EXHIBIT 10.22
GUARANTEE AGREEMENT (FIRSTCITY)
GUARANTEE AGREEMENT, dated as of April 18, 1996, made by FIRSTCITY
FINANCIAL CORPORATION, a corporation incorporated under the laws of Delaware
(the "Guarantor"), in favor of American National Bank and Trust Company of
Chicago ("ANB"), as collateral agent and administrative agent (in such capacity,
and including its successors and assigns in such capacity, the "Agent"), for
itself, Bank of Scotland ("BOS") and the other financial institutions (such
financial institutions, including ANB and BOS, the "Banks") from time to time
party to the Loan and Security Agreement dated as of the date hereof (said
agreement, the "Agreement") among Diversified Financial Systems, Inc., an
Indiana corporation (the "Borrower"), the Banks and the Agent.
W I T N E S S E T H
WHEREAS, pursuant to the terms of the Agreement, the Banks have agreed to
make loans to the Borrower to be evidenced by certain notes of the Borrower
(said notes, the "Notes") and other financial accommodations (including letters
of credit);
WHEREAS, Guarantor owns all of the capital stock of DFC Asset Corp., a
Texas corporation which owns all of the capital stock of the Borrower;
WHEREAS, the obligation of the Banks to extend credit to the Borrower as
aforesaid is conditioned upon, among other things, the execution and delivery by
the Guarantor of this Guarantee; and
WHEREAS, all terms defined in the Agreement and used herein without
definition shall have the meanings provided therefor in the Agreement, except
where the context otherwise requires, and as used herein the terms "Agreement"
and "Notes" include such documents and instruments as the same may from time to
time be amended, supplemented, restated, extended or otherwise modified;
NOW, THEREFORE, in consideration of the mutual promises herein contained
and to induce the Banks to make the Loans to the Borrower, and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
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1. Guarantee.
(a) Subject to the provisions of Section 1(b) hereof, the Guarantor
unconditionally and irrevocably guarantees to the Agent and the Banks the prompt
and complete payment when due (whether at the stated maturity, by acceleration
or otherwise) of any and all of the Borrower's present and future indebtedness
and obligations, mature or contingent, in connection with the Loans, including
(without limitation) all principal of the Loans and all interest which may be
payable on the Loans prior to or during the pendency of any insolvency or
similar proceeding with respect to the Borrower. All such indebtedness and
obligations are referred to in this Guarantee Agreement as the "Indebtedness"
and will be payable by the Guarantor to the Agent at its office at 33 N. LaSalle
Street, Chicago, Illinois 60690, or at such other payment office as the Agent
may notify the Guarantor of in writing, in United States dollars, immediately on
demand in the event of any default of the Borrower with respect to the
Indebtedness or any part thereof, without setoff or counterclaim. If the Agent
or the Banks are prevented by law from accelerating any of the Indebtedness in
accordance with the terms of any agreement or instrument governing same, the
Agent and the Banks shall be entitled to receive hereunder from the Guarantor,
upon demand therefor, the sum which would have otherwise been due had such
acceleration occurred.
(b) The liability of the Guarantor under Section 1(a) hereof shall be
limited to the sum of all Loans up to but not exceeding $4,500,000 in the
aggregate (the "Maximum Guaranteed Amount"), plus all unpaid interest payable on
the Maximum Guaranteed Amount, but as to such unpaid interest only to the extent
such interest accrues from and after two days following demand on the Guarantor
by the Agent for the Guarantor to honor its obligations hereunder.
2. Rights of Agent. The Guarantor authorizes the Banks at any time in
their discretion (subject only to the consent of the Borrower where the relevant
Loan Document specifically provides for such consent) to alter any of the terms
of the Indebtedness, to take and hold any security for the Indebtedness and to
accept additional or substituted security, to subordinate, compromise or release
any security, to release the Borrower or any other party of its liability for
all or any part of the Indebtedness, to release, substitute or add any one or
more guarantors or endorsers, and to assign this Guarantee Agreement in whole or
in part. Any modifications, renewals and extensions of the Indebtedness may be
made at any time by the Banks, before or after any termination of this Guarantee
Agreement, and the Guarantor shall be fully liable subject, however, to the
provisions of Section 1(b) hereof) for any such modifications, renewals or
extensions. The Agent and the Banks may take any of the foregoing actions upon
any terms and conditions as the Banks may elect, without giving notice
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to the Guarantor or obtaining the consent of the Guarantor and without affecting
the liability of the Guarantor to the Agent or the Banks.
