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EXHIBIT 4.04 (d)
CERTIFIED TO BE A
TRUE COPY
BY MAXINE J. LIEVOIS
GENERAL HOST CORPORATION
(Guarantor)
to
MIDLAND LOAN SERVICES, L.P.
(Lender)
GUARANTY
Dated: March 14, 1996
Loan No.: 94-0903604
Store No. 25
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THIS GUARANTY (the "Guaranty") is entered into as of March 14, 1996,
by the undersigned ("Guarantor") in favor of Midland Loan Services, L.P., a
Missouri limited partnership ("Lender").
WITNESSETH
A. Contemporaneously with this Guaranty, Lender is making a loan
to Frank's Nursery & Crafts, Inc., a Michigan corporation ("Borrower") in the
principal amount of Six Hundred Eighty-two Thousand Eight Hundred Seventy-eight
Dollars ($682,878.00) (the "Loan"), which Loan is evidenced by a Promissory
Note (the "Note") of even date herewith executed by Borrower to the order of
Lender. The Note is secured by, among other security: (i) the Mortgage (as
defined in the Note), which Mortgage encumbers the property (real and personal)
described in the Mortgage (the "Mortgaged Property"); and (ii) the Other
Security Documents (as defined in the Mortgage). The Note, the Mortgage, the
Other Security Documents and the Environmental Indemnity Agreement executed by
Borrower in favor of Lender contemporaneously herewith, are hereinafter
collectively referred to as the "Loan Documents".
NOW, THEREFORE, in consideration of the foregoing, of Lender making
the Loan and other valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Borrower agrees as follows:
1. Certain Defined Terms. Unless otherwise expressly herein
provided, each defined term in this Guaranty, as indicated by the initial
capitalization thereof, shall have the meaning set forth in the Loan Documents.
2. Guaranty of Payment. Guarantor unconditionally guarantees to
Lender (and to any assignee or purchaser of all or any interest in the Note and
the Mortgage) the fun and prompt payment, whether at maturity, upon
acceleration or otherwise, of the full amount of the Debt (as defined in the
Note) for which Borrower at any time may be personally liable pursuant to the
Loan Documents.
3. Absolute Guaranty; Waiver of Subrogation and Other Rights.
This Guaranty is an absolute, unconditional, present and continuing guaranty of
payment and is in no way conditioned or contingent upon any attempt to enforce
Lender's rights against Borrower or to collect from Borrower or upon any other
condition or contingency. Accordingly, Lender shall have the right to proceed
against Guarantor without taking any prior action to enforce the obligations of
Borrower under the Loan Documents, or the obligations of any other guarantor
under any guaranty. Furthermore, Lender in its sole discretion, without prior
notice to or consent of Guarantor, may elect to: (a) foreclose either
judicially or nonjudicially by against any real or personal property security
it may hold for the Loan; (b) accept a transfer of any such security in lieu of
foreclosure; (c) compromise or adjust the Loan or any part of it or make any
other accommodation with Borrower or Guarantor; or (d) exercise any other
remedy against Borrower or any security. No such action by Lender shall
release or limit the liability of Guarantor, who shall remain liable under this
Guaranty after the action, even if the effect of the action is to deprive
Guarantor of any subrogation rights, rights of indemnity, or other rights to
collect reimbursement from Borrower for any sums paid to Lender, whether
contractual or arising by operation of law or otherwise. Guarantor expressly
agrees that
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under no circumstances shall it be deemed to have any right, title, interest or
claim in or to any real or personal property to be held by Lender or any third
party after any foreclosure or transfer in lieu of foreclosure of any security
for the Loan.
Regardless of whether Guarantor may have made any payments to Lender,
Guarantor forever waives: (I) all rights of subrogation, all rights of
indemnity, and any other rights to collect reimbursement from Borrower for any
sums paid to Lender, whether contractual or arising by operation of law or
otherwise; (II) all rights to enforce any remedy that Lender may have against
Borrower; and (III) all rights to participate in any security now or later to
be held by Lender for the Loan.
4. Extent of Liability; Waivers. Guarantor's liability
hereunder shall not be affected by: (a) any amendment or modification of the
Loan Documents; or (b) any extensions of time for performance under the Loan
Documents, whether prior to or after maturity; or (c) the release of any
collateral securing the Loan, or the release (by operation of law or otherwise)
of Borrower or any other guarantor from performance or observance of any of the
agreements, covenants, terms or conditions contained in any of the Loan
Documents (whether such amendments, modifications, extensions or releases are
made with or without notice to Guarantor); or (d) the failure to give Guarantor
any notices of acceptance, default or otherwise; or (e) any other guaranty now
or hereafter executed by any other person in connection with the Loan; or (f)
any rights, powers or privileges Lender may now or hereafter have against any
person, entity or collateral; or (g) any assignment for the benefit of
creditors by Borrower or, if Borrower is a partnership, any general partner of
Borrower; or (h) any appointment of a receiver, liquidator or trustee (other
than any receiver appointed at Lender's request) for Borrower or, if Borrower is
a partnership, any general partner of Borrower or for any of the properties of
Borrower; or (i) any filing of a petition by or against Borrower or, if
Borrower is a partnership, any general partner of Borrower, for relief pursuant
to the Federal Bankruptcy Code or any similar statute; or (j) the institution
of any proceedings for the dissolution or liquidation of Borrower or, if
Borrower is a partnership, any general partner of Borrower; or (k) the fact
that Borrower may or may not be personally liable, in whole or in part, under
the terms of the Loan Documents to pay any money judgment. Under no
circumstances shall any payment received by Lender, from Borrower or otherwise,
which is returned by Lender by reason of the avoidance powers granted pursuant
to any federal or state bankruptcy or similar law or for any other reason,
regardless of whether Lender contested the order requiring the return of such
payment, result in any reduction of Guarantor's liability hereunder. Guarantor
hereby covenants that it will cause Borrower to maintain and preserve the
priority and enforceability of the Loan Documents as the same may be modified,
changed, varied, released, amended and/or extended, and will not permit
Borrower to take or fail to take action of any kind which might give rise to a
claim that Guarantor has any defense to its obligations hereunder. Guarantor
agrees to indemnify Lender against all losses, costs or expenses incurred by
Lender by reason of Guarantor's assertion of any defense to its obligations
hereunder based upon any action or inaction of Borrower or of Lender.
Guarantor waives any right or claim of right to cause a marshalling of
Borrower's assets or to cause Lender to proceed at any time or in any
particular order against Borrower, Guarantor, any other person or entity and/or
any collateral securing the Loan. Guarantor agrees that any payments required
to be made by Guarantor hereunder shall become due on demand in accordance with
the terms hereof. To the extent allowed by applicable law, Guarantor expressly
waives and relinquishes all rights and remedies now or hereafter accorded by
applicable law to guarantors or sureties, including, without
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limitation: (I) any extension of time for payment; (II) notice of acceptance
of this Guaranty by Lender and any and all notices and demands of
every kind which may be required to be given by any statute, rule or law; (III)
any defense, right of offset or other claim which Guarantor may have against
Borrower or which Guarantor or Borrower may have against Lender or the holder
of the Note; (IV), presentment for payment, demand for payment, notice of
nonpayment or dishonor, protest and notice of protest, diligence in collection
and any and all formalities which otherwise might be legally required to charge
Guarantor with liability; (V) any failure by Lender to inform Guarantor of any
facts Lender may now or hereafter know about Borrower, the Mortgaged Property,
the Loan or the transactions contemplated by the Loan Documents, it being
understood and agreed that Lender has no duty so to inform; and (VI) all rights
of redemption, homestead, dower, and other rights or exemptions of every kind,
whether under common law or by statute.
5. Financial Reports. All of the financial statements and
information delivered to Lender in connection with the Loan are true and
correct in all respects, and unless otherwise set forth in the certificate
attached thereto, fairly present Guarantor's financial condition as of the
dates thereof; and no adverse change has occurred in Guarantor's financial
condition reflected in such financial statements since the date thereof.
Guarantor agrees to deliver, or cause to be delivered to Lender any and all
future financial statements or other financial information required by the
Mortgage or any other Loan Document. Guarantor has disclosed to Lender all
events, conditions, and facts known to Guarantor which are likely to have an
adverse effect on the financial condition of Guarantor. No representation or
warranty by Guarantor contained herein, nor any schedule, certificate or other
document furnished by Guarantor to Lender in connection with this Guaranty or
the Loan contains any misstatement of fact or omits to state any fact necessary
to make the statements contained therein not misleading.
6. No Waiver by Lender. No delay on Lender's part in exercising
any right, power or privilege under any of the Loan Documents, this Guaranty or
any other document executed by Guarantor in connection with the Loan shall
operate as a waiver of any such right, power or privilege.
7. Additional Waivers. Guarantor waives any defense to its
obligations hereunder based on: (a) the claim that the Loan Documents were
not duly authorized and executed by Borrower and are not legal, valid and
binding instruments, enforceable against Borrower in accordance with their
respective terms; or (b) an avoidance action.
8. Rights of Action. Lender shall have the right to join
Borrower and/or Guarantor in any action or proceeding commenced by Lender
pursuant to the rights, powers and privileges Lender now or hereafter may
possess under this Guaranty or, at Lender's option, Lender may commence any
action or proceeding directly against Guarantor without joining Borrower or
anyone else in such action or proceeding. In the event any such action or
proceeding arising on, under, out of or by reason of or relating in any way to
this Guaranty or the interpretation, breach or enforcement thereof is brought
against Guarantor, service of process may be made on Guarantor by certified
mail, return receipt requested, at the address set forth herein or such other
address as Lender is notified of by notice similarly sent.
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9. Costs and Expenses. If: (a) this Guaranty is placed in the
hands of an attorney for collection of any payment due hereunder or is
collected through any legal proceeding; (b) an attorney is retained to
represent Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty or any other Loan Document; (c) an attorney is retained to protect or
enforce the lien of the Mortgage or any of the other Loan Documents, or to
provide advice or other representation with respect to the Mortgaged Property
or any of the Loan Documents; or (d) an attorney is retained to provide advice
to or represent Lender in any other proceeding whatsoever in connection with
this Guaranty, the Note or any other Loan Document; then Guarantor shall pay
all costs and expenses incurred by Lender in connection therewith, including,
without limitation, attorney fees, court costs, filing fees, recording costs,
expenses of foreclosure, premiums, survey costs and minutes of foreclosure, in
addition to all other amounts due hereunder, regardless of whether all or a
portion of such enforcement costs are in a single proceeding brought to enforce
this Guaranty as well as the other Loan Documents. The terms "attorney fees",
"counsel fees" and the like, as used herein, shall include all fees for the
attorneys' services whether outside or within judicial proceedings, including
any appellate and bankruptcy court proceedings, together with all costs and
disbursements incurred by such attorneys.
10. Entire Agreement. This Guaranty contains Guarantor's sole and
entire understanding and agreement with respect to its entire subject matter,
and all prior negotiations, discussions, commitments, representations,
agreements and understandings with respect thereto are merged herein.
11. Successors and Assigns. All stipulations, obligations,
liabilities and undertakings hereunder shall be binding upon Guarantor and the
heirs, legal representatives, successors and assigns of Guarantor and shall
inure to Lender's benefit and to the benefit of Lender's successors and assigns
and to the benefit of each and every holder of any of the Loan Documents and to
the benefit of anyone claiming title to any collateral sold by Lender pursuant
to Lender's rights, powers and privileges under the Loan Documents and shall
not be discharged or affected by the death of Guarantor.
12. Waiver of Jury Trial. Guarantor hereby waives trial by jury
and the right thereto in any action or proceeding of any kind arising on,
under, out of, by reason of or relating in any way to this Guaranty, or the
interpretation, breach or enforcement thereof.
13. Applicable Law; Jurisdiction. This Guaranty shall be
governed and construed in accordance with the laws of the state in which the
real property encumbered by the Mortgage is located without regard to conflict
of law provisions thereof. Guarantor hereby submits to personal jurisdiction
in the state courts located in said state and the federal courts of the United
States of America (and any appellate courts taking appeals thereof) located in
said state for the enforcement of Guarantor's obligations hereunder and waives
any and all personal rights under the law of any other state to object to
jurisdiction within such state for the purposes of any action, suit, proceeding
or litigation to enforce such obligations of Guarantor. Guarantor hereby
waives and agrees not to assert, as a defense in any action, suit, proceeding
or litigation arising out of or relating to this Guaranty, the Note, the
Mortgage and/or any of the Other Security Documents: (a) that it is not subject
to such jurisdiction or that such action, suit, proceeding or litigation may
not be brought or is not maintainable in those courts or that this Guaranty,
the Note, the Mortgage and/or any of the
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Other Security Documents may not be enforced in or by those courts or that it
is exempt or immune from execution; (b) that the action, suit, proceeding or
litigation is brought in an inconvenient forum; or (c) that the venue of the
action, suit, proceeding or litigation is improper.
14. Duplicate Originals. This Guaranty may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same instrument.
15. Notices. Except as otherwise specified herein, any notice,
consent, request or other communication required or permitted to be given
hereunder shall be in writing, addressed to the other party as set forth below
(or to such other address or person as either party or person entitled to
notice may by notice to the other party specify), and shall be: (a) personally
delivered; (b) delivered by Federal Express or other comparable overnight
delivery service; or (c) transmitted by United States certified mail, return
receipt requested with postage prepaid; to:
Lender: Midland Loan Services, L.P.
210 West 10th Street, 6th Floor
Kansas City, MO 64105
Guarantor: General Host Corporation
6501 East Nevada
Detroit, Michigan 48234
Unless otherwise specified, all notices and other communications shall be
deemed to have been duly given on the first to occur of actual receipt of the
same or: (I) the date of delivery if personally delivered; (II) one (1)
business day after depositing the same with the delivery service if by
overnight delivery service; and (III) three (3) days following posting if
transmitted by mail.
16. Subordinate Debt. Any indebtedness of Borrower to Guarantor now
or hereafter existing is hereby subordinated to the Debt/Guarantor agrees that,
until the Debt has been paid in full, Guarantor will not seek, accept, or
retain for Guarantor's own account, any payment from Borrower on account of
such subordinated debt. Any such payments received by Guarantor shall be held
in trust for Lender and shall be paid over to Lender on account of the Debt
without reducing, impairing or releasing the obligations of Guarantor
hereunder.
17. Application of Payments. Any amounts received by Lender from
any source on account of the Loan may be applied by Lender toward the Debt in
such order and manner of application as Lender may deem appropriate.
18. No Conflict with Other Agreements. The execution, delivery
and performance by Guarantor of this Guaranty does not and will not contravene
or conflict with: (a) the corporate charter, by-laws, partnership agreement or
other organizational documents of Guarantor; (b) any law, order, rule,
regulation, writ, injunction, or decree applicable to Guarantor; or (c) any
contractual restriction binding on or affecting Guarantor or any of Guarantor's
property or assets.
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19. Binding Obligation. This Guaranty creates legal, valid, and
binding obligations of Guarantor, enforceable against Guarantor in accordance
with its terms.
20. No Actions; No Defaults. Except as previously disclosed in
writing to Lender, there is no action, proceeding or investigation pending or,
to the knowledge of Guarantor, threatened or affecting Guarantor, which may
adversely affect Guarantor's ability to fulfill Guarantor's obligations under
this Guaranty. There are no judgments or orders for payment of money against
Guarantor. Guarantor is not in default under any agreement which default may
adversely affect Guarantor's ability to fulfill Guarantor's obligations under
this Guaranty. Guarantor shall, within five (5) business days after receipt
thereof, deliver to Lender copies of any notices of default served on Guarantor
pursuant to the terms of any agreement to which Guarantor is a party.
21. No Oral Change. No termination, modification or waiver of any
provisions of this Guaranty shall be binding upon Lender except as expressly set
forth in writing duly signed and delivered by Lender.
22. Terms of Payments. Any and all amounts required to be paid by
Guarantor hereunder shall be paid to Lender in United States currency at
Lender's office in Kansas City, Missouri, or such other place as shall be
designated by Lender.
23. Additional Terms and Provisions. Certain additional and
supplemental terms and provisions of this Guaranty are set forth in the
Addendum to Guaranty attached hereto and incorporated herein by this reference.
IN WITNESS WHEREOF, this Guaranty is executed to be effective as of the
day and year first written above.
"GUARANTOR"
GENERAL HOST CORPORATION
a New York corporation
By: Robert M. Lovejoy, Jr.
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Robert M. Lovejoy, Jr., Vice President
and Treasurer
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ACKNOWLEDGEMENT
STATE OF MICHIGAN
SS.
COUNTY OF WAYNE
The foregoing instrument was acknowledged before me this 14th day of
March, 1996, by Robert M. Lovejoy, Jr., the Vice President and Treasurer of
General Host Corporation, a New York corporation, on behalf of the corporation.
Sherry L. Rygwelski
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Notary Public, Wayne County, Michigan
My Commission Expires: 12-27-98
[NOTARY SEAL]
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ADDENDUM TO GUARANTY
This Addendum to Guaranty contains certain additional and supplemental
terms and provisions of the Guaranty dated as of March 14, 1996, executed by
General Host Corporation, as Guarantor, in favor of Midland Loan Services,
L.P., as Lender. The terms and provisions of this Addendum control and
supersede any conflicting terms and provisions contained in the body of such
Guaranty.
1. The term "an" contained in the eighth line of paragraph 5 is hereby
deleted and inserted in lieu thereof is the phrase "a material".
2. The references to the phrase "adversely affect" in paragraph 20 are
hereby deleted and inserted in lieu thereof in each instance is the phrase
"have a material adverse effect on".
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