EXHIBIT 10.4.3
GUARANTY
THIS GUARANTY dated as of May 2, 2000 is executed in favor of HOUSEHOLD
COMMERCIAL FINANCIAL SERVICES, INC., a Delaware corporation (the "Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Homegold, Inc., a South Carolina corporation (the "Company")
has entered into a Credit Agreement dated as of May 2, 2000 (as amended or
otherwise modified from time to time, the "Credit Agreement"; terms used but not
defined herein are used as defined in the Credit Agreement) with Lender,
pursuant to which Lender has agreed to make loans to the Company; and
WHEREAS, each of the undersigned will benefit from the making of loans
pursuant to the Credit Agreement and is willing to guaranty the Liabilities (as
defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally, unconditionally and irrevocably, as primary obligor and
not merely as surety, guarantees the full and prompt payment when due, whether
by acceleration or otherwise, and at all times thereafter, of all obligations
(monetary or otherwise) of the Company to the Lender under or in connection with
the Credit Agreement, the Note, any other Loan Document and any other document
or instrument executed in connection therewith, in each case howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due (all such obligations being herein
collectively called the "Liabilities"); provided that the liability of each of
the undersigned hereunder shall be limited to the maximum amount of the
Liabilities which such undersigned may guaranty without violating any fraudulent
conveyance or fraudulent transfer law (plus all costs and expenses paid or
incurred by the Lender in enforcing this Guaranty against such undersigned).
Each of the undersigned agrees that if any Event of Default shall occur
under Section 8.1 of the Credit Agreement, and if such event shall occur at a
time when any of the Liabilities may not then be due and payable, such
undersigned will pay to the Lender forthwith the full amount which would be
payable hereunder by such undersigned if all Liabilities were then due and
payable.
To secure all obligations of each of the undersigned hereunder, the
Lender shall have a lien on and security interest in and may, without demand or
notice of any kind, at any time and from time to time when any Event of Default
exists, appropriate and apply toward the payment of such amount, in such order
of application as the Lender may elect, any and all balances, credits,
deposits, accounts or moneys of or in the name of such undersigned now or
hereafter with the Lender and any and all property of every kind or description
of or in the name of such undersigned now or hereafter, for any reason or
purpose whatsoever, in the possession or control of, or in transit to, the
Lender or any agent or bailee for the Lender.
This Guaranty shall in all respects be a continuing, irrevocable,
absolute and unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the undersigned
or that at any time or from time to time no Liabilities are outstanding) until
the Commitment has terminated and all Liabilities have been paid in full.
The undersigned further agree that if at any time all or any part of
any payment theretofore applied by the Lender to any of the Liabilities is or
must be rescinded or returned by the Lender for any reason whatsoever (including
the insolvency, bankruptcy or reorganization of the Company or any of the
undersigned), such Liabilities shall, for the purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application by the Lender, and this
Guaranty shall continue to be effective or be reinstated, as the case may be, as
to such Liabilities, all as though such application by the Lender had not been
made.
The Lender may, from time to time, at its sole discretion and without
notice to the undersigned (or any of them), take any or all of the following
actions: (a) retain or obtain a security interest in any property to secure any
of the Liabilities or any obligation hereunder, (b) retain or obtain the primary
or secondary obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Liabilities, (c) extend or renew any of
the Liabilities for one or more periods (whether or not longer than the original
period), alter or exchange any of the Liabilities, or release or compromise any
obligation of any of the undersigned hereunder or any obligation of any nature
of any other obligor with respect to any of the Liabilities, (d) release its
security interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Liabilities or
any obligation hereunder, or extend or renew for one or more periods (whether or
not longer than the original period) or release, compromise, alter or exchange
any obligations of any nature of any obligor with respect to any such property,
and (e) resort to the undersigned (or any of them) for payment of any of the
Liabilities when due, whether or not the Lender shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall
have proceeded against any other of the undersigned or any other obligor
primarily or secondarily obligated with respect to any of the Liabilities.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by the Lender of this Guaranty, (b) notice of the existence or
creation or non-payment of all or any of the Liabilities, (c) presentment,
demand, notice of dishonor, protest, and all other notices whatsoever, and (d)
all diligence in collection or protection of or realization upon any Liabilities
or any security for or guaranty of any Liabilities.
