1
EXHIBIT 4.13
=======================================
COMMON SECURITIES GUARANTEE AGREEMENT
HAWTHORNE FINANCIAL CORPORATION
Dated as of March 28, 2001
=======================================
2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION ............................. 1
SECTION 1.1. Definitions and Interpretation ............... 1
ARTICLE II GUARANTEE ................................................. 3
SECTION 2.1. Guarantee .................................... 3
SECTION 2.2. Waiver of Notice and Demand .................. 3
SECTION 2.3. Obligations Not Affected ..................... 3
SECTION 2.4. Rights of Holders ............................ 4
SECTION 2.5. Guarantee of Payment ......................... 4
SECTION 2.6. Subrogation .................................. 4
SECTION 2.7. Independent Obligations ...................... 4
ARTICLE III LIMITATION OF TRANSACTIONS; SUBORDINATION ................ 5
SECTION 3.1. Limitation of Transactions ................... 5
SECTION 3.2. Ranking ...................................... 5
ARTICLE IV TERMINATION ............................................... 6
SECTION 4.1. Termination .................................. 6
ARTICLE V MISCELLANEOUS .............................................. 6
SECTION 5.1. Successors and Assigns ....................... 6
SECTION 5.2. Amendments ................................... 6
SECTION 5.3. Notices ...................................... 6
SECTION 5.4. Benefit ...................................... 7
SECTION 5.5. Governing Law ................................ 7
i
3
COMMON SECURITIES GUARANTEE AGREEMENT
This COMMON SECURITIES GUARANTEE AGREEMENT (the "Common
Securities Guarantee"), dated as of March 28, 2001, is executed and delivered by
Hawthorne Financial Corporation, a Delaware corporation (the "Guarantor"), for
the benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of HFC Capital Trust I, a Delaware business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of March 28, 2001, by and among the Trustees
of the Issuer named therein, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof 300 common securities having an aggregate
liquidation amount of Three Hundred Thousand Dollars ($300,000), to meet the
capital requirements of the Trust; such common securities being designated the
10.18% Common Securities (the "Common Securities").
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to pay the Guarantee
Payments (as defined herein) to the Holders of the Common Securities and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering the
Capital Securities Guarantee Agreement, dated as of March 28, 2001 (the "Capital
Securities Guarantee"), for the benefit of the holders of the Capital Securities
(as defined in the Declaration); it being understood that if an Event of Default
(as defined in the Declaration) has occurred and is continuing, the rights of
Holders of the Common Securities to receive Guarantee Payments under this Common
Securities Guarantee are subordinated, to the extent and in the manner set forth
herein, to the rights of holders of Capital Securities (as defined in the
Declaration) to receive Guarantee Payments under the Capital Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder
of the Common Securities, which purchase the Guarantor hereby acknowledges shall
benefit the Guarantor, the Guarantor executes and delivers this Common
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
In this Common Securities Guarantee, unless the context
otherwise requires:
1
4
(a) capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) terms defined in the Declaration as in effect at the date of
execution of this Common Securities Guarantee have the same meaning when used in
this Common Securities Guarantee unless otherwise defined in this Common
Securities Guarantee;
(c) a term defined anywhere in this Common Securities Guarantee has the
same meaning throughout;
(d) all references to "the Common Securities Guarantee" or "this Common
Securities Guarantee" are references to this Common Securities Guarantee, as
modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to Articles and
Sections are references to Articles and Sections of this Common Securities
Guarantee unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning as in
the Trust Indenture Act unless otherwise defined in this Common Securities
Guarantee; and
(g) a reference to the singular includes the plural and vice versa.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Common Securities, to the extent the Issuer has funds legally
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the "Redemption
Price"), to the extent the Issuer has funds legally available therefor at such
time, with respect to any Common Securities called for redemption, and (iii)
upon a voluntary or involuntary dissolution, winding-up or liquidation of the
Issuer (other than in connection with the distribution of Debentures (as defined
in the Declaration) to the Holders in exchange for Common Securities or in
connection with the redemption of the Common Securities, in each case as
provided in the Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Common Securities to
the date of payment, to the extent the Issuer has funds legally available
therefor at such time, and (b) the amount of assets of the Issuer remaining
available for distribution to the Holders after satisfaction of liabilities to
creditors of the Issuer as required by applicable law (in either case, the
"Liquidation Distribution"). If an Event of Default under the Declaration or the
Capital Securities Guarantee has occurred and is continuing, no Guarantee
Payments with respect to the Common Securities shall be made until holders of
Capital Securities shall be paid in full the Guarantee Payments to which they
are entitled under the Capital Securities Guarantee.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Common Securities.