3. Independent Obligations.
(a) This Guarantee Agreement is a guarantee of payment rather than a
guarantee of collection. The Guarantor's obligations under this Guarantee
Agreement are independent of those of the Borrower and any security for or other
guarantee (which term, for purposes of this Guarantee Agreement, shall include
the Deficiency Undertaking) of the Indebtedness of the Borrower. The Agent
(separately or with the Banks) may bring a separate action against the Guarantor
without first proceeding against the Borrower or any other person or any
security held by the Agent or the Banks and without pursuing any other remedy.
The Agent's and the Banks' rights under this Guarantee Agreement will not be
exhausted by any action or inaction by the Agent or the Banks until all of the
Indebtedness has been indefeasibly paid in full. Any statute of limitations
which is tolled as to the Borrower by reason of any payment by the Borrower or
other circumstance shall operate to toll the statute of limitations as to the
Guarantor.
(b) The liability of the Guarantor hereunder is not affected or impaired
by any direction or application of payment by the Borrower or by any other
party, or by any other guarantee or undertaking of the Guarantor or any other
party as to the Indebtedness of the Borrower, by any payment on, or in reduction
of, any such other guarantee or undertaking, by the termination, revocation or
release of any obligations hereunder or of any other guarantor, or by any
payment made to the Agent or any Bank on the Indebtedness which the Agent or
such Bank repays to the Borrower or any other guarantor or other person or
entity pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, or any other fact or circumstance
which would excuse the obligation of a guarantor or surety, and the Guarantor
waives any right to the deferral or modification of the Guarantor's obligations
hereunder by reason of any such proceeding, fact or circumstance. This Guarantee
shall continue to be effective in accordance with its terms, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of or with
respect to any of the Indebtedness (including without limitation any amounts
payable under the Deficiency Undertaking) is rescinded or must otherwise be
restored or returned by the Agent or the Banks upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any other payor
thereof, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any other
payor thereof or any substantial part of its property, or otherwise, all as
though such payments had not been made.
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4. Representations and Warranties. The Guarantor represents, warrants and
agrees (which representations, warranties and agreements shall survive the
Guarantor's execution of this Guarantee Agreement) that:
(a) The Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has the
full power and authority to own its properties and assets and to carry on its
business as now being conducted.
(b) The Guarantor has full power, authority and legal right to execute,
deliver and perform this Guarantee Agreement.
(c) The execution, delivery and performance by the Guarantor of this
Guarantee Agreement has been duly authorized by all necessary action. This
Guarantee Agreement constitutes a legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms.
(d) This Guarantee Agreement is in proper legal form under the laws of
the Guarantor's jurisdiction of incorporation and principal location for
enforcement thereof against the Guarantor in the courts of any such
jurisdiction. In any legal action upon this Guarantee Agreement in any such
jurisdiction, the choice of law set forth in Section 14 hereof would be given
effect by the courts of such jurisdiction.
(e) The most recent year-end financial statements of the Guarantor
furnished to the Banks prior to the date hereof have been prepared in accordance
with generally accepted accounting principles consistently applied and fairly
present the financial condition and results of operations of the Guarantor as at
the end of and for the reporting period covered thereby. There are no material
liabilities or any material unrealized or anticipated losses from unfavorable
commitments or investments which are not disclosed in such financial statements.
(f) There has been no Material Adverse Change with respect to the
Guarantor from that set forth in the financial statements referred to in clause
(e) above. There are no legal proceedings pending or, to the knowledge of the
Guarantor threatened, against or affecting the Guarantor or its obligations
hereunder, and no default by the Guarantor with respect to any agreement or
instrument to which it is a party or to which it or its assets are subject which
might (individually or in the aggregate) result in such a Material Adverse
Change.
