EXHIBIT 10.50.3
ORIGINATOR: XXXXXX MORTGAGE CORPORATION
GUARANTOR: XXXXXX X. XXXXXX
CONTINUING GUARANTY (PERSONAL)
TO: FIRST COLLATERAL SERVICES, INC.
(1) For valuable consideration, the undersigned (hereinafter called
"Guarantor") unconditionally guarantees and promises to pay FIRST COLLATERAL
SERVICES, INC., (hereinafter called "First Collateral"), or order, on demand,
in lawful money of the United States, any and all Obligations and/or
indebtedness of XXXXXX MORTGAGE CORPORATION (hereinafter called "Originator") to
First Collateral. The word "indebtedness" is used herein in its most
comprehensive sense and includes any and all advances, debts, obligations and
liabilities of Originator or any one or more of them, heretofore, now, or
hereafter made, incurred or created, whether voluntary or involuntary and
however arising, whether direct or acquired by First Collateral by
assignment or succession, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether Originator
may be liable individually or jointly with others, or whether recovery upon such
indebtedness may be or hereafter becomes barred by any statute of limitations,
or whether such indebtedness may be or hereafter becomes otherwise
unenforceable. "Obligations" has the same meaning as in the Master Mortgage Loan
Purchasing Agreement dated AUGUST 26, 1993.
(2) The obligations hereunder are joint and several, and independent of
the obligations of Originator, and a separate action or actions may be brought
and prosecuted against Guarantor whether action is brought against Originator or
whether Originator be joined in any such action or actions; and Guarantor waives
the benefit of any statute of limitations affecting their liability hereunder or
the enforcement thereof.
(3) Guarantor authorizes First Collateral, without notice or demand and
without affecting its liability hereunder, from time to time to (a) renew,
compromise, extend, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the indebtedness or obligation 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 indebtedness or
obligation guaranteed, and exchange, enforce, waive and release any such
security; (c) apply such security and direct the order or manner of sale thereof
as First Collateral in its discretion may determine; and (d) release or
substitute any one or more of the endorsers or guarantors. First Collateral may
without notice assign this guaranty in whole or in part.
(4) Guarantor waives any right to require First Collateral to (a) proceed
against Originator; (b) proceed against or exhaust any security held from
Originator; or (c) pursue any other remedy in First Collateral's power
whatsoever. Guarantor waives any defense arising by reason of any disability or
other defense of Originator or by reason of the cessation from any cause
whatsoever of the liability of Originator. Until all indebtedness of Originator
to First Collateral 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 First Collateral
now has or may hereafter have against Originator, and waive any benefit of, and
any right to participate in any security now or hereafter held by First
Collateral. First Collateral may foreclose, either by judicial foreclosure or by
exercise of power of sale, any deed of trust securing the indebtedness, and,
even though the foreclosure may destroy or diminish Guarantors' rights against
Originator, Guarantor shall be liable to First Collateral for any part of the
indebtedness remaining unpaid after the foreclosure. Guarantor waives all
presentments, demands for performance, notices of non-performance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
guaranty and of the existence, creation, or incurring of new or additional
indebtedness.
(5) In addition to all liens upon, and rights of setoff against the
moneys, securities or other property of Guarantor given to First Collateral by
law, First Collateral shall have a lien upon and a right of setoff against all
moneys, securities and other property of Guarantor now or hereafter in the
possession of or on deposit with First Collateral, whether held in a general or
special account or deposit, or for safekeeping or otherwise; and every such lien
and right of setoff may be exercised without demand upon or notice to Guarantor.
No lien or right of setoff shall be deemed to have been waived by any act or
conduct on the part of First Collateral, or by any neglect to
1.
exercise such right of setoff or to enforce such lien, or by any delay in so
doing, and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien is specifically waived or released by
an instrument in writing executed by First Collateral.
(6) Any indebtedness of Originator now or hereafter held by Guarantor is
hereby subordinated to the indebtedness of Originator to First Collateral; and
such indebtedness of Originator to Guarantor if first Collateral so requests
shall be collected, enforced and received by Guarantor as trustees for First
Collateral and be paid over to First Collateral on account of the indebtedness
of Originator to First Collateral but without reducing or affecting in any
manner the liability of Guarantor under the provisions of this guaranty.
