Preview
FILED: NEW YORK COUNTY CLERK 06/02/2023 05:50 PM INDEX NO. 151261/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/02/2023
EXHIBIT 1
INDEX NO. 151261/2023
4 NY D6
NYSCEF DOC. NO. 34 RECEIVED NYSCEF 06/02/2023
GUARANTY
THIS GUARANTY (as amended, restated, supplemented, or otherwise modified
from time to time, this "Guaranty") is dated as of November 24, 2021 by Michael J. Strauss
(each, and together with their successors and assigns, "Guarantor") in favor Banc of California,
National Association (together with its successors and assigns, "Buyer").
1 Continuing Guarantee of Payment and Performance. For good and valuable
consideration, Guarantor jointly and severally and absolutely and unconditionally guarantees full
and punctual payment and satisfaction of the Obligations of Seller to Buyer, and the
performance and discharge of all Seller's obligations under the Repurchase Agreement and the
other Repurchase Facility Documents. This is a guaranty of payment and performance and not
merely of collection, so Buyer can enforce this Guaranty against Guarantor even when Buyer
has not exhausted Buyer's remedies against anyone else obligated to pay the Obligations or
against any collateral securing the Obligations, this Guaranty or any other guaranty of the
Obligations. Guarantor will make any payments to Buyer or its order, on demand, in legal
tender of the United States of America, in same-day funds, without set-off or deduction or
counterclaim, and will otherwise perform Seller's obligations under the Repurchase Agreement
and the other Repurchase Facility Documents. Under this Guaranty, Guarantor’s liability is
unlimited and Guarantor's obligations are continuing.
2.Obligations. The word "Obligations" as used in this Guaranty means all
outstanding amounts from time to time and at any one or more times, accrued unpaid interest
thereon and all collection costs and legal expenses related thereto permitted by law, attorneys’
fees, arising from any and all debts, liabilities and obligations of every nature or form, now
existing or hereafter arising or acquired, that Seller individually or collectively or
interchangeably with others, owes or will owe Buyer arising out of or related to the Repurchase
Agreement and ail other Repurchase Facility Documents. "Obligations" includes, without
limitation any present or future judgments against Seller, future advances, loans or
transactions that renew, extend, modify, refinance, consolidate or substitute these debts,
liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by
their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or
undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or
surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or
non-negotiable instrument or writing; originated by Buyer or another or others; barred or
unenforceable against Seller for any reason whatsoever; for any transactions that may be
voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then
reduced or extinguished and then afterwards increased or reinstated.
If Buyer presently holds one or more guaranties, or hereafter receives additional
guaranties from Guarantor, Buyer's rights under all guaranties shall be cumulative. This
Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any
such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the
terms of this Guaranty and any such other unterminated guaranties.
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3 CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY"
UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND
PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE OBLIGATIONS
OF SELLER TO BUYER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED,
ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE
ON THE OBLIGATIONS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S
INDEBTEDNESS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING
AND SUCCEEDING OBLIGATIONS EVEN WHEN ALL OR PART OF THE
OUTSTANDING OBLIGATIONS MAY BE A ZERO BALANCE FROM TIME TO TIME.
4 Duration of Guaranty. This Guaranty will take effect when received by Buyer
without the necessity of any acceptance by Buyer, or any notice to Guarantor or to Seller, and
will continue in full force until all the Obligations incurred or contracted before receipt by Buyer
of any notice of revocation shall have been fully and finally paid and satisfied and all of
Guarantor's other obligations under this Guaranty shall have been performed in full and all
lending and purchase commitments, if any, on the part of Buyer have been terminated. If
Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's
written notice of revocation must be mailed to Buyer, by certified mail, at Buyer's address
listed above or such other place as Buyer may designate in writing. Written revocation of
this Guaranty will apply only to new Obligations created after actual receipt by Buyer of
Guarantor's written revocation. For this purpose and without limitation, the term "new
Obligations" does not include the Obligations which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated,
determined or due. For this purpose and without limitation, "new Obligations" does not include
all or part of the Obligations that is: incurred by Seller prior to revocation; incurred under a
commitment that became binding before revocation; any renewals, extensions, substitutions,
and modifications of the Obligations. This Guaranty shall bind Guarantor's estate as to the
Obligations created both before and after Guarantor's death or incapacity, regardless of
Buyer's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or
administrator or other legal representative may terminate this Guaranty in the same manner in
which Guarantor might have terminated it and with the same effect. Release of any other
guarantor or termination of any other guaranty of the Obligations shall not affect the liability
of Guarantor under this Guaranty. A revocation Buyer receives from any one or more
Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty.
Guarantor's obligations under this Guaranty shall be in addition to any of Guarantor's
obligations, or any of them, under any other guaranties of the Obligations or any other person
heretofore or hereafter given to Buyer unless such other guaranties are modified or revoked in
writing; and this Guarantor shall not, unless provided in this Guaranty, affect, invalidate, or
supersede any such other guaranty. It is anticipated that fluctuations may occur in the
aggregate amount of the Obligations covered by this Guaranty, and Guarantor
specifically acknowledges and agrees that reductions in the amount of the Obligations,
even to zero dollars ($0.00), shall not constitute a termination of this Guaranty. This
Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long
as any of the Obligations remains unpaid and even though the Obligations may from time
to time be zero dollars ($0.00).
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5 Obligations of Married Persons. Any married person who signs this Guaranty
hereby expressly agrees that recourse under this Guaranty may be had against both his or her
separate property and community property.
