EXHIBIT A
TO AGREEMENT
FORM OF
CREDIT GUARANTY
THIS CREDIT GUARANTY (the "Guaranty") is made and dated as of the
day of _______, 19__ by _______________________________________________ ,
a _______________ corporation ("Guarantor") in favor of SANWA BANK CALIFORNIA
("Lender").
RECITALS
A. Pursuant to that certain Credit Agreement, dated as of March ,
1997 (as the same may be amended, extended or replaced from time to time, the
"Credit Agreement" and with capitalized terms not otherwise defined herein
used with the meanings given such terms in the Credit Agreement), Lender
agreed to extend credit to ▇▇▇▇▇ FINANCIAL, a California corporation
("Borrower"), on the terms and subject to the provisions set forth more
particularly therein.
B. As a condition precedent to Lender's obligation to extend such
credit, Guarantor is required to execute and deliver this Guaranty to Lender.
NOW, THEREFORE, in consideration of the above Recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Guarantor hereby agrees as follows:
AGREEMENT
1. Guarantor hereby unconditionally guarantees the payment when
due, upon maturity, acceleration or otherwise, of all obligations of Borrower
to Lender under the Credit Agreement and the other Loan Documents, 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 (collectively and severally, the
"Obligations"), whether or not such Obligations are from time to time
reduced, or extinguished and thereafter increased or incurred, whether
Borrower 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 unenforceable.
2. Guarantor unconditionally guarantees the payment of the
Obligations, whether or not due or payable by Borrower, 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, Borrower or 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
Borrower or Guarantor, and unconditionally promises to pay such Obligations
to Lender, or order, on demand, in lawful money of the United States.
3. The liability of Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Obligations, whether
executed by Guarantor or by any other party, and the liability of Guarantor
hereunder is not affected or impaired by (a) any direction of application of
payment by Borrower or by any other party, or (b) any other guaranty,
undertaking or maximum liability of 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, termination or
increase, decrease or change in personnel of Guarantor, or (f) any payment
made to Lender on the Obligations which Lender repays to Borrower pursuant to
court order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and Guarantor waives any right to the
deferral or modification of Guarantor's obligations hereunder by reason of
any such proceeding.
4. The obligations of Guarantor hereunder are independent of the
Obligations of Borrower, and a separate action or actions may be brought and
prosecuted against Guarantor whether or not action is brought against
Borrower and whether or not Borrower be joined in any such action or actions.
Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by Borrower or other circumstance which operates to toll
any statute of limitations as to Borrower shall operate to toll the statute
of limitations as to Guarantor.
5. All payments made by Guarantor under this Guaranty shall be
made without set-off or counterclaim and free and clear of and without
deductions for any present or future taxes, fees, withholdings or conditions
of any nature ("Taxes"). Guarantor shall pay any such Taxes, including Taxes
on any amounts so paid, and will promptly furnish Lender copies of any tax
receipts or such other evidence of payment as Lender may require.
6. Guarantor authorizes 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 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 Lender in its discretion may
determine; and (d) release or substitute any one or more endorsers,
guarantors, Borrower or other obligors. Lender may, without notice to or the
further consent of Borrower or Guarantor, assign this Guaranty in whole or in
part to any person acquiring an interest in the Obligations.
2
7. It is not necessary for Lender to inquire into the capacity or
power of Borrower or the officers acting or purporting to act on its behalf,
and Obligations made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
8. Guarantor waives any right to require Lender to (a) proceed
against Borrower or any other party; (b) proceed against or exhaust any
security held from Borrower; or (c) pursue any other remedy in Lenders' power
whatsoever. Guarantor waives any personal defense based on or arising out of
any personal defense of Borrower other than payment in full of the
Obligations, including, without limitation, any defense based on or arising
out of the disability of Borrower, or the unenforceability of the Obligations
or any part thereof from any cause, or the cessation from any cause of the
liability of Borrower other than payment in full of the Obligations. Lender
may, at its election, foreclose on any security now or in the future held for
the Obligations by one or more judicial or nonjudicial sales, or exercise any
other right or remedy Lenders and Collateral Agent may have against Borrower,
or any security, without affecting or impairing in any way the liability of
Guarantor hereunder except to the extent the Obligations have been paid.
