EXECUTION COPY
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 19th day of March, 2001,
by and among Artisan House, Inc., a Delaware corporation, TBD One, Inc.
(formerly known as CSL Lighting Manufacturing, Inc.), a Delaware corporation,
Decor Group, Inc., a Delaware corporation, Habitat Solutions, Inc., a Delaware
corporation, Xxxxxxxxx.xxx, Inc., a Delaware corporation, Model Home Interiors,
Inc., a Maryland corporation, Petals Factory Outlet of Connecticut, Inc., a
Connecticut corporation, Petals Factory Outlet of Florida, Inc., a Florida
corporation, Petals Factory Outlet of Pennsylvania, Inc., a Pennsylvania
corporation, Petals Factory Outlet, Inc., a New York corporation, Petals, Inc.,
a Delaware corporation ("Petals"), Stylecraft Lamps, Inc., a Tennessee
corporation ("Stylecraft", and, together with Petals, the "Borrowers"), TBD Two,
Inc. (formerly known as Xxxx Lighting, Inc.), a California corporation and
Windsor Art, Inc., a California corporation (the "Initial Guarantors" and along
with any additional subsidiaries of the Borrower, which become parties to this
Guaranty by executing an Addendum hereto in the form attached as Annex I, the
"Guarantors") in favor of the Lender, under (and as defined in) the Promissory
Note referred to below;
WITNESSETH:
WHEREAS, the Borrowers have issued that certain Promissory Note, dated
March 19, 2001, in favor of Interiors Investors, L.L.C., a Delaware limited
liability company (the "Lender") (as the same may be amended, modified,
supplemented and/or restated, and as in effect from time to time, the
"Promissory Note"), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accommodations to be made by the Lender
to the Borrowers;
WHEREAS, it is a condition precedent to the extension of credit by the
Lender to the Borrowers that each of the Guarantors (constituting certain of the
subsidiaries of Interiors, Inc., a Delaware corporation ("Interiors")) execute
and deliver this Guaranty, whereby each of the Guarantors shall guarantee the
payment when due (whether at stated maturity, upon acceleration or otherwise) of
all "Obligations" (as defined in the Promissory Note); and
WHEREAS, in consideration of the direct and indirect financial and other
support that the Borrowers have provided, and such direct and indirect financial
and other support as the Borrowers may in the future provide, to the Guarantors,
and in order to induce the Lender to make the Term Loan evidenced by the
Promissory Note, each of the Guarantors is willing to guarantee the obligations
of the Borrowers under the Promissory Note and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Promissory Note and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
Section 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making of the Term Loan) that:
(a) It is a corporation, limited liability company, partnership or other
commercial entity duly incorporated or formed, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation and
has all requisite authority to conduct its business as a foreign person in each
jurisdiction in which its business is conducted, except where the failure to
have such requisite authority would not have a material adverse effect on the
business or operations or performance of such Guarantor or any of its
subsidiaries.
(b) It has the power and authority and legal right to execute and deliver
this Guaranty and to perform its obligations hereunder. The execution and
delivery by it of this Guaranty and the performance by it of its obligations
hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will (i) violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on it or
its certificate or articles of incorporation or by-laws, limited liability
company or partnership agreement (as applicable) or the provisions of any
indenture, instrument or material agreement to which it is a party or is
subject, or by which it, or its property, is bound, (ii) or conflict with or
constitute a default thereunder, except such interference or default which
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect on the business or operations or performance of such
Guarantor or any of its subsidiaries, or (iii) result in the creation or
imposition of any lien in, of or on its property pursuant to the terms of any
such indenture, instrument or material agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental authority, is required to authorize, or
is required in connection with the execution, delivery and performance by it of,
or the legality, validity, binding effect or enforceability against it of, this
Guaranty other than those which have already been obtained or made.
In addition to the foregoing, each of the Guarantors covenants that,
so long as any amount payable under the Promissory Note or any other Obligations
shall remain unpaid, it will, and, if necessary, will cause each of the other
Loan Parties to, fully comply with those covenants and agreements of such Loan
Parties set forth in the Promissory Note and the other Loan Documents.