6 Guarantor's Authorization to Buyer. Guarantor authorizes Buyer, either before or
after any revocation hereof, without notice or demand and without lessening Guarantor's liability
under this Guaranty, from time to time: (A) prior to revocation as set forth above, to enter into
Transactions as defined in the Repurchase Agreement or otherwise extend credit to Seller; (B) to
alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for
payment or other terms of the Obligations or any part of the Obligations, including increases and
decreases of the rate of interest on the Obligations; extensions may be repeated and may be for
longer than the original term of the Obligations; (C) to take and hold security for the payment of
this Guaranty or the Obligations, and exchange, enforce, waive, subordinate, fail or decide not to
perfect, and release any such security, with or without the substitution of new collateral; (D) to
release, substitute, agree not to sue, or deal with any one or more of Seller's sureties, endorsers,
or other guarantors on any terms or in any manner Buyer may choose; (E) to determine how,
when and what application of payments and credits shall be made on the Obligations; (F) to
apply such security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or
deed of trust, as Buyer in its discretion may determine; and (G) to sell, transfer, assign or grant
participations in all or any part of the Obligations.
7. Guarantor's Representations and Warranties. Guarantor represents and warrants
to Buyer that (A) no representations or agreements of any kind have been made to Guarantor
which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is
executed at Seller's request and not at the request of Buyer; (C) Guarantor has full power, right
and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with
or result in a default under any agreement or other instrument binding upon Guarantor and do not
result in a violation of any law, regulation, court decree or order applicable to Guarantor;
(E) Guarantor has not and will not, without the prior written consent of Buyer, sell, lease, assign,
encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's
assets, or any interest therein; (F) upon Buyer's request, Guarantor will provide to Buyer financial
and credit information in form acceptable to Buyer, and all such financial information which
currently has been, and all future financial information which will be provided to Buyer is and
will be true and correct in all material respects and fairly present Guarantor's financial condition
as of the dates the financial information is provided; (G) no material adverse change has
occurred in Guarantor's financial condition since the date of the most recent financial statements
provided to Buyer and no event has occurred which may materially adversely affect Guarantor's
financial condition; (H) no litigation, claim, investigation, administrative proceeding or similar
action (including those for unpaid taxes) against Guarantor is pending or (to his knowledge)
threatened; (I) Buyer has made no representation to Guarantor as to the creditworthiness of
Seller; and (J) Guarantor has established adequate means of obtaining from Seller on a
continuing basis information regarding Seller's financial condition. Guarantor agrees to keep
adequately informed from such means of any facts, events, or circumstances which might in
any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that,
absent a request for information, Buyer shall have no obligation to disclose to Guarantor any
information or documents acquired by Buyer in the course of its relationship with Seller.
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Additionally, upon execution of this Guaranty, Guarantor shall be deemed to have made each of
the representations, warranties, and covenants which are contained in the Repurchase Agreement
and the other Repurchase Facility Documents which is applicable to Guarantor.
8 Guarantor’s Covenants, Guarantor shall furnish to Buyer: (A) as soon as available
and in any event within thirty (30) days of filing, true and complete copies of Guarantor's federal
income tax returns and all information returns required by applicable federal laws, or an
extension of same and, in the event of an extension, copies of said tax returns no later than six
(6) months after the first filing date; and (B) promptly, such additional financial and other
information and reports, in form satisfactory to Buyer, including, without limitation, financial
statements of the Guarantor, as Buyer may from time to time reasonably request.
9 Guarantor's Waivers. Except as prohibited by applicable law, Guarantor waives
any right to require Buyer to (a) make any presentment, protest, demand, or notice of any kind,
including notice of change of any terms of repayment of the Obligations, default by Seller or any
other guarantor or surety, any action or nonaction taken by Seller, Buyer, or any other guarantor
or surety of Seller, or the creation of new or additional Obligations; (b) proceed against any
person, including Seller, before proceeding against Guarantor; (c) proceed against any collateral
for the Obligations, including Seller's collateral, before proceeding against Guarantor; (d) apply
any payments or proceeds received against the Obligations in any order; (e) give notice of the
terms, time, and place of any sale of the collateral pursuant to the Uniform Commercial Code or
any other law governing such sale; (f) disclose any information about the Obligations, the Seller,
the collateral, or any other guarantor or surety, or about any action or nonaction of Buyer; or
(g) pursue any remedy or course of action in Buyer's power whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a) any
disability or other defense of Seller, any other guarantor or surety or any other person; (b) the
cessation from any cause whatsoever, other than payment in full, of the Obligations; (c) the
application of proceeds of the Obligations by Seller for purposes other than the purposes
understood and intended by Guarantor and Buyer; (d) any act of omission or commission by
Buyer which directly or indirectly results in or contributes to the discharge of Seller or any
other guarantor or surety, or the Obligations, or the loss or release of any collateral by
operation of law or otherwise; (e) any statute of limitations in any action under this Guaranty or
on the Obligations; or (f) any modification or change in terms of the Obligations, whatsoever,
including without limitation, the renewal, extension, acceleration, or other change in the time
payment of the Obligations is due and any change in the interest rate, and including any such
modification or change in terms after revocation of this Guaranty on the Obligations incurred
prior to such revocation.
Guarantor waives all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available to Guarantor by
reason of California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433.
Guarantor understands and agrees that the foregoing waivers are unconditional
and irrevocable waivers of substantive rights and defenses to which Guarantor might
otherwise be entitled under state and federal law. The rights and defenses waived include,
without limitation, those provided by California laws of suretyship and guaranty, anti-
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deficiency laws, and the Uniform Commercial Code. Guarantor acknowledges that Guarantor
has provided these waivers of rights and defenses with the intention that they be fully relied
upon by Buyer. Guarantor further understands and agrees that this Guaranty is a separate and
independent contract between Guarantor and Buyer, given for full and ample consideration, and
is enforceable on its own terms. Until all of the Obligations is paid in full, Guarantor waives
any right to enforce any remedy Guarantor may have against the Seller or any other guarantor,
surety, or other person, and further, Guarantor waives any right to participate in any collateral
for the Obligations now or hereafter held by Buyer.
