EXHIBIT 10.04
GUARANTY AND SURETY AGREEMENT
THIS GUARANTY AND SURETY AGREEMENT, dated April __, 2001 (but
effective as of February 15, 2001), by and from DVL, INC., a Delaware
corporation (the "Guarantor"), with a place of business at 00 Xxxx 00xx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000, in favor of X.X. XXXXXXXXX S.S.C., LIMITED
PARTNERSHIP, a Nevada limited partnership ("Holder").
W I T N E S S E T H:
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Guarantor is the sole equity owner of S2 Holdings, Inc., a Delaware
corporation (the "Company"). The Company has issued to Holder (i) a promissory
note ("Note 1") in the original principal amount of Twenty-Two Million
Seventy-Three Thousand Two Hundred Seventy Dollars ($22,073,270), subject to
adjustment as provided in Note 1, payable to the order of Holder, and (ii) a
promissory note ("Note 2") in the original principal amount of Three Million Two
Hundred Fifty-One Thousand Seven Hundred Thirty Dollars ($3,251,730), subject to
adjustment as provided in Note 2, payable to the order of Holder (Note 1 and
Note 2, and any modifications, replacements and/or renewals of either or both
thereof, are hereafter referred to collectively as the "Notes"). All liabilities
and obligations of the Company to Holder and/or Holder's successors and assigns
under the Notes, both now existing and hereafter arising, are hereinafter
referred collectively to as the "Obligations". Guarantor will benefit from the
transactions pursuant to which the Obligations are incurred, and Holder would be
unwilling to cause certain of its subsidiaries to sell certain assets to the
Company without having received this Guaranty.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, Guarantor hereby agrees as follows:
1. (a) Guarantor hereby unconditionally and irrevocably guarantees
to Holder the punctual payment and performance of all of the Obligations,
subject to the provisions of Sections 1(b) and (e). All payments required to be
made by Guarantor hereunder shall be made without set-off or deduction. Any sum
due by Guarantor under any provisions of this Guaranty not paid within five (5)
business days after such sum is required to be paid by the terms hereof shall
thereafter bear interest until paid at the rate which is two and one-half
percent (2.5%) per annum in excess of the prime rate from time to time of First
Union National Bank or, if less, the highest rate permitted by applicable law.
(b) Notwithstanding any other provision of this Guaranty
(except Section 1(e)), Guarantor's liability hereunder with respect to the
payment of the Obligations shall not exceed in the aggregate at any time ten
percent (10%) of an amount equal to (x) Twenty-Five Million Three Hundred
Twenty-Five Thousand Dollars ($25,325,000) minus (y) the sum of all principal
payments actually paid on the Notes; provided, however, Guarantor's liability
hereunder with respect to the payment of the Obligations shall never be less in
the aggregate than the lesser of (1) Two Hundred Fifty Thousand Dollars
($250,000), and (2) an amount equal to (x) Twenty-Five Million Three Hundred
Twenty-Five Thousand Dollars ($25,325,000) minus (y) the sum of all principal
payments actually paid on the Notes. Eighty-Seven and 16/100ths percent (87.16%)
of all payments made by Guarantor under this Guaranty shall be allocated to, and
paid to the Holder of, Note 1, and the balance shall be allocated to, and paid
to the Holder of, Note 2.
(c) Notwithstanding any other provision of this Guaranty
(except Section 1(e)), Guarantor shall pay to Holder on December 31, 2021 an
amount equal to ten percent (10%) of an amount equal to (x) Twenty-Five Million
Three Hundred Twenty-Five Thousand Dollars ($25,325,000) minus (y) the sum of
all principal payments actually paid on the Notes.
(d) Guarantor acknowledges that (i) the principal amount of the
Notes may increase or decrease from time to time as provided in the Notes, (ii)
Guarantor's obligations under this Guaranty shall continue and remain in full
force and effect until final payment of all principal and interest under the
Notes, and (iii) Guarantor's obligations under Section 1(c) are (A) absolute and
unconditional regardless of the exact principal amount of the Notes (or
increases or reductions thereto) from time to time and (B) a covenant
independent of any other covenant of Guarantor under this Guaranty.
(e) Notwithstanding any other provision of this Guaranty, (i)
Guarantor's liability under this Guaranty shall not exceed Two Million Five
Hundred Thirty-Two Thousand Five Hundred Dollars ($2,532,500) in the aggregate,
and (ii) except in the event that the Company fails to make monthly payments to
Holder pursuant to Paragraph 2 of the Notes (or either of them) upon the receipt
of distributions or other monies in a calendar month with respect to the
Company's Class B Interest (all as described in said Paragraph 2), Holder may
not make a demand for payment under this Guaranty until December 31, 2021 (it
being understood by the parties hereto that if, and only if, an event described
in the foregoing clause (ii) occurs, shall Holder have the right to make
successive demands for payment under this Guaranty in respect of such monthly
payment obligations described in Paragraph 2 of the Notes prior to December 31,
2021).
(f) Notwithstanding the foregoing, if, as a result of any
bankruptcy, insolvency, reorganization or any other proceeding, Holder is
required to give back or otherwise surrender any amounts received by Holder on
account of the principal amount of the Obligations, then the reductions set
forth above in Guarantor's aggregate liability shall not apply to such amounts
until such amounts have, in fact, been indefeasibly paid to, and received by,
Holder by court order.
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(g) Reductions in the principal amounts of the Notes (other
than by payments made by, or on behalf of, the Company thereunder) shall not
constitute payments on the Notes for the purpose of Sections 1 (a) through (f).
2. Guarantor hereby, to the fullest extent permitted by law waives
any rights Guarantor may have by reason of any increases or reductions in the
principal amount of the Notes (or either of them), or any forbearance,
modification, waiver, renewal or extension which Holder may grant, or to which
Holder and Company may agree, with respect to any agreement or the Obligations,
waives notice of acceptance of this Guaranty, waives presentment, demand, notice
or protest of any kind, waives giving of any notice of default or other notice
to, or making any demand on, anyone (including, without limitation, Company and
Guarantor) liable in any manner for the payment of any Obligations.
3. The obligations and agreements of Guarantor under this Guaranty
are primary, absolute, independent, irrevocable and unconditional. This is an
agreement of suretyship as well as of guaranty, and without being required to
proceed first against Company or any other person or entity, Holder may proceed
directly against Guarantor (without the necessity of joining Company in any
action brought against Guarantor) whenever Company fails to make any payment
when due relating to the Obligations or fails to perform any Obligation now or
hereafter owed to Holder (subject to the limitations of Sections 1(b) and 1(e)).
This Guaranty shall remain in full force and effect until all Obligations have
been indefeasibly paid in full to Holder and performed and until all such sums
or other things of value received by Holder are not subject to rescission or
repayment upon the bankruptcy, insolvency or reorganization of Company, and if
any such sums are rescinded or repaid, then, to such extent, Company shall not,
for the purposes of this Guaranty, be deemed to have paid such amounts or things
of value, and Guarantor shall remain liable for the payment thereof (subject to
the limitations of Sections 1(b) and 1(e)).
4. The obligations of Guarantor under this Guaranty shall remain in
full force and effect, and shall not be negated or impaired, irrespective of (a)
the impossibility or the illegality of performance on the part of Company of the
Obligations, (b) any defense that may arise by reason of the incapacity or lack
of authority of Company or Guarantor or the failure of Holder to file or enforce
a claim against the estate of Company in any bankruptcy or other proceeding, (c)
the involvement of Company in any bankruptcy, reorganization, insolvency or any
other proceedings, or (d) any other circumstance, occurrence or condition,
whether similar or dissimilar to any of the foregoing, which might otherwise
constitute a legal or equitable defense, discharge or release of a guarantor or
surety.
5. Guarantor hereby irrevocably waives any and all rights of
subrogation, indemnification and contribution and any other rights Guarantor may
have to make any claim against Company with respect to any sums which Guarantor
may pay or be required to pay to Holder or any other party pursuant to this
Guaranty.
6. Guarantor represents and warrants that (a) Guarantor has the full
power, authority and legal right to enter into, execute and deliver this
Guaranty; and (b) this Guaranty is a valid
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and binding obligation of Guarantor, and is fully enforceable against Guarantor
in accordance with its terms.
7. Any notice, demand, request or other communication which either
party may desire to give to the other party with respect to this Guaranty shall
be deemed sufficient if in writing and mailed by certified or registered mail,
postage prepaid, addressed if (a) to Guarantor at the address of Guarantor set
forth in the heading of this Guaranty or such other address of which Holder has
received any notice pursuant to the provisions of this Section 7, and (b) to
Holder at Green Valley Executive Suites, 0000 X. Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxx
0, Xxxxx 000, Xxxxxxxxx, XX 00000, or such other address of which Guarantor has
received any notice pursuant to the provisions of this Section 7. No change of
address by Guarantor shall be effective as against Holder unless Guarantor shall
have advised Holder of the change of address by a written notice thereof mailed
to Holder by registered or certified mail, return receipt requested, postage
prepaid, and Holder shall have actually received such notice. No change of
address by Holder shall be effective as against Guarantor unless Holder shall
have advised Guarantor of the change of address by a written notice thereof
mailed to Guarantor by registered or certified mail, return receipt requested,
postage prepaid, and Guarantor shall have actually received such notice.
8. All rights and remedies of Holder under this Guaranty or law are
separate and cumulative, and the exercise of one shall not limit or prejudice
the exercise of any other such rights or remedies. The enumeration in this
Guaranty of any waivers or consents by Guarantor shall not be deemed exclusive
of any additional waivers or consents by Guarantor which may be deemed to exist
in law or equity. No delay or omission by Holder in exercising any such right or
remedy shall operate as a waiver thereof. No waiver of any rights and remedies
hereunder, and no modification or amendment of this Guaranty shall be deemed
made by Holder unless in writing and duly signed by Holder. Any such written
waiver shall apply only to the particular instance specified therein and shall
not impair the further exercise of such right or remedy or of any other right or
remedy of Holder, and no single or partial exercise of any right or remedy under
this Guaranty shall preclude any other or further exercise thereof or any other
right or remedy.
9. Guarantor will reimburse Holder, upon demand, for all expenses
incurred in connection with the collection and/or enforcement of this Guaranty
(including, without limitation, reasonable attorneys' fees) whether or not suit
is actually instituted.
10. This Guaranty shall be a continuing Guaranty and shall be binding
upon Guarantor, and Guarantor's successors and assigns, and shall inure to the
benefit of Holder and its successors and permitted assigns as provided in the
Note. Notwithstanding the foregoing, Guarantor may not assign or delegate any of
its obligations under this Guaranty, and any such assignment or delegation shall
be void AB INITIO.
11. If any provision of this Guaranty is held to be invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Guaranty shall remain in full force and
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effect and shall be liberally construed in favor of Holder in order to effect
the provisions of this Guaranty.
12. This Guaranty shall be governed by, and construed according to the
laws of, the State of Delaware applicable to contracts wholly performed within
such jurisdiction.
13. Guarantor shall, from time to time upon request by Holder,
execute, acknowledge and deliver to Holder, promptly after such request and at
no expense to Holder, such other documents and instruments as Holder shall
request in order to effectuate the provisions of this Guaranty.
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14. Guarantor acknowledges that Note 1 is being pledged by Holder to
ING (U.S.) Capital LLC and ING (U.S.) Investment Corporation (together, "ING")
to secure certain obligations owed by DGV Acquisition Company to ING pursuant to
a Purchase Agreement, dated April 6, 2000, and that from and after the
occurrence of an event of default hereunder, and during the continuance thereof,
ING may exercise the rights and remedies of Holder under this Guaranty to the
extent applicable to Note 1, subject to the obligations of Holder under Section
7.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on March 30,
2001.
DVL, INC.
By
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Name:
Title:
AFFIDAVIT
State of New York
County of New York
On this 30th day of March, 2001, personally appeared before me
______________, who acknowledged that he/she executed the foregoing Guaranty and
Surety Agreement for the purposes therein stated on behalf of DVL, Inc. as its
_____________, and was authorized to do so.
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Notary Public
Holder hereby joins in this Guaranty on March 30, 2001 for the sole
purpose of ratifying and confirming its consent to the provisions contained in
Section 7 above.
X.X. XXXXXXXXX S.S.C., LIMITED PARTNERSHIP,
by its sole general partner:
X.X. XXXXXXXXX STRUCTURED
SETTLEMENT FUNDING CORPORATION
By: ____________________________________
Name:_________________________
Title:________________________
