GUARANTY
--------
THIS GUARANTY (this "Guaranty") is made and dated as of the ______ day
of ________, 1998 by WESTMARK GROUP HOLDINGS, INC., a Delaware corporation (the
"Guarantor").
RECITALS
--------
A. Pursuant to that certain Mortgage Loan Warehousing Agreement dated
as of ______________, 1998, between the Company (as hereinafter defined) and
First Union National Bank (the "Lender") (as amended, extended and replaced from
time to time, the "Warehousing Agreement," and with capitalized terms not
otherwise defined herein used with the same meanings as in the Warehousing
Agreement) the Lender has agreed to extend credit to WESTMARK MORTGAGE
CORPORATION, a California corporation (the "Company"), on the terms and subject
to the conditions set forth therein.
B. As a condition precedent to the effectiveness of the Credit
Documents, the Guarantor is required to execute and deliver to the Lender this
Guaranty.
C. One hundred percent (100%) of the outstanding common stock of the
Company is owned by Guarantor, and thus the Guarantor will derive material
benefit from the extension of credit by the Lender to the Company pursuant to
the Warehousing Agreement.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
AGREEMENT
---------
1. The Guarantor hereby irrevocably and unconditionally guarantees,
jointly and severally, the payment when due, upon maturity, acceleration or
otherwise, of the Obligations whether heretofore, now, or hereafter made,
incurred or created, whether voluntary or involuntary and however arising,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
whether or not such Obligations are from time to time reduced, or extinguished
and thereafter increased or incurred, whether or not the Company may be liable
individually or jointly with others, whether or not recovery upon such
Obligations may be or hereafter become barred by any statute of limitations, and
whether or not such Obligations may be or hereafter become otherwise invalid or
unenforceable. This Guaranty is a guaranty of payment and not of collection.
2. The Guarantor irrevocably and unconditionally guarantees, jointly
and severally, the payment of the Obligations whether or not due or payable by
the Company upon: (a) the dissolution, insolvency or business failure of, or any
assignment for benefit of creditors by, or commencement of any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceedings by or
against, the Company or the Guarantor, or (b) 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 Company or the
Guarantor, and unconditionally promises to pay such Obligations to the Lender,
or order, on demand, in lawful money of the United States.
3. The liability of the Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Obligations, whether
executed by the Guarantor or by any other party, and the liability of the
Guarantor hereunder is not affected or impaired by (a) any direction of
application of payment by the Company or by any other party, or (b) any other
guaranty, undertaking or maximum liability of the Guarantor or of any other
party as to the Obligations, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any revocation or release of any
obligations of any other guarantor of the Obligations, or (e) any dissolution
of, termination of or increase, decrease or change in the personnel of, the
Guarantor, or (f) any payment made to the Lender on the Obligations which the
Lender repays to the Company pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
the Guarantor waives any right to the deferral or modification of the
Guarantor's obligations hereunder by reason of any such proceeding.
4. The obligations of the Guarantor hereunder are independent of the
Obligations of the Company, and a separate action or actions may be brought and
prosecuted against the Guarantor whether or not action is brought against the
Company and whether or not the Company be joined in any such action or actions.
Any payment by the Company or other circumstance which operates to toll any
statute of limitations as to the Company shall operate to toll the statute of
limitations as to the Guarantor.
5. The Guarantor authorizes the Lender (whether or not after
termination of this Guaranty), without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of, the Obligations or any part thereof, including
increase or decrease of the rate of interest thereon; (b) take and hold security
for the payment of this Guaranty or the Obligations and exchange, enforce, waive
and release any such security; (c) apply such security and direct the order or
manner of sale thereof as the Lender in its discretion may determine; and (d)
release or substitute any one or more endorsers, guarantors, the Company or
other obligors. The Lender may without notice to or the further consent of the
Company or the Guarantor assign this Guaranty in whole or in part to any person
acquiring an interest in the Obligations.
