EXECUTION COPY
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 19th day of March, 2001,
by Interiors, Inc., a Delaware corporation ("Interiors" or the "Guarantor") in
favor of BI;
WITNESSETH:
WHEREAS, from time to time Xxxxxx Industries, Inc. ("BI") and Stylecraft
Lamps, Inc., a Tennessee corporation ("Stylecraft" or the "Account Debtor") have
entered into, or hereafter may enter into, agreements of sale or agreements to
provide goods and services (all such agreements being collectively referred to
herein as "Trade Agreements"), pursuant to which BI has provided, and, in its
sole discretion may from time to time hereafter provide, goods and services to
the Account Debtor, and in respect of which the Account Debtor may from time to
time become obligated to BI for payment of amounts in respect of Trade
Agreements (all such amounts being "Obligations");
WHEREAS, the Account Debtor is a direct, wholly-owned subsidiary of the
Guarantor;
WHEREAS, the execution and delivery by the Guarantor of this Guaranty,
whereby the Guarantor shall guarantee the payment when due (whether at stated
maturity, upon acceleration or otherwise) of all Obligations, is one of the
conditions to the willingness of BI to continue to enter into Trade Agreements
with the Account Debtor and to provide other financial accommodations to the
Account Debtor; and
WHEREAS, in consideration of the direct and indirect financial and other
support that the Account Debtor has provided, and such direct and indirect
financial and other support as the Account Debtor may in the future provide, to
the Guarantor, and in order to induce BI to continue to enter into Trade
Agreements with the Account Debtor, the Guarantor is willing to guarantee the
payment when due (whether at stated maturity, upon acceleration or otherwise) of
all of the Obligations;
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 Security Agreement, dated as
of even date herewith between the Account Debtor and BI (as amended) and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
Section 2. Representations, Warranties and Covenants. The Guarantor
represents and warrants that:
(a) It is a corporation 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 the 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 the Guarantor, enforceable
against the 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 by 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, 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 the
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 previously been obtained or made.
Section 3. The Guaranty. The Guarantor hereby unconditionally guarantees
the full and punctual payment when due (whether at stated maturity, upon
acceleration or otherwise) of the Obligations, including, without limitation,
all amounts payable by the Account Debtor in respect of any Trade Agreement and
any security agreement executed by the Account Debtor granting liens in favor of
BI to secure the Obligations (collectively, the "Guaranteed Obligations"). Upon
failure by the Account Debtor or any of its affiliates, as applicable, to pay
punctually any such amount when due (whether at stated maturity, upon
acceleration or otherwise), the Guarantor agrees that it shall forthwith on
demand by BI pay such amount at the place and in the manner specified in any
Trade Agreement. The Guarantor 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 the Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
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(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 any Trade
Agreement, 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 other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any other guarantor of the Guaranteed
Obligations, or any of their respective assets or any resulting release or
discharge of any obligation of any other guarantor of any of the
Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Guarantor may have at any time against any other guarantor of any of the
Guaranteed Obligations, BI 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 other guarantor of any of the
Guaranteed Obligations, for any reason related to any Trade Agreement, or
any provision of applicable law or regulation purporting to prohibit the
payment by any other guarantor of the Guaranteed Obligations, of any of
the Guaranteed Obligations;
(vii) the failure of BI 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;
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(viii) the election by, or on behalf of, BI, 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 Account
Debtor, 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 BI 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
other guarantor of the Guaranteed Obligations, BI 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 the
Guarantor's obligations hereunder.
Section 5. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances; Subordination.
(a) The Guarantor's obligations hereunder shall remain in full force and
effect until all Guaranteed Obligations shall have been paid in full in cash and
all Trade Agreements shall have terminated or expired. If at any time any
payment of any amount payable by the Account Debtor under any Trade Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of Account Debtor or otherwise, the Guarantor's
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 any provision of this Guaranty to the contrary, the
Guarantor consents and agrees, and BI by acceptance of this Guaranty likewise
consents and agrees, that all amounts payable hereunder by the Guarantor to BI,
all of the Guarantor's obligations hereunder, and all remedies of BI 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 BI on the
Guarantor with respect to payment hereunder, the Guarantor 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 other guarantor of the
Guaranteed Obligations, or any other person.
