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Exhibit 10.10 GUARANTY
This
GUARANTY (this " Guaranty "), dated as of December 19,
2008 (the " Effective Date "), is made by TRIBECA LENDING
TRUST SERIES I, a Delaware statutory trust (the " Guarantor
"), in favor of THE HUNTINGTON NATIONAL BANK, a national banking
association (the " Lender "). RECITALS
WHEREAS,
pursuant to that certain First Amended and Restated Tribeca
Forbearance Agreement and Amendment to Credit Agreements, dated as
of the Effective Date (as amended, supplemented or otherwise
modified from time to time in accordance with the provisions
thereof, the " Forbearance Agreement "), among the Loan
Parties party thereto (the " Loan Parties "), Tribeca
Lending Corp., a New York corporation, in its individual capacity
(" Tribeca "), Franklin Credit Management Corporation ("
FCMC "), in its capacities as defined in the Forbearance
Agreement, and the Lender, the Lender has agreed to make and/or
maintain Advances and other financial accommodations to and for the
benefit of the Loan Parties, upon the terms and subject to the
conditions set forth in the Forbearance Agreement; and
WHEREAS,
it is a condition precedent to the obligations of the Lender to
make and/or maintain Advances and the financial accommodations
provided under the Forbearance Agreement, that the Guarantor shall
have executed and delivered this Guaranty to the Lender; and
WHEREAS,
the Guarantor acknowledges that the making and/or maintaining of
the Advances and the other financial accommodations to the
Guarantor and the Borrowers under the Forbearance Agreement will
inure to the substantial benefit of the Guarantor.
NOW,
THEREFORE, in consideration of the premises and in order to induce
the Lender to enter into the Forbearance Agreement and to make
and/or maintain the extensions of credit contemplated thereby, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby
agrees with the Lender as follows:
1.
Guaranty . (a) The Guarantor hereby unconditionally and
irrevocably guarantees to the Lender, and its successors,
endorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrowers of all Obligations when and as the
same shall become due (whether at stated maturity, by acceleration
or otherwise). The Guarantor further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and
disbursements of counsel) that may be paid or incurred by the
Lender 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 Guarantor under this Guaranty. This
Guaranty shall remain in full force and effect until the
Obligations are paid in full in cash, notwithstanding that from
time to time prior thereto the Borrowers and/or any other guarantor
may be free from any Obligations.
(b) The
Guarantor agrees that whenever, at any time or from time to time,
it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in
writing that such payment is made under this Guaranty for such
purpose; provided , however , that no payment made by
the Guarantor through or on behalf of any Borrower or any other
guarantor shall be applied to reduce the Obligations unless and
until the Lender shall have made a demand for payment under this
Guaranty.
2.
Representations, Warranties and Covenants of the Guarantor .
The Guarantor represents and warrants to the Lender as follows:
(i)
Organization . A certificate of trust in the form attached
to the Master Trust Agreement (as defined in Section 20 below)
has been executed and filed with the Delaware Secretary of State,
as required by the Master Trust Agreement.
(ii)
Authority . The Certificate Trustee (as defined in
Section 20 below) has been authorized and directed to execute
and deliver on behalf of Guarantor as Guarantor this Guaranty as
required by the Master Trust Agreement.
(iii)
Consent and Approvals . To the actual knowledge of the
Certificate Trustee, without inquiry or investigation, no other
consent or approval of any party is required for the execution and
delivery of this Guaranty, and this Guaranty has been executed and
delivered by the Certificate Trustee on behalf of the Guarantor as
required by the Master Trust Agreement.
(iv)
Representations True and Correct . To the actual knowledge
of the Certificate Trustee, all of the above representations and
warranties contained in this Guaranty are true and correct as of
the date of this Guaranty, and all such representations and
warranties shall survive the execution of this Guaranty.
3.
Right of Set-off . Upon the occurrence of a Forbearance
Default, the Guarantor hereby irrevocably authorizes the Lender
(and its Affiliates), at any time and from time to time and without
notice to the Guarantor, any such notice being expressly waived by
the Guarantor, to set-off and appropriate and apply any and all
property and 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 Lender (or any of its Affiliates)
to or for the credit or the account of the Guarantor, or any part
thereof in such amounts as the Lender may elect, against and on
account of the obligations and liabilities of the Guarantor to the
Lender hereunder and claims of every nature and description of the
Lender (or any of its Affiliates) against the Guarantor, in any
currency, whether arising hereunder or under any other Loan
Document, as the Lender (or any of its Affiliates) may elect,
regardless of whether the Lender (or such Affiliate) has made any
demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The Lender (or its
Affiliate) shall notify the Guarantor promptly of any such set-off
and the application made by the Lender or such Affiliate;
provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of
the Lender (and its Affiliates) under this Section 3 are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) that the Lender (and such
Affiliates) may have under the Forbearance Agreement, at law or in
equity.
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4.
No Subrogation . Notwithstanding any payment or payments
made by the Guarantor hereunder or any set-off or application of
funds of the Guarantor by the Lender (or any of its Affiliates),
the Guarantor shall be not be entitled to be subrogated to any of
the rights of the Lender (or any of its Affiliates) against the
Borrowers or any other guarantor or any Collateral or guarantee or
right of offset held by the Lender (or its Affiliates) for the
payment of the Obligations, nor shall the Guarantor seek or be
entitled to seek any contribution or reimbursement from the
Borrowers or any other guarantor in respect of payments made by the
Guarantor hereunder, in each case until all amounts owing to the
Lender (or its Affiliates) on account of the Obligations are paid
in full and the Forbearance Agreement, the Credit Agreements and
all other Loan Documents are terminated. If any amount shall be
paid to the Guarantor on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full,
such amount shall be held by the Guarantor in trust for the Lender
(and its Affiliates), segregated from other funds of the Guarantor,
and shall, forthwith upon receipt by the Guarantor, be turned over
to the Lender in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Lender, if required), to be
applied against the Obligations, whether matured or unmatured, in
such order as the Lender may determine.
5.
Amendments, Etc. with Respect to the Obligations . The
Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without
notice to or further assent by the Guarantor, any demand for
payment of any of the Obligations made by the Lender may be
rescinded by the Lender and any of the Obligations continued, and
the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time and
in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Lender, and the Forbearance Agreement, and any other documents
executed and delivered in connection therewith may be amended,
restated, modified, supplemented or terminated, in whole or in
part, as the Lender may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held
by the Lender (and its Affiliates) for the payment of the
Obligations may be sold, exchanged, waived, surrendered or
released. The Lender shall not have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as
security for the Obligations or for this Guaranty or any assets
subject thereto. When making any demand hereunder against the
Guarantor, the Lender may, but shall be under no obligation to,
make a similar demand on any Borrower or any other guarantor, and
any failure by the Lender to make any such demand or to collect any
payments from a Borrower or any such other guarantor or any release
of a Borrower or such other guarantor shall not relieve the
Guarantor of its respective obligations or liabilities hereunder,
and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Lender against the
Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
6.
Waiver of Rights . The Guarantor waives any and all notice
of the creation, renewal, extension or accrual of any of the
Obligations, and notice of or proof of reliance by the Lender upon
this Guaranty or acceptance of this Guaranty. The Obligations, and
any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Guaranty, and all dealings between the Borrowers
and the Guarantor, on the one hand, and the Lender, on the o
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