6. It is not necessary for the Lender to inquire into the capacity or
power of the Company or the officers acting or purporting to act on its behalf,
and the Obligations made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
7. The Guarantor waives any right to require the Lender to (a) proceed
against the Company or any other party; (b) proceed against or exhaust any
security held from the Company; or (c) pursue any other remedy in the Lender's
power whatsoever. To this end, and without limiting the generality of the
foregoing, the Guarantor expressly waives any rights the
2
Guarantor might otherwise have had under the provisions of North Carolina
General Statutes Section 26-7 et seq.. The Lender may, at its election,
foreclose on any security held for the Obligations by one or more judicial or
nonjudicial sales, or exercise any other right or remedy the Lender may have
against the Company, or any security, without affecting or impairing in any way
the liability of the Guarantor hereunder except to the extent the Obligations
have been paid. The Guarantor waives any defense arising out of any such
election, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of the Guarantor
against the Company or any security. The Guarantor hereby waives any claim or
other rights which the Guarantor may now have or may hereafter acquire against
the Company or any other guarantor of all or any of the Obligations that arise
from the existence or performance of the Guarantor's obligations under this
Guaranty or any other of the Credit Documents (as such claims and rights being
referred to as the "the Guarantor's Conditional Rights"), including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
or indemnification, or any right to participate in any claim or remedy which the
Lender has against the Company or any collateral which the Lender now has or
hereafter acquires for the Obligations, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, by any payment
made hereunder or otherwise, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property or
setoff or in any other manner, payment or security on account of such claim or
other rights. If, notwithstanding the foregoing provisions, any amount shall be
paid to the Guarantor on account of the Guarantor's Conditional Rights and
either (a) such amount is paid to the Guarantor at any time when the Obligations
shall not have been paid or performed in full, or (b) regardless of when such
amount is paid to the Guarantor any payment made by the Company to the Lender is
at any time determined to be a preferential payment, then such amount paid to
the Guarantor shall be deemed to be held in trust for the benefit of the Lender
and shall forthwith be paid to the Lender to be credited and applied upon the
Obligations, whether matured or unmatured, in such order and manner as the
Lender shall determine. To the extent that any of the provisions of this
Paragraph shall not be enforceable, the Guarantor agrees that until such time as
the Obligations have been paid and performed in full and the period of time has
expired during which any payment made by the Company or the Guarantor to the
Lender may be determined to be a preferential payment, the Guarantor's
Conditional Rights to the extent not validly waived shall be subordinate to the
Lender's right to full payment and performance of the Obligations and the
Guarantor shall not seek to enforce the Guarantor's Conditional Rights during
such period. The Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Obligations. The Guarantor assumes all responsibility for being and keeping
itself informed of the Company's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Obligations and
the nature, scope and extent of the risks which the Guarantor assumes and incurs
hereunder, and agrees that the Lender shall have no duty to advise the Guarantor
of information known to it regarding such circumstances or risks.
8. In addition to the Obligations, the Guarantor agrees to pay
reasonable attorneys' fees and all other costs and expenses incurred by the
Lender in enforcing this Guaranty in any action or proceeding arising out of, or
relating to, this Guaranty. This Guaranty and the liability and obligations of
the Guarantor hereunder are binding upon the Guarantor and its successors
3
and assigns, and this Guaranty inures to the benefit of and is enforceable by
the Lender and its successors, transferees, and assigns.
9. No right or power of the Lender hereunder shall be deemed to have
been waived by any act or conduct on the part of such Person, or by any neglect
to exercise such right or power, or by any delay in so doing; and every right or
power shall continue in full force and effect until specifically waived or
released by an instrument in writing executed by the Lender.
10. The Guarantor agrees to execute any and all further documents,
instruments and agreements as Lender from time to time reasonably requests to
evidence the Guarantor's obligations hereunder.