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Section 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Obligations, including, without limitation, (i) the principal
of and interest on the Term Loan, (ii) the Special Sale Payment, and (iii) all
other amounts payable by the Borrowers or any of their respective affiliates
under the Promissory Note and the other Loan Documents (all of the foregoing
being referred to collectively as the "Guaranteed Obligations"). Upon failure by
Borrowers or any of their respective affiliates, as applicable, to pay
punctually any such amount when due (whether at stated maturity, upon
acceleration or otherwise), each of the Guarantors agrees that it shall
forthwith on demand pay such amount at the place and in the manner specified in
the Promissory Note or the relevant Loan Document, as the case may be. Each of
the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and
unconditional guaranty of payment and is not a guaranty of collection.
Section 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, indulgence, compromise,
waiver or release of, or with respect to, the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed Obligations,
whether (in any such case) by operation of law or otherwise, or any
failure or omission to enforce any right, power or remedy with respect to
the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any
of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the
Promissory Note or any other Loan Document, including, without limitation,
any such amendment which may increase the amount of the Obligations
guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any
collateral securing the Guaranteed Obligations or any part thereof, any
other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any person or entity with respect to
the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed
Obligations;
(iv) any change in the corporate, partnership or other existence,
structure or ownership of any Loan Party or any other guarantor of any of
the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting any Loan Party or any other
guarantor of the Guaranteed Obligations, or any of their respective assets
or any resulting release or discharge of any obligation of any Loan Party
or any other guarantor of any of the Guaranteed Obligations;
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(v) the existence of any claim, setoff or other rights which the
Guarantors may have at any time against any Loan Party, any other
guarantor of any of the Guaranteed Obligations, the Lender or any other
person, whether in connection herewith or in connection with any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or
any part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof, or any other invalidity or
unenforceability relating to or against any Loan Party or any other
guarantor of any of the Guaranteed Obligations, for any reason related to
the Promissory Note, any other Loan Document, or any provision of
applicable law or regulation purporting to prohibit the payment by any
Loan Party or any other guarantor of the Guaranteed Obligations, of any of
the Guaranteed Obligations;
(vii) the failure of the Lender to take any steps to perfect and
maintain any security interest in, or to preserve any rights to, any
security or collateral for the Guaranteed Obligations, if any;
(viii) the election by, or on behalf of, the Lender, in any
proceeding instituted under Chapter 11 of Title 11 of the United States
Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the application
of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Borrowers,
as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(x) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims of the Lender for repayment of all or any
part of the Guaranteed Obligations;
(xi) the failure of any other Guarantor to sign or become party to
this Guaranty or any amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by any
Loan Party, any other guarantor of the Guaranteed Obligations, the Lender
or any other person or any other circumstance whatsoever which might, but
for the provisions of this Section 4, constitute a legal or equitable
discharge of any Guarantor's obligations hereunder.
Section 5. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances; Release Upon Certain Events; Subordination.
(a) Subject to clause (b) of this Section 5, each of the Guarantors'
obligations hereunder shall remain in full force and effect until all Guaranteed
Obligations shall have been paid in full in cash and the Promissory Note shall
have terminated or expired. If at any time any payment of the principal of or
interest on the Term Loan or any other amount payable by the Borrowers or any
other Loan Party under the Promissory Note or any other Loan Document is
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rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrowers or otherwise, each of the
Guarantors' obligations hereunder with respect to such payment shall be
reinstated to the extent and as though such payment had been due but not made at
such time.
(b) Notwithstanding anything contained in this Guaranty to the contrary,
each Guarantor shall have the right (and the Lender shall be deemed to have
consented thereto) to sell or transfer, or permit the sale or transfer, of all
or substantially all of its assets (including, without limitation, any
Receivables, Inventory or Equipment), or the issued and outstanding equity
securities of any of the other Guarantors or their respective subsidiaries, to
any corporation, partnership, limited liability company or other entity or
natural person, in each case, only so long as (x) no Event of Default shall have
occurred and be continuing, (y) the Borrowers and Interiors shall have obtained
the written consent of Foothill Capital Corporation in accordance with the terms
of the Senior Credit Agreement in respect of such sale or transfer (a copy of
which consent shall have been provided to the Lender), and (z) concurrently with
the completion of any such sale, the Borrowers shall comply with the terms and
provisions of the Promissory Note relating to the distribution or other use of
any proceeds from any such sale. The Guarantors shall give the Lender not less
than thirty (30) days' prior written notice of any such sale, which notice shall
state the expected closing date thereof. Promptly after its receipt of such
notice, the Lender shall, at the Guarantors' expense, take all steps reasonably
necessary and appropriate to, and shall, subject to the satisfaction of the
requirements set forth in the first sentence of this clause (b), release and
discharge the applicable Guarantor and/or its subsidiaries from all its
obligations hereunder effective as of the closing date of any such sale.