(g) The execution, delivery and performance of this Guarantee Agreement
will not contravene any provision of law, rule or regulation to which the
Guarantor is subject or any judgment, decree or order applicable to the
Guarantor nor conflict or be inconsistent with or
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result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any lien or other encumbrance upon any
of the property or assets of the Guarantor pursuant to the terms of, any
agreement or other instrument to which Guarantor is a party or by which it or
its property is bound or to which it or its property may be subject nor violate
any provision of the charter documents or by-laws of the Guarantor.
(h) No order, permission, consent, approval, license, authorization,
registration or validation of, or filing with, or exemption by, any Government
Authority, or any stock exchange or other governmental or non-governmental
regulatory authority or any other Person, domestic or foreign, is required to
authorize, or is required in connection with the execution, delivery and
performance of this Guarantee Agreement or any of the other Loan Documents
executed by the Guarantor, or the taking of any action hereby or thereby
contemplated.
(i) The Guarantor owns, directly or indirectly, more than 50% of the
outstanding common shares of the Borrower.
5. Covenants. So long as this Guarantee Agreement shall be in effect or
any obligations shall remain outstanding hereunder, the Guarantor agrees to
comply with each of the following covenants, unless the Banks should otherwise
consent in writing:
(a) The Guarantor will furnish to the Agent and the Banks promptly upon
becoming available, copies of its annual audited and quarterly unaudited
financial statements and such other information, reports, notices or statements
as the Agent or any Bank may reasonably request from time to time, including all
reports and other information sent by the Guarantor to its shareholders
generally.
(b) The Guarantor will not wind up, liquidate or dissolve its affairs.
(c) The Guarantor will not take any action which would prevent or
interfere with the performance by the Borrower of any of the covenants,
agreements, or obligations of the Borrower contained in any agreements or
instruments governing or securing the Indebtedness and shall take or cause to be
taken all appropriate action to enable the Borrower to perform any such
covenants, agreements and obligations.
(d) The Guarantor will allow any representative, officer or accountant of
any Bank or the Agent to discuss its Financials and financial condition with its
outside auditors. Guarantor hereby irrevocably authorizes such auditors to
discuss the foregoing with all such Persons.
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6. Waivers of Defenses. The Guarantor waives, to the fullest extent
permitted by law: (a) all statutes of limitation as to the Indebtedness, this
Guarantee Agreement or otherwise as a defense to any action brought against the
Guarantor by the Agent or the Banks; (b) any defense based upon any legal
disability of the Borrower or any discharge or limitation of the liability of
the Borrower to the Agent or the Banks, whether consensual or arising by
operation of law or any bankruptcy, insolvency, or debtor-relief proceeding, or
from any other cause; (c) presentment, demand, protest and notice of any kind;
(d) any defense based upon or arising out of any defense which the Borrower may
have to the payment or performance of any part of the Indebtedness; (e) any
defense based upon any disbursements by the Agent or the Banks to the Borrower
pursuant to any agreements or instruments governing or securing the Indebtedness
whether same be deemed an additional advance or be deemed to be paid out of any
special interest or other fund accounts, as constituting unauthorized payments
hereunder or amounts not guaranteed by this Guarantee Agreement; (f) all rights
to participate in any security held by the Agent or the Banks for the
Indebtedness; (g) irregularity or unenforceability of any agreement or
instrument representing or governing or securing the Indebtedness; (h) any
request that the Agent or the Banks be diligent or prompt in making demands
hereunder or under any agreement or instrument representing or governing or
securing the Indebtedness; and (i) any other defense in law or equity (other
than the defense that the indebtedness has been indefeasibly paid in full),
until the Indebtedness has been indefeasibly paid in full (subject, however, to
the provisions of Section 1(b) hereof).
7. Borrower's Authority and Financial Condition. It is not necessary for
the Agent or the Banks to inquire into the capacity or powers of the Borrower or
the officers, directors, partners or agents acting or purporting to act on the
Borrower's behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder. The Guarantor
assumes full responsibility for keeping fully informed of the financial
condition of the Borrower and all other circumstances affecting the Borrower's
ability to perform its obligations to the Agent and the Banks, and agrees that
neither the Agent nor any Bank will have any duty to report to the Guarantor any
information which the either receives about the Borrower's financial condition
or any circumstances bearing on its ability to perform, and expressly waives any
right to receive such information and any defense based upon failure to receive
such information.