10. Additional Guarantor Waivers and Agreements.
(a) Guarantor understands and acknowledges that if Buyer forecloses
judicially or nonjudicially against any real property securing the Obligations, that
foreclosure could impair or destroy any ability that Guarantor may have to seek
reimbursement, contribution, or indemnification from Seller or others based on any right
Guarantor may have of subrogation, reimbursement, contribution, or indemnification for
any amounts paid by Guarantor under this Guaranty. Guarantor further understands and
acknowledges that in the absence of this paragraph, such potential impairment or
destruction of Guarantor's rights, if any, may entitle Guarantor to assert a defense to this
Guaranty based on Section 580d of the California Code of Civil Procedure as interpreted
in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By executing this Guaranty,
Guarantor freely, irrevocably, and unconditionally: (i) waives and relinquishes such
defense and agrees that Guarantor will be fully liable under this Guaranty even though
Buyer may foreclose, either by judicial foreclosure or by exercise of power of sale, any
deed of trust securing the Obligations; (ii) agrees that Guarantor shall not assert such
defense in any action or proceeding which Buyer may commence to enforce this
Guaranty; (iii) acknowledges and agrees that the rights and defenses waived by Guarantor
in this Guaranty include any right or defense that Guarantor may have or be entitled to
assert based upon or arising out of any one or more of Sections 580a, 580b, 580d, or 726
of the California Code of Civil Procedure or Section 2848 of the California Civil Code;
and (iv) acknowledges and agrees that Buyer is relying on the terms of this Section in
creating the Obligations, and that the terms of this Section are a material part of the
consideration which Buyer is receiving for creating the Obligations.
(b) Guarantor waives all rights and defenses that Guarantor may have
because any of the Obligations may now or hereafter be secured by real property. This
means, among other things: (i) Buyer may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by Seller; and (ii) if Buyer
forecloses on any real property collateral pledged by Seller: (A) the amount of the
Obligations may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and (B) Buyer
may collect from Guarantor even if Buyer, by foreclosing on the real property collateral,
has destroyed any right Guarantor may have to collect from Seller. This is an
unconditional and irrevocable waiver of any rights and defenses Guarantor may have
because any of the Obligations may now or hereafter be secured by real property. These
rights and defenses include, but are not limited to, any rights or defenses based upon
Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
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© Guarantor waives any right or defense it may have at law or equity,
including Section 580a of the California Code of Civil Procedure, to a fair market value
hearing or action to determine a deficiency judgment after a foreclosure.
@ Guarantor waives all rights and defenses arising out of an election
of remedies by Buyer, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, may destroy Guarantor's
rights of subrogation and reimbursement against Seller by the operation of Section 580d
of the California Code of Civil Procedure or otherwise.
11. Guarantor's Understanding With Respect To Waivers. Guarantor warrants and
agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its
significance and consequences and that, under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any such waiver is determined to be contrary to any
applicable law or public policy, such waiver shall be effective only to the extent permitted by
law or public policy.
12, Right of Setoff. To the extent permitted by applicable law, Buyer reserves a right
of setoff in all Guarantor's accounts with Buyer (whether checking, savings, or some other
account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this right of setoff does not include any IRA or
Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor
authorizes Buyer, to the extent permitted by applicable law, to hold these funds if there is a
default, and Buyer may apply the funds in these accounts to pay what Guarantor owes under the
terms of this Guaranty.
13. Subordination of Seller's Debts to Guarantor. Guarantor agrees that the
Obligations, whether now existing or hereafter created, shall be superior to any claim that
Guarantor may now have or hereafter acquire against Seller, whether or not Seller becomes
insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against
Seller, upon any account whatsoever, to any claim that Buyer may now or hereafter have against
Seller. In the event of insolvency and consequent liquidation of the assets of Seller, through
bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise,
the assets of Seller applicable to the payment of the claims of both Buyer and Guarantor shall be
paid to Buyer and shall be first applied by Buyer to the Obligations. Guarantor does hereby
assign to Buyer all claims which it may have or acquire against Seller or against any assignee
or trustee in bankruptcy of Seller; provided however, that such assignment shall be effective
only for the purpose of assuring to Buyer full payment in legal tender of the Obligations. If
Buyer so requests, any notes or credit agreements now or hereafter evidencing any debts or
obligations of Seller to Guarantor shall be marked with a legend that the same are subject to
this Guaranty and shall be delivered to Buyer. Guarantor agrees, and Buyer is hereby authorized,
in the name of Guarantor, from time to time to file financing statements and continuation.
statements and to execute documents and to take such other actions as Buyer deems necessary or
appropriate to perfect, preserve and enforce its rights under this Guaranty.
14, Miscellaneous Provisions. The following miscellaneous provisions are a part of
this Guaranty:
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15. Amendments. This Guaranty, together with the other Repurchase Facility
Documents, constitutes the entire understanding and agreement of the parties as to the matters
set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective
unless given in writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.
16.
Attorneys' Fees: Expenses. Guarantor jointly and severally agrees to pay upon
demand all of Buyer's costs and expenses, including Buyer's reasonable attorneys' fees and
Buyer's legal expenses, incurred in connection with the enforcement of this Guaranty. Buyer
may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs
and expenses of such enforcement. Costs and expenses include Buyer's attorneys’ fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all
court costs and such additional fees as may be directed by the court.
17. Caption Headings. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions of this Guaranty.
18. Governing Law, This Guaranty will be governed by the laws of the State of
California without regard to its conflicts of law provisions.
19. Choice of Venue. If there is a lawsuit, Guarantor agrees upon Buyer's request to
submit to the jurisdiction of the courts of Los Angeles County, State of California.
20. Waiver of Right to Trial by Jury: Judicial Reference in the Event of Jury Trial
Waiver Unenforceability. Guarantor and Buyer hereby expressly waives any right to trial by
Jury of any claim, demand, action or cause of action (1) arising under this Guaranty or any
other instrument, document or agreement executed or delivered in connection therewith, or (2) in
any way connected with or related or incidental to the dealings of Guarantor and Buyer or any of
them with respect to this Guaranty or any other instrument, document or agreement executed or
delivered in connection herewith, or the transactions related hereto or thereto, in each case
whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise;
and each of guarantor and Buyer hereby agrees and consents that any such claim, demand,
action or cause of action shall be decided by court trial without a jury. Notwithstanding the
foregoing to the contrary, in the event that the jury trial waiver contained herein shall be held or
deemed to be unenforceable, each of guarantor and Buyer hereby expressly agrees to submit to
judicial reference any claim, demand, action or cause of action arising hereunder for which a jury
trial would otherwise be applicable or available. Pursuant to such judicial reference, guarantor
and Buyer agree to the appointment of a single referee and shall use their best efforts to agree on
the selection of a referee. If Guarantor and Buyer are unable to agree on a single referee,
referee shall be appointed by the court to hear any disputes hereunder in lieu of any such jury
trial. Each of Guarantor and Buyer acknowledges and agrees that the appointed referee shall
have the power to decide all issues in the applicable action or proceeding, whether of fact or law,
and shall report a statement of decision thereon; provided, however, that any matters which
would not otherwise be the subject of a jury trial will be unaffected by this waiver and the
agreements contained herein. Guarantor and Buyer hereby agree that the provisions contained
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herein have been fairly negotiated on an arm's-length basis, with both sides agreeing to the same
knowingly and being afforded the opportunity to have their respective legal counsel consent to
the matters contained herein. Guarantor or Buyer may file an original counterpart or a copy of
this paragraph with any court as written evidence of the consent of the parties hereto to the
waiver of their right to trial by jury and the agreements contained herein regarding the
application of judicial reference in the event of the invalidity of such jury trial waiver.
Buyer and Guarantor have initialed this paragraph to further indicate their
awareness and accentance of each and every provision hereof.
@ LE
Buyers amuals Michael J. Strauss Initials
Zl. Integration. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by
Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's
intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor
hereby indemnifies and holds Buyer harmless from all losses, claims, damages, and costs
(including Buyer's attorneys’ fees) suffered or incurred by Buyer as a result of any breach by
Guarantor of the warranties, representations and agreements of this paragraph.
22. Interpretation. In all cases where there is more than one Seller or Guarantor, then
all words used in this Guaranty in the singular shall be deemed to have been used in the plural
where the context and construction so require; and where there is more than one Seller named in
this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Seller"
and "Guarantor" respectively shall mean all and any one or more of them. The words
"Guarantor," "Seller," and "Buyer" include the heirs, successors, assigns, and transferees of each
of them. Ifa court finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or
enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a
provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of
Seller or Guarantor are corporations, partnerships, limited liability companies, or similar
entities, it is not necessary for Buyer to inquire into the powers of Seller or Guarantor or of the
officers, directors, partners, managers, or other agents acting or purporting to act on their behalf,
and any indebtedness made or created in reliance upon the professed exercise of such powers
shall be guaranteed under this Guaranty.
23 Notices. Any notice required to be given under this Guaranty shall be given in
writing, and, except for revocation notices by Guarantor, shall be effective when actually
delivered, when actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the
United States mail, as first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall
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be in writing and shall be effective upon delivery to Buyer as provided in the section of this
Guaranty entitled "Duration of Guaranty." Any party may change its address for notices under
this Guaranty by giving formal written notice to the other parties, specifying that the purpose of
the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Buyer
informed at all times of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Buyer to Guarantor is deemed to be
notice given to all Guarantors.
24, No Waiver by Buyer. Buyer shall not be deemed to have waived any rights under
this Guaranty unless such waiver is given in writing and signed by Buyer. No delay or omission
on the part of Buyer in exercising any right shall operate as a waiver of such right or any other
right. A waiver by Buyer of a provision of this Guaranty shall not prejudice or constitute a
waiver of Buyer's right otherwise to demand strict compliance with that provision or any other
provision of this Guaranty. No prior waiver by Buyer, nor any course of dealing between Buyer
and Guarantor, shall constitute a waiver of any of Buyer's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Buyer is required under this
Guaranty, the granting of such consent by Buyer in any instance shall not constitute continuing
consent to subsequent instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Buyer.
25. Successors and Assigns. Subject to any limitations stated in this Guaranty on
transfer of Guarantor's interest, this Guaranty shall be binding upon and inure to the benefit of
the parties, their successors and assigns, provided that in no event shall Guarantor assign its
obligations hereunder without the written consent of Buyer.
26. Definitions. The following capitalized words and terms shall have the
following meanings when used in this Guaranty. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of the United States of
America. Words and terms used in the singular shall include the plural, and the plural shall
include the singular, as the context may require. Words and terms not otherwise defined in this
Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code:
Guaranty. The word "Guaranty' means this guaranty from Guarantor to Buyer.
