EXHIBIT (10.14)
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GUARANTY AGREEMENT
from
THE XXXX COMPANIES,
THE XXXXXXXX GOLD CO.,
XXXX PROPERTIES, INC.,
STOREHOUSE, INC.,
HOME ELEMENTS, INC.,
XXXX DIVERSIFIED, INC.
and
WEXFORD COLLECTION, INC.
Dated as of August 27, 1999
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TABLE OF CONTENTS
Page
SECTION 1. Guaranty................................................. 2
SECTION 2. Bankruptcy............................................... 3
SECTION 3. No Right of Set-Off...................................... 3
SECTION 4. Continuing Guaranty...................................... 3
SECTION 5. Reinstatement............................................ 3
SECTION 6. Certain Actions.......................................... 3
SECTION 7. Application.............................................. 4
SECTION 8. Waiver................................................... 4
SECTION 9. Assignment............................................... 4
SECTION 10. Miscellaneous............................................ 5
GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT, dated as of August 27, 1999 (as amended or
otherwise modified from time to time, this "Guaranty"), is made by The Xxxx
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Companies, a Nevada corporation ("Xxxx Companies"), the Xxxxxxxx Gold Co., a
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North Carolina corporation, Xxxx Properties, Inc., a California corporation,
Storehouse, Inc., a Georgia corporation, Home Elements, Inc., a Virginia
corporation, Xxxx Diversified, Inc., a Delaware corporation, and Wexford
Collection, Inc., a California corporation (the "Guarantors").
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W I T N E S S E T H:
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WHEREAS, Xxxx Furniture, Inc. and certain other subsidiaries of The Xxxx
Companies that may thereafter become party thereto, as Lessees, The Xxxx
Companies, The Xxxxxxxx Gold Co., Xxxx Properties, Inc., Storehouse, Inc., Home
Elements, Inc., Xxxx Diversified, Inc. and Wexford Collection, Inc. and certain
other subsidiaries of The Xxxx Companies that may thereafter become party
thereto, as Guarantors, Atlantic Financial Group, Ltd., as Lessor, Crestar Bank
and certain financial institutions parties thereto, as Lenders, and Crestar
Bank, as Agent, have entered into that certain Master Agreement, dated as of
August 27, 1999 (as it may be modified, amended or restated from time to time as
and to the extent permitted thereby, the "Master Agreement"; and, unless
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otherwise defined herein, terms which are defined or defined by reference in the
Master Agreement (including Appendix A thereto) shall have the same meanings
when used herein as such terms have therein); and
WHEREAS, it is a condition precedent to the Funding Parties consummating
the transactions to be consummated on the Initial Closing Date that the
Guarantors execute and deliver this Guaranty; and
WHEREAS, it is in the best interests of the Guarantors that the
transactions contemplated by the Master Agreement be consummated on the Initial
Closing Date; and
WHEREAS, this Guaranty, and the execution, delivery and performance hereof,
have been duly authorized by all necessary corporate action of the Guarantors;
and
WHEREAS, this Guaranty is offered by the Guarantors as an inducement to the
Funding Parties to consummate the transactions contemplated in the Master
Agreement, which transactions, if consummated, will be of benefit to the
Guarantors;
NOW, THEREFORE, in consideration of the foregoing and the cash sum of $1.00
paid by each Funding Party and Xxxx Furniture to each Guarantor and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantors, the Guarantors hereby agree as follows:
SECTION 1. Guaranty. The Guarantors hereby, jointly and severally,
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unconditionally guarantee to the Agent and the Funding Parties the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
thereafter, and the full and prompt performance, of all of the Liabilities (as
hereinafter defined), including interest and earnings on any such Liabilities
whether accruing before or after any bankruptcy or insolvency case or proceeding
involving any Guarantor, or any other Person and, if interest or earnings on any
portion of such obligations ceases to accrue by operation of law by reason of