8. Waiver of Subrogation. Irrespective of any payment by the Guarantor to
the Agent or any Bank pursuant to this Guarantee Agreement, the Guarantor will
not be subrogated in place of and to the claims and demands of the Agent or any
Bank nor will the Guarantor have any right to participate in any security or
lien now or hereafter held by or on behalf of the Agent or any Bank against the
Borrower or any other guarantor or any collateral which the Agent or any Bank
now has or hereafter acquires, whether or not such claim,
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remedy or right arises in equity, or under contract, statute or common law
(including, without limitation, the right to take or receive from the Borrower,
directly or indirectly, in cash or other property or by setoff or in any other
manner, payment or security on account of such claim or other rights), until (x)
the Indebtedness has been indefeasibly paid in full and (y) final indefeasible
payment and satisfaction of all claims and demands due to the Agent and the
Banks hereunder. If any amount shall be paid to the Guarantor in violation of
the preceding sentence and the Indebtedness shall not have been paid in full,
such amount shall be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for the benefit of, the Agent and the Banks and shall
forthwith be paid to the Agent to be credited and applied upon the Indebtedness,
whether matured or unmatured, in accordance with the terms of the Indebtedness.
The Guarantor acknowledges that it will receive direct and indirect benefits
from the financial accommodations extended by the Banks to the Borrower and that
the waiver set forth in this paragraph is knowingly made in contemplation of
such benefits.
9. Right of Setoff. In addition to all rights of setoff or lien against
any moneys, securities or other property of the Guarantor given to the Agent and
the Banks by law, upon the occurrence of any default under any agreement or
instrument governing any of the Indebtedness or under this Guarantee Agreement,
the Agent and each Bank is authorized at any time and from time to time, without
notice to the Guarantor or to any other person or entity, any such notice being
hereby expressly waived, to setoff and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by the Agent or
any Bank to or for the credit or the account of the Guarantor against and on
account of the obligations of the Guarantor under this Guarantee Agreement,
irrespective of whether or not the Agent or such Bank shall have made any demand
hereunder or any demand for payment of any Indebtedness and although said
obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
10. Default. The Agent may declare the Guarantor in default under this
Guarantee Agreement, and may exercise all of its rights hereunder and demand
payment of the aggregate outstanding principal amount of all Indebtedness, if
the Guarantor fails to perform any of its obligations under this Guarantee
Agreement or if the Guarantor becomes the subject of any bankruptcy, insolvency,
arrangement, reorganization, moratorium, or other debtor-relief proceeding under
any law, whether now existing or hereafter enacted, or upon the appointment of a
receiver for, or the attachment, restraint of or making or levying of any order
of court or legal process affecting, the property of the Guarantor.
11. Costs and Expenses. In addition to the amounts guaranteed hereunder,
the Guarantor agrees to pay the Agent's and the Banks' reasonable out-of-pocket
costs and expenses, including but not limited to legal fees and disbursements,
incurred in any effort to
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collect or enforce this Guarantee Agreement, whether or not any lawsuit is
filed. Until paid to the Agent, such sums (and any other amounts payable under
this Guarantee Agreement that are not paid when due) will bear interest at the
highest rate of interest borne by any of the Indebtedness plus 2%; provided that
if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount. Interest accrued hereunder pursuant to this paragraph shall be payable
on demand and shall be calculated on the basis of the actual number of days
elapsed and a 360-day year.
12. Delay; Cumulative Remedies. No delay or failure by the Agent or any
Bank to exercise any right or remedy against, or to require performance by, the
Borrower or the Guarantor or any other party shall be construed as a waiver of
that right, remedy or requirement, and all such powers of the Agent and the
Banks shall remain in full force and effect, until specifically waived or
released by an instrument in writing executed by the Agent on behalf of the
Banks. All remedies of the Agent and the Banks against the Borrower and the
Guarantor are cumulative.