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Section 7. Subordination of Subrogation. Until the Obligations have been
paid in full in cash, the Guarantor (i) shall have no right of subrogation with
respect to such Obligations and (ii) waives any right to enforce any remedy
which BI now has or may hereafter have against any endorser or any guarantor of
all or any part of the Obligations or any other person, and the Guarantor waives
any benefit of, and any right to participate in, any security or collateral
given to BI to secure the payment or performance of all or any part of the
Obligations or any other liability of the Account Debtor to BI. Should the
Guarantor have the right, notwithstanding the foregoing, to exercise its
subrogation rights, the 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. The Guarantor
acknowledges and agrees that this subordination is intended to benefit BI and
shall not limit or otherwise affect the Guarantor's liability hereunder or the
enforceability of this Guaranty, and that BI and its successors and permitted
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 7(a).
Section 8. Intentionally Omitted.
Section 9. Stay of Acceleration. If acceleration of the time for payment
of any amount payable by the Account Debtor in respect of any Trade Agreement is
stayed upon the insolvency, bankruptcy or reorganization of the Account Debtor,
all such amounts otherwise subject to acceleration under the terms of Trade
Agreement shall nonetheless be payable by the Guarantor hereunder forthwith on
demand by BI.
Section 10. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in any Trade Agreement
with respect to BI and with respect to the 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 BI.
Notice Address for Guarantor:
Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
Section 11. No Waivers. No failure or delay by BI 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 and any Trade Agreement shall be cumulative
and not exclusive of any rights or remedies provided by law.
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Section 12. Successors and Assigns; Discharge Upon Certain Business
Combinations. This Guaranty is for the benefit of BI and its successors and
permitted assigns, provided, that the Guarantor shall not have any right to
assign its rights or obligations hereunder without the consent of BI, 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 in respect of any Trade
Agreement 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 the Guarantor and
its successors and assigns.
Section 13. Changes in Writing. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by the Guarantor and BI.
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 GUARANTOR
AND BI 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. THE GUARANTOR AGREES THAT BI SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GUARANTOR OR ITS PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE
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
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PERSON. THE 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. THE 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).
(C) SERVICE OF PROCESS; VENUE. THE GUARANTOR WAIVES PERSONAL SERVICE
OF ANY PROCESS UPON IT. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE
ABILITY OF BI TO SERVE ANY WRITS, PROCESS OR SUMMONSES IN ANY MANNER PERMITTED
BY APPLICABLE LAW. THE 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. THE 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 TRADE AGREEMENT.
(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.
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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 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
Intercreditor Agreement, after the occurrence and during the continuance of an
event of default in respect of any Trade Agreement, BI shall have the right at
any time to commence enforcement proceedings with respect to the Guaranteed
Obligations. The Guarantor agrees to reimburse BI for any reasonable costs and
out-of-pocket expenses (including reasonable attorneys' fees and expenses, which
attorneys may be employees of BI) paid or incurred by BI in connection with the
collection and enforcement of amounts due in respect of the Trade Agreements,
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), BI may,
without notice to the 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 BI to the Guarantor, and (ii) any moneys, credits or other
property belonging to the Guarantor, at any time held by or coming into the
possession of BI or any of their respective affiliates.
Section 19. Financial Information. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Account Debtor 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 the Guarantor hereby agrees that BI shall
have no duty to advise the Guarantor of information known to it regarding such
condition or any such circumstances. In the event BI, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
the Guarantor, BI shall be under no obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose any
information which BI, 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 the
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 the
Guarantor 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 BI.
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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, the Guarantor has caused this Guaranty to be
duly executed by its authorized officer as of the day and year first above
written.
INTERIORS, INC.
By: ___________________________________
Its: ___________________________________
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