11. The Guarantor hereby represents and warrants and agrees that:
(a) The financial statements dated the Statement Date, copies
of which have been furnished to the Lender, are complete and correct
and have been prepared to present fairly and consistently, in
accordance with GAAP, the financial condition to the Guarantor and its
consolidated Subsidiaries (including without limitation the Company) at
such date and the results of its operations and cash flows for the
fiscal period then ended.
(b) As of the date hereof, there has been no material adverse
change in the business, operations, assets or financial or other
condition of the Guarantor from that shown on the financial statements
dated as of the Statement Date referred to in Paragraph (a) above.
(c) The Guarantor: (1) is duly organized, validly existing and
in good standing as a corporation under the laws of the State of
Delaware and is in good standing as a foreign corporation in Florida
and in each other jurisdiction where its ownership of property or
conduct of business requires such qualification and where failure to so
be in good standing could have a material adverse effect on the
property or business of the Guarantor or on the Guarantor's ability to
pay or perform the Obligations or its obligations hereunder, (2) has
the corporate power and authority and the legal right to own and
operate its property and to conduct business in the manner in which it
does and proposes to do so, (3) is in compliance with all Requirements
of Law and Contractual Obligations to the extent that failure to so
comply could have a material adverse effect on the Guarantor or the
Company or either of their property or business or on the ability of
the Company to pay or perform the Obligations or the ability of the
Guarantor to pay or perform the Guarantor's obligations hereunder, and
(4) has reviewed and approved the Credit Documents.
(d) The Guarantor has the corporate power and authority and
the legal right to execute, deliver and perform the Credit Documents to
which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Guaranty. The
Credit Documents to which the Guarantor
4
is a party have been duly executed and delivered on behalf of the
Guarantor and constitute legal, valid and binding obligations of the
Guarantor enforceable against the Guarantor in accordance with their
respective terms, subject to the effect of applicable bankruptcy and
other similar laws affecting the rights of creditors generally and the
effect of equitable principles whether applied in an action at law or a
suit in equity.
(e) The execution, delivery and performance by the Guarantor
of any Credit Documents to which the Guarantor is a party will not
violate any Requirement of Law or any Contractual Obligation of the
Guarantor to the extent that failure to comply could have a material
adverse effect on the Guarantor or its property or business or on the
ability to pay or perform the Obligations or its obligations hereunder.
(f) Except as disclosed on Exhibit 1 hereto, no litigation,
investigation or proceeding of or before any court, arbitrator or
Governmental Authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor or any of its
consolidated Subsidiaries or against any of such Person's properties or
revenues which is likely to be adversely determined and which, if
adversely determined, is likely to have a material adverse effect on
the business, operations, property or financial or other condition of
the Guarantor or the Company, or the Guarantor and its consolidated
Subsidiaries taken as a whole, or on the Collateral, or the Collateral
Value of the Borrowing Base.
(g) Each of the Guarantor and the Company and each of the
Guarantor's consolidated Subsidiaries has filed or caused to be filed
all tax returns that are required to be filed and have paid all taxes
shown to be due and payable on said returns or on any assessments made
against any of them or any of the property of any of them other than
taxes which are being contested in good faith by appropriate
proceedings and as to which the Guarantor, the Company or such
Subsidiary has established adequate reserves in conformity with GAAP.
(h) The Guarantor is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(i) Neither the Guarantor nor the Company, nor any of the
Subsidiaries of either the Guarantor or the Company, is engaged or will
engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" within the respective meanings of such
terms under Regulation U. No part of the proceeds of any Loan made
under the Warehousing Agreement will be used, directly or indirectly,
for "purchasing" or "carrying" "margin stock" as so defined or for any
purpose which violates, or which would be inconsistent with, the
applicable provisions of the Regulations of the Board of Governors of
the Federal Reserve System.
5
(j) The Guarantor and each of its ERISA Affiliates, if any,
are in compliance in all respects with the requirements of ERISA and no
Reportable Event has occurred under any Plan maintained by the Company
or any of its ERISA Affiliates which is likely to result in the
termination of such Plan for purposes of Title IV of ERISA.