Guarantor waives all rights and defenses arising out of an election of
remedies by Lender, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed Guarantor's rights of subrogation and reimbursement against the
principal by operation of Section 580d of the California Code of Civil
Procedure.
9. Guarantor hereby waives any claim or other rights which
Guarantor may now have or may hereafter acquire against the Borrower or any
other guarantor of all or any of the Obligations that arise from the
existence or performance of Guarantor's obligations under this Guaranty or
any other of the Loan Documents (as such claims and rights being referred to
as the "Guarantor's Conditional Rights"), including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, or
indemnification, any right to participate in any claim or remedy which Lender
has against the Borrower or any collateral which 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 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. If, notwithstanding the foregoing provisions,
any amount shall be paid to Guarantor on account of Guarantor's Conditional
Rights and either (a) such amount is paid to 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 Guarantor any payment made by Borrower to
Lender is at any time determined to be a preferential payment, then such
amount paid to Guarantor shall be deemed to be held in trust for the benefit
of Lender and shall forthwith be paid to Lender to be credited and applied
upon the Obligations, whether matured or unmatured, in such order and manner
as Lender, in its sole discretion, shall determine. To the extent that any of
the provisions of this Paragraph shall not be enforceable, 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
Borrower or Guarantor to Lender maybe determined to be a preferential
payment, Guarantor's Conditional Rights to the extent not validly
3
waived shall be subordinate to Lender's right to full payment and performance
of the Obligations and Guarantor shall not seek to enforce Guarantor's
Conditional Rights during such period.
10. 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. Guarantor assumes all
responsibility for being and keeping itself informed of Borrower'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 Guarantor assumes and incurs hereunder, and agrees that Lender shall
have no duty to advise Guarantor of information known to it regarding such
circumstances or risks.
11. In addition to the Obligations, Guarantor agrees to pay
reasonable attorneys' fees and all other costs and expenses incurred by
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 Guarantor hereunder are binding upon Guarantor and its
successors and assigns, and this Guaranty inures to the benefit of and is
enforceable by Lender and its successors, transferees, and assigns. Lender
hereby agrees to use reasonable efforts to provide to Guarantor a copy of any
notice of the occurrence of an Event of Default under the Credit Agreement
which it gives to the Borrower; provided, however, that the failure of Lender
to provide any such notice shall not in any manner or to any extent affect
the obligations of Guarantor under this Guaranty.
12. Guarantor agrees to execute any and all further documents,
instruments and agreements as Lender from time to time reasonably requests to
evidence Guarantor's obligations hereunder.
13. Guarantor hereby represents and warrants and agrees that:
(a) Guarantor (1) is duly organized, validly existing and in
good standing as a corporation under the laws of the State of__________and is
qualified to do business in each jurisdiction where its ownership of property
or conduct of business requires such qualification and where failure to
qualify would have a material adverse effect on Guarantor or its property
and/or business or on the ability of Guarantor to pay or perform the
Obligations, (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 so to do, and (3) is in compliance with all Requirements
of Law and Contractual Obligations, the failure to comply with which could
have a material adverse effect on the business, operations, assets or
financial or other condition of Guarantor.
(b) Guarantor has the corporate power and authority and the
legal right to execute, deliver and perform this Guaranty and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Guaranty. This Guaranty has been duly executed and
delivered on behalf of Guarantor and constitutes the legal, valid and binding
obligations of Guarantor enforceable against Guarantor in accordance with its
terms, subject to
4
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.
(c) No consent, approval, authorization of, or registration,
declaration or filing with any governmental authority is required on the part
of Guarantor in connection with the execution and delivery of this Guaranty
or the performance of or compliance with the terms, provisions and conditions
hereof.
(d) Guarantor has reviewed the Credit Agreement and the
Exhibits thereto and acknowledges and agrees to all terms and conditions
thereof as they relate to the Guarantor or to the Obligations guaranteed
hereunder.
14. This Guaranty shall be governed by and construed in accordance
with the laws of the State of California without giving effect to choice of
law rules.
15. The terms and provisions hereof may not be waived, altered,
modified or amended except in writing duly signed by Lender and by Guarantor.
16. All notices given by Lender or Guarantor to the other shall be
in writing unless otherwise provided for herein, delivered personally or by
depositing the same in the United States mail, registered or certified mail,
with postage prepaid, addressed to the party at the address set forth beneath
its signature below or sent by recognized courier service with a tracking
system to such party at such address whether or not such delivery is refused.
Either Lender or Guarantor may change the address to which notices are to be
sent by notice of such change to the other party given as provided herein.
Such notices shall be effective on the date received or, if mailed, on the
third Business Day following the date mailed.
Executed as of the day and year first above written.
________________________________________,
a _______________________ corporation
By:____________________________
Name:__________________________
Title:_________________________
Address:_______________________
_______________________
Attn:__________________
TEL: __________________
FAX: __________________
5
SANWA BANK CALIFORNIA
By____________________________________
Name__________________________________
Title_________________________________
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
TEL: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
6
EXHIBIT B
TQ AGREEMENT
FORM OF
GUARANTOR SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT is made and dated as of the___day
of_________________ , 19__ by and among ▇▇▇▇▇ FINANCIAL, a California
corporation (the "Borrower"), ________________________________________
a___________________ corporation (the "Creditor"), and SANWA BANK CALIFORNIA
(the "Lender").
RECITALS
The Lender has agreed to extend credit to the Borrower pursuant to
the terms and subject to the conditions set forth in that certain Credit
Agreement dated as of March , 1997 by and between the Borrower and the Lender
(as the same may be amended, extended or replaced from time to time, the
"Credit Agreement," and with capitalized terms not Otherwise defined herein
used with the meanings given such terms in the Credit Agreement), including,
without limitation, the condition that Creditor execute and deliver to the
Lender a continuing guaranty of the Obligations of Borrower to the Lender
under the Credit Agreement and this Subordination 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 parties hereto hereby agree as follows:
AGREEMENT
1. Creditor has extended and will in the future extend credit to
Borrower from time to time. The principal of all now existing and hereafter
arising indebtedness of Borrower to Creditor together with accrued but unpaid
interest thereon is hereinafter referred to as "the Claim."
2. Creditor is the sole and absolute owner of the Claim and has
not sold, assigned, transferred or otherwise disposed of any right it may
have to repayment of the Claim or any security therefor.
3. The Claim and all rights and remedies of Creditor with respect
thereto and any lien securing payment thereof are and shall continue to be
subject, subordinate and rendered junior in the right of payment to the
Obligations, as the same may be extended, amended or replaced form time to
time; provided, however, that unless and until there shall occur an Event of
Default or Potential Default Borrower may make and Creditor may receive
payments on account of the Claim made in the normal course of Borrower's
business.
4. Unless and until the Obligations shall have been fully paid
and discharged and any agreement by the Lender to make further loans or
advances to Borrower shall have terminated, except as expressly permitted
pursuant to Paragraph 3 above:
(a) Borrower will not make or give, and Creditor will not
receive, directly or indirectly, any payment, advance, credit or further
security of any kind whatsoever on account of the Claim, or any new or
further evidence thereof;
(b) Creditor will not sell, assign, transfer or endorse the
Claim or any part or evidence thereof;
(c) Creditor will pay to the Lender promptly upon receipt,
for application against the Obligations, any and all amounts which may be
received by Creditor on account of the Claim; and
(d) Creditor will not take, or permit any action to be taken,
to assert, collect or enforce the Claim or any part thereof.
5. Each of Borrower and Creditor waives notice of acceptance of
this Subordination Agreement by the Lender and Lender, and Creditor waives
notice of and consent to the making, amount and terms of any loan or loans
which the Lender may from time to time make to Borrower and any renewal or
extension thereof and any action which the Lender in its sole and absolute
discretion may take or omit to take with respect thereto.
6. This Subordination Agreement shall constitute a continuing
agreement of subordination and the Lender may, from time to time and without
notice to Creditor, lend money to or make other financial arrangements with
Borrower in reliance hereon until written notice of termination shall be
delivered by Creditor to the Lender by certified mail, return receipt
requested. The receipt by the Lender of such notice shall not affect this
Subordination Agreement as it relates to any Obligations then existing, to
any Obligations incurred thereafter pursuant to a previous commitment by the
Lender or to any amendments to, or extensions or renewals of, any such
Obligations.
7. In the event of a default in the performance or observance of
any of the foregoing, the Obligations shall forthwith become due and payable
at the election of the Lender, without presentment, demand or notice of any
kind, all of which are hereby waived.
8. Creditor agrees as follows:
(a) Upon any distribution of all of the assets of Borrower to
creditors of Borrower upon the dissolution, winding up, liquidation,
arrangement, or reorganization of Borrower, whether in any bankruptcy,
insolvency, arrangement, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of Borrower or otherwise, any payment or distribution
of any kind (whether in cash, property or securities) which otherwise would
be payable or deliverable upon or with respect to the Claim shall be paid or
delivered directly to the Lender for application (in the case
2
of cash) to, or as collateral (in the case of non-cash property or
securities) for, the payment or prepayment of the Obligations until the
Obligations shall have been paid in full.
(b) If any proceeding referred to in subsection (a) above is
commenced by or against Borrower:
(1) The Lender is hereby irrevocably authorized and
empowered (in their own name or in the name of Creditor or otherwise), but
shall have no obligation, to demand, ▇▇▇ for, collect and receive every
payment or distribution referred to in subsection (a) above and give
acquittance therefor and to file claims and proofs of claim and take such
other action (including, without limitation, voting the Claim or enforcing
any security interest or other lien securing payment of the Claim) as it may
deem necessary or advisable for the exercise or enforcement of any of the
rights or interests of the Lender hereunder; and
(2) Creditor shall duly and promptly take such action
as Lender or the Lender may request (i) to collect the Claim for account of
the Lender and to file appropriate claims or proofs of claim in respect of
the Claim, (ii) to execute and deliver to the Lender such powers of attorney,
assignments, or other instruments as it may request in order to enable it to
enforce any and all claims with respect to, and any security interests and
other liens securing payment of, the Claim, and (iii) to collect and receive
any and all payments or distributions which may be payable or deliverable
upon or with respect to the Claim.
(c) All payments or distributions upon or with respect to the
Claim which are received by Creditor contrary to the provisions of this
Subordination Agreement shall be received in trust for the benefit of the
Lender, shall be segregated from other funds and property held by Creditor
and shall be forthwith paid over to the Lender in the same form as so
received (with any necessary endorsement) to be applied (in the case of cash)
to, or held as collateral (in the case of non-cash property or securities)
for, the payment or prepayment of the Obligations.
(d) The Lender is hereby authorized to demand specific
performance of this Subordination Agreement, whether or not the Borrower
shall have complied with any or all of the provisions hereof applicable to
it, at any time when the Creditor shall have failed to comply with any of the
provisions of this Subordination Agreement applicable to it.
9. It is the intent of Creditor to create by this Subordination
Agreement a security interest in favor of the Lender in the Claim and in
Creditor's other rights to receive money or other property from Borrower,
whether such rights shall constitute accounts, contract rights, chattel
paper, instruments, general intangibles or otherwise. Creditor hereby grants
to the Lender a security interest in the Claim in order to secure the payment
and performance of the Creditor's obligations pursuant to this Subordination
Agreement.
10. Creditor authorizes the Lender (whether or not after
revocation of this Subordination Agreement), without notice or demand (except
as shall be required by applicable statute and cannot be waived), and without
affecting or impairing Creditor's obligations hereunder, from time to time to
(a) renew, compromise, extend, increase, accelerate or otherwise
3