Exhibit 10.7 Annex K
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (this "Guaranty") dated as of _______ ___, 1998,
is executed and delivered by Xxx Xxxx and Xxxxxx Xxxx, his wife ("Guarantors")
in favor of Bentley International, Inc., a Missouri corporation ("Beneficiary").
(i) Guaranty. Guarantors irrevocably and unconditionally guarantee to
Beneficiary full and indefeasible payment of all indebtedness owed by Interiors,
Inc., a Delaware corporation ("Obligor"), to Beneficiary under (i) that certain
promissory note dated of even date herewith, in the principal amount of
$2,000,000 and (ii) that certain promissory note dated of even date herewith, in
the principal amount of $3,300,000 (collectively, the "Notes"), including all
principal and interest (including any interest which, but for the application of
the provisions of the United States Bankruptcy Code, would have accrued on such
amounts), when and as the same shall become due and payable, whether at
maturity, acceleration, or otherwise; it being the intent of Guarantors that
this is a guaranty of payment (the "Guaranteed Obligations"). This Guaranty is a
continuing guaranty. In the event that Obligor fails to timely make any payment
of any Guaranteed Obligations, Guarantors immediately shall cause such payment
to be made. Guarantors agree that a separate action may be brought against
Guarantors, and each of them, whether such action is brought against Obligor or
whether Obligor is joined in such action. Guarantors agree that Beneficiary
shall be under no obligation to marshal any assets of Obligor in favor of
Guarantors, or any of them, or against or in payment of any or all of the
Guaranteed Obligations.
(ii) Joint and Several Obligation. The obligations of Guarantors under this
Guaranty are joint and several.
(iii) Waivers. To the maximum extent permitted by law, Guarantors waive:
(1) notice of acceptance hereof; (2) notice of any adverse change in the
financial condition of Obligor or of any other fact that might increase
Guarantors'
risk hereunder; (3) notice of presentment for payment, demand, protest, and
notice thereof as to the Notes; (4) all other notices and demands to which
Guarantors might otherwise be entitled; (5) the right by statute or otherwise to
require Beneficiary to institute suit against Obligor or to exhaust any rights
and remedies which Beneficiary has or may have against Obligor; (6) any defense
arising by reason of any disability or other defense (other than the defense
that the Guaranteed Obligations shall have been fully indefeasibly paid) of
Obligor or by reason of the cessation from any cause whatsoever of the liability
of Obligor in respect thereof; (7) any rights to assert against Beneficiary any
defense (legal or equitable), set-off, counterclaim, or claim which Guarantors
may now or at any time hereafter have against Obligor or any other party liable
to Beneficiary, whether or not arising directly or indirectly from the present
or future lack of perfection, sufficiency, validity, or enforceability of the
Guaranteed Obligations or any security therefor; (8) any defense arising by
reason of any claim or defense based upon an election of remedies by
Beneficiary; and (9) the benefit of any statute of limitations affecting
Guarantor's liability hereunder.
(iv) Releases. Guarantors consent and agree that, without notice to or by
Guarantor and without affecting or impairing the obligations of Guarantor
hereunder, Beneficiary may, by action or inaction: (a) compromise, settle,
extend the duration or the time for the payment of, or discharge the performance
of, or may refuse to or otherwise not enforce the Notes; (b) release all or any
one or more parties to the Notes; or (c) release or substitute any Guarantor, if
any, of the Guaranteed Obligations, or enforce, exchange, release, or waive any
security for the Guaranteed Obligations or any other guaranty of the Guaranteed
Obligations, or any portion thereof.
(v) Restriction on Transfer of Assets. Guarantors covenant and agree with
Beneficiary that they shall not transfer or convey any of their assets for less
than the fair market value thereof unless and until the Guaranteed Obligations
have been satisfied in full.
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(vii) Financial Condition of Obligor. Guarantors agree to keep informed of
Obligor's financial condition.
(ix) Miscellaneous.
(a) Any provision of this Guaranty which is prohibited or unenforceable
under applicable law, shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. This
Guaranty constitutes the entire agreement between Guarantors and Beneficiary
pertaining to the subject matter contained herein. This Guaranty may not be
altered, amended, or modified, nor may any provision hereof be waived or
noncompliance therewith consented to, except by means of a writing executed by
both Guarantor and Representative. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(b) Each party hereto irrevocably submits to the jurisdiction of the courts
of the State of Missouri and the United States District Court for the Eastern
District of Missouri for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Guaranty and the transactions contemplated
hereby and to the laying of venue in any such court. Each party hereto
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) All notices and other communications under or in connection with this
Guaranty shall be in writing and shall be deemed given (i) if delivered
personally, upon delivery, (ii) if delivered by registered or certified mail
(return receipt requested), upon the earlier of actual delivery or three days
after being mailed, or (iii) if given by facsimile, upon confirmation of
transmission by facsimile, in each case to the parties at the following
addresses:
If to Guarantors addressed to:
c/o Interiors, Inc.
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000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxx Xxxx
With copies to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Twenty-Third Floor
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to the Shareholder, addressed
to:
Xx. Xxxxx X. Xxxxxx, Pres.
Bentley International, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, XX 00000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Riezman & Blitz, P.C.
0000 Xxxxxxxx Xxx. 0xx Xxxxx
Xx. Xxxxx, XX 00000
Facsimile: 314-727-6458
IN WITNESS WHEREOF, Guarantors have executed and delivered this Guaranty as
of the date set forth in the first paragraph hereof.
XXXXXX XXXX
"Guarantor"
XXX XXXX
"Guarantor"
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STATE OF ________ )
) SS.
COUNTY OF ______ )
On this _____ day of __________, 1998, before me personally appeared XXXXXX
XXXX, to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that she executed the same as her free act and
deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
My Commission Expires: _______ _______________________
Notary Public
STATE OF ________ )
) SS.
COUNTY OF ______ )
On this _____ day of __________, 1998, before me personally appeared XXX
XXXX, to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
My Commission Expires: _______ _______________________
Notary Public
APPROVED:
Bentley International, Inc.
By:
An Authorized Officer
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