GUARANTY AGREEMENT
Exhibit
10.4
THIS
GUARANTY AGREEMENT (this “Guaranty”)
is
made and entered into as of the 19th day of October, 2007, by the undersigned
guarantors, jointly and severally (the “Guarantors”),
for
the benefit of GUARANTY BANK, a state chartered trust company with banking
powers (the “Lender”).
A. DECORIZE,
INC., a Delaware corporation, GUILDMASTER, INC., a Missouri corporation,
and
FAITH WALK DESIGNS, INC., a Missouri corporation (each individually and
collectively, the “Borrower”),
has
executed a Revolving Promissory Note of near or even date herewith (the
“Note”),
in an
amount not to exceed Three Million and 00/100 Dollars ($3,000,000.00), in
favor
of Lender, evidencing a loan in such maximum principal amount (the “Loan”),
which
Loan is to be evidenced by a Revolving Promissory Note (the “Note”)
of
even date herewith and secured by a Security Agreement (the “Security
Agreement”)
of
even date herewith, which encumbers the collateral (the “Collateral”)
described therein. The Note, Credit Agreement, Security Agreement and all
other
documents delivered in connection with closing the Loan are referred to as
“Loan
Documents.” The
terms
of the Loan Documents are incorporated into this Guaranty by reference.
B. Each
Guarantor has a direct or indirect interest in Borrower and expects to benefit
directly and indirectly by the Loan, and is willing to execute and deliver
this
Guaranty Agreement in favor of Lender as an inducement to Lender to make
the
Loan to Borrower.
C. Lender
is
unwilling to make the Loan to Borrower unless, among other conditions, the
Guarantors execute and deliver to Lender this Guaranty.
Guaranty
NOW,
THEREFORE, in consideration of the Lender’s making the Loan to Borrower and in
consideration of other benefits accruing to the Guarantors by virtue of the
Loan
transaction, each Guarantor hereby makes the following covenants, agreements,
representations and warranties to Lender and to all future holders of the
Note
and Loan Documents (which parties are hereinafter included within the defined
term “Lender” as used herein) and hereby covenant and agree with Lender as
follows:
1. Guaranty.
Each
Guarantor irrevocably and unconditionally, jointly and severally, guarantees
to
the Lender full payment when due (whether by acceleration or otherwise) of
the
Note, together with the full and prompt payment of, and the full and prompt
performance of, all the other liabilities and obligations of the Borrower
incurred or to be incurred under the Loan Documents, and the full and prompt
payment and performance of any other liabilities and obligations of Borrower
to
Lender of any and every nature whatsoever, whether now existing or hereinafter
arising (all such liabilities and obligations, and the obligations contained
in
this Guaranty are collectively called the “Guaranteed
Obligations”).
This
Guaranty is a guaranty of payment and not a guaranty of collection. The
Guaranteed Obligations include any costs and expenses, including reasonable
attorneys’ fee, investigation and court costs incurred by the Lender in
enforcing this Guaranty and the enforcement of the Loan Documents.
2. Absolute
Liability.
Each
Guarantor irrevocably and unconditionally, jointly and severally, guarantees
to
the Lender that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Note, the Loan Documents and any other document entered
into between Borrower and Lender governing the performance thereof, regardless
of any law, regulation, or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of Lender with respect thereto.
The
liability of Guarantors under this Guaranty with regard to the Guaranteed
Obligations shall be fully enforceable, irrespective of:
a. Any
failure by Lender to give notice to any or all of the Guarantors of the
occurrence of an event of default under the terms and provisions of the Loan
Documents;
b. Any
changes or extensions of the time, manner, or place of payment of, or in
any
other term of, all or any of the Guaranteed Obligations or any other amendment
or waiver of or any consent to departure from the Note, the Loan Documents,
or
this Guaranty;
c. Any
exchange, release, or nonperfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guarantee,
for all
or any of the Guaranteed Obligations, or the taking of or omission to take
any
action under the Loan Documents or this Guaranty;
d. Any
invalidity or unenforceability of any term or provision of the Loan
Documents;
e. Any
change in ownership of the Borrower or any member of Borrower;
f. Any
bankruptcy, insolvency, or reorganization of, or other similar proceedings
involving the Borrower; or
g. Any
other
event or circumstance that might otherwise constitute a defense available
to, or
a discharge of, Borrower in respect of the Guaranteed Obligations or Guarantors
in respect of this Guaranty.
3. Continuing
Obligation.
Each
Guarantor irrevocably and unconditionally, jointly and severally, agrees
that to
the extent Borrower makes a payment or payments to Lender, which payment
or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, or required (for any of the foregoing
reasons or for any other reason) to be repaid or paid over to a custodian,
trustee, receiver, or any other party under the Bankruptcy Code or any other
state or federal law, statute, ordinance or regulation, or by order of any
court, then to the extent of such payment or repayment, the obligation or
part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if said payment had not been made, and each Guarantor shall
be
irrevocably and unconditionally, jointly and severally, primarily liable
for
this obligation.
4. Liability
Not Contingent.
Each
Guarantor agrees that the liability of Guarantors in respect of this Guaranty
shall be immediate and shall not be contingent upon the exercise or enforcement
by Lender of whatever remedies it may have against Borrower or any other
guarantor.
5. No
Reliance Upon Representations.
Each
Guarantor jointly and severally represents and warrants that each Guarantor
is
fully aware of the financial condition of Borrower. Guarantors deliver this
Guaranty based solely upon their own independent investigation and in no
part
upon any representation or statement of Borrower with respect thereto.
Guarantors are in a position to obtain, and hereby assume full responsibility
for obtaining, any additional information concerning the financial condition
of
Borrower as Guarantors may deem material to their obligations under this
Guaranty.