2
5
"Other Guarantees" means all guarantees, other than this Common
Securities Guarantee, to be issued by the Guarantor with respect to common
securities (if any) similar to the Common Securities issued by trusts other than
the Issuer to be established by the Guarantor (if any), in each case similar to
the Issuer.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 2.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 2.3. Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Common Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Common Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Common Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors,
3
6
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor;
it being the intent of this Section 2.3 that the obligations of the Guarantor
with respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4. Rights of Holders
The Guarantor expressly acknowledges that any Holder of the
Common Securities may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Common Securities Guarantee, without
first instituting a legal proceeding against the Issuer or any other Person.
SECTION 2.5. Guarantee of Payment
This Common Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 2.6. Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of the Common Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Common Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Common Securities Guarantee. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
SECTION 2.7. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee
4
7
Payments pursuant to the terms of this Common Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 2.3 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions
So long as any Common Securities remain outstanding, the
Guarantor will not (i) declare or pay any dividends or distribution on, or
redeem, purchase, acquire or make a liquidation payment with respect to any of
the Guarantor's capital stock, (ii) make any payment of principal of, or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor (including Other Debentures, as defined in the
Indenture) that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor
(including Other Guarantees, as defined in the Indenture) if such guarantee
ranks pari passu with or junior in right of payment to the Debentures (other
than (a) dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, common stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee, (d) as a result of a
reclassification of the Guarantor's capital stock or the exchange or the
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit or compensation plans for
its directors, officers or employees or any of the Guarantor's dividend
reinvestment plans) if at such time (1) there shall have occurred any event of
which the Guarantor has actual knowledge that (A) is, or with the giving of
notice or the lapse of time, or both, would be, an Event of Default and (B) in
respect of which the Guarantor shall not have taken reasonable steps to cure,
(2) such Debentures are held by the Property Trustee, the Guarantor shall be in
default with respect to its payment of any obligations under the Capital
Securities Guarantee or (3) the Guarantor shall have given notice of its
election of the exercise of its right to commence an Extended Interest Payment
Period as provided in the Indenture and shall not have rescinded such notice,
and such Extended Interest Payment Period, or an extension thereof, shall have
commenced and be continuing.
SECTION 3.2. Ranking
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all Allocable Amounts (as defined in the Indenture) in respect of
Senior Indebtedness (as defined in the Indenture), to the same extent and in the
same manner that the Debentures
5
8
are subordinated to the Senior Indebtedness pursuant to the Indenture, it being
understood that the terms of Article XV of the Indenture shall apply to the
obligations of the Guarantor under this Common Securities Guarantee as if such
Article XV were set forth herein in full, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Guarantor and with
any Other Guarantee and, except as set forth herein or therein, the Capital
Securities Guarantee and any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate of
the Guarantor and (iii) senior to the Guarantor's common stock.
ARTICLE IV
TERMINATION
SECTION 4.1. Termination
This Common Securities Guarantee shall terminate and be of no
further force or effect upon (i) full payment of the Redemption Price of all
Common Securities, (ii) the dissolution, winding-up or liquidation of the
Issuer, immediately following the full payment of the amounts payable in
accordance with the Declaration, or (iii) the distribution of all of the
Debentures to the Holders of the Trust Securities (as defined in the
Declaration). Notwithstanding the foregoing, this Common Securities Guarantee
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of the Common Securities must restore payment of any sums
paid under the Common Securities or under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns
All guarantees and agreements contained in this Common
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2. Amendments
Except with respect to any changes which do not adversely affect
in any material respect the rights of the Holders (in which case no consent of
the Holders will be required), this Common Securities Guarantee may only be
amended with the prior approval of the Holders of a majority in liquidation
amount of all the outstanding Common Securities. The provisions of Section 12.2
of the Declaration with respect to meetings of Holders of the Trust Securities
apply to the giving of such approval.
SECTION 5.3. Notices
6
9
All notices provided for in this Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Administrative Trustee at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Holders of the Common Securities):
HFC Capital Trust I
c/o Hawthorne Financial Corporation
2381 Rosecrans Avenue
El Segundo, California 90245
Telephone: (310) 725-5000
Telecopier: (310) 643-8304
(b) if given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Hawthorne Financial Corporation
2381 Rosecrans Avenue
El Segundo, California 90245
Telephone: (310) 725-5000
Telecopier: (310) 643-8304
(c) if given to any Holder of the Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 5.4. Benefit
This Common Securities Guarantee is solely for the benefit of
the Holders of the Common Securities and is not separately transferrable from
the Common Securities.
SECTION 5.5. Governing Law
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
7
10
This Common Securities Guarantee is executed as of the day and
year first above written.
HAWTHORNE FINANCIAL CORPORATION,
As Guarantor
By:
-------------------------------------
Simone F. Lagomarsino
President and Chief Executive Officer
S-1