Obligations. The word "Obligations" means Seller's obligations and liabilities
to Buyer under the Repurchase Agreement and the other Repurchase Facility Documents, as
more particularly described in this Guaranty.
Repurchase Agreement. The words "Repurchase Agreement" mean the Master
Repurchase Agreement dated as of November 24, 2021 between Seller and Buyer, as amended,
restated, extended, supplemented, or otherwise modified from time to time.
Repurchase Facility Documents. The words "Repurchase Facility Documents"
shall have the meaning set forth in the Repurchase Agreement.
Seller. The word "Seller" means Sprout Mortgage, LLC; Sprout Mortgage Asset
Trust; and Biscayne Mortgage, LLC dba Clear Path Mortgage (together, the "Seller") and
includes all co-signers signing the Repurchase Agreement and all of their successors and assigns.
2500.1006, -9-
ED En A YORK OUN ol ERK 6 DM INDEX NO. 151261/2023
NYSCEF DOC - NO. 34 RECEIVED NYSCEF: 06/02/2023
[SIGNATURE PAGE FOLLOWS]
2500.1006 -10-
ED 5 NEW YORK OUN ERK 06 DM INDEX NO. 151261/2023
KR
ac
NYSCEF DO. : NO. 34 RECEIVED NYSCEF: 06/02/2023
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE
PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION,
EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE
UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO
BUYER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN
THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF
GUARANTY". NO FORMAL ACCEPTANCE BY BUYER IS NECESSARY TO MAKE
THIS GUARANTY EFFECTIVE.
GUARANTOR:
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ee ola
Michael J. Strauss
ACKNOWLEDGEMENT
STATE OF Nw Yorll )
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COUNTY OF. R45 )
before mes Notary Public, personally appeared
Aw wa
4S who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I PENALTY OF PERJURY under the laws of the State of
Kew’ for
tify ind,
that the foregoing paragraph is true and correct.
WITNESS my hi
Signature w
STEVEN A. DIGUISEPPE
Notary Public, State of New York
No. 01D15015912
Qualified in Nassau County
Commission Expires August 2, 2 oI
2500.1006 -11-
Preview
FILED: NEW YORK COUNTY CLERK 06/02/2023 05:50 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/02/2023 EXHIBIT 1 INDEX NO. 151261/2023 4 NY D6 NYSCEF DOC. NO. 34 RECEIVED NYSCEF 06/02/2023 GUARANTY THIS GUARANTY (as amended, restated, supplemented, or otherwise modified from time to time, this "Guaranty") is dated as of November 24, 2021 by Michael J. Strauss (each, and together with their successors and assigns, "Guarantor") in favor Banc of California, National Association (together with its successors and assigns, "Buyer"). 1 Continuing Guarantee of Payment and Performance. For good and valuable consideration, Guarantor jointly and severally and absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Obligations of Seller to Buyer, and the performance and discharge of all Seller's obligations under the Repurchase Agreement and the other Repurchase Facility Documents. This is a guaranty of payment and performance and not merely of collection, so Buyer can enforce this Guaranty against Guarantor even when Buyer has not exhausted Buyer's remedies against anyone else obligated to pay the Obligations or against any collateral securing the Obligations, this Guaranty or any other guaranty of the Obligations. Guarantor will make any payments to Buyer or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or deduction or counterclaim, and will otherwise perform Seller's obligations under the Repurchase Agreement and the other Repurchase Facility Documents. Under this Guaranty, Guarantor’s liability is unlimited and Guarantor's obligations are continuing. 2.Obligations. The word "Obligations" as used in this Guaranty means all outstanding amounts from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys’ fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Seller individually or collectively or interchangeably with others, owes or will owe Buyer arising out of or related to the Repurchase Agreement and ail other Repurchase Facility Documents. "Obligations" includes, without limitation any present or future judgments against Seller, future advances, loans or transactions that renew, extend, modify, refinance, consolidate or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing; originated by Buyer or another or others; barred or unenforceable against Seller for any reason whatsoever; for any transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then reduced or extinguished and then afterwards increased or reinstated. If Buyer presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Buyer's rights under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties. 2500.1006, -l- DM INDEX NO. 151261/2023 (FILE EW CLERK 06 NYSCEF DOC. NO. 34 RECEIVED NYSCEF 06/02/2023 3 CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE OBLIGATIONS OF SELLER TO BUYER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE OBLIGATIONS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S INDEBTEDNESS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING OBLIGATIONS EVEN WHEN ALL OR PART OF THE OUTSTANDING OBLIGATIONS MAY BE A ZERO BALANCE FROM TIME TO TIME. 4 Duration of Guaranty. This Guaranty will take effect when received by Buyer without the necessity of any acceptance by Buyer, or any notice to Guarantor or to Seller, and will continue in full force until all the Obligations incurred or contracted before receipt by Buyer of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full and all lending and purchase commitments, if any, on the part of Buyer have been terminated. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Buyer, by certified mail, at Buyer's address listed above or such other place as Buyer may designate in writing. Written revocation of this Guaranty will apply only to new Obligations created after actual receipt by Buyer of Guarantor's written revocation. For this purpose and without limitation, the term "new Obligations" does not include the Obligations which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. For this purpose and without limitation, "new Obligations" does not include all or part of the Obligations that is: incurred by Seller prior to revocation; incurred under a commitment that became binding before revocation; any renewals, extensions, substitutions, and modifications of the Obligations. This Guaranty shall bind Guarantor's estate as to the Obligations created both before and after Guarantor's death or incapacity, regardless of Buyer's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. Release of any other guarantor or termination of any other guaranty of the Obligations shall not affect the liability of Guarantor under this Guaranty. A revocation Buyer receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. Guarantor's obligations under this Guaranty shall be in addition to any of Guarantor's obligations, or any of them, under any other guaranties of the Obligations or any other person heretofore or hereafter given to Buyer unless such other guaranties are modified or revoked in writing; and this Guarantor shall not, unless provided in this Guaranty, affect, invalidate, or supersede any such other guaranty. It is anticipated that fluctuations may occur in the aggregate amount of the Obligations covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Obligations, even to zero dollars ($0.00), shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the Obligations remains unpaid and even though the Obligations may from time to time be zero dollars ($0.00). -2- 2500,1006 UN PK 06 INDEX NO. 151261/2023 DOC RECEIVED NYSCEF 06/02/2023 5 Obligations of Married Persons. Any married person who signs this Guaranty hereby expressly agrees that recourse under this Guaranty may be had against both his or her separate property and community property. 