EXHIBIT 10.51
FORM
OF
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") is made as of the 30th day of May,
2003, by Guarantor (as hereinafter defined) for the benefit of Lender (as
hereinafter defined).
1. Definitions. As used in this Guaranty, the following terms shall have
the meanings indicated below:
(a) The term "Lender" shall mean THE FROST NATIONAL BANK, a national
banking association, whose address for notice purposes is the following:
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
(b) The term "Borrower" (whether one or more) shall mean the following:
U.S. HOME SYSTEMS, INC.
(c) The term "Guarantor" shall mean U.S. REMODELERS, INC., whose address
for notice purposes is the following:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer.
(d) The term "Guaranteed Indebtedness" shall mean (i) all indebtedness,
obligations and liabilities of Borrower to Lender of any kind or character, now
existing or hereafter arising, whether direct, indirect, related, unrelated,
fixed, contingent, liquidated, unliquidated, joint, several or joint and
several, and regardless of whether such indebtedness, obligations and
liabilities may, prior to their acquisitions by Lender, be or have been payable
to or in favor of a third party and subsequently acquired by Lender (it being
contemplated that Lender may make such acquisitions from third parties),
including without limitation all principal indebtedness owing by Borrower to
Lender now existing or hereafter arising under or evidenced by (1) that one
certain Revolving Promissory Note dated of even date herewith, executed by
Borrower and payable to the order of Lender, in the original principal amount of
$5,000,000.00, (2) that one certain Revolving Promissory Note dated of even date
herewith, executed by Borrower and payable to the order of Lender, in the
original principal amount of $2,000,000.00, and (3) that one certain Term Note
dated of even date herewith, executed by Borrower and payable to the order of
Lender, in the original principal amount of $775,000.00; (ii) all accrued but
unpaid interest on any of the indebtedness described in (i) above; (iii) all
obligations of Borrower to Lender under any documents evidencing, securing,
governing and/or pertaining to all or any part of the indebtedness described in
(i) and (ii) above (collectively, the "Loan Documents"); (iv) all costs and
expenses incurred by Lender in connection with the collection and administration
of all or any part of the indebtedness and
obligations described in (i), (ii) and (iii) above or the protection or
preservation of, or realization upon, the collateral securing all or any part of
such indebtedness and obligations, including without limitation all reasonable
attorneys' fees; and (v) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in (i), (ii), (iii)
and (iv) above.
2. Obligations. As an inducement to Lender to extend or continue to extend
credit and other financial accommodations to Borrower, Guarantor, for value
received, does hereby unconditionally and absolutely guarantee the prompt and
full payment and performance of the Guaranteed Indebtedness when due or declared
to be due and at all times thereafter. Notwithstanding the foregoing, it is
agreed and understood that the liability of Guarantor hereunder shall be limited
to the maximum amount of liability that can be incurred without rendering this
Guaranty, as it relates to Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
3. Character of Obligations.
(a) This is an absolute, continuing and unconditional guaranty of payment
and not of collection and if at any time or from time to time there is no
outstanding Guaranteed Indebtedness, the obligations of Guarantor with respect
to any and all Guaranteed Indebtedness incurred thereafter shall not be
affected. This Guaranty and the Guarantor's obligations hereunder are
irrevocable and, in the event of Guarantor's death, shall be binding upon
Guarantor's estate. All of the Guaranteed Indebtedness shall be conclusively
presumed to have been made or acquired in acceptance hereof. Guarantor shall be
liable, jointly and severally, with Borrower and any other guarantor of all or
any part of the Guaranteed Indebtedness.
(b) Lender may, at its sole discretion and without impairing its rights
hereunder, (i) apply any payments on the Guaranteed Indebtedness that Lender
receives from Borrower or any other source other than Guarantor to that portion
of the Guaranteed Indebtedness, if any, not guaranteed hereunder, and (ii) apply
any proceeds it receives as a result of the foreclosure or other realization on
any collateral for the Guaranteed Indebtedness to that portion, if any, of the
Guaranteed Indebtedness not guaranteed hereunder or to any other indebtedness
secured by such collateral.
(c) Guarantor agrees that its obligations hereunder shall not be released,
diminished, impaired, reduced or affected by the existence of any other guaranty
or the payment by any other guarantor of all or any part of the Guaranteed
Indebtedness and, in the event Paragraph 2 above partially limits Guarantor's
obligations under this Guaranty, Guarantor's obligations hereunder shall
continue until Lender has received payment in full of the Guaranteed
Indebtedness.
(d) Guarantor's obligations hereunder shall not be released, diminished,
impaired, reduced or affected by, nor shall any provision contained herein be
deemed to be a limitation upon, the amount of credit which Lender may extend to
Borrower, the number of transactions between Lender and Borrower, payments by
Borrower to Lender or Lender's allocation of payments by Borrower.
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(e) Without further authorization from or notice to Guarantor, Lender may
compromise, accelerate, or otherwise alter the time or manner for the payment of
the Guaranteed Indebtedness, increase or reduce the rate of interest thereon, or
release or add any one or more guarantors or endorsers, or allow substitution of
or withdrawal of collateral or other security and release collateral and other
security or subordinate the same.
4. Representations and Warranties. Guarantor hereby represents and warrants
the following to Lender:
(a) This Guaranty may reasonably be expected to benefit, directly or
indirectly, Guarantor, and (i) if Guarantor is a corporation, the Board of
Directors of Guarantor has determined that this Guaranty may reasonably be
expected to benefit, directly or indirectly, Guarantor, or (ii) if Guarantor is
a partnership, the requisite number of its partners have determined that this
Guaranty may reasonably be expected to benefit, directly or indirectly,
Guarantor; and
(b) Guarantor is familiar with, and has independently reviewed the books
and records regarding, the financial condition of Borrower and is familiar with
the value of any and all collateral intended to be security for the payment of
all or any part of the Guaranteed Indebtedness; provided, however, Guarantor is
not relying on such financial condition or collateral as an inducement to enter
into this Guaranty; and
(c) Guarantor has adequate means to obtain from Borrower on a continuing
basis information concerning the financial condition of Borrower and Guarantor
is not relying on Lender to provide such information to Guarantor either now or
in the future; and
(d) Guarantor has the power and authority to execute, deliver and perform
this Guaranty and any other agreements executed by Guarantor contemporaneously
herewith, and the execution, delivery and performance of this Guaranty and any
other agreements executed by Guarantor contemporaneously herewith do not and
will not violate (i) any agreement or instrument to which Guarantor is a party,
(ii) any law, rule, regulation or order of any governmental authority to which
Guarantor is subject, or (iii) its articles or certificate of incorporation or
bylaws, if Guarantor is a corporation, or its partnership agreement, if
Guarantor is a partnership; and
(e) Neither Lender nor any other party has made any representation,
warranty or statement to Guarantor in order to induce Guarantor to execute this
Guaranty; and
(f) The financial statements and other financial information regarding
Guarantor heretofore and hereafter delivered to Lender are and shall be true and
correct in all material respects and fairly present the financial position of
Guarantor as of the dates thereof, and no material adverse change has occurred
in the financial condition of Guarantor reflected in the financial statements
and other financial information regarding Guarantor heretofore delivered to
Lender since the date of the last statement thereof; and
(g) As of the date hereof, and after giving effect to this Guaranty and the
obligations evidenced hereby, (i) Guarantor is and will be solvent, (ii) the
fair saleable value of Guarantor's
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assets exceeds and will continue to exceed its liabilities (both fixed and
contingent), (iii) Guarantor is and will continue to be able to pay its debts as
they mature, and (iv) if Guarantor is not an individual, Guarantor has and will
continue to have sufficient capital to carry on its business and all businesses
in which it is about to engage.
5. Covenants. Guarantor hereby covenants and agrees with Lender as follows:
(a) Guarantor shall not, so long as its obligations under this Guaranty
continue, transfer or pledge any material portion of its assets for less than
full and adequate consideration; and
(b) Guarantor shall promptly furnish to Lender at any time and from time to
time such financial statements and other financial information of Guarantor as
the Lender may require, in form and substance satisfactory to Lender; and
(c) Guarantor shall comply with all terms and provisions of the Loan
Documents that apply to Guarantor; and
(d) Guarantor shall promptly inform Lender of (i) any litigation or
governmental investigation against Guarantor or affecting any security for all
or any part of the Guaranteed Indebtedness or this Guaranty which, if determined
adversely, might have a material adverse effect upon the financial condition of
Guarantor or upon such security or might cause a default under any of the Loan
Documents, (ii) any claim or controversy which might become the subject of such
litigation or governmental investigation, and (iii) any material adverse change
in the financial condition of Guarantor.
6. Consent and Waiver.
(a) Guarantor waives (i) promptness, diligence and notice of acceptance of
this Guaranty and notice of the incurring of any obligation, indebtedness or
liability to which this Guaranty applies or may apply and waives presentment for
payment, notice of nonpayment, protest, demand, notice of protest, notice of
intent to accelerate, notice of acceleration, notice of dishonor, diligence in
enforcement and indulgences of every kind, and (ii) the taking of any other
action by Lender, including without limitation giving any notice of default or
any other notice to, or making any demand on, Borrower, any other guarantor of
all or any part of the Guaranteed Indebtedness or any other party.
(b) Guarantor waives any rights Guarantor has under, or any requirements
imposed by, Chapter 34 of the Texas Business and Commerce Code, as in effect on
the date of this Guaranty or as it may be amended from time to time.
(c) Lender may at any time, without the consent of or notice to Guarantor,
without incurring responsibility to Guarantor and without impairing, releasing,
reducing or affecting the obligations of Guarantor hereunder: (i) change the
manner, place or terms of payment of all or any part of the Guaranteed
Indebtedness, or renew, extend, modify, rearrange or alter all or any part of
the Guaranteed Indebtedness; (ii) change the interest rate accruing on any of
the Guaranteed
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Indebtedness (including, without limitation, any periodic change in such
interest rate that occurs because such Guaranteed Indebtedness accrues interest
at a variable rate which may fluctuate from time to time); (iii) sell, exchange,
release, surrender, subordinate, realize upon or otherwise deal with in any
manner and in any order any collateral for all or any part of the Guaranteed
Indebtedness or this Guaranty or setoff against all or any part of the
Guaranteed Indebtedness; (iv) neglect, delay, omit, fail or refuse to take or
prosecute any action for the collection of all or any part of the Guaranteed
Indebtedness or this Guaranty or to take or prosecute any action in connection
with any of the Loan Documents; (v) exercise or refrain from exercising any
rights against Borrower or others, or otherwise act or refrain from acting; (vi)
settle or compromise all or any part of the Guaranteed Indebtedness and
subordinate the payment of all or any part of the Guaranteed Indebtedness to the
payment of any obligations, indebtedness or liabilities which may be due or
become due to Lender or others; (vii) apply any deposit balance, fund, payment,
collections through process of law or otherwise or other collateral of Borrower
to the satisfaction and liquidation of the indebtedness or obligations of
Borrower to Lender not guaranteed under this Guaranty; and (viii) apply any sums
paid to Lender by Guarantor, Borrower or others to the Guaranteed Indebtedness
in such order and manner as Lender, in its sole discretion, may determine.
(d) Should Lender seek to enforce the obligations of Guarantor hereunder by
action in any court or otherwise, Guarantor waives any requirement, substantive
or procedural, that (i) Lender first enforce any rights or remedies against
Borrower or any other person or entity liable to Lender for all or any part of
the Guaranteed Indebtedness, including without limitation that a judgment first
be rendered against Borrower or any other person or entity, or that Borrower or
any other person or entity should be joined in such cause, or (ii) Lender first
enforce rights against any collateral which shall ever have been given to secure
all or any part of the Guaranteed Indebtedness or this Guaranty. Such waiver
shall be without prejudice to Lender's right, at its option, to proceed against
Borrower or any other person or entity, whether by separate action or by
joinder.
(e) In addition to any other waivers, agreements and covenants of Guarantor
set forth herein, Guarantor hereby further waives and releases all claims,
causes of action, defenses and offsets for any act or omission of Lender, its
directors, officers, employees, representatives or agents in connection with
Lender's administration of the Guaranteed Indebtedness, except for Lender's
willful misconduct and gross negligence.
(f) Guarantor grants to Lender a contractual security interest in, and
hereby assigns, conveys, delivers, pledges and transfers to Lender all
Guarantor's right, title and interest in and to Guarantor's accounts with Lender
(whether checking, savings or some other account), including without limitation
all accounts held jointly with someone else and all accounts Guarantor may open
in the future, excluding however all ▇▇▇ and ▇▇▇▇▇ accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Guarantor authorizes Lender, to the extent permitted by applicable law, to
charge or setoff all sums owing on the Guaranteed Indebtedness against any and
all such accounts.
(g) In addition to Guarantor, other subsidiaries of Borrower are giving or
hereafter will be giving guaranties of some or all of the Guaranteed
Indebtedness to Lender, and in this subsection (g) Guarantor and such other
subsidiaries are called the "Subsidiary Guarantors." Upon full and
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final payment of the Guaranteed Indebtedness, all Subsidiary Guarantors which
have made payments upon the Guaranteed Indebtedness shall be entitled to
contribution from all of the Subsidiary Guarantors, to the end that all such
payments upon the Guaranteed Indebtedness shall be shared among all Subsidiary
Guarantors in proportion to their respective Net Worths, provided that the
contribution obligations of each Subsidiary Guarantor shall be limited to the
maximum amount that it can pay at such time without rendering its contribution
obligations voidable under applicable law relating to fraudulent conveyances or
fraudulent transfers. As used in this subsection, the "Net Worth" of each
Subsidiary Guarantor means, at any time, the remainder of (i) the fair value of
such Subsidiary Guarantor's assets (other than such right of contribution),
minus (ii) the fair value of such Subsidiary Guarantor's liabilities (other than
its liabilities under its guaranty of the Guaranteed Indebtedness).
7. Obligations Not Impaired.
(a) Guarantor agrees that its obligations hereunder shall not be released,
diminished, impaired, reduced or affected by the occurrence of any one or more
of the following events: (i) the death, disability or lack of corporate power of
Borrower, Guarantor or any other guarantor of all or any part of the Guaranteed
Indebtedness, (ii) any receivership, insolvency, bankruptcy or other proceedings
affecting Borrower, Guarantor or any other guarantor of all or any part of the
Guaranteed Indebtedness, or any of their respective property; (iii) the partial
or total release or discharge of Borrower or any other guarantor of all or any
part of the Guaranteed Indebtedness, or any other person or entity from the
performance of any obligation contained in any instrument or agreement
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, whether occurring by reason of law or otherwise; (iv) the taking
or accepting of any collateral for all or any part of the Guaranteed
Indebtedness or this Guaranty; (v) the taking or accepting of any other guaranty
for all or any part of the Guaranteed Indebtedness; (vi) any failure by Lender
to acquire, perfect or continue any lien or security interest on collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty; (vii)
the impairment of any collateral securing all or any part of the Guaranteed
Indebtedness or this Guaranty; (viii) any failure by Lender to sell any
collateral securing all or any part of the Guaranteed Indebtedness or this
Guaranty in a commercially reasonable manner or as otherwise required by law;
(ix) any invalidity or unenforceability of or defect or deficiency in any of the
Loan Documents; or (x) any other circumstance which might otherwise constitute a
defense available to, or discharge of, Borrower or any other guarantor of all or
any part of the Guaranteed Indebtedness.
(b) This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of all or any part of the Guaranteed
Indebtedness is rescinded or must otherwise be returned by Lender upon the
insolvency, bankruptcy or reorganization of Borrower, Guarantor, any other
guarantor of all or any part of the Guaranteed Indebtedness, or otherwise, all
as though such payment had not been made.
(c) In the event Borrower is a corporation, joint stock association or
partnership, or is hereafter incorporated, none of the following shall affect
Guarantor's liability hereunder: (i) the unenforceability of all or any part of
the Guaranteed Indebtedness against Borrower by reason of the fact that the
Guaranteed Indebtedness exceeds the amount permitted by law; (ii) the act of
creating
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all or any part of the Guaranteed Indebtedness is ultra ▇▇▇▇▇; or (iii) the
officers or partners creating all or any part of the Guaranteed Indebtedness
acted in excess of their authority. Guarantor hereby acknowledges that
withdrawal from, or termination of, any ownership interest in Borrower now or
hereafter owned or held by Guarantor shall not alter, affect or in any way limit
the obligations of Guarantor hereunder.
8. Actions Against Guarantor. In the event of a default in the payment or
performance of all or any part of the Guaranteed Indebtedness when such
Guaranteed Indebtedness becomes due, whether by its terms, by acceleration or
otherwise, Guarantor shall, without notice or demand, promptly pay the amount
due thereon to Lender, in lawful money of the United States, at Lender's address
set forth in Subparagraph 1(a) above. One or more successive or concurrent
actions may be brought against Guarantor, either in the same action in which
Borrower is sued or in separate actions, as often as Lender deems advisable. The
exercise by Lender of any right or remedy under this Guaranty or under any other
agreement or instrument, at law, in equity or otherwise, shall not preclude
concurrent or subsequent exercise of any other right or remedy. The books and
records of Lender shall be admissible as evidence in any action or proceeding
involving this Guaranty and shall be prima facie evidence of the payments made
on, and the outstanding balance of, the Guaranteed Indebtedness.
9. Payment by Guarantor. Whenever Guarantor pays any sum which is or may
become due under this Guaranty, written notice must be delivered to Lender
contemporaneously with such payment. Such notice shall be effective for purposes
of this paragraph when contemporaneously with such payment Lender receives such
notice either by: (a) personal delivery to the address and designated department
of Lender identified in Subparagraph 1(a) above, or (b) United States mail,
certified or registered, return receipt requested, postage prepaid, addressed to
Lender at the address shown in Subparagraph 1(a) above. In the absence of such
notice to Lender by Guarantor in compliance with the provisions hereof, any sum
received by Lender on account of the Guaranteed Indebtedness shall be
conclusively deemed paid by Borrower.
10. Intentionally Omitted.
11. Notice of Sale. In the event that Guarantor is entitled to receive any
notice under the Uniform Commercial Code, as it exists in the state governing
any such notice, of the sale or other disposition of any collateral securing all
or any part of the Guaranteed Indebtedness or this Guaranty, reasonable notice
shall be deemed given when such notice is deposited in the United States mail,
postage prepaid, at the address for Guarantor set forth in Subparagraph 1(c)
above, ten (10) days prior to the date any public sale, or after which any
private sale, of any such collateral is to be held; provided, however, that
notice given in any other reasonable manner or at any other reasonable time
shall be sufficient.
12. Waiver by Lender. No delay on the part of Lender in exercising any
right hereunder or failure to exercise the same shall operate as a waiver of
such right. In no event shall any waiver of the provisions of this Guaranty be
effective unless the same be in writing and signed by an officer of Lender, and
then only in the specific instance and for the purpose given.
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13. Successors and Assigns. This Guaranty is for the benefit of Lender, its
successors and assigns. This Guaranty is binding upon Guarantor and Guarantor's
successors, assigns and personal representatives, including without limitation
any person or entity obligated by operation of law upon the reorganization,
merger, consolidation or other change in the organizational structure of
Guarantor.
14. Costs and Expenses. Guarantor shall pay on demand by Lender all costs
and expenses, including without limitation all reasonable attorneys' fees,
incurred by Lender in connection with the preparation, administration,
enforcement and/or collection of this Guaranty. This covenant shall survive the
payment of the Guaranteed Indebtedness.
15. Severability. If any provision of this Guaranty is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable, shall not impair or
invalidate the remainder of this Guaranty and the effect thereof shall be
confined to the provision held to be illegal, invalid or unenforceable.
16. No Obligation. Nothing contained herein shall be construed as an
obligation on the part of Lender to extend or continue to extend credit to
Borrower.
17. Amendment. No modification or amendment of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer of
Lender, and then shall be effective only in the specific instance and for the
purpose for which given.
18. Cumulative Rights. All rights and remedies of Lender hereunder are
cumulative of each other and of every other right or remedy which Lender may
otherwise have at law or in equity or under any instrument or agreement, and the
exercise of one or more of such rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of any other rights or remedies.
19. Governing Law, Venue. This Guaranty is intended to be performed in the
State of Texas. Except to the extent that the laws of the United States may
apply to the terms hereof, the substantive laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this
Guaranty. In the event of a dispute involving this Guaranty or any other
instruments executed in connection herewith, the undersigned irrevocably agrees
that venue for such dispute shall lie in any court of competent jurisdiction in
Bexar County, Texas.
20. Compliance with Applicable Usury Laws. Notwithstanding any other
provision of this Guaranty or of any instrument or agreement evidencing,
governing or securing all or any part of the Guaranteed Indebtedness, Guarantor
and Lender by its acceptance hereof agree that Guarantor shall never be required
or obligated to pay interest in excess of the maximum non-usurious interest rate
as may be authorized by applicable law for the written contracts which
constitute the Guaranteed Indebtedness. It is the intention of Guarantor and
Lender to conform strictly to the applicable laws which limit interest rates,
and any of the aforesaid contracts for interest, if and to the extent payable by
Guarantor, shall be held to be subject to reduction to the maximum non-usurious
interest rate allowed under said law.
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21. Gender. Within this Guaranty, words of any gender shall be held and
construed to include the other gender.
22. Captions. The headings in this Guaranty are for convenience only and
shall not define or limit the provisions hereof.
EXECUTED as of the date first above written.
GUARANTOR:
U. S. REMODELERS, INC.
By:
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Name:
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Title:
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