, to:
000
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxx
with
a
copy to:
Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Notices
which are given in the manner aforesaid shall be deemed to have been given
or
served for all purposes hereunder (i) on the date on which such notice shall
have been personally delivered as aforesaid, (ii) on the date of delivery by
mail as evidenced by the return receipt therefor, or (iii) on the date of
failure to deliver by reason of refusal to accept delivery or changed address
of
which no Notice was given.
15. Guarantor’s
Receipt of Transaction Documents.
Guarantor by its execution hereof acknowledges receipt of true copies of the
Repurchase Agreement and all of the other Transaction Documents, the terms
and
conditions of which are hereby incorporated herein by reference.
16. Interest;
Expenses.
(a) If
Guarantor fails to pay all or any sums due hereunder upon demand by Buyer,
the
amount of such sums payable by Guarantor to Buyer shall bear interest from
the
date of demand until paid at the Pricing Rate in effect from time to time plus
five percent (5%).
(b) Guarantor
hereby agrees to pay all costs, charges and expenses, including reasonable
attorneys’ fees and disbursements, that may be incurred by Buyer in enforcing
the covenants, agreements, obligations and liabilities of Guarantor under this
Guaranty.
17. Joint
and Several Obligations.
If
Guarantor consists of more than one Person, each such Person shall have joint
and several liability for the obligations of Guarantor hereunder.
IN
WITNESS WHEREOF,
Guarantor has executed this Guaranty as of the date first above
written.
| RESOURCE CAPITAL CORP. | ||
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Name: |
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