the commencement of such case or proceeding, including such interest and
earnings as would have accrued on any such portion of such obligations if such
case or proceeding had not commenced, and further agrees to pay all reasonable
expenses (including reasonable attorneys' fees and legal expenses) actually paid
or incurred by each of the Funding Parties in endeavoring to collect the
Liabilities, or any part thereof, and in enforcing this Guaranty. The term
"Liabilities", as used herein, shall mean all of the following, in each case
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howsoever created, arising or evidenced, whether direct or indirect, joint or
several, absolute or contingent, or now or hereafter existing, or due or to
become due: (i) all amounts payable by the Lessees to the Agent and the Funding
Parties under the Lease (including, without limitation, Basic Rent, Supplemental
Rent and the Recourse Deficiency Amount), the Master Agreement, the Construction
Agency Agreement or any other Operative Document, and (ii) all principal of the
Notes and interest accrued thereon, and all additional amounts and other sums at
any time due and owing, and required to be paid, to the Funding Parties under
the terms of the Master Agreement, the Loan Agreement, the Construction Agency
Agreement, the Assignments of Lease and Rents, the Mortgages, the Notes or any
other Operative Document; provided, however, that the Guarantors will not be
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obligated to pay to the Agent and Funding Parties under this Guaranty any
amounts greater than the Lessees would have had to pay to the Agent and the
Funding Parties under the Lease, the Master Agreement, the Construction Agency
Agreement and the other Operative Documents assuming that such documents were
enforced in accordance with their terms (and without giving effect to any
discharge or limitation thereon resulting or arising by reason of the bankruptcy
or insolvency of a Lessee), plus all actual and reasonable costs of enforcing
this Guaranty.
By way of extension but not in limitation of any of its other obligations
hereunder, the Guarantors stipulate and agree
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that in any event any foreclosure proceedings are commenced with respect to any
Leased Property and result in the entering of a foreclosure judgment, any such
foreclosure judgment, to the extent related to the Liabilities and payable to
any of the Funding Parties, shall be treated as part of the Liabilities, and the
Guarantors, jointly and severally, unconditionally guarantee the full and prompt
payment of such judgment.
SECTION 2. Bankruptcy. Each Guarantor agrees that, in the event any
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bankruptcy, reorganization or insolvency proceeding shall be instituted by or
against such Guarantor and, if instituted against such Guarantor, shall not be
dismissed or stayed for a period of sixty days, and if such event shall occur at
a time when any of the Liabilities may not then be due and payable, such
Guarantor will pay to the Funding Parties forthwith the full amount which would
be payable hereunder by it if all Liabilities were then due and payable.
SECTION 3. No Right of Set-Off. Notwithstanding anything contained herein
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to the contrary, each Funding Party hereby waives any setoff rights it may have
at law or equity against any of the balances, credits, deposits, accounts or
moneys of any Guarantor held by such Funding Party.
SECTION 4. Continuing Guaranty. THIS GUARANTY SHALL IN ALL RESPECTS BE A
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CONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTY OF PROMPT AND COMPLETE PAYMENT
AND PERFORMANCE (AND NOT MERELY OF COLLECTION), AND SHALL REMAIN IN FULL FORCE
AND EFFECT (NOTWITH-STANDING, WITHOUT LIMITATION, THE DISSOLUTION OF ANY
GUARANTOR) UNTIL THE TERMINATION OF THE COMMITMENTS AND THE FULL AND FINAL
PAYMENT OF ALL OF THE LIABILITIES.
SECTION 5. Reinstatement. Each Guarantor further agrees that, if at any
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time all or any part of any payment theretofore applied to any of the
Liabilities is or must be rescinded or returned for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
any Guarantor), 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, 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 had not been made.
