EXECUTION VERSION
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (as amended, modified, waived, supplemented,
extended, restated or replaced from time to time, this
“Guaranty”), is made as of the 13th day of November,
2006, by MMA REALTY CAPITAL, LLC , a Maryland limited
liability company (together with its successors and permitted
assigns and any other Person that becomes a limited guarantor under
this Guaranty, the “Limited Guarantor”), for the
benefit of WACHOVIA CAPITAL MARKETS, LLC , a Delaware
limited liability company, as the deal agent (together with its
successors and assigns, the “Deal Agent”), VARIABLE
FUNDING CAPITAL COMPANY LLC , a Delaware limited liability
company, as the purchaser (together with its successors and
assigns, the “Purchaser”), and the other Secured
Parties under the Repurchase Agreement (defined below) (together
with their successors and assigns, the “Secured
Parties”). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Repurchase
Agreement (defined below).
RECITALS:
WHEREAS , under and subject to the terms of the Master
Repurchase Agreement (including the annexes, schedules and exhibits
thereto), dated as of November 13, 2006 (as amended, modified,
restated, replaced, waived, substituted, supplemented or extended
from time to time, the “Repurchase Agreement”), among
MMA Realty Capital Repurchase Subsidiary, LLC, as the seller
(together with its successors and permitted assigns and any other
Person that becomes a seller under the Repurchase Agreement, the
“Seller”), the Purchaser, as the purchaser, the Deal
Agent, as the deal agent, the Limited Guarantor, as the limited
guarantor, and Municipal Mortgage & Equity, LLC, a Delaware
limited liability company, as the parent (together with its
successors and assigns, the “Parent”), the Seller may
sell and the Purchaser may purchase certain Eligible Assets with a
simultaneous agreement by such Seller to repurchase those
assets;
WHEREAS , the Seller is an Affiliate of the Limited
Guarantor;
WHEREAS , the Limited Guarantor will benefit directly or
indirectly from the transactions contemplated under the Repurchase
Agreement; and
WHEREAS , the Deal Agent, the Purchaser and the other
Secured Parties are unwilling to enter into the Repurchase
Agreement or the transactions contemplated thereby without the
benefit of this Guaranty.
NOW, THEREFORE , based upon the foregoing Recitals and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Limited Guarantor, intending to
be legally bound, hereby agrees as follows:
1. Guaranty of Payment and
Performance.
The
Limited Guarantor hereby absolutely, primarily, unconditionally and
irrevocably guarantees, as primary obligor and as guarantor of
payment and performance and not merely as surety or guarantor of
collection, to the Deal Agent, the Purchaser and the other Secured
Parties subject to the terms of this Section 1 the payment,
when due, by maturity, acceleration or otherwise, of the Guarantee
Liabilities, however created, arising or evidenced, whether direct
or indirect, primary or secondary, absolute or contingent, joint or
several and whether now or hereafter existing or due or to become
due. For the purposes hereof, the term “Guarantee
Liabilities” means (i) any and all Losses incurred by
the Deal Agent, the Purchaser, the other Secured Parties and any
other Affected Party due to, arising out of or from, relating or
attributable to, resulting from or in connection with any fraud,
intentional misrepresentation or willful misconduct by the Seller,
the Pledgor, the Limited Guarantor, the Parent or any other
Repurchase Party relating to, arising out of or from or in
connection with the execution, delivery, consummation,
administration and/or performance of any Repurchase Document, the
Facility, the Mortgage Loan Documents or relating to, arising out
of or from or in connection with any certificate, report,
statement, information, financial statement, instrument or document
made, given, furnished, delivered or provided to the Deal Agent,
the Purchaser, any Secured party or any other Affected Party; and
(ii) any and all Losses incurred by the Deal Agent, the
Purchaser, the other Secured Parties and any other Affected Party
in connection with the Facility due to, arising out of or from,
relating or attributable to, resulting from or in connection with
(1) a past, present or future violation or alleged violation
of any Environmental Laws in connection with any Property or
Underlying Mortgaged Property by any Person or other source,
whether related or unrelated to the Seller, the Pledgor, the