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Notwithstanding any payment made by or for the account of any of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated
to any right of the Lender until such time as the Lender shall have received
final payment in cash of the full amount of all Liabilities.
Each of the undersigned further agrees to pay all expenses (including
the reasonable attorneys' fees and charges) paid or incurred by the Lender in
endeavoring to collect the Liabilities of such undersigned, or any part thereof,
and in enforcing this Guaranty against such undersigned.
The creation or existence from time to time of additional Liabilities
to the Lender is hereby authorized, without notice to the undersigned (or any of
them), and shall in no way affect or impair the rights of the Lender or the
obligations of the undersigned under this Guaranty, including each of the
undersigned's guaranty of such additional Liabilities.
The Lender may from time to time without notice to the undersigned (or
any of them), assign or transfer any or all of the Liabilities or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and remain Liabilities
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were an original Lender.
No delay on the part of the Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy; nor shall any modification
or waiver of any provision of this Guaranty be binding upon the Lender, except
as expressly set forth in a writing duly signed and delivered on behalf of the
Lender. No action of the Lender permitted hereunder shall in any way affect or
impair the rights of the Lender or the obligations of the undersigned under this
Guaranty. For purposes of this Guaranty, Liabilities shall include all
obligations of the Company to the Lender arising under or in connection with the
Credit Agreement, any Note, any other Loan Document or any other document or
instrument executed in connection therewith, in each case notwithstanding any
right or power of the Company or anyone else to assert any claim or defense as
to the invalidity or unenforceability of any such obligation, and no such claim
or defense shall affect or impair the obligations of any of the undersigned
hereunder.
This Guaranty shall be binding upon the undersigned and the successors
and assigns of the undersigned; and to the extent that the Company or any of the
undersigned is either a partnership or a corporation, all references herein to
the Company and to the undersigned, respectively, shall be deemed to include any
successor or successors, whether immediate or remote, to such partnership or
corporation. The term "undersigned" as used herein shall mean all parties
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executing this Guaranty and each of them, and all such parties shall be jointly
and severally obligated hereunder.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Illinois applicable to contracts made and to be fully
performed in such State. 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.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty. At any time after the date of this
Guaranty, one or more additional Persons may become parties hereto by executing
and delivering to the Agent a counterpart of this Guaranty. Immediately upon
such execution and delivery (and without any further action), each such
additional Person will become a party to, and will be bound by all of the terms
of, this Guaranty.
This Guaranty may be secured by one or more security agreements, pledge
agreements, mortgages, deeds of trust or other similar documents.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE
UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH OPPOSITE ITS SIGNATURE HERETO
(OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE LENDER AS
ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED
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TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) LENDER,
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY, ANY OTHER LOAN DOCUMENT AND
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
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IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
Address: HOMEGOLD FINANCIAL, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: CAROLINA INVESTORS, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: PREMIER FINANCIAL SERVICES INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: LOAN PRO$, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT BUSINESS CAPITAL ASSET
BASED LENDING, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: XXXXX RIVER VENTURES, L.P.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT SBIC, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT COMMERCIAL MORTGAGE,
INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT BUSINESS CAPITAL, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT AUTO HOLDINGS, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT INSURANCE AGENCY CORP.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Address: EMERGENT MORTGAGE CORP. OF
TENNESSEE
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:______________________________
Its:_______________________________
Address: HOMEGOLD REALTY, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:_________________________________
Name:_______________________________
Its:________________________________
Signature page for the Guaranty dated as of __________, ____
among ___________, ___________ and __________ and Household
Commercial Financial Services, Inc., as Lender
The undersigned is executing a counterpart hereof for
purposes of becoming a party hereto:
[ADDITIONAL GUARANTOR]
By: ____________________________________________________
Title:______________________________________________
Address:
