EXHIBIT 10.23 

COMMERCIAL GUARANTY 

Principal Amount: $20,000,000.00 

Loan Date: November 30, 2006 

Maturity:November 30, 2007 

 

AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited. 

CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, Beverly Hills Bancorp, Inc. (“Guarantor”) absolutely and unconditionally guarantees toFirst Tennessee Bank National Association (“Lender”) or its order, the timely performance and payment by Wilshire Acquisitions Corporation (“Borrower”) of the Indebtedness on the terms and conditions set forth in this Guaranty.Under this Guaranty, the liability of Guarantor is unlimited and the obligations of Guarantor are continuing. 

INDEBTEDNESS GUARANTEED. The Indebtednessguaranteed by this Guaranty includes any and all of Borrower’s indebtedness to Lender and is used in the moat comprehensive sense and means and includes any and all of Borrower’s liabilities, obligations and debts to Lender, now existingor hereinafter incurred or created, including, without limitation, all loans, advances, interest, costs, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower, or any of them, andany present or future judgments against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily incurred, due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined; whetherBorrower may be liable individually or jointly with others, or primarily or secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become barred or unenforceable against Borrower for any reason whatsoever; andwhether the Indebtedness arises from transactions which may be voidable on account of infancy, insanity, ultra vires, or otherwise. 

DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance byLender, or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all ofGuarantor’s other obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor’s written notice of revocation must be mailed to Lender, bycertified mail, at Lender’s address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender ofGuarantor’s written revocation. For this purpose and without limitation, the term “new Indebtedness” does not include Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined or not due andwhich later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor’s written notice of revocation, includingany extensions, renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions, and modifications of the Indebtedness granted after Guarantor’s revocation, are contemplated under this Guaranty and,specifically will not be considered to be new Indebtedness. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives fromany one or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated that fluctuations may occur in the aggregate amount of Indebtedness covered by this Guaranty, and Guarantor specificallyacknowledges and agrees that reductions in the amount of Indebtedness, even to zero dollars ($0.00), prior to Guarantor’s written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding uponGuarantor and Guarantor’s heirs, successors and assigns so long as any of the guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed may from time to time be zero dollars ($0.00). Upon payment and satisfaction of theIndebtedness in full, and at such time as Lender shall have no further obligation to extend credit under that certain Loan Agreement dated the date hereof by and among Lender, Borrower and Guarantor, Lender shall execute and deliver to Guarantor awritten release and termination of this Guaranty. 

GUARANTOR’S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after anyrevocation hereof, without notice or demand and without lessening Guarantor’s liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more additional secured or unsecured loans toBorrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of theIndebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (C) to take and hold security for thepayment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to 

perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal withany one or more of Borrower’s sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall be made on the Indebtedness; (F) toapply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine;(G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. 

GUARANTOR’S REPRESENTATIONS AND WARRANTIES, Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or qualify in anyway the terms of this Guaranty; (B) this Guaranty is executed at Borrower’s request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of thisGuaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has notand will not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor’s assets, or any interest therein;(F) Lender has made norepresentation to Guarantor as to the creditworthiness of Borrower; and (G) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower’s financial condition. Guarantor agrees tokeep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor’s risks under this Guaranty, and Guarantor further agrees that, absent a request for information, Lender shall have noobligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. 

GUARANTOR’SWAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to extend other credit to Borrower; (B) to make any presentment, protest, demand, or notice of any kind,including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or non-action on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with theIndebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (D) to proceed directlyagainst or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (F) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borroweror to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender’s power; or (G) to commit any act or omission of any kind, or at any time, with respect to any matterwhatsoever. 

Guarantor also waives any and all rights or defenses arising by reason of (A) any “one action” or “anti-deficiency”law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender’s commencement or completion of any foreclosure action, either judicially or by 

exercise of a power of sale; (B) any election of remedies by Lender which destroys or otherwise adversely affects Guarantor’s subrogation rights orGuarantor’s rights to proceed against Borrower for reimbursement, including without limitation, any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (C) any disability or otherdefense of Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower’s liability from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (D) any right to claimdischarge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced, there isoutstanding Indebtedness of Borrower to Lender which is not barred by any applicable statute of limitations; or (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If paymentis made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower’s trustee in bankruptcy or to any similar person under any federalor state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. 

Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim,demand or right may be asserted by the Borrower, the Guarantor, or both. 

GUARANTOR’S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants andagrees that each of the waivers set forth above is made with Guarantor’s full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any suchwaiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public policy. 

RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor’s accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor may open inthe future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is adefault, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. 

SUBORDINATION OF BORROWER’SDEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether now existing or hereafter created, shall be superior to any claim that Guarantor may have or hereafter acquire against Borrower, whether or not Borrowerbecomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequentliquidation of the assets of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall bepaid to Lender and shall be first applied by Lender to the 

Indebtedness of Borrower to Lender. If Lender so requests, any totes or credit agreements now or hereafter evidencing any debts or obligations of Borrower toGuarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements andcontinuation statements end to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. 