13. Subordination. The Guarantor agrees that any and all indebtedness or
claims it may have against the Borrower, whether such claims are in connection
with this Guarantee Agreement, the Indebtedness, or are completely independent
of this Guarantee Agreement and the Indebtedness, will be subordinate to the
claims of the Agent and the Banks under this Guarantee Agreement and all
Indebtedness guaranteed hereby, and that the Guarantor will not assert any such
claim against the Borrower until all Indebtedness to the Agent and the Banks has
been indefeasibly paid in full. Notwithstanding such subordination, and without
affecting or impairing in any manner the liability of the Guarantor under the
other provisions of this Guarantee Agreement, any Indebtedness of the Borrower
to the Guarantor, if the Agent so requests, shall be collected, enforced and
received by the Guarantor as trustee for the Banks and paid over to the Agent on
account of the Indebtedness of the Borrower to the Agent and the Banks.
14. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO
CONTRACTS EXECUTED WHOLLY WITHIN THE STATE OF ILLINOIS (REGARDLESS OF THE PLACE
WHERE THIS GUARANTEE AGREEMENT IS EXECUTED).
15. Jurisdiction. The Guarantor hereby agrees that ANY LEGAL ACTION OR
PROCEEDING AGAINST THE GUARANTOR WITH RESPECT TO THIS GUARANTEE AGREEMENT OR ANY
OTHER AGREEMENT OR DOCUMENT CONTEMPLATED HEREBY OR REFERRED TO HEREIN MAY BE
BROUGHT IN ANY STATE OR
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FEDERAL COURT LOCATED IN CHICAGO, ILLINOIS AS THE AGENT OR ANY BANK MAY ELECT,
AND BY EXECUTION AND DELIVERY OF THIS GUARANTEE AGREEMENT THE GUARANTOR ACCEPTS
AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND AGREES THAT SUCH
JURISDICTION SHALL BE EXCLUSIVE, unless waived by the Agent in writing, with
respect to any action or proceeding brought by it against the Agent or any Bank
and any questions relating to usury, and further consents (to the extent
permitted by applicable law) to the service of process in any such action or
proceeding being made upon the Guarantor by mail at the address stated alongside
its name on the signature page hereof or at such other address as the Banks are
notified of in accordance with Section 18 hereof. Nothing herein shall limit the
right of the Agent or the Banks to bring proceedings against the Guarantor in
the courts of any other jurisdiction. Guarantor covenants that it is and will
remain subject to service of process in the State of Illinois so long as any of
the Indebtedness is outstanding. If for any reason Guarantor should not be or
remain so qualified, Guarantor hereby designates and appoints, without power of
revocation, CT Corporation System, Inc., 208 S. LaSalle Street, Chicago,
Illinois 60604 as the agent of Guarantor upon whom may be served all process,
pleadings, notices or other papers which may be served upon Guarantor as a
result of any of its obligations under this Guarantee Agreement. Nothing herein
shall affect the right of the Agent or the Banks to serve process in any other
manner permitted by law.
16. Severability. If any one or more of the provisions contained in this
Guarantee Agreement or any document executed in connection herewith shall be
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired.
17. Certain Definitions.
(a) As used in this Guarantee Agreement, the following terms have the
following meanings:
"Government Authority" shall mean any nation or government, any state or
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Material Adverse Change" shall mean, with respect to a Person, a
material adverse change in such Person's condition or operations, financial or
otherwise.
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(b) Relationship with Deficiency Undertaking. Guarantor's obligations
hereunder are in addition to (and not in lieu of) its obligations under the
Deficiency Undertaking.
18. Notices. Except as otherwise expressly provided herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered if sent by
Federal Express or other similar overnight delivery service; or three days after
being deposited in the mails, when deposited in the mails (by registered or
certified mail, return receipt requested), postage prepaid; or in the case of
telex, telegraphic, telecopier or cable notice, when delivered to the telex,
telegraph, telecopier or cable company; or in the case of telex or telecopier
notice sent over a telex or telecopier owned or operated by a party hereto, when
sent; in each case, addressed to the party entitled to receive same at the
address stated alongside its name on the signature page hereto (or to such other
address as any party hereto may hereafter specify to the other in writing);
provided that communications with respect to a change of address shall be deemed
to be effective when actually received. Copies of all notices, requests, demands
and other communications hereunder shall also be sent to the Agent if the Agent
is not the direct recipient thereof and to BOS if BOS if BOS is not the direct
recipient thereof. Notices and other communications to BOS shall be sent to BOS
in New York at 565 Fifth Avenue, New York, NY 10017 (fax: 212/557-9460) and to
BOS in Chicago at 181 West Madison Street, Chicago, Illinois 60602, fax:
312/263-1143 (or, in each case, to such other address or fax number as BOS may
hereafter specify to the others in writing).
19. Amendment. No provisions of this Guarantee Agreement shall be waived,
amended or supplemented except by a written instrument executed by the
Guarantor, the Agent and the Banks.
20. Miscellaneous. The provisions of this Guarantee Agreement will bind
and benefit the successors and assigns of the Guarantor, the Agent and the
Banks; without limiting the generality of the foregoing, it is understood and
agreed that the obligations of the Guarantor hereunder shall continue even if it
should transfer or otherwise dispose of any of its direct equity or other
interests in the Borrower. The term "Borrower" will mean both the named Borrower
and any other person or entity at any time assuming or otherwise becoming
primarily liable on all or any part of the Indebtedness. The descriptive
headings used in this Guarantee Agreement are for convenience only and shall not
be deemed to affect the meaning or construction of any provision hereof.
21. Counterparts. This Guarantee Agreement may be executed in any number
of counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one
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and the same agreement. Telecopied signatures hereto shall be of the same force
and effect as an original of a manually signed copy.
22. Texas Language.
(a) THIS WRITTEN AGREEMENT (TOGETHER WITH THE OTHER LOAN DOCUMENTS)
REPRESENTS THE FINAL AGREEMENT BETWEEN AND AMONG THE PARTIES HERETO WITH RESPECT
TO THE MATTERS COVERED HEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
(b) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES
HERETO.
23. Waiver of Jury Trial. EACH OF THE AGENT AND THE GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTEE AGREEMENT OR ANY OTHER
AGREEMENT OR DOCUMENT RELATED HERETO, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, THE
BANKS, THE BORROWER, THE GUARANTOR OR ANY OTHER LOAN PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT ENTERING INTO THIS GUARANTEE AGREEMENT AND
SUCH OTHER AGREEMENTS AND DOCUMENTS AND FOR THE BANKS ENTERING INTO THE LOAN AND
SECURITY AGREEMENT REFERRED TO ON THE FIRST PAGE HEREOF.
24. Actions of Agent. All duties, obligations, undertakings, covenants,
agreements, rights and responsibilities of Agent hereunder are the duties,
obligations, undertakings, covenants, agreements, rights and responsibilities of
Agent, as collateral agent and administrative agent of the Banks pursuant to the
terms of the Loan Agreement. No action taken by Agent pursuant to the terms of
this Agreement shall be deemed to be the act of Agent for its own account. The
Agent shall be entitled to rely upon any writing, telegram, telecopy, telex or
teletype message, resolution, notice, consent, certificate, letter, cablegram,
statement, or order or other document or phone conversation by telephone or
otherwise believed by it to be genuine and correct and to have been signed, sent
or made by an authorized person, and upon opinions of counsel and other
professional advisers selected by the Agent. The Agent shall be fully justified
in failing or refusing to take any action under this Agreement or under any of
the other Loan Documents unless it shall first be indemnified to its
satisfaction by the
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the Banks and/or Borrower against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guarantee Agreement as of the date first above written.
addresses and fax number
FIRSTCITY FINANCIAL CORPORATION 6400 Imperial Drive
P.O. Box 8216
Waco, Texas 76714-8216
By /s/ James T. Sartain fax: 817/751-1208
Name: James T. Sartain
Title: President
AMERICAN NATIONAL BANK AND TRUST 33 North LaSalle Street
COMPANY OF CHICAGO, individually and as Chicago, Illinois 60690
agent fax: 312/661-3566
By /s/ Garrick L. Nielsen
Name: Garrick L. Nielsen
Title: Officer
AGREED TO:
DIVERSIFIED FINANCIAL SYSTEMS, INC. 5015 Speedway Drive
Fort Wayne, Indiana 46825
fax: 219/482-2439
By /s/ John T. Parrish
Name: John T. Parrish
Title: President
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