(c) Notwithstanding any provision of this Guaranty to the contrary, each
Guarantor consents and agrees, and the Lender by acceptance of this Guaranty
likewise consents and agrees, that all amounts payable hereunder to the Lender
by a Guarantor hereunder, all of the Guarantors' obligations hereunder, and all
remedies of the Lender hereunder, shall be subordinated to the extent set forth
in the Intercreditor Agreement. To the extent that any provision herein shall
conflict with the provisions of the Intercreditor Agreement, so long as the
Intercreditor Agreement shall be in effect, the terms of the Intercreditor
Agreement shall prevail.
Section 6. General Waivers. Except for written demand made by the Lender
on such Guarantor with respect to payment hereunder, each of the Guarantors
irrevocably waives acceptance hereof, presentment, demand or action on
delinquency, protest, the benefit of any statutes of limitations and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any person against any
Loan Party, any other guarantor of the Guaranteed Obligations, or any other
person.
Section 7. Subordination of Subrogation; Subordination of Intercompany
Indebtedness.
(a) Subordination of Subrogation. Until the Obligations have been paid in
full in cash, the Guarantors (i) shall have no right of subrogation with respect
to such Obligations and (ii) waive any right to enforce any remedy which the
Lender now has or may hereafter have against any Loan Party, any endorser or any
guarantor of all or any part of the Obligations or any
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other person, and the Guarantors waive any benefit of, and any right to
participate in, any security or collateral given to the Lender to secure the
payment or performance of all or any part of the Obligations or any other
liability of the Borrowers to the Lender. Should any Guarantor have the right,
notwithstanding the foregoing, to exercise its subrogation rights, each
Guarantor hereby expressly and irrevocably (A) subordinates any and all rights
at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off that the Guarantor may have to the payment in full in
cash of the Obligations and (B) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Obligations are paid in
full in cash. Each Guarantor acknowledges and agrees that this subordination is
intended to benefit the Lender and shall not limit or otherwise affect such
Guarantor's liability hereunder or the enforceability of this Guaranty, and that
the Lender and its successors and permitted assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 7(a).
(b) Subordination of Intercompany Indebtedness. Each Guarantor agrees that
any and all claims of such Guarantor against either Borrower or any other
Guarantor hereunder (each an "Obligor") with respect to any "Intercompany
Indebtedness" (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Obligations, or against any of its
properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Obligations. Notwithstanding any right of
any Guarantor to ask, demand, xxx for, take or receive any payment from any
Obligor, all rights, liens and security interests of such Guarantor, whether now
or hereafter arising and howsoever existing, in any assets of any other Obligor
(whether constituting part of Collateral given to the Lender to secure payment
of all or any part of the Obligations or otherwise) shall be and are
subordinated to the rights of the Lender in those assets. No Guarantor shall
have any right to possession of any such asset or to foreclose upon any such
asset, whether by judicial action or otherwise, unless and until all of the
Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document among the Borrowers and the Lender have been terminated. If all or any
part of the assets of any Obligor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Obligor, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding, or if the business of any such
Obligor is dissolved or if substantially all of the assets of any such Obligor
are sold (other than as permitted under the Promissory Note and the other Loan
Documents), then, and in any such event (such events being herein referred to as
an "Insolvency Event"), any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon or with respect to any indebtedness of any Obligor to any
Guarantor ("Intercompany Indebtedness") shall, subject to the terms of the
Intercreditor Agreement, be paid or delivered directly to the Lender for
application on any of the Obligations, due or to become due, until such
Obligations (other than contingent indemnity obligations) shall have first been
fully paid and satisfied (in cash). Should any payment, distribution, security
or instrument or proceeds thereof be received by the applicable Guarantor upon
or with respect to the Intercompany Indebtedness after any Insolvency Event and
prior to the satisfaction of all of the Obligations (other than contingent
indemnity obligations) and the termination of all financing arrangements
pursuant to any Loan Document among the Borrowers and the Lender, such Guarantor
shall receive and hold the same
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in trust, as trustee, for the benefit of the Lender and shall, subject to the
terms of the Intercreditor Agreement, forthwith deliver the same to the Lender
in precisely the form received (except for the endorsement or assignment of the
Guarantor where necessary), for application to any of the Obligations, due or
not due, and, until so delivered, the same shall be held in trust by the
Guarantor as the property of the Lender. If any such Guarantor fails to make any
such endorsement or assignment to the Lender, the Lender or any of its officers
or employees is irrevocably authorized to make the same. Subject to the terms of
the Intercreditor Agreement, each Guarantor agrees that until the Obligations
(other than the contingent indemnity obligations) have been paid in full (in
cash) and satisfied and all financing arrangements pursuant to any Loan Document
among the Borrowers and the Lender have been terminated, no Guarantor will
assign or transfer to any person (other than the Lender) any claim any such
Guarantor has or may have against any Obligor. Notwithstanding anything
contained in this Section 7(b) to the contrary, so long as no Event of Default
shall have occurred and be continuing, and so long as no Insolvency Event shall
have occurred, any Obligor may repay any Intercompany Indebtedness, and any
Guarantor to whom such debt is owed may accept the repayment thereof, when the
same shall become due and payable to the extent such payment shall be made and
accepted in the ordinary course of business and consistent with past practice.