Limited Guarantor, the Parent, any other Repurchase Party or any
Borrower, (2) any presence of any Materials of Environmental
Concern in, on, within, above, under, near, affecting or emanating
from any Property or Underlying Mortgaged Property, (3) the
failure to timely perform any Remedial Work, (4) any past,
present or future activity by any Person or other source, whether
related or unrelated to the Seller, the Pledgor, the Limited
Guarantor, the Parent, any other Repurchase Party or any Borrower
in connection with any actual, proposed or threatened use,
treatment, storage, holding, existence, disposition or other
release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling,
transfer or transportation to or from any Property or Underlying
Mortgaged Property of any Materials of Environmental concern at any
time located in, under, on, above or affecting any Property or
Underlying Mortgaged Property, (5) any past, present or future
actual Release (whether intentional or unintentional, direct or
indirect, foreseeable or unforeseeable) to, from, on, within, in,
under, near or affecting any Property or Underlying Mortgaged
Property by any Person or other source, whether related or
unrelated to the Seller, the Pledgor, the Limited Guarantor, the
Parent, any other Repurchase Party or any Borrower, (6) the
imposition, recording or filing or the threatened imposition,
recording or filing of any Lien on any Property or Underlying
Mortgaged Property with regard to, or as a result of, any Materials
of Environmental Concern or pursuant to any Environmental Law, and
(7) any misrepresentation or inaccuracy in any representation
or warranty in any material respect or material breach or failure
to perform any covenants or other obligations pursuant to this
Guaranty, the other Repurchase Documents or any of the Mortgage
Loan Documents, in each case, relating solely to environmental
matters. For purposes of this Guaranty, the term Losses shall mean
any and all claims, suits, liabilities (including, without
limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, fines, penalties, charges,
fees, judgments, awards, amounts paid in settlement of whatever
kind or nature (including but not limited to reasonable legal fees
and other costs of defense). Notwithstanding any provision to the
contrary contained herein or in any of the other Repurchase
Documents, the obligations of the Limited Guarantor (if more than
one) hereunder shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any Applicable Law of any
state.
2. Release of Collateral, Parties Liable,
etc.
The
Limited Guarantor agrees that (a) any or all of the Purchased
Items, the Pledged Collateral and other collateral, security and
Property now or hereafter held for the Guaranty or the Guarantee
Liabilities may be exchanged, released, terminated, modified, sold,
assigned, participated, pledged, compromised, surrendered or
otherwise transferred or disposed of from time to time;
(b) except as expressly set forth in the Repurchase Documents,
the Deal Agent, the Purchaser and the other Secured Parties shall
have no obligation to protect, perfect, secure or insure any
Purchased Item, the Pledged Collateral or any collateral, security,
Property, Liens, interests or encumbrances now or hereafter held
for the Guaranty or the Guarantee Liabilities or the Properties
subject thereto; (c) the time, place, manner or terms of
payment of the Guarantee Liabilities may be changed or extended, in
whole or in part, to a time certain or otherwise, and may be
renewed or accelerated, in whole or in part; (d) the Seller,
the Pledgor, the Parent, the other Repurchase Parties and other
Persons may be granted indulgences generally; (e) any of the
provisions of the Repurchase Agreement and the other Repurchase
Documents and the Guarantee Liabilities may be modified, amended,
waived, supplemented, replaced or restated from time to time;
(f) any party liable for the payment of the Guarantee
Liabilities, including, without limitation, other guarantors, may
be granted indulgences or released; and (g) any deposit
balance for the credit of the Seller or any other party liable for
the payment of the Guarantee Liabilities, including, without
limitation, other guarantors, or liable upon any security therefor,
may be released, in whole or in part, at, before and/or after the
stated, extended or accelerated maturity of the Guarantee
Liabilities, all of the foregoing in clauses (a) through
(g) without notice to or further assent by the Limited
Guarantor, who shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence, release or other act.
3. Waiver of Rights.
The
Limited Guarantor expressly waives: (a) notice of acceptance
of this Guaranty by the Deal Agent, the Purchaser and the other
Secured Parties and of all extensions of credit, loans or advances
to or purchases from the Seller by the Deal Agent, the Purchaser
and the other Secured Parties; (b) presentment and demand for
payment of any of the Guarantee Liabilities; (c) protest and
notice of dishonor or of default to the Limited Guarantor or to any
other party with respect to the Guarantee Liabilities or with
respect to any collateral, security or Property therefor;
(d) notice of the Deal Agent, the Purchaser and the other
Secured Parties obtaining, amending, substituting for, releasing,
waiving, modifying, extending, replacing or restating all or any
portion of the Guarantee Liabilities, the Repurchase Agreement, any
other Repurchase Document, other guarantees or any Lien now or
hereafter securing the Guarantee Liabilities or the Guaranty, or
the Deal Agent, the Purchaser or the other Secured Parties
subordinating, compromising, discharging, terminating or releasing
such Liens; (e) notice of the execution and delivery by the
Seller, the Deal Agent, the Purchaser, the other Secured Parties or
any other Person of any other loan, purchase, credit or security
agreement or document or of the Seller’s or such other
Person’s execution and delivery of any promissory notes or
other documents arising under or in connection with the Repurchase
Documents or in connection with any purchase of the Seller’s
or such other Person’s Property or assets; (f) notice of
the occurrence of any breach by the Seller, the Pledgor, the
Parent, any other Repurchase Party or any other Person or of any
Event of Default; (g) notice of the Deal Agent’s, the
Purchaser’s or the other Secured Parties’ transfer,
disposition, assignment, sale, pledge or participation of the
Guarantee Liabilities, the Purchased Items, the Pledged Collateral,
the Repurchase Documents, the Mortgage Loan Documents, or any
collateral, security or Property securing the Guaranty or the
Guarantee Liabilities or any portion of the foregoing;
(h) notice of the sale or foreclosure (or posting or
advertising for sale or foreclosure) of all or any portion of any
Purchased Item, the Pledged Collateral or any collateral, security
or Property securing the Guaranty or the Guarantee Liabilities;
(i) notice of the protest, proof of non–payment or
default by the Seller or any other Person; (j) any other
action at any time taken or omitted by the Deal Agent, the
Purchaser or the other Secured Parties, and, generally, all demands
and notices of every kind in connection with this Guaranty, the
Repurchase Documents, the Guarantee Liabilities, the Purchased
Items, the Pledged Collateral, any collateral, security or Property
securing the Guaranty or the Guarantee Liabilities, the Mortgage
Loan Documents, any documents or agreements evidencing, securing or
relating to any of the Guaranty or the Guarantee Liabilities and
the obligations hereby guaranteed; (k) all other notices to
which the Limited Guarantor might otherwise be entitled;
(l) demand for payment under this Guaranty; and (m) any
right to assert against the Deal Agent, the Purchaser or the other
Secured Parties, as a defense, counterclaim, set–off or
cross–claim, any defense (legal or equitable), set–off,
counterclaim or claim of any kind or nature whatsoever that the
Limited Guarantor may now or hereafter have against the Deal Agent,
the Purchaser or the other Secured Parties (other than payment in
full of the Guarantee Liabilities), the Seller or any other Person,
but such waiver shall not prevent the Limited Guarantor from
asserting against the Deal Agent, the Purchaser and the other
Secured Parties in a separate action, any claim, action, cause of
action or demand that the Limited Guarantor might have, whether or
not arising out of this Guaranty. It shall not be necessary for the
Deal Agent, the Purchaser and the other Secured Parties (and the
Limited Guarantor hereby waives any rights which the Limited
Guarantor may have to require the Deal Agent, the Purchaser and the
other Secured Parties), in order to enforce the obligations of the
Limited Guarantor hereunder, to (i) institute suit, enforce
its rights or exhaust its remedies against the Seller, the Pledgor,
the Parent, any other Repurchase Party, others liable on the
Guarantee Liabilities, the Borrowers or any other Person,
(ii) enforce the Deal Agent’s, the Purchaser’s or
the other Secured Parties’ rights or exhaust its remedies
under or with respect to the Mortgage Loan Documents and the
collateral and Property secured thereby, the Purchased Items, the
Pledged Collateral or any collateral, security or Property which
shall ever have been given to secure the Guaranty or the Guarantee
Liabilities, (iii) enforce the Deal Agent’s, the
Purchaser’s or the other Secured Parties’ rights
against any other guarantors of the Guarantee Liabilities,
(iv) join the Seller, others liable on the Guarantee
Liabilities or any other Person in any action seeking to enforce
this Guaranty, (v) mitigate damages or take any other action
to reduce, collect or enforce the Guarantee Liabilities, or
(vii) resort to any other means of obtaining payment of the
Guarantee Liabilities.
4. Validity of Guaranty.
The
val i dity of this Guaranty, t he obl i
gations of the Limited G u arantor hereunder a nd t
h e D e al Agent’s, the Purchaser’s and
the other Secured Parties’ rights and remedies for the
enforcement of the foregoing shall in no way be terminated, abated,
reduced, released, modified, changed, discharged, diminished,
affected, limited or impaired in any manner whatsoever by the
happening from time to time of any event or condition of any kind
whatsoever, including, without limitation, any of the following
(and the Limited Guarantor hereby waives any common law, equitable,
statutory, constitutional, regulatory or other rights (including
rights to notice) which the Limited Guarantor might have as a
result of or in connection with any of the following): (a) the
assertion or non–assertion by the Deal Agent, the Purchaser
or the other Secured Parties of any of the rights or remedies
available to the Deal Agent, the Purchaser or the other Secured
Parties pursuant to the provisions of the Repurchase Documents, the
Mortgage Loan Documents or pursuant to any Applicable Law;
(b) the waiver by the Deal Agent, the Purchaser or the other
Secured Parties of, or the failure of the Deal Agent, the Purchaser
or the other Secured Parties to enforce, or the lack of diligence
by the Deal Agent, the Purchaser or the other Secured Parties in
connection with, the enforcement of any of its rights or remedies
under the Repurchase Documents, the Mortgage Loan Documents, the
Purchased Items, the Pledged Collateral or any collateral, security
or Property securing the Guaranty or the Guarantee Liabilities;
(c) the granting by the Deal Agent, the Purchaser or the other
Secured Parties of (or failure by the Deal Agent, the Purchaser or
the other Secured Parties to grant) any indulgence, forbearance,
adjustment, compromise, consent, approval, waiver or extension of
time; (d) the exercise by the Deal Agent, the Purchaser or the
other Secured Parties of or failure to exercise any so–called
self–help remedies; (e) any act, omission or condition
that might in any manner or to any extent vary, alter, increase,
extend or continue the risk to the Limited Guarantor or might
otherwise operate as a discharge or release of the Limited
Guarantor under Applicable Law; (f) any full or partial
release or discharge of or accord and satisfaction with respect to
liability for the Guarantee Liabilities, or any part thereof, of
the Seller, the Limited Guarantor, the Pledgor, the Parent, any
other Repurchase Party, any co–guarantors or any other Person
now or hereafter liable, whether directly or indirectly, jointly,
severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Guarantee Liabilities, or any part
thereof; (g) the impairment, modification, change, release,
discharge or limitation of the liability of the Seller, the Limited
Guarantor, the Pledgor, the Parent, any other Repurchase Party, any
Borrower or any Person liable for or obligated on the Guarantee
Liabilities, or any of their estates in bankruptcy, resulting from
or pursuant to the bankruptcy or insolvency of any of the foregoing
or the application of the Insolvency Laws or of or any decision of
any court of the United States or any state thereof; (h) any
present or future Applicable Law or order of any Governmental
Authority (de jure or de facto) purporting to reduce, amend or
otherwise affect the Guarantee Liabilities or to vary any terms of
payment, satisfaction or discharge thereof; (i) the waiver,
compromise, settlement, release, extension, amendment, change,
modification, substitution, replacement, reduction, increase,
alteration, rearrangement, renewal or termination of the terms of
the Guarantee Liabilities, the Repurchase Documents, the Purchased
Items, the Pledged Collateral, any collateral, security or Property
securing the Guaranty or the Guarantee Liabilities, the Mortgage
Loan Documents, any or all of the obligations, covenants or
agreements of the Seller, the Pledgor, the Parent, the other
Repurchase Parties, the Borrowers or any other Person under the
Repurchase Documents or Mortgage Loan Documents (except by
satisfaction in full of all Guarantee Liabilities) or of the
Limited Guarantor under this Guaranty and/or any failure of the
Deal Agent, the Purchaser or the other Secured Parties to notify
the Limited Guarantor of any of the foregoing; (j) the
extension of the time for satisfaction, discharge or payment of the
Guarantee Liabilities or any part thereof owing or payable by the
Seller or any other Person under the Repurchase Documents or of the
time for performance of any other obligations, covenants or
agreements under or arising out of this Guaranty or the extension
or renewal of any thereof; (k) any existing or future offset,
claim or defense (other than payment in full of the Guarantee
Liabilities) of the Seller or any other Person against the Deal
Agent, the Purchaser or the other Secured Parties or against
payment of the Guarantee Liabilities, whether such offset, claim or
defense arises in connection with the Guarantee Liabilities (or the
transactions creating same) or otherwise; (l) the taking or
acceptance or the existence of any other guaranty of or collateral,
security or Property securing the Guarantee Liabilities in favor of
the Deal Agent, the Purchaser, the other Secured Parties, any other
Affected Party or any other Person specified in the Repurchase
Documents or the enforcement or attempted enforcement of such other
guaranty, collateral, security or Property; (m) any sale,
lease, sublease or transfer of or Lien on all or a portion of the
assets or Property of the Seller, the Pledgor, the Limited
Guarantor, the Parent or any other Repurchase Party, or any changes
in the shareholders, partners or members of the Seller, the
Pledgor, the Limited Guarantor, the Parent or any other Repurchase
Party, or any reorganization, consolidation or merger of the
Seller, the Pledgor, the Limited Guarantor, the Parent or any other
Repurchase Party; (n) the invalidity, illegality or
unenforceability of all or any part of the Guarantee Liabilities,
the Repurchase Documents, the Purchased Items, the Pledged
Collateral, any collateral, security or Property securing the
Guaranty or the Guarantee Liabilities, the Mortgage Loan Documents
or any document or agreement executed in connection with the
foregoing, for any reason whatsoever, including, without
limitation, the fact that (1) the Guarantee Liabilities, or
any part thereof, exceeds the amount permitted by Applicable Law or
violates usury laws, (2) the act of creating the Guarantee
Liabilities, the Mortgage Assets, the Purchased Items, the Pledged
Collateral, any collateral, security or Property securing the
Guaranty or the Guarantee Liabilities or any part of the foregoing
is ultra vires, (3) the officers or representatives executing
the Mortgage Loan Documents or Repurchase Documents or otherwise
creating the Guarantee Liabilities, the Mortgage Assets, the
Purchased Items, the Pledged Collateral or any collateral, security
or Property securing the Guaranty or the Guarantee Liabilities
acted in excess of their authority, (4) the Seller, the
Pledgor, the Parent, any other Repurchase Party, any Borrower or
any other Person has valid defenses, claims or offsets (whether at
law, in equity or by agreement) which render the Guarantee
Liabilities wholly or partially uncollectible, (5) the
creation, performance or repayment of the Guarantee Liabilities,
the Mortgage Assets, the Purchased Items, the Pledged Collateral or
any collateral, security or Property securing the Guaranty or the
Guarantee Liabilities (or the execution, delivery and performance
of any Repurchase Document, Mortgage Loan Document or document or
instrument representing part of the Guarantee Liabilities, the
Mortgage Assets, the Purchase Items, the Pledged Collateral, any
collateral, security or Property securing the Guaranty or the
Guarantee Liabilities or executed in connection with the Guarantee
Liabilities, the Mortgage Assets, the Purchased Items, the Pledged
Collateral or any collateral, security or Property securing the
Guaranty or the Guarantee Liabilities, or given to secure the
repayment of the Guarantee Liabilities, the Mortgage Assets or the
other Purchased Items) is illegal, uncollectible or unenforceable,
or (6) any Mortgage Loan Document, any Repurchase Document or
any other document, agreement or instrument has been forged or
otherwise is irregular or not genuine or authentic; (o) any
release, termination, sale, pledge, participation, transfer,
surrender, exchange, subordination, deterioration, waste, loss or
impairment (including, without limitation, negligent, willful,
unreasonable or unjustifiable impairment) of the Purchased Items,
the Pledged Collateral or any collateral, security or Property at
any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranty or the Guarantee
Liabilities; (q) the failure of the Deal Agent, the Purchaser,
the other Secured Parties or any other Person to exercise diligence
or reasonable care in the preservation, protection, enforcement,
sale or other handling or treatment of all or any part of the
Purchased Items, the Pledged Collateral or any other collateral,
security or Property securing the Guaranty or the Guarantee
Liabilities, including, but not limited to, any neglect, delay,
omission, failure or refusal of the Deal Agent, the Purchaser or
the other Secured Parties (1) to take or prosecute any action
for the collection of any of the Guarantee Liabilities, the Pledged
Collateral, any Purchased Item or any collateral, security or
Property securing the Guaranty or the Guarantee Liabilities,
(2) to foreclose, or initiate any action to foreclose, or,
once commenced, prosecute to completion any action to foreclose,
upon any Purchased Item, the Pledged Collateral or any security,
collateral or Property securing the Guaranty or Guarantee
Liabilities, or (3) to take or prosecute any action in
connection with any instrument or agreement evidencing or securing
all or any part of the Guarantee Liabilities; (r) the fact
that the Purchased Items, the Pledged Collateral or any collateral,
secu
5. Primary Liability of the Limited
Guarantor.
Without limiting the foregoing provisions, the
Limited Guarantor agrees that this Guaranty may be enforced by the
Deal Agent, the Purchaser and the other Secured Parties without the
necessity at any time of resorting to or exhausting any other
security or collateral and without the necessity at any time of
having recourse to any of the Repurchase Documents, the Purchased
Items, the Pledged Collateral or any collateral, security or
Property now or hereafter securing the Guaranty or the Guarantee
Liabilities or otherwise, and the Limited Guarantor hereby waives
the right to require the Deal Agent, the Purchaser and the other
Secured Parties to proceed against the Seller, the Pledgor, the
Parent, any other R epurc h ase P arty, any Borrower
or any other Person (including a co–guarantor) or to require
the Deal Agent, the Purchaser and the other Secured Parties to
pursue any other remedy or enforce any other right. The Limited
Guarantor further agrees that the Limited Guarantor shall have no
right of subrogation, reimbursement or indemnity whatsoever against
any Person, or any right of recourse to the Purchased Items, the
Pledged Collateral or any collateral, security or Property securing
the Guaranty or the Guarantee Liabilities, so long as any such
Guarantee Liabilities remain outstanding. The Limited Guarantor
further agrees that nothing contained herein shall prevent the Deal
Agent, the Purchaser and the other Secured Parties from suing on
the Repurchase Agreement or any of the other Repurchase Documents
or foreclosing its security interest in or Lien on any Purchased
Item, the Pledged Collateral or any collateral, security or
Property now or hereafter securing the Guaranty or the Guarantee
Liabilities or from exercising any other rights available to it
under the Repurchase Agreement or any of the other Repurchase
Documents or any other instrument of security if none of the
Seller, the Pledgor, the Limited Guarantor, the Parent or any other
Repurchase Party timely perform the obligations of the Seller, the
Pledgor, the Parent, all other Repurchase Parties or other Persons
thereunder, and the exercise of any of the aforesaid rights and the
completion of any foreclosure proceedings shall not constitute a
discharge of the Limited Guarantor’s obligations hereunder;
it being the purpose and intent of the Limited Guarantor that the
Limited Guarantor’s obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. The
Limited Guarantor recognizes, acknowledges and agrees that the
Limited Guarantor may be required to pay the Guarantee Liabilities
in full (subject to the limit set forth in Section 1) without
assistance or support of any other party, and the Limited Guarantor
has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other
parties will be liable to pay or perform the Guarantee Liabilities,
or that the Deal Agent, the Purchaser and the other Secured Parties
will look to other parties to pay or perform the Guarantee
Liabilities. The Limited Guarantor recognizes, acknowledges and
agrees that it is not entering into this Guaranty in reliance on,
or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of the Purchased Items, the
Pledged Collateral or any of the collateral, security or Property
securing the Guaranty or the Guarantee Liabilities.
6. Attorneys’ Fees and Costs of
Collection.
If at
any time or times hereafter any of the Deal Agent, the Purchaser or
the other Secured Parties employs counsel to pursue collection, to
preserve or enforce its rights under this Guaranty, or to
intervene, to sue for enforcement of the terms of this Guaranty or
to file a petition, complaint, answer, motion or other pleading in
any suit or proceeding relating to this Guaranty, then, in such
event, all of the reasonable attorneys’ fees, costs and
expenses relating thereto and all other amounts (if any) owed by
the Limited Guarantor under this Guaranty (other than the Guarantee
Liabilities) shall be an additional liability of the Limited
Guarantor to the Deal Agent, the Purchaser and the other Secured
Parties (over and above any limitation set forth in Section 1,
if any), payable on demand. The obligations contained in this
Section 6 shall survive the termination of this
Guaranty.
7. Security Interests and
Setoff.
The
Limited Guarantor agrees that in the event the Limited Guarantor
fails to pay its obligations hereunder when due and payable under
this Guaranty, the Deal Agent, the Purchaser and the other Secured
Parties shall be entitled to (a) any and all remedies
available to it under Applicable Law including, without limitation,
all rights of setoff (subject to Section 33 of this Guaranty)
and (b) the benefit of all Liens heretofore, now and at any
time or times hereafter granted by such Limited Guarantor to the
Deal Agent, the Purchaser and the other Secured Parties, if any, to
secure such Limited Guarantor’s obligations
hereunder.
8. Term of Guaranty.
This
Guaranty shall continue in full force and effect until the
Guarantee Liabilities are fully and indefeasibly paid, performed
and discharged and the Repurchase Documents are
terminated
