Exhibit 10.1
GUARANTY
GUARANTY dated as
of September 12, 2008 between JER Investors Trust Inc., a Maryland
corporation (the "Guarantor") and J.P. Morgan Securities Inc.
("JPMSI").
RECITALS
JERIT FINANCE CO
JPM, LLC (the "Counterparty"), the Guarantor and JPMSI are parties
to a Master Repurchase Agreement dated as of September 12, 2008
(the "Agreement"). Capitalized terms used herein not
otherwise defined have the meanings assigned to them in the
Agreement. As an inducement to JPMSI to enter into the
Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, JPMSI and
the Guarantor agree as follows:
1.
Guaranty of Payment . The
Guarantor, as primary obligor and not as surety only, hereby
unconditionally guarantees the due and punctual payment (whether at
stated maturity, upon acceleration, early termination or otherwise)
of any amounts arising out of or in connection with the Agreement,
including without limitation the obligation of the Counterparty to
pay any amounts due and owing pursuant to the Agreement and all
expenses of collection, counsel fees and other expenses incurred by
JPMSI in connection with the enforcement of its rights under the
Agreement (collectively, the "Guaranteed
Obligations"). Upon any failure by the Counterparty to
pay any of the Guaranteed Obligations, the Guarantor agrees that it
will forthwith on demand pay, at the place and in the manner
specified in the Agreement, such amounts which the Counterparty has
failed to pay. This Guaranty is a guaranty of payment
and not merely a guaranty of collection.
2.
Guaranty Unconditional and Absolute
. The obligations of the Guarantor hereunder shall be
unconditional and absolute and, without limiting the generality of
the foregoing, shall not be released, discharged or otherwise
affected by:
(i)
any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the
Counterparty or any other guarantor of any of the Guaranteed
Obligations;
(ii)
any release, exchange, non-perfection or
invalidity of any direct or indirect security for any of the
Guaranteed Obligations;
(iii)
any modification or amendment of or
supplement to the Agreement;
(iv)
any change in the corporate existence
(including its constitution, laws, rules, regulations or powers),
structure or ownership of the Counterparty or the Guarantor, or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Counterparty or its assets, the Guarantor or any
other guarantor of any of the Guaranteed Obligations;
(v)
the existence of any claim, set-off or
other rights which the Guarantor may have at any time against the
Counterparty, JPMSI or any other corporation or person, whether in
connection herewith or in connection with any unrelated
transaction; provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi)
any invalidity or unenforceability relating to or
against the Counterparty or any other guarantor for any reason of
the Agreement or any other guaranty agreement, or any provision of
applicable law or regulation purporting to prohibit payment by the
Counterparty of amounts to be paid by it under the Agreement or any
of the Guaranteed Obligations or under any such guaranty agreement;
or
(vii)
any other act or omission to act or delay of any kind
by the Counterparty, any other guarantor, JPMSI or any other
corporation or person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal
or equitable discharge of the Guarantor's obligations
hereunder.
3.
Discharge Only Upon Payment In Full; Reinstatement in Certain
Circumstances . The Guarantor's obligations
hereunder constitute a guarantee of payment and not of collection
merely and shall remain in full force and effect until the
Guaranteed Obligations shall have been paid in full in accordance
with the terms hereof and of the Agreement. If at any
time any payment of any of the Guaranteed Obligations is rescinded
or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Counterparty or otherwise, the
Guarantor's obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had not
been made.
4.
Waiver by the Guarantor . The Guarantor
irrevocably waives acceptance hereof, diligence, presentment,
demand, protest, notice of dishonor and any notice not provided for
herein, as well as any requirement that at any time any person
exhaust any right or take any action against the Counterparty or
its assets or any other guarantor or person.
5.
Subrogation . Upon making any payment hereunder,
the Guarantor shall be subrogated to the rights of JPMSI against
the Counterparty with respect to such payment; provided that the
Guarantor shall not enforce any right or receive any payment by way
of subrogation until all of the Guaranteed Obligations shall have
been paid in full.
6.
Stay of Acceleration Ineffective with respect to Guarantor
. In the event that acceleration of the time for payment
of any amount payable by the Counterparty under the Agreement is
stayed upon the insolvency, bankruptcy or reorganization of the
Counterparty, all such amounts otherwise subject to acceleration or
required to be paid upon an early termination pursuant to the terms
of the Agreement shall nonetheless be payable by the Guarantor
hereunder forthwith on demand by JPMSI.
7.
Assignment; Su