SECTION 6. Certain Actions. The Funding Parties may, from time to time
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at their discretion and without notice to any Guarantor, take any or all of the
following actions: (a) retain or obtain (i) a security interest in any Lessee's
interests in the Lease and (ii) a lien or a security interest hereafter granted
by any Person upon or in any property (other than
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Lessee's Property and property listed as Permitted Encumbrances), located on the
Land or in the Building, in each case 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 Guarantors, with respect to any
of the Liabilities; (c) extend or renew for one or more periods (regardless of
whether longer than the original period), or release or compromise any
obligation of the Guarantors hereunder or any obligation of any nature of any
other obligor (including, without limitation, the Lessor and the Lessees) with
respect to any of the Liabilities; (d) release or fail to perfect its Lien upon
or security interest in, or impair, 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 (regardless of whether longer than the original period) or release or
compromise any obligations of any nature of any obligor with respect to any such
property; and (e) resort to the Guarantors for payment of any of the
Liabilities, regardless of whether the Agent or any other Person shall have
resorted to any property securing any of the Liabilities or any obligation
hereunder or shall have proceeded against any Lessee or any other obligor
primarily or secondarily obligated with respect to any of the Liabilities (all
of the actions referred to in this clause (e) being hereby expressly waived by
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each Guarantor).
SECTION 7. Application. Any amounts received by any Funding Party from
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whatever source on account of the Liabilities shall be applied by it toward the
payment of such of the Liabilities, and in such order of application, as is set
forth in the Operative Documents.
SECTION 8. Waiver. Each Guarantor hereby expressly waives: (a) notice of
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the acceptance 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 the Liabilities or any thereof,
any obligation hereunder, or any security for or guaranty of any of the
foregoing.
SECTION 9. Assignment. Subject to Article 6 of the Master Agreement,
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each Funding Party may, from time to time, whether before or after any
discontinuance of this Guaranty, at its sole discretion and without notice to
the Guarantors, assign or transfer any or all of its portion 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 such
immediate and successive assignee or transferee of any of the Liabilities or of
any
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interest therein shall, to the extent of such assignee's or transferee's
interest in the Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were such Funding Party.
SECTION 10. Miscellaneous. No delay in the exercise of any right or
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remedy shall operate as a waiver thereof, and no single or partial exercise 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 of the provisions of this Guaranty be binding upon any Funding Party except
as expressly set forth in a writing duly signed and delivered on its behalf. No
action permitted hereunder shall in any way affect or impair any Funding Party's
rights or the Guarantors' obligations under this Guaranty. For the purposes of
this Guaranty, Liabilities shall include all of the obligations described in the
definition thereof, notwithstanding any right or power of any Lessee or the
Lessor or anyone else to assert any claim or defense (other than final payment
or full performance) as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of the Guarantors hereunder. Each Guarantor hereby acknowledges that there are
no conditions to the effectiveness of this Guaranty.
This Guaranty shall be binding upon each Guarantor and upon each
Guarantor's successors and permitted assigns; and all references herein to the
Guarantors or any Guarantor shall be deemed to include any successor or
successors, whether immediate or remote, to such Person; provided that no
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Guarantor shall assign its obligations hereunder without the prior written
consent of the Agent on behalf of the Funding Parties.
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 thereunder, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
Each Guarantor: (a) submits for itself and its property in any legal
action or proceeding relating to this Guaranty, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of Virginia, the courts of the United
States of America for the Western District of Virginia, and appellate courts
from any thereof; (b) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought
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in an inconvenient court and agrees not to plead or claim the same; (c) agrees
that service of process in any such action or proceeding may be effected by
delivering a copy thereof to it at its address set forth in the Master Agreement
or at such other address of which the other parties to the Master Agreement
shall have been notified pursuant to Section 8.2 of the Master Agreement; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right of the
Funding Parties to xxx in any other jurisdiction.
All notices, demands, declarations, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Guaranty shall be in writing and shall be deemed to have been duly given when
addressed to the appropriate Person and delivered in the manner specified in
Section 8.2 of the Master Agreement.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF VIRGINIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be executed
and delivered as of the date first above written.
THE XXXX COMPANIES, as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: ASSISTANT TREASURER
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THE XXXXXXXX GOLD CO.,
as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: TREASURER
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XXXX PROPERTIES, INC.,
as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: TREASURER
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STOREHOUSE, INC.,
as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: TREASURER
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HOME ELEMENTS, INC., as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: TREASURER
XXXX DIVERSIFIED, INC.,
as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: TREASURER
X-0
XXXXXXX COLLECTION, INC.,
as Guarantor
By: /s/ Xxxxx X. Angle
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Name Printed: XXXXX X. ANGLE
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Title: TREASURER
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