Guaranty
THIS GUARANTY ("Guaranty"), dated 04/29/99, is made by Westmark Mortgage
Corporation, Florida, a ________________________ (hereinafter referred to as
"Guarantor"), in favor of Northern Trust Bank of Florida, N.A., a national
banking association (hereinafter referred to as "Bank").
Witnesseth
WHEREAS, Bank has agreed to make certain loans and advances (collectively and
individually, the "Loan") to Westmark Group Holdings, Inc. (the "Borrower"),
pursuant to the terms of certain loan documents of even date herewith
(collectively, the "Agreement") between the Borrower and Bank. Unless otherwise
stated, all terms defined in or referenced by the Agreement have the same
meaning herein. WHEREAS, in order to induce Bank to enter into the aforesaid
Agreement and grant Borrower the Loan on the terms set forth in the Agreement,
Guarantor has agreed to make this Guaranty.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees
as follows:
1. Guaranty.
Guarantor hereby absolutely and unconditionally guarantees the
punctual payment when due, whether at stated maturity, by acceleration
or otherwise, of the agreement unpaid principal amount of the Loan
outstanding from time to time, together with all accrued and unpaid
interest on the Loan, and all other amounts due Bank under the
Agreement and the other ancillary documents provided for therein, and
any and all extensions, renewals or modifications of any of them,
together with any and all other indebtedness of Borrower to Bank,
howsoever or whenever incurred, up to principal sum of One Hundred**
Dollars ($150,000) [unlimited if left blank] at any one time
outstanding, together with accrued and unpaid interest thereon. In
addition, Guarantor shall pay any and all reasonable fees, costs and
expenses incurred by Bank (including attorneys' fees incurred by Bank,
at any time prior or subsequent to default, whether litigation is
involved or not and, if involved, whether at the trial or appellate
levels or in pre or post-judgment or bankruptcy proceedings), in
enforcing or realizing upon the obligations of Guarantor hereunder.
Such principal, interest and other amounts are hereinafter referred to
collectively as the "Obligations." The Obligations, Agreement, and
any instrument, document or agreement, express or implied, which has
been or may hereafter be made or entered into by Borrower in reference
to the Obligations, and any instrument, document or agreement, express
or implied, including this Guaranty, which has been or may hereafter
be made or entered into by Guarantor in reference to the Obligations,
shall all be hereinafter collectively referred to as the "Loan Terms."
2. Guaranty Absolute.
Guarantor guarantees that the Obligations will be paid strictly in
accordance with the Loan Terms, regardless of any law, regulation,
order or judgment now or hereafter in effect in any jurisdiction
affecting any of the Loan Terms or the rights of Bank with respect
thereto. The liability of Guarantor under this Guaranty shall
continue and be absolute and unconditional irrespective of:
(a) Any lack of validity or enforceability of any of the Loan
Terms;
(b) Any change in the time, manner or place of payment, or in any
other term, including the applicable rate of interest, of the
Loan, all or any of the Loan Terms, or any other renewal,
extension, amendment, modification or waiver of or any consent to
departure form any of the Loan Terms;
(c) Any act or omission of Bank of any nature whatsoever,
excluding any willful or wanton misconduct or gross negligence on
the part of Bank;
(d) With respect to the Guarantor, Borrower, or any other person
or entity liable in respect of the Loan, any failure to obtain
required authorization by all necessary corporate or other action
relating to the execution, delivery, or performance of any of the
Loan Terms, or to any violation of any provision of any of the
articles of incorporation, by-laws or any other document,
instrument or agreement occasioned by the execution, delivery, or
performance of any of the Loan Terms;
(e) Any release, amendment, waiver, modification, extension or
renewal of or consent to departure from or forbearance or any
other action or inaction under or in respect of this Guaranty or
any other guaranty of the Loan;
(f) Any exchange, release, forbearance or surrender of or any
other action or inaction with respect to any collateral at any
time and from time to time now or hereafter securing the Loan or
the liability to Bank of the Borrower, the Guarantor of any other
person or entity in respect of the Loan or any failure to perfect
or continue as perfected any security interest or other lien with
respect to any such collateral, or any loss or destruction of any
such collateral, or any matter impairing the value of such
collateral as security for the Loan, the liability to Bank of the
Guarantor, or any other person or entity, in respect of all or
any of the Obligations or Loan Terms; or
(g) Any other circumstance or matter of any nature whatsoever
that might otherwise constitute a defense available to, or a
discharge of, Borrower, Guarantor or any other person or entity
liable to Bank in respect of the Loan. This Guaranty shall
continue to be effective or shall be reinstated, as the case may
be, if any payment of the Loan is rescinded or must otherwise be
returned by Bank upon the insolvency, bankruptcy, or
reorganization of any person or entity or for any reason
whatsoever, all as though such payment had not been made. The
obligations of Guarantor hereunder shall be absolute and primary,
shall be complete and binding as to Guarantor upon its execution
of this Guaranty, shall be subject to no conditions precedent,
and shall be independent of and cumulative to any other of the
Loan Terms, and Bank may exercise any of its rights and remedies
under this Guaranty, any other of the Loan Terms or otherwise
singly or concurrently.
3. Waiver; No Duties
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice of any nature whatsoever with respect to any of the Loan Terms.
Bank shall not be obligated to exhaust any right or take any action against
Borrower, or any other person or entity, or any collateral for the Loan, prior
to the enforcement of its rights hereunder. Bank shall not be required to obtain
the consent of Guarantor with respect to any matter.
(b) To pay and discharge promptly, all taxes, assessments and
governmental charges or levies imposed upon it or in respect of
its property, before the same shall become in default as well as
all lawful claims for labor, materials and supplies or other
which, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that any such
tax, assessment, charge, levy or claim shall not be required to
be paid or discharged so long as the validity thereof shall be
contested in good faith by appropriate proceedings diligently
pursued;
(c) To give prompt written notice to Bank of all Events of
Default under any of the terms and provisions of this Guaranty,
litigation and of any other matter which has resulted in, or
might result in, a material adverse change in the financial
condition of Guarantor;
(d) To furnish to Bank, as and when requested by Bank, such
financial statements, reports and information as Bank may from
time to time require, such financial statements, reports and
information to be in form acceptable to Bank; and
(e) To comply with the requirements of all applicable laws,
rules, regulations, and orders of governmental authorities except
to the extent that the validity thereof shall be contested in
good faith by appropriate proceedings diligently pursued.
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4. Waiver of Subrogation.
Guarantor hereby waives any claims, right or remedy which Guarantor
may now have or hereafter acquire against Borrower that arises
hereunder or from the performance by Guarantor hereunder including,
without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of Bank against Borrower
or any security which Bank has or hereafter acquires whether or not
such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise.
5. Warranties.
Guarantor makes the following representations and warranties to Bank:
(a) Guarantor has the right, power, legal capacity and
authority to own its assets and properties, and to carry on its
business as now being conducted in every jurisdiction where it
is conducting its business, and has power and authority to
execute and perform this Guaranty;
(b) The execution and performance by Guarantor of this Guaranty
has been duly authorized by all requisite actions and does not
require any consent or approval of any other person, including,
without limitation, the creditors of the Guarantor;
(c) Neither the execution and delivery of this Guaranty nor
fulfillment of or compliance with the terms and conditions
hereof will violate or be in conflict with, result in a breach
of, or constitute a default under, any indenture, agreement or
other instrument to which Guarantor is a party or by which
Guarantor or any of its assets or properties are bound, or any
order, writ, injunction or decree of any court or governmental
institution;
(d) There are no actions, suits or proceedings pending or, to
the knowledge of Guarantor, threatened against or adversely
affecting it at law or in equity or before or by a governmental
agency or instrumentality, domestic or foreign, which involve
any of the transactions herein contemplated, or the possibility
of any judgment or liability which may result in any material
and adverse change in the business, operations, prospects,
properties or assets, or in the condition, financial or
otherwise, of Guarantor. Guarantor is not in default with
respect to any judgment, order, writ, injunction, decree, rule
or regulation of any court, or federal, state, municipal or
other governmental department;
(e) Guarantor has heretofore furnished to Bank financial
statements and other financial information which, taken as a
whole, are correct and complete, and fairly present the
financial condition and the results of the operation of
Guarantor as of the dates and for the periods indicated, and
said financial statements show all known liabilities and all
contingent material liabilities as of the dates thereof, and
have been prepared in accordance with generally accepted
accounting principles consistently applied. Since the date of
the furnishing of the most recent financial statements, there
has been no material adverse change in the financial condition
of Guarantor;
(f) Guarantor has filed, or caused to be filed, all federal and
state tax returns which are required to be filed, and has paid
or caused to be paid, all taxes as shown on said returns or on
any assessment received by it and not being contested in good
faith, to the extent that such taxes have become due;
(g) Except as are reflected on the most recent financial
statements, Guarantor is not a party to any agreement or
instrument materially and adversely affecting its business,