(k) The Guarantor has not issued any unregistered securities
in violation of the registration requirements of Section 5 of the
Securities Act of 1933, as amended, or any other existing applicable
law, and is in compliance, in all material respects, with all existing
applicable rules, regulations and requirements under the Securities Act
of 1933, as amended, or the Securities and Exchange Act of 1934, as
amended.
(l) No consent, approval, authorization of, or registration,
declaration or filing with, any Governmental Authority is required on
the part of the Guarantor in connection with the execution and delivery
of the Credit Documents to which the Guarantor is a party or the
performance of or compliance with the terms, provisions and conditions
hereof or thereof.
(m) The Guarantor shall not sell, lease, assign, transfer or
otherwise dispose of any of its assets (other than obsolete or worn out
property), whether now owned or hereafter acquired, other than in the
ordinary course of business as currently conducted and at fair market
value.
(n) The Guarantor shall furnish or cause to be furnished to
the Lender;
(1) Within one hundred twenty (120) days
after the last day of its fiscal year, consolidated and
consolidating statements of income and cash flows for such
year, and consolidated and consolidating balance sheets as of
the end of such year, of the Guarantor and its consolidated
Subsidiaries (including, without limitation, the Company),
presented fairly in accordance with GAAP and accompanied by an
unqualified report of a firm of independent certified public
accountants acceptable to the Lender and including therewith a
copy of any management letter from such certified public
accountants;
(2) Within forty-five (45) days of the last
day of each calendar month, consolidated and consolidating
statements of income for such month, and consolidated and
consolidating balance sheets as of the end of such month, of
the Guarantor and its consolidated Subsidiaries (including,
without limitation, the Company) accompanied in each case by a
duly-executed Covenant Compliance Certificate.
(3) Promptly, such additional financial and
other information as the Lender may from time to time
reasonably request; and
6
(4) Promptly, copies of any and all forms,
reports, supplements or other documents of any kind filed by
the Guarantor with the Securities and Exchange Commission.
(o) The Guarantor shall continue to own one hundred percent
(100%) of the outstanding capital voting stock of the Company.
(p) The Guarantor shall not:
(1) permit the ratio at any date of Total
Liabilities to Adjusted Tangible Net Worth to be more than (i)
during the period from March 31, 1998 through and including
September 29, 1998, 40.0:1.0, and (ii) at all times
thereafter, 15.0:1.0.
(2) permit Book Net Worth to be less than
(i) during the period from March 31, 1998 through and
including September 29, 1998, $500,000, and (ii) at all times
thereafter, $1,000,000; or
(3) permit the ratio at any date of total
current assets of the Guarantor and its consolidated
Subsidiaries to total current liabilities of the Guarantor and
its consolidated Subsidiaries, each as determined in
accordance with GAAP, to be less than (i) during the period
from March 31, 1998 through and including September 29, 1998,
0.70:1.0, and (ii) at all times thereafter, 0.85:1.0.
(q) The Guarantor shall not, during any fiscal year, declare
and pay any dividends, or return any capital, to its shareholders or
authorize or make any other distribution, payment or delivery of
property or cash to its shareholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any options or warrants issued by it for or
with respect to its capital stock), or set aside any funds for any of
the foregoing purposes, in an aggregate amount in excess of fifty
percent (50%) of the income of the Guarantor available to shareholders
for such fiscal year as determined in accordance with GAAP.
12. This Guaranty shall be deemed to be made under and shall be
governed by the laws of the State of North Carolina.
13. If any of the provisions of this Guaranty shall contravene or be
held invalid under the laws of any jurisdiction, this Guaranty shall be
construed as if not containing those provisions and the rights and obligations
of the parties hereto shall be construed and enforced accordingly.
7
Executed and sealed as of the day and year first above written.
WESTMARK GROUP HOLDINGS, INC.,
a Delaware corporation
[CORPORATE SEAL]
By:________________________
Attest: Name:___________________
Title:__________________
By:____________________________
Name:_______________________
Title:______________________
8