Section 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guaranteed
Obligations and termination of the Promissory Note, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 8 is intended only to define the relative rights of the
Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
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(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full payment of the
Guaranteed Obligations in cash and the termination of the Promissory Note.
Section 9. Stay of Acceleration. If acceleration of the time for payment
of any amount payable by the Borrowers under the Promissory Note or any other
Loan Document is stayed upon the insolvency, bankruptcy or reorganization of any
Borrower, all such amounts otherwise subject to acceleration under the terms of
the Promissory Note or any other Loan Document shall nonetheless be payable by
each of the Guarantors hereunder forthwith on demand by the Lender.
Section 10. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in the Promissory Note
with respect to the Lender and with respect to any Guarantor at the address set
forth below or such other address or telecopy number as such party may hereafter
specify for such purpose by notice to the Lender in accordance with the
provisions of the Promissory Note.
Notice Address for Guarantors:
c/o Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Section 11. No Waivers. No failure or delay by the Lender in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in this Guaranty, the Promissory Note and the other
Loan Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 12. Successors and Assigns; Discharge Upon Certain Business
Combinations. This Guaranty is for the benefit of the Lender and its successors
and permitted assigns, provided, that no Guarantor shall have any right to
assign its rights or obligations hereunder without the consent of the Lender,
and any such assignment in violation of this Section 12 shall be null and void;
and in the event of an assignment of any amounts payable under the Promissory
Note or the other Loan Documents in accordance with the respective terms
thereof, the rights hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty shall be
binding upon each of the Guarantors and their respective successors and assigns.
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Section 13. Changes in Writing. Other than in connection with the addition
of additional subsidiaries of Interiors, which become parties hereto by
executing an Addendum hereto in the form attached as Annex I, neither this
Guaranty nor any provision hereof may be changed, waived, discharged or
terminated orally, but only in writing signed by each of the Guarantors and the
Lender.
Section 14. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS. ANY DISPUTE BETWEEN THE GUARANTORS
AND THE LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS GUARANTY, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
Section 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS GUARANTY, WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN
CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO,
ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO
THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH GUARANTOR AGREES THAT THE LENDER SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE GUARANTORS OR ITS PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER EACH
GUARANTOR OR (2) REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR (3) ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PERSON. EACH GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SUCH PERSON. EACH GUARANTOR WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED
A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
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(C) SERVICE OF PROCESS; VENUE. EACH GUARANTOR WAIVES PERSONAL
SERVICE OF ANY PROCESS UPON IT AND IRREVOCABLY APPOINTS INTERIORS, INC. WHOSE
ADDRESS IS 000 XXXXXXXXXX XXXXXX, XXXXX XXXXXX, XXX XXXX, 00000 AS EACH
GUARANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING ANY WRITS, SERVICE OF PROCESS OR
SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING ISSUED BY ANY COURT. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE LENDER TO SERVE ANY SUCH
WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
EACH GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) WAIVER OF BOND. EACH GUARANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 15, WITH ITS COUNSEL.
Section 16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an
ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto
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and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Guaranty.
Section 17. Expenses of Enforcement, etc. Subject to the terms of the
Promissory Note and the other Loan Documents, after the occurrence and during
the continuance of an Event of Default under the Promissory Note, the Lender
shall have the right at any time to commence enforcement proceedings with
respect to the Guaranteed Obligations. The Guarantors agree to reimburse the
Lender for any reasonable costs and out-of-pocket expenses (including reasonable
attorneys' fees and expenses, which attorneys may be employees of the Lender)
paid or incurred by the Lender in connection with the collection and enforcement
of amounts due under the Loan Documents, including without limitation this
Guaranty.
