Exhibit 10.55
GUARANTY
THIS GUARANTY, dated as of
April 15, 2005, (this “Guaranty”), is made by
NovaStar Financial, Inc. (“NovaStar Financial”), NFI
Holding Corp. (“NFI Holding”, and together with
NovaStar Financial, the “Guarantors”) in favor of
Wachovia Investment Holdings, LLC, (the “Buyer”, which
term shall include any buyer for whom Buyer acts as Agent as
defined and provided for in the Master Repurchase Agreement
referred to below).
RECITALS
A. Pursuant to that certain Amended
and Restated Master Repurchase Agreement (Securities), dated as of
April 15, 2005, among NovaStar Mortgage, Inc.
(“NMI”), NovaStar Assets Corp. (“NAC” and
together with NMI, jointly and severally the “Sellers”)
and the Buyer(the “Master Repurchase Agreement”), the
Buyer has agreed to purchase certain securities (the
“Purchased Assets”) from the Sellers and the Sellers
have agreed to repurchase such Purchased Assets upon the terms and
subject to the conditions set forth therein.
B. It is a condition precedent to
the obligation of the Buyer to purchase the Purchased Assets from
the Sellers under the Master Repurchase Agreement that the
Guarantor shall have executed and delivered this Guaranty to the
Buyer.
NOW, THEREFORE, for good and
valuable consideration, receipt of which by the parties hereto is
hereby acknowledged, the parties hereto hereby agree 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 Sellers
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 Program 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 Sellers
pursuant to the terms of the Master Repurchase Agreement) or
otherwise.
(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.
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2. Guaranty . (a) The
Guarantors hereby, unconditionally and irrevocably, guarantee to
the Buyer and its successors, endorsees, transferees and assigns
the prompt and complete payment and performance by the Sellers when
due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(b) The Guarantors further agree 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 Guarantors 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 either or both Sellers may be free from
any Obligations.
(c) Each Guarantor agrees that the
Obligations may at any time and from time to time exceed the amount
of the liability of such Guarantor hereunder without impairing this
Guaranty or affecting the rights and remedies of the Buyer
hereunder.
(d) No payment or payments made by
the Sellers, the Guarantors, any other guarantor or any other
Person or received or collected by the Buyer from the Sellers, the
Guarantors, 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 Guarantors
hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantors in respect of the
Obligations or payments received or collected from the Guarantors
in respect of the Obligations, remain liable for the Obligations
until the Obligations are paid in full and the Master Repurchase
Agreement is terminated.
(e) Each 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.
(f) Each Guarantor shall be jointly
and severally liable to the Buyer for all obligations of the
guarantors hereunder.
3. Representations and Warranties
of the Guarantor . Each Guarantor hereby represents and
warrants that:
(a) 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.
(b) It has the full power, authority
and legal right to execute, deliver and perform its obligations
under this Guaranty. This Guaranty has been duly executed and
delivered by it, has not been amended or otherwise modified, is in
full force and effect and is the legal, valid and binding
obligation of each Guarantor, enforceable against it in accordance
with its terms, except as may be
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limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally and to the application
of general principles of equity (regardless of whether considered
in a proceeding in equity or at law).
(c) Neither the execution and
delivery of this Guaranty nor the consummation of the transactions
contemplated herein will conflict with or result in a breach of, or
require any consent under, any applicable law or regulation, or any
order, writ, injunction or decree of any court or governmental
authority or agency, or any agreement or instrument to which the
Guarantors are a party or by which the Guarantors or their property
is bound or to which the Guarantors are subject, or constitute a
default under any such agreement or instrument, or (except for the
liens created pursuant hereto) result in the creation or imposition
of any lien or encumbrance upon the Guarantors’ revenues or
assets pursuant to the terms of any such agreement or
instrument.
(d) The Guarantors have received and
reviewed copies of the Master Repurchase Agreement.
(e) This Guaranty is the legal,
valid and binding obligation of the Guarantors, enforceable against
each Guarantor, in accordance with its terms, subject to
bankruptcy, insolvency and similar laws and to the availability of
equitable remedies.
(f) There is no action, suit or
proceeding at law or in equity by or before any governmental
authority, arbitral tribunal or other body now pending, or to the
best of the Guarantors’ knowledge, threatened against or
affecting the Guarantors or any of their property that could have a
material adverse effect on the Guarantors’ condition,
financial or otherwise.
(g) No authorizations, approvals or
consents of, and no filings or registrations with, any governmental
authority are necessary for the execution, delivery or performance
by the Guarantors of this Guaranty.
4. Reserved .
5. Right of Set-off . Upon
the occurrence of any Event of Default, the Guarantors hereby
irrevocably authorize the Buyer or any of its Affiliates at any
time and from time to time without notice to the Guarantors, any
such notice being expressly waived by the Guarantors, 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 Buyer or any of its
Affiliates to or for the credit or the account of the Guarantors,
or any part thereof in such amounts as the Buyer may elect, against
and on account of the obligations and liabilities of the Guarantors
to the Buyer hereunder and claims of every nature and description
of the Buyer or any of its Affiliates against the Guarantors, 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.
The Buyer shall notify the Guarantors 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 and its Affiliates under this
Section are in addition to other rights and remedies (including
without limitation, other rights of set-off) which the Buyer and
its Affiliates may have.
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