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Exhibit
10.47
GUARANTY
GUARANTY (this “
Guaranty ”), made as of the 31 st day of December 2007, by MF GLOBAL LTD.,
a Bermuda corporation, having an address at 717 Fifth Avenue, New
York, New York 10022 (“ Guarantor ”), to NY-717
FIFTH AVENUE, L.L.C., a Delaware limited liability company, having
an address c/o Equity Office, 717 Fifth Avenue, New York, New York,
10022 (“ Landlord ”).
W I T N E S S E T H
:
WHEREAS, by Agreement of
Lease, dated as of December 31, 2007 (the
“Lease”), Landlord did demise and let to MF GLOBAL
HOLDINGS USA INC. (“ Tenant ”), and Tenant did
hire and take from Landlord, the entire ninth (9 th ), the entire eleventh (11
th
) and the entire twelfth
(12 th ) floor, as more particularly identified in the Original
Lease (the “ Premises ”), in the building known
as and by the street address of 717 Fifth Avenue, New York, New
York (the “ Building ”); and
WHEREAS, for ten dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce
Landlord to accept the Lease as aforesaid, Guarantor hereby
covenants and agrees as follows:
(I) Guarantor hereby
unconditionally, absolutely and irrevocably guarantees to Landlord
the prompt payment when due of Tenant pursuant to the Lease (as the
same may be amended from time to time) of all monetary obligations
of Tenant including, without limitation, all Gross Rent (as such
term is defined in the Lease) and other sums payable by Tenant
thereunder and the full and faithful performance and observance by
Tenant of all of the terms, covenants, conditions, agreements and
obligations now or hereafter to be paid, performed and/or observed
by Tenant pursuant to the Lease, in each case in strict accordance
with the terms of the Lease (all such terms, covenants, conditions,
agreements and obligations being herein collectively referred to as
the “ Obligations ”) and agrees to pay on demand
any and all expenses (including reasonable counsel fees) and
disbursements (including, without limitation, all court costs,
filing fees, recording costs and all other costs and expenses
incurred in connection therewith) incurred by Landlord in enforcing
its rights under this Guaranty. Without limiting the generality of
the foregoing definition of “Obligations” in the prior
sentence, Guarantor’s liability under this Guaranty shall
extend to all amounts that constitute part of the Obligations and
would be owed by Tenant to Landlord under the Lease but for the
fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding
involving Tenant.
(II) Guarantor guarantees
that the Obligations will be paid strictly in accordance with the
terms of the Lease, regardless of any law, statute, rule,
regulation, decree or order now or hereafter in effect in any
jurisdiction affecting or purporting to affect in any manner any of
such terms or the rights or remedies of Landlord with respect
thereto. The obligations of Guarantor under this Guaranty
(i) are independent of the Obligations and (ii) shall not
be offset by any amounts held by Landlord as security for
Tenant’s obligations under the Lease. The liability of
Guarantor under this Guaranty shall be absolute and unconditional,
shall not be
affected, released, terminated,
discharged or impaired, in whole or in part, by, and Landlord may
proceed to exercise any right or remedy hereunder, irrespective
of:
(i) any lack of genuineness,
regularity, validity, legality or enforceability, or the
voidability, of the Lease or any other agreement or instrument
relating thereto;
(ii) any amendment,
modification or extension of the terms of the Lease, including the
exercise of any option or the substitution of any space for all or
any portion of the Premises;
(iii) any change in the time,
manner or place of payment, performance or observance of all or any
of the Obligations or any extensions of time for payment,
performance or observance, whether in whole or in part, of the
terms of the Lease on the part of Tenant to be paid, performed or
observed, as applicable;
(iv) any amendment or waiver
of, or any assertion or enforcement or failure or refusal to assert
or enforce, or any consent or indulgence granted by Landlord with
respect to a departure from, any term of the Lease, including,
without limiting the generality of the foregoing, the waiver of any
default by Tenant, or the making of any other arrangement with, or
the accepting of any compensation or settlement from, Tenant unless
the settlement is expressly stated to accrue to the benefit of
Guarantor as well;
(v) any failure or delay of
Landlord to exercise, or any lack of diligence in exercising, any
right or remedy with respect to the Lease;
(vi) any dealings or
transactions between Landlord and Tenant, whether or not Guarantor
shall be a party to or cognizant of the same;
(vii) the exercise of any
right or remedy under the Lease, or the obtaining of any judgment
against Tenant, or the taking of any action to enforce the
same;
(viii) any bankruptcy,
insolvency, assignment for the benefit of creditors, receivership,
trusteeship or dissolution of or affecting Tenant;
(ix) any exchange, surrender
or release, in whole or in part, of any security which may be held
by Landlord at any time for or under the Lease or in respect of the
Obligations;
(x) any other guaranty now or
hereafter executed by Guarantor or any other guarantor or the
release of any other guarantor from liability for the payment,
performance or observance of any of the Obligations or any of the
terms of the Lease on the part of Tenant to be paid, performed or
observed, as applicable, whether by operation of law or
otherwise;
(xi) any rights, powers or
privileges Landlord may now or hereafter have against any person,
entity or collateral in respect of the Obligations;
(x) Landlord’s consent
to any assignment/or successive assignments of the Lease by Tenant,
or to the subletting of all or any portion of the
Premises;
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(xi) the failure to give
Guarantor any notices whatsoever; or
(xii) any other circumstance
which might in any manner or to any extent constitute a defense
available to Tenant, or vary the risk of Guarantor, or might
otherwise constitute a legal or equitable discharge or defense
available to a surety or guarantor, whether similar or dissimilar
to the foregoing;
all from time to time before or after
any default by Tenant under the Lease, and with or without further
notice to or assent from Guarantor. This Guaranty shall continue to
be effective or be reinstated, as the case may be, and the rights
of Landlord hereunder shall continue with respect to, any
Obligation (or portion thereof) at any time paid by Tenant which
shall thereafter be required to be restored or returned by Landlord
upon the insolvency, bankruptcy or reorganization of Tenant, or for
any other reason, all as though such Obligation (or portion
thereof) had not been so paid or applied.
3. Guarantor represents and
warrants to Landlord as follows:
(a) Guarantor is a duly
organized and validly existing corporation under the laws of the
jurisdiction indicated on page 1 in respect of Guarantor, and
Guarantor has full power, authority and legal right to execute and
deliver this Guaranty and to perform fully and completely all of
its obligations hereunder;
(b) the execution, delivery
and performance of this Guaranty by Guarantor has been duly
authorized by all necessary corporate action, will not violate any
provision of any law, regulation, order or decree of any
governmental authority, bureau or agency or of any court binding on
Guarantor, or any provision of the charter or by-laws of Guarantor,
or of any contract, undertaking or agreement to which Guarantor is
a party or which is binding upon Guarantor or any of its property
or assets and will not result in the imposition or creation of any
lien, charge or encumbrance on, or security interest in, any of its
property or assets pursuant to the provisions of any of the
foregoing;
(c) all necessary
resolutions, consents, licenses, approvals and authorizations of
any person or entity required in connection with the execution,
delivery and performance of this Guaranty have been duly obtained
and are in full force and effect;
(d) this Guaranty has been
duly executed and delivered by a duly authorized officer of
Guarantor and constitutes a legal, valid and binding obligation of
Guarantor enforceable against it in accordance with its terms,
subject as to enforcement of remedies to any applicable bankruptcy,
reorganization, moratorium or other laws affecting the enforcement
of creditors’ rights generally and doctrines of equity
affecting the availability of specific enforcement as a remedy;
and
(e) Guarantor owns 100% of
the legal and beneficial interest of Tenant.
4. Guarantor hereby waives
(i) the right to trial by jury in any action or proceeding of
any kind arising on, under, out of, or by reason of or relating, in
any way, to this Guaranty or the interpretation, breach or
enforcement hereof, and (ii) the right to interpose any setoff
or counterclaim of any nature or description in any action or
proceeding arising hereunder or with respect to this
Guaranty.
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5. Without limiting
Guarantor’s obligations elsewhere under this Guaranty, if
Tenant, or Tenant’s trustee, receiver or other officer with
similar powers with respect to Tenant, rejects, disaffirms or
otherwise terminates the Lease pursuant to any bankruptcy,
insolvency, reorganization, moratorium or any other law affecting
creditors’ rights generally, Guarantor shall, upon request of
Landlord given within thirty (30) days next following any such
rejection, disaffirmance or termination (and actual notice thereof
in the event of a disaffirmance or rejection or in the event of
such termination), be deemed to have assumed, from and
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