Section 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), the
Lender may, without notice to any Guarantor and regardless of the acceptance of
any security or collateral for the payment hereof, appropriate and apply toward
the payment of all or any part of the Guaranteed Obligations (i) any
indebtedness due or to become due from the Lender to any Guarantor, and (ii) any
moneys, credits or other property belonging to any Guarantor, at any time held
by or coming into the possession of the Lender or any of their respective
affiliates.
Section 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrowers and any and all endorsers and/or other Guarantors of all or any part
of the Guaranteed Obligations, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations, or any part thereof, that
diligent inquiry would reveal, and each Guarantor hereby agrees that the Lender
shall have no duty to advise such Guarantor of information known to any of them
regarding such condition or any such circumstances. In the event the Lender, in
its sole discretion, undertakes at any time or from time to time to provide any
such information to a Guarantor, the Lender shall be under no obligation (i) to
undertake any investigation not a part of its regular business routine, (ii) to
disclose any information which the Lender, pursuant to accepted or reasonable
commercial finance or banking practices, wishes to maintain confidential or
(iii) to make any other or future disclosures of such information or any other
information to such Guarantor.
Section 20. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
Section 21. Merger. This Guaranty represents the final agreement of each
of the Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and the Lender.
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Section 22. Headings. Section headings in this Guaranty are for
convenience of reference only and shall not govern the interpretation of any
provision of this Guaranty.
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IN WITNESS WHEREOF, each Initial Guarantor has caused this Guaranty
to be duly executed by its authorized officer as of the day and year first above
written.
ARTISAN HOUSE, INC.
TBD ONE, INC. (FORMERLY KNOWN AS
CSL LIGHTING MANUFACTURING,
INC.)
DECOR GROUP, INC.
HABITAT SOLUTIONS, INC.
XXXXXXXXX.XXX, INC.
MODEL HOME INTERIORS, INC.
PETALS FACTORY OUTLET OF
CONNECTICUT, INC.
PETALS FACTORY OUTLET OF
FLORIDA, INC.
PETALS FACTORY OUTLET OF
PENNSYLVANIA, INC.
PETALS FACTORY OUTLET, INC.
PETALS, INC.
STYLECRAFT LAMPS, INC.
TBD TWO , INC. (FORMERLY KNOWN
AS XXXX LIGHTING, INC.)
WINDSOR ART, INC.
By: ___________________________________
Its: ___________________________________
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ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "Guaranty") made as of the
19th day of March, 2001, by and among Artisan House, Inc., a Delaware
corporation, TBD One, Inc. (formerly known as CSL Lighting Manufacturing, Inc.),
a Delaware corporation, Decor Group, Inc., a Delaware corporation, Habitat
Solutions, Inc., a Delaware corporation, Xxxxxxxxx.xxx, Inc., a Delaware
corporation, Model Home Interiors, Inc., a Maryland corporation, Petals Factory
Outlet of Connecticut, Inc., a Connecticut corporation, Petals Factory Outlet of
Florida, Inc., a Florida corporation, Petals Factory Outlet of Pennsylvania,
Inc., a Pennsylvania corporation, Petals Factory Outlet, Inc., a New York
corporation, Petals, Inc., a Delaware corporation, Stylecraft Lamps, Inc., a
Tennessee corporation, TBD Two, Inc. (formerly known as Xxxx Lighting, Inc.), a
California corporation and Windsor Art, Inc., a California corporation (the
"Initial Guarantors" and along with any additional subsidiaries of Interiors,
Inc., a Delaware corporation, which become parties thereto and together with the
undersigned, the "Guarantors") in favor of the Lender under the Promissory Note.
Capitalized terms used herein and not defined herein shall have the meanings
given to them in the Guaranty. By its execution below, the undersigned [NAME OF
NEW GUARANTOR], a [corporation] [partnership] [limited liability company],
agrees to become, and does hereby become, a Guarantor under the Guaranty and
agrees to be bound by the terms and provisions of such Guaranty as if originally
a party thereto. By its execution below, the undersigned represents and warrants
as to itself that all of the representations and warranties contained in Section
2 of the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:_____________________________________
Title:__________________________________
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