(7) Where any one or more of the Originator are corporations or
partnerships it is not necessary for First Collateral to inquire into the powers
of the Originator or of the officers, directors, partners 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.
(8) Guarantor agrees to pay reasonable attorneys' fees and all other costs
and expenses which may be incurred by First Collateral in the enforcement of
this Guaranty.
(9) Any married person who signs this guaranty hereby expressly agrees that
recourse may be had against such person's separate property for all obligations
under this guaranty.
(10) Where there is more than one Originator, or where more than one
Guarantor executes this guaranty, then all words used herein in the plural shall
be deemed to have been used in the singular where the context and construction
so require; and when there is more than one Originator named herein, or when
this guaranty is executed by more than one Guarantor, the words "Originator" and
"Guarantor" respectively shall mean all and any one or more of them.
(11) The parties to this Agreement covenant and agree that any dispute,
whether in tort or contract or of any other nature, arising out of or related to
this Agreement or to the Loan Documents, or their interpretation, application or
performance, or out of the relationship between the parties shall be determined
by a reference pursuant to California Code of Civil Procedure (S)638(1). The
reference shall be a general reference of all issues of fact and law and the
person appointed shall have the power to enter all interlocutory and final
orders (including orders to deliver possession of collateral or funds) and to
decide all issues of law and fact without a jury. Until a referee has been
appointed and has accepted the reference the Superior Court shall have
jurisdiction to appoint receivers, issue writs and grant any other interim
relief which may be necessary or proper. The referee shall be a retired
California Superior Court Judge selected by agreement of the parties or if they
fail to agree by the Superior Court of the State of California, Contra Costa
County upon application of either party with 24 hours notice in writing or by
telefax to the other party. Discovery shall be allowed according to California
Code of Civil Procedure (S)(S)2016, et seq. Each party shall pay one half of the
fees of the referee so appointed, of the court reporter, and of the rental of
hearing room daily in advance. The party prevailing shall recover its entire
costs and attorney's fees. If neither party prevails in full, the person
appointed referee shall allocate the costs and attorney's fees of the parties in
accordance with his sound discretion. The parties agree that the proceedings
will be conducted in Contra Costa County, California, USA and waive any
objections to jurisdiction and venue. The action may not be removed to the
United States District Court. An appeal from the orders or judgments entered by
the person appointed shall lie to the California Court of Appeal, as specified
in Code of Civil Procedure (S)645.
(12) Guarantor shall irrevocably appoint CT Corporation System of 000 X.
Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 (or its successor or assignee) as its
agent for service of process to receive service of all process, including
without limitation thereto summons, complaints, writs, injunctions, motions and
orders. In connection with any dispute arising under this Agreement and the Loan
Documents or out of the relationship between the parties. Guarantor shall bear
the cost of such appointment and shall not rescind same while this Agreement or
the Loan Documents are in force and effect or any Obligations remain unpaid.
This Agreement, and the Loan Documents, are entered into by Lender in reliance
upon such irrevocable appointment.
(13) This Agreement shall be governed by and construed according to the
laws of the State of California, without giving effect to its choice of law
provisions.
(14) Guarantor also hereby waives any claim, right or remedy which such
Guarantor may now have or hereafter acquire against the Originator that arises
hereunder and/or from the performance by any Guarantor hereunder
2.
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification, or participation in
any claim, right or remedy of First Collateral against Originator or any
security which First Collateral now has or hereafter acquires, whether or not
such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise.
Executed this 30th day of August, 1993.
____ ______ __
Witnessed:
/s/ Xxxx D'Arcy /s/ Xxxxxx X. Xxxxxx
______________________________ ______________________________
Witness Signature Guarantor Signature
Xxxx D'Arcy Xxxxxx X. Xxxxxx
______________________________ ______________________________
Print Name Print Name
0000 Xxxxxxxx Xx. 0000 Xxxxxxxx Xx.
______________________________ ______________________________
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
______________________________ ______________________________
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______________________________
Soc. Sec. No. or I.D. No.
3.
