EXHIBIT 10.21
GUARANTY
WHEREAS, DEL MAR MORTGAGE, INC., a Nevada corporation, with offices at
0000 Xx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (the "Debtor"), has
executed an Indemnity Agreement in favor of VESTIN GROUP, INC., a Delaware
corporation, and VESTIN MORTGAGE, INC., a Nevada corporation (together,
"Indemnitee") with offices at 0000 Xx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000;
WHEREAS, the Indemnitee is not willing to agree to the indemnity Agreement
with Debtor unless it receives a guaranty of the undersigned (the "Guarantor")
covering Debtor's indebtedness to Indemnitee under the Indemnity Agreement;
WHEREAS, Guarantor is the sole shareholder of Debtor and is willing to
execute and perform this Guaranty;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
Guarantor unconditionally guarantees and promises to pay Indemnitee, or order,
on demand, in lawful money of the United States, any and all indebtedness of
Debtor to Indemnitee under the Indemnity Agreement (the "Indebtedness").
Guarantor agrees that whenever at any time or from time to time he shall make
any payment to Indemnitee hereunder on account of the Guarantor's liability
hereunder, he will notify Indemnitee in writing that such payment is made under
this Guaranty for such purpose,
The obligations hereunder are independent of the obligations of Debtor,
and a separate action or actions may be brought and prosecuted against Guarantor
regardless of whether action is brought against Debtor or whether Debtor be
joined in any such action or actions.
Guarantor authorizes Indemnitee, without notice or demand and without
affecting his liability hereunder, from time to time to (a) create new
indebtedness, renew, compromise, extend, accelerate or otherwise change the time
for payment of, or otherwise change the terms of the Indebtedness or any part
thereof; (b) otherwise exercise any right or remedy it may have against Debtor;
(c) refrain from setting off and release, in whole or in part, any balance of
any credit on its books in favor of Debtor or any other person; and (d) settle,
compromise with, release or substitute any one or more of the makers, endorsers
or guarantors of the Indebtedness.
The liability of the Guarantor hereunder shall be reinstated and revived,
and the rights of Indemnitee shall continue with respect to any amount at any
time paid on account of the Indebtedness which shall thereafter be required to
be returned or restored by Indemnitee upon the insolvency, reorganization or
bankruptcy of Debtor, all as if such amount had not been paid to Indemnitee.
This is a guaranty of payment and not of collection and is not conditioned
or contingent upon the genuineness, validity, regularity, or enforceability of
the indebtedness or any documents or actions relating to the creation or
performance of the Indebtedness. Guarantor waives any right to require
Indemnitee to (a) proceed against Debtor; (b) proceed against or exhaust any
security held from Debtor; or (c) pursue any other remedy in Indemnitee's power
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whatsoever. Guarantor waives any defense arising by reason of any disability or
other defense of Debtor or by reason of the cessation from any cause whatsoever
of the liability of Debtor. Until all of the Indebtedness shall have been paid
in full, even though such Indebtedness is in excess of Guarantor's liability
hereunder, Guarantor shall have no right of subrogation, and waive any right to
enforce any remedy which Indemnitee now has or may hereafter have against
Debtor, and waive any benefit of, and any right to participate in any security
now or hereafter held by Indemnitee. Guarantor waives all presentments, demands
for performance or payment, notices of protest or dishonor, notices of default,
notices of acceptance of this Guaranty and of the existence, creation, or
incurring of a new or additional indebtedness of Debtor to Indemnitee, and all
other notices. Guarantor waives the benefit of any statute of limitations
affecting his liability hereunder or the enforcement thereof. Guarantor waives
any and all suretyship defenses he may have under the laws of California or any
other state. GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION
OF REMEDIES BY INDEMNITEE, EVEN THOUGH THAT ELECTION OF REMEDIES, SUCH AS A
NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR A GUARANTEED OBLIGATION,
HAS DESTROYED THE GUARANTOR'S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST
DEBTOR BY THE OPERATION OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 580D OR
OTHERWISE.
All moneys available to Indemnitee for application in payment or reduction
of the indebtedness of Debtor may be applied by Indemnitee in such manner and in
such amounts and at such time or times as it may see fit to the payment or
reduction of such of the Indebtedness as Indemnitee may elect. Any indebtedness
of Debtor now or hereafter held by Guarantor is hereby subordinated to the
Indebtedness; and such indebtedness if Indemnitee so requests shall be
collected, enforced and received by Guarantor as trustee for Indemnitee and
shall be paid over to Indemnitee on account of the Indebtedness but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
Indemnitee may without notice assign this Guaranty or any of its rights
and powers hereunder with all or any of the Indebtedness and, in the event of
such assignment, the assignee hereof or of such rights and powers shall have the
same rights and remedies as if originally named herein in place of Indemnitee.
This Guaranty and all rights, obligations and liabilities arising hereunder
shall be construed according to the laws of the State of Nevada. Unless the
context otherwise requires, all terms used herein which are defined in the
Nevada Uniform Commercial Code shall have the meanings therein stated.
It is not necessary for Indemnitee to inquire into the powers of Debtor or
the officers, directors, partners, managers, members, or agents acting or
purporting to act on their behalf, and any Indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
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Any provision of this Guaranty held to be unenforceable, invalid or
illegal shall be severable from the rest of this Guaranty and shall not affect
the remaining provisions hereof or the validity or enforceability of such
provisions in any other jurisdiction.
Guarantor warrants and agrees that each waiver set forth herein is made
with full knowledge of its importance and consequences and, therefore, is not
contrary to law or public policy.
No delay on the part of Indemnitee in exercising any right hereunder or
failure to exercise the same shall operate as a waiver of such right; no notice
to or demand on Guarantor shall be deemed a waiver of the obligation of
Guarantor or of the right of Indemnitee to take further action without notice or
demand as provided herein; nor in any event shall any modification or waiver of
the provisions of this Guaranty be effective unless in writing nor shall any
such waiver be applicable except in the specific instance for which it was
given.
The liability of Guarantor under this Guaranty shall not exceed the
maximum amount that can be hereby incurred without rendering this Guaranty, as
it relates to Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer. This paragraph is intended solely to preserve
the rights of Indemnitee hereunder to the maximum extent that would not cause
Guarantor's liability hereunder to be subject in part to avoidance under
applicable law, and neither Guarantor nor any other person shall have any right
or claim under this paragraph. Guarantor agrees to pay a reasonable attorneys'
fees and all other costs and expenses which may be incurred by Indemnitee in the
enforcement of this Guaranty and of the indebtedness.
Any married person who signs this Guaranty hereby expressly agrees that
recourse may be had against his/her separate property for all his/her
obligations under this Guaranty. This Guaranty may only be modified or amended
by a signed writing between Guarantor and Indemnitee.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of August __,
2003
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Name: Xxxxxxx X. Xxxxxxx
State of Nevada )
) ss.
County of Xxxxx )
On the __( ) day of August, 2003, personally appeared before me a Notary
Public in and for said County and State, Xxxxxxx X. Xxxxxxx, known to me to be
the person that executed the foregoing instrument, and upon oath did depose that
he executed the instrument freely and voluntarily and for the uses and purposes
therein men
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Notary Public
[NOTARY SEAL]
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