properties or assets, operations or condition, financial or
otherwise;
(h) Guarantor has good and marketable title to all the property
and assets reflected on its most recent financial statement
furnished to Bank, except such as have been disposed of in the
ordinary course of business since the date of said financial
statement, and all such property and assets are free and clear
of any liens, except liens for taxes not yet due, liens on
personal or real property as reflected in the most recent
audited financial statement and those liens, if any, on
properties acquired subsequent to said statement until the date
of this Guaranty;
(i) This Guaranty is a legal, valid and binding obligation of
Guarantor, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the rights of creditors
generally; and
(j) Guarantor is not in default in any material respect under,
or with respect to, any contract, agreement or other instrument
to which it is a party or by which its assets or properties may
be bound, and no default or Event of Default has occurred and
is continuing.
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6. Affirmative Covenants.
Guarantor covenants and agrees as follows:
(a) To maintain adequate insurance for its insurable assets and or properties at
all times with financially sound and reputable insurers, in amounts insurable
value thereof, and such other insurance to such extent and against such risks,
including flood, hazard, liability, comprehensive, and property damage
insurance, and other risks in amounts satisfactory to Bank. Upon request, copies
of all insurance policies shall be delivered to Bank; or any other person or
entity. The remedies provided herein and in the other documents executed
contemporaneously herewith and referred to herein shall be cumulative, may be
exercised from time to time, singularly or concurrently or in any combination,
without Bank being obligated to exercise any such right in any other
circumstance, and are not exclusive of any remedies provided by law.
7. Negative Covenant.
Guarantor covenants and agrees with Bank that ,from date hereof and so
long as the Obligations shall remain unpaid ,unless Bank shall
otherwise consent in writing, it will not commit or do, or fail to
commit or do, any act or thing which would constitute a material event
of default under any of the terms of provisions of any other
agreement, contract, indenture, document or instrument executed, or to
be executed by it including, without limitation, agreements,
contracts, indentures, documents or instruments by and between
Guarantor and Bank, except those that may be contested in good faith
or are covered by insurance, and would not, if settled unfavorably,
materially and adversely affect is financial condition.
8. Events of Default.
Default in the due and punctual observance or performance of any of
the terms, covenants, or agreements contained in this Guaranty and the
happening of any of the Events of Default set forth in the Loan Terms
shall constitute Events of Default under this Guaranty.
9. Notices.
All notices, requests and other communications pursuant to this
Guaranty, shall be sent by registered or certified first class mail,
postage prepaid, addressed as follows:
As to Bank: Northern Trust Bank of Florida, N.A.
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: X. Xxxxxxxx
As to Guarantor: Westmark Mortgage Corporation
0000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
or to any such other address as any party hereto shall designate in a
written notice to the other party hereto. Any notice addressed and
mailed shall be deemed to have been given upon mailing by certified or
registered mail, return receipt requested to the respective parties as
set forth above.
10. No Waiver; Cumulative Remedies.
Bank may, at any time and from time to time, waive or not insist on
strict compliance with any one or more of the provisions contained in
any document relating to this Guaranty, but any such waiver or
non-insistence shall be deemed to be made pursuant to the terms of
said document and not in modification thereof. Any waiver or
non-insistence in any instance or under any particular circumstance
shall not be considered a waiver or non-insistence of such provision
in any other instance or any other circumstance, or as creating a
requirement that Bank must, as a result of a previous waiver or
non-insistence, thereafter give notice to Borrower, Guarantor, or any
other person or entity that it does not intend to give a further
waiver or not insist upon strict performance of a previously waived or
not insisted upon provision before Bank can exercise any right or
remedies under any document or before any events of default can occur,
whether occasioned by the provision previously waived or not insisted
upon or otherwise, or as establishing a course of dealing for
interpreting the expressions and other conduct between Bank and
Borrower, Guarantor
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11. Continuing Guaranty; Transfer.