6. Representations
and Warranties.
Each
Guarantor jointly and severally represents and warrants to, and agrees with,
Lender as follows, all of which shall survive the execution and delivery
of this
Guaranty:
2
a. This
Guaranty has been duly executed and delivered by Guarantors, constitutes
the
legal, valid, and binding obligation of Guarantors enforceable against
Guarantors in accordance with its terms. This Guaranty does not violate any
law,
regulation, governmental requirement, judgment, order, or decree or any
agreement binding on any Guarantor.
b. There
are
no actions, suits, claims, proceedings, or to the knowledge of any Guarantor,
investigations, pending or threatened against, relating to, or affecting
any
Guarantor or any of their properties.
No
representation or warranty by Guarantors contained in this Guaranty, and
no
statement contained in any other document, certificate, or written statement
furnished to Borrower by or on behalf of Guarantors in connection herewith
and
therewith, contains any untrue statement of a material fact, or omits to
state
any material fact necessary, in light of the circumstances under which it
was
made, to make the statements herein or therein not misleading.
7. Waivers
of Guarantors.
Each
Guarantor hereby waives presentment, demand and protest; notice of acceptance
of
this Guaranty, of any default and of protest, dishonor or other action taken
in
reliance hereon; any right or defense Guarantors otherwise might have or
be
entitled to assert by reason of any failure (intentional or otherwise) to
perfect or to continue the perfection of, or to obtain or continue first
priority of, any security interest on any collateral securing in whole or
in
part any portion of the guaranteed obligations; and any and all demands and
notices of any kind in connection with the protection of or realization upon
any
of the guaranteed obligations.
8. No
Subrogation Rights.
Guarantors will not exercise any rights that they may acquire by way of
subrogation under this Guaranty, by any payment made under this Guaranty
or
otherwise, until all the Guaranteed Obligations and all of Guarantors’
obligations under this Guaranty shall have been paid in full. If any amount
shall be paid to any Guarantor on account of these subrogation rights at
any
time prior to as aforesaid, such amount shall be held in trust for the benefit
of Lender and shall forthwith be paid to Lender to be credited and applied
upon
the Guaranteed Obligations, whether matured or unmatured.
9. Benefit
and Binding Effect.
This
Guaranty shall be binding upon each Guarantor, and their respective successors
and assigns, and shall inure to the benefit of and be enforceable by Lender
and its respective successors, transferees and assigns. Without limiting
the
generality of the foregoing, Lender may assign or otherwise transfer the
Note
and Loan Documents held by it or any interest therein held by it to any other
person, and such other person shall thereupon become vested with all the
rights
in respect thereof granted to Lender in this Guaranty or otherwise.
10. Severability.
In case
any clause, provision or section of this Guaranty is for any reason held
to be
illegal, invalid or inoperable, such illegality, invalidity or inoperability
shall not affect the remainder thereof.
11. Governing
Law.
This
Guaranty and the rights and obligations of the Lender and Guarantors under
it
shall be governed by and construed in accordance with the law of Missouri.
Each
Guarantor hereby irrevocably submits to the nonexclusive jurisdiction of
any
court in Xxxxxx County, Missouri, or Federal court sitting in Xxxxxx County,
Missouri in any action or proceeding in connection with the enforcement of
any
of the obligations of Guarantors under this Guaranty.
3
12. Notices.
All
notices, consents or communications required or permitted to be given under
this
Guaranty shall be in writing and shall be deemed to have been properly given
and
received (i) if sent by hand delivery, then upon delivery, (ii) if sent by
overnight courier or United States Express Mail, then one (1) day after
dispatch, and (iii) if mailed by certified or registered U.S. mail, postage
prepaid and return receipt requested, then two (2) days after deposit in
the
mail. All such notices and communications shall be given to the parties at
their
respective addresses set forth below; however, Lender shall have no liability
to
any party for failing to provide Borrower with any notice required or permitted
to be given under this Guaranty, nor shall Lender’s failure to provide the
Guarantors with any such notices prevent Lender from exercising its rights
or
pursuing any remedies under this Guaranty, the Note or any of the other Loan
Documents. Either party may change the address by written notice to the
other.
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Lender:
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Guaranty
Bank
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0000
X. Xxxxxxxxxxx
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Xxxxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxx Xxxxxxxxxxx, Xx. Vice President
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxxxxxxx
Xxxxxxx, LLP
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000
Xx. Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxxxx X. Xxxxxxx
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Facsimile
(000) 000-0000
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Guarantors:
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WestWay
Enterprises, Ltd.
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c/o
Decorize, Inc.
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0000
X. Xxxxxx
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Xxxxxxxxxxx,
Xxxxxxxx 00000
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Attn:
XX Xxxxxx
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Facsimile:
(000) 000-0000
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P.T.
Niaga Merapi
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c/o
Decorize, Inc.
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0000
X. Xxxxxx
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Xxxxxxxxxxx,
Xxxxxxxx 00000
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Attn:
XX Xxxxxx
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxxxxx
& Xxxxxx, P.C.
|
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0000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Attn.:
M. Xxxxxxxxxxx Xxxxxx
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Facsimile:
(000) 000-0000
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13. Waiver
of Jury Trial.
EACH
GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, Guarantors have caused this Guaranty to be executed and
delivered as of the date set forth above.
| GUARANTORS: | ||
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WESTWAY ENTERPRISES, LTD., a Hong Kong
corporation
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name:
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Xxxxx X. Xxxxxx
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| Title: | Director | |
| P.T. NIAGA MERAPI., an Indonesian corporation | ||
| |
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| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: |
Xxxxx X. Xxxxxx |
|
| Title: | Director | |