6 Guarantor's Authorization to Buyer. Guarantor authorizes Buyer, either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to enter into Transactions as defined in the Repurchase Agreement or otherwise extend credit to Seller; (B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of the Obligations or any part of the Obligations, including increases and decreases of the rate of interest on the Obligations; extensions may be repeated and may be for longer than the original term of the Obligations; (C) to take and hold security for the payment of this Guaranty or the Obligations, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one or more of Seller's sureties, endorsers, or other guarantors on any terms or in any manner Buyer may choose; (E) to determine how, when and what application of payments and credits shall be made on the Obligations; (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Buyer in its discretion may determine; and (G) to sell, transfer, assign or grant participations in all or any part of the Obligations. 7. Guarantor's Representations and Warranties. Guarantor represents and warrants to Buyer that (A) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Seller's request and not at the request of Buyer; (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without the prior written consent of Buyer, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (F) upon Buyer's request, Guarantor will provide to Buyer financial and credit information in form acceptable to Buyer, and all such financial information which currently has been, and all future financial information which will be provided to Buyer is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent financial statements provided to Buyer and no event has occurred which may materially adversely affect Guarantor's financial condition; (H) no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor is pending or (to his knowledge) threatened; (I) Buyer has made no representation to Guarantor as to the creditworthiness of Seller; and (J) Guarantor has established adequate means of obtaining from Seller on a continuing basis information regarding Seller's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that, absent a request for information, Buyer shall have no obligation to disclose to Guarantor any information or documents acquired by Buyer in the course of its relationship with Seller. 2500.1006 3- INDEX NO. 151261/2023 4 NY D6 NYSCEF DOC. NO. 34 RECEIVED NYSCEF 06/02/2023 Additionally, upon execution of this Guaranty, Guarantor shall be deemed to have made each of the representations, warranties, and covenants which are contained in the Repurchase Agreement and the other Repurchase Facility Documents which is applicable to Guarantor. 8 Guarantor’s Covenants, Guarantor shall furnish to Buyer: (A) as soon as available and in any event within thirty (30) days of filing, true and complete copies of Guarantor's federal income tax returns and all information returns required by applicable federal laws, or an extension of same and, in the event of an extension, copies of said tax returns no later than six (6) months after the first filing date; and (B) promptly, such additional financial and other information and reports, in form satisfactory to Buyer, including, without limitation, financial statements of the Guarantor, as Buyer may from time to time reasonably request. 9 Guarantor's Waivers. Except as prohibited by applicable law, Guarantor waives any right to require Buyer to (a) make any presentment, protest, demand, or notice of any kind, including notice of change of any terms of repayment of the Obligations, default by Seller or any other guarantor or surety, any action or nonaction taken by Seller, Buyer, or any other guarantor or surety of Seller, or the creation of new or additional Obligations; (b) proceed against any person, including Seller, before proceeding against Guarantor; (c) proceed against any collateral for the Obligations, including Seller's collateral, before proceeding against Guarantor; (d) apply any payments or proceeds received against the Obligations in any order; (e) give notice of the terms, time, and place of any sale of the collateral pursuant to the Uniform Commercial Code or any other law governing such sale; (f) disclose any information about the Obligations, the Seller, the collateral, or any other guarantor or surety, or about any action or nonaction of Buyer; or (g) pursue any remedy or course of action in Buyer's power whatsoever. Guarantor also waives any and all rights or defenses arising by reason of (a) any disability or other defense of Seller, any other guarantor or surety or any other person; (b) the cessation from any cause whatsoever, other than payment in full, of the Obligations; (c) the application of proceeds of the Obligations by Seller for purposes other than the purposes understood and intended by Guarantor and Buyer; (d) any act of omission or commission by Buyer which directly or indirectly results in or contributes to the discharge of Seller or any other guarantor or surety, or the Obligations, or the loss or release of any collateral by operation of law or otherwise; (e) any statute of limitations in any action under this Guaranty or on the Obligations; or (f) any modification or change in terms of the Obligations, whatsoever, including without limitation, the renewal, extension, acceleration, or other change in the time payment of the Obligations is due and any change in the interest rate, and including any such modification or change in terms after revocation of this Guaranty on the Obligations incurred prior to such revocation. Guarantor waives all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433. Guarantor understands and agrees that the foregoing waivers are unconditional and irrevocable waivers of substantive rights and defenses to which Guarantor might otherwise be entitled under state and federal law. The rights and defenses waived include, without limitation, those provided by California laws of suretyship and guaranty, anti- 2500.1006 4. ED: YORK OUN CLEI aK 6 DM INDEX NO. 151261/2023 NYSCEF Di OC. "NO. 34 RECEIVED NYSCEF 06/02/2023 deficiency laws, and the Uniform Commercial Code. Guarantor acknowledges that Guarantor has provided these waivers of rights and defenses with the intention that they be fully relied upon by Buyer. Guarantor further understands and agrees that this Guaranty is a separate and independent contract between Guarantor and Buyer, given for full and ample consideration, and is enforceable on its own terms. Until all of the Obligations is paid in full, Guarantor waives any right to enforce any remedy Guarantor may have against the Seller or any other guarantor, surety, or other person, and further, Guarantor waives any right to participate in any collateral for the Obligations now or hereafter held by Buyer. 10. Additional Guarantor Waivers and Agreements. (a) Guarantor understands and acknowledges that if Buyer forecloses judicially or nonjudicially against any real property securing the Obligations, that foreclosure could impair or destroy any ability that Guarantor may have to seek reimbursement, contribution, or indemnification from Seller or others based on any right Guarantor may have of subrogation, reimbursement, contribution, or indemnification for any amounts paid by Guarantor under this Guaranty. Guarantor further understands and acknowledges that in the absence of this paragraph, such potential impairment or destruction of Guarantor's rights, if any, may entitle Guarantor to assert a defense to this Guaranty based on Section 580d of the California Code of Civil Procedure as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By executing this Guaranty, Guarantor freely, irrevocably, and unconditionally: (i) waives and relinquishes such defense and agrees that Guarantor will be fully liable under this Guaranty even though Buyer may foreclose, either by judicial foreclosure or by exercise of power of sale, any deed of trust securing the Obligations; (ii) agrees that Guarantor shall not assert such defense in any action or proceeding which Buyer may commence to enforce this Guaranty; (iii) acknowledges and agrees that the rights and defenses waived by Guarantor in this Guaranty include any right or defense that Guarantor may have or be entitled to assert based upon or arising out of any one or more of Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or Section 2848 of the California Civil Code; and (iv) acknowledges and agrees that Buyer is relying on the terms of this Section in creating the Obligations, and that the terms of this Section are a material part of the consideration which Buyer is receiving for creating the Obligations. (b) Guarantor waives all rights and defenses that Guarantor may have because any of the Obligations may now or hereafter be secured by real property. This means, among other things: (i) Buyer may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Seller; and (ii) if Buyer forecloses on any real property collateral pledged by Seller: (A) the amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Buyer may collect from Guarantor even if Buyer, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Seller. This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because any of the Obligations may now or hereafter be secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. 2500.1006 5. ED Fn i wy OR Bo OUN ie DR Ot DM INDEX NO. 151261/2023 NYSCEF DOC - NO. 34 RECEIVED NYSCEF 06/02/2023 © Guarantor waives any right or defense it may have at law or equity, including Section 580a of the California Code of Civil Procedure, to a fair market value hearing or action to determine a deficiency judgment after a foreclosure. @ Guarantor waives all rights and defenses arising out of an election of remedies by Buyer, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, may destroy Guarantor's rights of subrogation and reimbursement against Seller by the operation of Section 580d of the California Code of Civil Procedure or otherwise. 11. Guarantor's Understanding With Respect To Waivers. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public policy. 12, Right of Setoff. To the extent permitted by applicable law, Buyer reserves a right of setoff in all Guarantor's accounts with Buyer (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However, this right of setoff does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Buyer, to the extent permitted by applicable law, to hold these funds if there is a default, and Buyer may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. 13. Subordination of Seller's Debts to Guarantor. Guarantor agrees that the Obligations, whether now existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Seller, whether or not Seller becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Seller, upon any account whatsoever, to any claim that Buyer may now or hereafter have against Seller. In the event of insolvency and consequent liquidation of the assets of Seller, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Seller applicable to the payment of the claims of both Buyer and Guarantor shall be paid to Buyer and shall be first applied by Buyer to the Obligations. Guarantor does hereby assign to Buyer all claims which it may have or acquire against Seller or against any assignee or trustee in bankruptcy of Seller; provided however, that such assignment shall be effective only for the purpose of assuring to Buyer full payment in legal tender of the Obligations. If Buyer so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Seller to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Buyer. Guarantor agrees, and Buyer is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation. statements and to execute documents and to take such other actions as Buyer deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. 14, Miscellaneous Provisions. The following miscellaneous provisions are a part of this Guaranty: 2500.1006 -6- ERK INDEX NO. 151261/2023 rE) 1 NYSCEF DOC. N 34 RECEIVED NYSCEF 06/02/2023 15. Amendments. This Guaranty, together with the other Repurchase Facility Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. 16. Attorneys' Fees: Expenses. Guarantor jointly and severally agrees to pay upon demand all of Buyer's costs and expenses, including Buyer's reasonable attorneys' fees and Buyer's legal expenses, incurred in connection with the enforcement of this Guaranty. Buyer may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Buyer's attorneys’ fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court. 17. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. 18. Governing Law, This Guaranty will be governed by the laws of the State of California without regard to its conflicts of law provisions. 19. Choice of Venue. If there is a lawsuit, Guarantor agrees upon Buyer's request to submit to the jurisdiction of the courts of Los Angeles County, State of California. 20. Waiver of Right to Trial by Jury: Judicial Reference in the Event of Jury Trial Waiver Unenforceability. Guarantor and Buyer hereby expressly waives any right to trial by Jury of any claim, demand, action or cause of action (1) arising under this Guaranty or any other instrument, document or agreement executed or delivered in connection therewith, or (2) in any way connected with or related or incidental to the dealings of Guarantor and Buyer or any of them with respect to this Guaranty or any other instrument, document or agreement executed or delivered in connection herewith, or the transactions related hereto or thereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each of guarantor and Buyer hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury. Notwithstanding the foregoing to the contrary, in the event that the jury trial waiver contained herein shall be held or deemed to be unenforceable, each of guarantor and Buyer hereby expressly agrees to submit to judicial reference any claim, demand, action or cause of action arising hereunder for which a jury trial would otherwise be applicable or available. Pursuant to such judicial reference, guarantor and Buyer agree to the appointment of a single referee and shall use their best efforts to agree on the selection of a referee. If Guarantor and Buyer are unable to agree on a single referee, referee shall be appointed by the court to hear any disputes hereunder in lieu of any such jury trial. Each of Guarantor and Buyer acknowledges and agrees that the appointed referee shall have the power to decide all issues in the applicable action or proceeding, whether of fact or law, and shall report a statement of decision thereon; provided, however, that any matters which would not otherwise be the subject of a jury trial will be unaffected by this waiver and the agreements contained herein. Guarantor and Buyer hereby agree that the provisions contained 2500.1006 -7- eco ane NK DM INDEX NO. 151261/2023 , 6189-0 COUN & 06 BEDS RECEIVED NYSCEF 06/02/2023 herein have been fairly negotiated on an arm's-length basis, with both sides agreeing to the same knowingly and being afforded the opportunity to have their respective legal counsel consent to the matters contained herein. Guarantor or Buyer may file an original counterpart or a copy of this paragraph with any court as written evidence of the consent of the parties hereto to the waiver of their right to trial by jury and the agreements contained herein regarding the application of judicial reference in the event of the invalidity of such jury trial waiver. Buyer and Guarantor have initialed this paragraph to further indicate their awareness and accentance of each and every provision hereof. @ LE Buyers amuals Michael J. Strauss Initials Zl. Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Buyer harmless from all losses, claims, damages, and costs (including Buyer's attorneys’ fees) suffered or incurred by Buyer as a result of any breach by Guarantor of the warranties, representations and agreements of this paragraph. 22. Interpretation. In all cases where there is more than one Seller or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Seller named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Seller" and "Guarantor" respectively shall mean all and any one or more of them. The words "Guarantor," "Seller," and "Buyer" include the heirs, successors, assigns, and transferees of each of them. Ifa court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Seller or Guarantor are corporations, partnerships, limited liability companies, or similar entities, it is not necessary for Buyer to inquire into the powers of Seller or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. 23 Notices. Any notice required to be given under this Guaranty shall be given in writing, and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall 2500.1006 -8- INDEX NO. 151261/2023 4 NY D6 NYSCEF DOC. NO. 34 RECEIVED NYSCEF 06/02/2023 be in writing and shall be effective upon delivery to Buyer as provided in the section of this Guaranty entitled "Duration of Guaranty." Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Buyer informed at all times of Guarantor's current address. Unless otherwise provided or required by law, if there is more than one Guarantor, any notice given by Buyer to Guarantor is deemed to be notice given to all Guarantors. 24, No Waiver by Buyer. Buyer shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Buyer. No delay or omission on the part of Buyer in exercising any right shall operate as a waiver of such right or any other right. A waiver by Buyer of a provision of this Guaranty shall not prejudice or constitute a waiver of Buyer's right otherwise to demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Buyer, nor any course of dealing between Buyer and Guarantor, shall constitute a waiver of any of Buyer's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Buyer is required under this Guaranty, the granting of such consent by Buyer in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Buyer. 25. Successors and Assigns. Subject to any limitations stated in this Guaranty on transfer of Guarantor's interest, this Guaranty shall be binding upon and inure to the benefit of the parties, their successors and assigns, provided that in no event shall Guarantor assign its obligations hereunder without the written consent of Buyer. 26. Definitions. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Guaranty. The word "Guaranty' means this guaranty from Guarantor to Buyer. Obligations. The word "Obligations" means Seller's obligations and liabilities to Buyer under the Repurchase Agreement and the other Repurchase Facility Documents, as more particularly described in this Guaranty. Repurchase Agreement. The words "Repurchase Agreement" mean the Master Repurchase Agreement dated as of November 24, 2021 between Seller and Buyer, as amended, restated, extended, supplemented, or otherwise modified from time to time. Repurchase Facility Documents. The words "Repurchase Facility Documents" shall have the meaning set forth in the Repurchase Agreement. Seller. The word "Seller" means Sprout Mortgage, LLC; Sprout Mortgage Asset Trust; and Biscayne Mortgage, LLC dba Clear Path Mortgage (together, the "Seller") and includes all co-signers signing the Repurchase Agreement and all of their successors and assigns. 2500.1006, -9- ED En A YORK OUN ol ERK 6 DM INDEX NO. 151261/2023 NYSCEF DOC - NO. 34 RECEIVED NYSCEF: 06/02/2023 [SIGNATURE PAGE FOLLOWS] 2500.1006 -10- ED 5 NEW YORK OUN ERK 06 DM INDEX NO. 151261/2023 KR ac NYSCEF DO. : NO. 34 RECEIVED NYSCEF: 06/02/2023 EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO BUYER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL ACCEPTANCE BY BUYER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. GUARANTOR: X_AA? 2 ee ola Michael J. Strauss ACKNOWLEDGEMENT STATE OF Nw Yorll ) ) COUNTY OF. R45 ) before mes Notary Public, personally appeared Aw wa 4S who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I PENALTY OF PERJURY under the laws of the State of Kew’ for tify ind, that the foregoing paragraph is true and correct. WITNESS my hi Signature w STEVEN A. DIGUISEPPE Notary Public, State of New York No. 01D15015912 Qualified in Nassau County Commission Expires August 2, 2 oI 2500.1006 -11-