This Guaranty is a continuing guaranty and shall:
(a) Remain in full force and effect until the Loan has been
paid in full and written notice of discharge has been sent by
Bank to Guarantor stating that the Guarantor shall no longer be
liable hereunder.
(b) Be binding upon Guarantor, its successors and assigns, each
of whom shall be jointly and severally liable hereunder;
provided, however, Guarantor may not assign any of its rights
and obligations hereunder without the written consent of Bank;
and
(c) Inure to the benefit of and be enforceable by Bank and its
successors, transferees, participants, and assigns. Without
limiting the generality of this clause, Bank may assign or
otherwise transfer the Loan and/or any of the Bank's rights and
benefits under the Loan Terms to any other person or entity, and
such other person or entity shall thereupon become vested with
all the rights in respect thereof granted to Bank herein or
otherwise.
12. Set-Off.
After an Event of Default, Bank shall have the right, at any time
and from time to time, without notice to the Guarantor (any such
notice being expressly waived by the Guarantor), to set-off and
apply any funds of Guarantor held in any accounts maintained with
Bank by Guarantor in any capacity including, without limitation, any
and all deposits (general or special, time or demand, investment,
provisional or final) at any time held and any other indebtedness at
any time owing by Bank to or for the credit or account of Guarantor
against the Loan which then shall be due and payable (by
acceleration or otherwise), whether or not Bank shall have made any
demand under the Agreement. Bank agrees promptly to notify the
Guarantor after any such set-off and application. The rights of
Bank under this paragraph are in addition to any other rights and
remedies which Bank may have under this Guaranty or otherwise.
13. Governing Law
This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of Florida without regard to principles
of conflict of laws. Guarantor hereby waives any plea of
jurisdiction or venue as not having its principal residence in Palm
Beach County, Florida and hereby specifically authorizes any action
brought by Bank upon this Guaranty to be instituted and prosecuted
in either the Circuit Court of Palm Beach County, Florida or in the
United States District Court for the Southern District of Florida,
at the election of Bank.
14. Headings.
Paragraph headings in this Guaranty are included herein for
convenience of reference only and shall not constitute a part of
this Guaranty for any other purpose.
15. Guarantor.
If more than one party shall execute this Guaranty the term
"Guarantor" shall mean all parties signing this Agreement, and each
of them, and all such parties shall be jointly and severally
obligated and liable hereunder. The singular pronoun, when used
herein, shall include the plural and the neuter shall include the
plural and the neuter shall include masculine and feminine. If this
Guaranty is not dated when executed by the Guarantor, the Bank is
authorized, without notice to the Guarantor, to date this Guaranty.
This Guaranty shall become effective as of the date of this
Guaranty.
16. Jury Waiver
GUARANTOR BY ITS EXECUTION OF THIS GUARANTY AND BANK BY ITS
ACCEPTANCE OF THIS GUARANTY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT EITHER OR ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, THE LOAN TERMS,
ANY DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK
ENTERING INTO THE LOAN TERMS REFERENCED HEREIN.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed and
delivered on the date and in the year first above written.
Xxxxxx X. Xxxxx
STATE OF FLORIDA )
) ss.:
COUNTY OF PALM BEACH )
BEFORE ME, the undersigned authority, personally appeared
_____________________________________, as ________________________ of
_____________, who first being duly sworn, acknowledged before me that he/she
executed the foregoing instrument for the purposes therein expressed on behalf
of said ____________________________. He/She is personally known to me or has
presented _______________________________ as identification. WITNESS my hand and
official seal in the county and state aforesaid this _____ day of
______________________, 19_____.
NOTARY PUBLIC, State of Florida
at Large
Print Name:____________________
Commission No.:________________
My Commission Expires:
[Seal]