EXCLUSION FROM INDEBTEDNESS. Excluded from indebtedness shall be any indebtedness governed by the Federal Truth in Lending Act. 

MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: 

Amendments. This Guaranty, together with anyRelated Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party orparties sought to be charged or bound by the alteration or amendment. 

Attorneys’ Fees; Expenses. Guarantor agrees to pay upon demand all ofLender’s costs and expenses, including Lender’s attorneys’ fees and Lender’s legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, andGuarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender’s attorneys’ fees and legal expenses whether or not there is a lawsuit, including attorneys’ fees and legal expenses for bankruptcyproceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court.

Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of thisGuaranty. 

Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, thelaws of the State of Tennessee without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender in the State of Tennessee. 

Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender’s request to submit to the jurisdiction of the courts of Shelby County, State of Tennessee. 

Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor’s attorney with respect to thisGuaranty; the Guaranty fully reflects Guarantor’s intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs(including Lender’s attorneys’ fees) suffered or incurred by Lender as a result of any breach by Guarantor of the warranties, representations and agreements of this paragraph. 

Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the 

plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed bymore than one Guarantor, the words “Borrower” and “Guarantor” respectively shall mean all and any one or more of them. The words “Guarantor,” “Borrower,” and “Lender” include the heirs, successors,assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a courtwill enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, orsimilar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any indebtedness made or createdin reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. 

Notices. Any notice required to be given under thisGuaranty shall be given in writing. and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognizedovernight courier, or, if mailed, three (3) days after the date when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. Allrevocation notices by Guarantor shall be in writing and shall be effective upon delivery to Lender as provided in the section of this Guaranty entitled “DURATION OF GUARANTY.” Any party may change its address for notices under thisGuaranty by giving formal written notice to the ether parties, specifying that the purpose of the notice is to change the party’s address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor’s currentaddress. Unless otherwise provided or required by law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. 

No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender inexercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with thatprovision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a waiver of any of Lender’s rights or of any of Guarantor’s obligations as to any futuretransactions. Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases suchconsent may be granted or withheld in the sole discretion of Lender. 

Successors and Assigns. Subject to any limitations stated in this Guaranty ontransfer of Guarantor’s interest, this Guaranty shall be binding upon and inure to the benefit of the parties, their successors and assigns 

WaiveJury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. 

DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty.Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include thesingular, as the context may require. Words end terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: 

GAAP. The word “GAAP” means generally accepted accounting principles. 

Guaranty. The word “Guaranty”means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. 

Indebtedness. The word“Indebtedness” means Borrower’s indebtedness to Lender as more particularly described in this Guaranty. 

Lender. The word “Lender”means First Tennessee Bank National Association, its successors end assigns. 

Note. The word “Note” means end includes without limitation all ofBorrower’s promissory notes and/or credit agreements evidencing Borrower’s loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions forpromissory notes or credit agreements. 

Related Documents. The words “Related Documents” mean all promissory notes, credit agreements, loanagreements, environmental agreements, guaranties, security agreements, mortgagee, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connectionwith the Indebtedness. 

NOTICE AND AGREEMENT. The indebtedness is a commercial obligation and not a personal, family or household obligation. This guarantyshall apply in all respects to both present and future advances made and to be made to Borrower. Guarantor acknowledges that the provisions of T.C.A. Section 47-12-107 (which concern guaranties of future indebtedness) are not applicable to thisGuaranty. If a court of competent jurisdiction nonetheless should hold the act to be applicable, Guarantor waives any and all rights and benefits Guarantor could or might have pursuant to the act. Guarantor also waives the rights granted underT.C.A. Section 47-12-101, which may allow Guarantor to require Lender to proceed to sue Borrower within thirty (30) days if Borrower is likely to become insolvent or to migrate from the state without paying the Indebtedness. 

GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPONGUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED “DURATION OF GUARANTY”. NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TOMAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED                         , 2006. 

GUARANTOR:

BEVERLY HILLS BANCORP INC.

By:
 
 

Title:
 
 

By:
 
 

Title:
 
 

CORPORATE ACKNOWLEDGMENT 

STATEOF                                                

COUNTYOF                                            

Before me,                                                                                                    , a Notary Public in end for the State end County aforesaid, personally appeared                                                                                     of Beverly Hills Bancorp Inc., with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who, upon oath, acknowledged himself or herself to be the*                                                                                        * of Beverly Hills Bancorp Inc., the within-named bargainor, a corporation, and that he or she as such                                                                                     of Beverly Hills Bancorp Inc., being duly authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by himself or herself as such                                                                                                                                                                     of Beverly Hills Bancorp Inc. 

WITNESS my hand and seal at office, on the                                                         day of                                                                        

 

NotaryPublic:                                                                            

My Commission Expires: