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Exhibit 4.02(e)
LOAN NO. 2406499-001
GUARANTY
THIS GUARANTY ("Guaranty") is made as of August 31, 1995, by GENERAL
HOST CORPORATION, a New York corporation (hereinafter called "Guarantor"), in
favor of METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware corporation
(hereinafter "METLIFE").
R E C I T A L S:
A. METLIFE has agreed to lend to FRANK'S NURSERY & CRAFTS, INC.,
a Michigan corporation ("Borrower"), the sum of SIX HUNDRED NINETY THOUSAND AND
NO/100 DOLLARS ($690,000.00) (the "Loan") in accordance with the terms and
provisions of a promissory note of even date herewith (the "Note"), to be
secured by a mortgage (the "Mortgage") and other security instruments of even
date herewith (the Note, the Mortgage and all other documents executed by
Borrower in connection with the Loan including, without limitation, a certain
Certificate and Indemnity Agreement Regarding Hazardous Substances, are
collectively called the "Loan Documents").
B. As a condition precedent to making the Loan, METLIFE requires
that Borrower obtain the execution of this Guaranty by Guarantor and METLIFE
will be relying on the terms hereof in making the Loan.
C. The making of the Loan by METLIFE to Borrower is of value to
Guarantor, is reasonably expected to benefit Guarantor, directly or indirectly,
and is in furtherance of the personal and business interests of Guarantor.
In consideration of METLIFE making the Loan, and as an inducement to
METLIFE to do so, Guarantor hereby agrees, warrants and covenants as follows:
1. Guarantor hereby unconditionally, irrevocably and absolutely
guarantees without demand by METLIFE the full and prompt payment when due,
whether by acceleration or otherwise, of (a) the entire amount of principal and
accrued interest under the Note, and (b) all other indebtedness, obligations
and liabilities of Borrower under the Loan Documents, including, without
limitation, all costs of collection, attorneys' fees, court costs, and other
advances and extensions thereunder whether such indebtedness, obligations or
liabilities have been incurred prior to the date hereof or are incurred from
time to time hereafter and all without set-off, counterclaim, recoupment, or
deduction of any amounts owing or alleged to be owing by METLIFE to Borrower.
It is expressly understood that this Guaranty covers, without limitation, (y)
any and all amendments, extensions, modifications, rearrangements and renewals
of the Loan or any of the Loan Documents; and (z) all interest, default
interest and other amounts that would have accrued under the Loan Documents but
for the commencement of a case under the Federal Bankruptcy Code or any other
similar federal or state law. Without limiting the foregoing,
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Guarantor specifically guarantees payment of any judgment entered against
Borrower and any damages that may be awarded in any action brought against
Borrower by METLIFE arising out of or relating to the Loan or any Loan
Document. All of the indebtedness, obligations and liabilities described in
this paragraph are referred to herein as the "Guaranteed Obligations." This
Guaranty is a guaranty of payment and not merely of collection.
2. This Guaranty shall take effect when received by METLIFE
without the necessity of any acceptance by METLIFE or of any notice to
Guarantor or to Borrower, shall be continuing and irrevocable, and shall remain
in full force and effect until the Guaranteed Obligations are full and finally
paid. If payment is made by Borrower, whether voluntarily or otherwise, or by
any third party, on the Guaranteed Obligations and thereafter METLIFE is forced
to remit, rescind or restore the amount of that payment under any federal or
state bankruptcy law or law for the relief of debtors, or for any other reason,
(a) the amount of such payment shall be considered to have been unpaid at all
times for the purposes of enforcement of this Guaranty, (b) the obligations of
Borrower guarantied herein shall be automatically reinstated to the extent of
such payment, and (c) Guarantor will, on demand, indemnify and hold METLIFE
harmless from all losses and all reasonable costs and expenses, including legal
fees, incurred by METLIFE in connection with such remission, rescission or
restoration. In the event this Guaranty is preceded or followed by any other
agreement of suretyship or guaranty by Guarantor or others, all shall be deemed
to be cumulative, and the obligations of Guarantor hereunder shall be in
addition to those stated in any other suretyship or guaranty agreement.
3. The obligations of Guarantor hereunder are separate and
independent of the obligations of Borrower. Guarantor expressly agrees that a
separate action may be brought against Guarantor whether or not Borrower is
joined in such action.
4. Guarantor represents, warrants, and covenants to METLIFE that
(a) the financial statements of Guarantor heretofore delivered to METLIFE are
true and correct in all material respects and fairly present the financial
condition of Guarantor as of the respective dates thereof, and no material
adverse change has occurred in the financial condition of Guarantor since the
date of the most recent of such financial statements of Guarantor; (b)
Guarantor has derived or expect to derive financial and other advantages and
benefits, directly or indirectly, from the making of this Guaranty and the
Guaranteed Obligations; (c) no representations or agreements of any kind have
been made to Guarantor which would limit or qualify in any way the terms of
this Guaranty; (d) this Guaranty is executed at Borrower's request and not at
the request of METLIFE; (e) METLIFE has made no representation to Guarantor as
to the creditworthiness of Borrower; (f) Guarantor has established adequate
means of obtaining from Borrower on a continuing basis information regarding
Borrower's financial condition; (g) Guarantor will keep adequately informed of
any facts, events or circumstances which might in any way affect the risks of
Guarantor under this Guaranty; (h) METLIFE shall have no obligation to disclose
to Guarantor any information or documents (financial or otherwise) heretofore
or hereafter acquired by METLIFE in the course of its relationship with
Borrower; and (i) Guarantor will not, without the prior written consent of
METLIFE, sell, lease, assign, encumber, hypothecate, transfer, or otherwise
dispose of all or substantially all of their respective assets, or take any
other action
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which might reasonably be expected to have a material adverse effect on the
financial condition of Guarantor.
5. Guarantor hereby consents to all terms and conditions of
agreements heretofore or hereafter made between METLIFE and Borrower (including
without limitation the Note and other Loan Documents) and further agrees that
METLIFE may without further consent or disclosure and without affecting or
releasing the obligations of Guarantor hereunder: (a) surrender, exchange,
release, assign, or sell any collateral or waive, release, assign, sell, or
subordinate any security interest, in whole or in part; (b) waive, delay the
exercise of, release, compromise, or grant indulgences in respect of any rights
or remedies of METLIFE against Borrower or any surety or guarantor (including,
without limitation, rights or remedies of METLIFE against Guarantor under this
Guaranty); (c) waive or delay the exercise of any rights or remedies of METLIFE
in respect of any collateral or security interest now or hereafter held; (d)
renew, extend, waive, extend, accelerate, or modify the terms of any
Guaranteed Obligation or the obligations of any surety or guarantor, including,
without limitation, changes to the rate of interest, or any instrument or
agreement (including, without limitation, the Loan Documents) evidencing or
relating to the same; (e) realize on any security interest, judicially or
nonjudicially, with or without preservation of a deficiency judgment; (f) apply
payments received from Borrower or any surety or guarantor (including
Guarantor) or from any collateral, to any indebtedness, liability, or
obligations of Borrower or such sureties or guarantors whether or not a
Guaranteed Obligation hereunder; or (g) adjust, compromise or receive less than
the amount due upon any collateral or the Guaranteed Obligations, and enter
into any accord and satisfaction or novation agreement with respect to the same
as METLIFE shall deem advisable.
6. Guarantor waives notice of (a) METLIFE's acceptance of this
Guaranty or its intention to act or its actions in reliance hereon; (b) the
present existence or future incurring of any Guaranteed Obligations or any
terms or amounts thereof or any change therein; (c) any default by Borrower or
any surety or guarantor; (d) the obtaining of any guaranty or surety agreement
(in addition to this Guaranty); (e) the obtaining of any pledge, assignment or
other security for any Guaranteed Obligations; (f) the release of Borrower or
any surety or guarantor; (g) the release of any collateral; (h) any change in
the business or financial condition of Guarantor; (i) any renewal, extension or
modification of the terms of any Guaranteed Obligation or of the obligations or
liabilities of any surety or guarantor or of any instruments or agreements
evidencing the same; (j) any acts or omissions of METLIFE consented to in
Section 5 hereof; and (k) any other demands or notices whatsoever with respect
to the Guaranteed Obligations or this Guaranty. Guarantor further waives
notice of presentment, demand, protest, notice of nonpayment, notice of intent
to accelerate, and notice of protest in relation to any instrument or agreement
evidencing any Guaranteed Obligation.
7. Guarantor expressly waives any and all rights to defenses
arising by reason of (a) any "one-action" or "anti-deficiency" law or any other
law which may prevent METLIFE from bringing any action, including a claim for
deficiency against Guarantor, before or after METLIFE's commencement or
completion of any foreclosure action, either judicially or by exercise of a
power of sale; (b) any election of remedies by METLIFE which destroys or
otherwise adversely affects the subrogation rights of Guarantor or the rights
of Guarantor to
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proceed against Borrower for reimbursement, including without limitation any
loss of rights Guarantor may suffer by reason of any law limiting, qualifying,
or discharging the Guaranteed Obligations; (c) any disability or other defense
of Borrower, Guarantor, or of any other person, or by reason of the cessation
of Borrower's liability from any cause whatsoever, other than full and final
payment in legal tender of the Guaranteed Obligations; or (d) any right to
claim discharge of the Guaranteed Obligations on the basis of unjustified
impairment of any collateral for the Guaranteed Obligations. Guarantor further
waives (a) to the extent permitted by law, the defense of any statute of
limitations in any action to enforce this Guaranty and agree that any part
payment by Borrower or other circumstance which operates to toll any statute of
limitations as to Borrower shall toll the statute of limitations as to
Guarantor, (b) any right to cause a marshalling of Borrower's assets, (c) all
exemptions and homestead laws, and (d) all rights of set-off and counterclaims.
Guarantor agrees that METLIFE may proceed against any collateral securing the
Guaranteed Obligations by way of either judicial or nonjudicial foreclosure.
Guarantor understands that a nonjudicial foreclosure of any deed of trust or
mortgage securing the Guaranteed Obligations could impair or eliminate any
subrogation or reimbursement rights Guarantor may have against Borrower,
nevertheless Guarantor hereby waives and relinquishes any defense based upon
the loss of any such reimbursement or subrogation rights or any other defense
which may otherwise arise therefrom and any defense that may arise out of
election of remedies, discharge or satisfaction of the Guaranteed Obligations.
In the event any such deed of trust or mortgage is foreclosed judicially or
nonjudicially, the liability of Guarantor under this Guaranty shall be that
portion of the Guaranteed Obligations representing a deficiency resulting from
a judicial or nonjudicial sale, i.e., the difference between the amount due and
owing on the Guaranteed Obligations on the day of the foreclosure sale
(including without limitation principal, accrued interest, attorneys' fees,
late payments, if any, and costs of foreclosure) and the amount of the
successful bid at any such judicial or nonjudicial foreclosure sale. Guarantor
hereby waives the right to object to the amount which may be bid by METLIFE at
such foreclosure sale.
8. No act of commission or omission of any kind or at any time on
the part of METLIFE with respect to any matter whatsoever shall in any way
affect or impair this Guaranty. Without limiting the foregoing, the
obligations, covenants, agreements and duties of Guarantor under this Guaranty
shall not be released or impaired in any manner whatsoever, without the written
consent of METLIFE, on account of any or all of the following: (a) any act or
omission of METLIFE consented to in Section 5 hereof; (b) the failure to
receive any notice, demand, presentment or protest waived in Sections 4 and 6
hereof; (c) the occurrence of any event as to which Guarantor has provided
their waiver under Section 7 hereof: (d) any failure by Borrower or any other
guarantor or surety to perform or comply with the Guaranteed Obligations or the
terms of any instrument or agreement relating thereto; (e) any change in the
name, purpose, capital stock or constitution of Borrower or any other guarantor
or surety; (f) any irregularity, defect or unauthorized action by METLIFE,
Borrower or any other guarantor or surety or any of their respective officers,
directors or other agents in executing and delivering any instrument or
agreements relating to the Guaranteed Obligations or in carrying out or
attempting to carry out the terms of any such agreements; (g) any receivership,
insolvency, bankruptcy, reorganization or similar proceeding by or against
Borrower, METLIFE, Guarantor or any other surety or guarantor; (h) any setoff,
counterclaim,
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recoupment, deduction, defense or other right which Guarantor may have against
METLIFE, Borrower or any other person for any reason whatsoever whether related
to the Guaranteed Obligations or otherwise; (i) any assignment, endorsement or
transfer, in whole or in part, of the Guaranteed Obligations, whether made with
or without notice to or the consent of Guarantor; (j) the voluntary or
involuntary liquidation, sale or other disposition of all or substantially all
of the assets of Borrower or any guarantor; (k) the acceptance of additional or
substitute property as security for or any additional guaranty as surety for
any Guaranteed Obligation; (l) the operation of law or any other cause, whether
similar or dissimilar to the foregoing; (m) the failure by METLIFE to file or
enforce a claim against the estate (either in administration, bankruptcy or
other proceeding) of Borrower or any other person or entity (including, without
limitation, any guarantor); (n) if the recovery from Borrower or any other
person or entity (including, without limitation, any other guarantor) becomes
barred by any statute of limitations or is otherwise prevented; (o) any
impairment, modification, change, release or limitation of liability of, or
stay of actions of lien enforcement proceedings against Borrower, Borrower's
property, or its estate in bankruptcy resulting from the operation of any
present or future provision of the Federal Bankruptcy Code or any other similar
federal or state statute, or from the decision of any court; or (p) any
neglect, delay, omission, failure or refusal of METLIFE to take or prosecute
any action for the collection of any of the Guaranteed Obligations or to
foreclose or take or prosecute any action in connection with any lien or right
of security (including perfection thereof) existing or to exist in connection
with, or as security for, any of the Guaranteed Obligations, it being the
intention hereof that Guarantor shall remain liable as principals on the
Guaranteed Obligations notwithstanding any act, omission or event which might,
but for the provisions hereof, otherwise operate as a legal or equitable
discharge of Guarantor. Guarantor hereby waives all defenses of a surety to
which it may be entitled by statute or otherwise.
9. If METLIFE should simultaneously or hereafter elect to attempt
to take additional guaranty agreements or collateral to secure repayment of the
Guaranteed Obligations and if its efforts to do so should fail in any respect
including, without limitation, a determination that the agreement purporting to
provide such additional guaranty or security interest is invalid or
unenforceable for any reason, this Guaranty shall, nonetheless, remain in full
force and effect.
10. Guarantor hereby irrevocably waives all claims they have or
may acquire against Borrower in respect of the Guaranteed Obligations,
including rights of exoneration, reimbursement and subrogation. Guarantor has
received no indemnification or other agreement of reimbursement from Borrower
in connection with the execution and delivery of this Guaranty.
11. This Guaranty shall inure to the benefit of METLIFE, and
METLIFE's successors and assigns, and shall be binding upon Guarantor and its
respective heirs, personal or legal representatives, administrators, executors,
successors and assigns. METLIFE may, without any notice whatsoever to
Guarantor, or to anyone else, sell, assign or transfer the Note, with or
without any security therefore, and in that event each and every immediate and
successive assignee, transferee or holder of all or any part of the Loan and
the Note shall have the right to enforce this Guaranty, by suit or otherwise,
for the benefit of such assignee, transferee or
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holder as though such parties were herein by name specifically given those
rights, powers and benefits.
12. Guarantor agrees to pay all costs and expenses which may be
incurred by METLIFE in the enforcement or interpretation of this Guaranty,
including reasonable attorneys' fees (to be determined by the court and not by
a jury), and including all costs and reasonable attorneys' fees incurred in any
bankruptcy or insolvency proceeding or on appeal to one or more appellate
courts.
13. This Guaranty shall be governed by and construed and enforced under the
laws of the State of Illinois.
14. No delay on the part of METLIFE in exercising any right, power
or privilege under this Guaranty shall operate as a waiver of any such right,
power or privilege, nor shall any exercise or waiver of any privilege or right
preclude any other or further exercise of such privilege or right or the
exercise of any other right, power or privilege. All of METLIFE's rights and
remedies shall be cumulative. In the event METLIFE in its sole discretion
elects to give notice of any action with respect to the sale of collateral, if
any, securing the Guaranteed Obligations or any part thereof, Guarantor agrees
that ten (10) days prior written notice shall be deemed reasonable notice of
any matters contained in such notice.
15. Any indebtedness of Borrower now or hereafter held by
Guarantor is hereby subordinated to the Guaranteed Obligations. If METLIFE so
requests, such indebtedness of Borrower to Guarantor shall be collected,
enforced and received by Guarantor in trust for METLIFE, and be paid over to
METLIFE on account of the Guaranteed Obligations, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty. Guarantor shall file all claims against Borrower in any
bankruptcy or other proceeding in which the filing of claims is required by law
upon any indebtedness of Borrower to Guarantor and will assign to METLIFE all
rights of Guarantor thereunder. If Guarantor does not file any such claim,
Guarantor hereby appoints and constitutes METLIFE as the attorney-in-fact of
Guarantor and hereby authorize METLIFE to do so in the name of Guarantor or, in
METLIFE's discretion, to assign the claim and to cause the claim to be filed in
the name of METLIFE's nominee. In all such cases, whether in administration,
bankruptcy or otherwise, the person or persons authorized to pay such claim
shall pay to METLIFE the full amount thereof, and Guarantor hereby assigns to
METLIFE, to the full extent necessary for that purpose, all of the rights of
Guarantor to any such payments or distributions to which Guarantor would
otherwise be entitled. Nothing in this paragraph shall be construed to create
a duty in METLIFE to take any action whatsoever to protect any right Guarantor
may have as to Borrower.
16. If any provision of this Guaranty or any portion of any
provision of this Guaranty shall be deemed to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not alter
the remaining portion of such provision, or any other provision hereof, as each
provision of this Guaranty shall be deemed severable from all other provisions
hereof.
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17. Guarantor represents and warrants to METLIFE that Borrower is a
wholly-owned subsidiary of Guarantor.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date written above.
GUARANTOR:
GENERAL HOST CORPORATION,
a New York corporation
By: Rober M. Lovejoy, Jr.
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Print: Robert M. Lovejoy, Jr.
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Its: VP Tresurer
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