Exhibit 10.15
[Execution]
GUARANTEE
THIS GUARANTEE,
dated February 3, 2005 (as amended, modified, supplemented,
extended, renewed, restated or replaced, this
“Guarantee”), is by HHG DISTRIBUTING, LLC, an Indiana
limited liability company (“Guarantor”), with its chief
executive office at 4151 East 96 th
Street,
Indianapolis, Indiana 46240, in favor of CONGRESS FINANCIAL
CORPORATION (CENTRAL), an Illinois corporation, as administrative
agent for the Lenders described below (in such capacity, together
with its successors and assigns, “Agent”), having an
office at 150 South Wacker Drive, Chicago, Illinois
60606.
W I T N E S
S E T H :
WHEREAS, Agent, Lenders (as
hereinafter defined) and Gregg Appliances, Inc., an Indiana
corporation (“Borrower”), have entered into financing
arrangements pursuant to which Agent and Lenders may make loans and
advances and provide other financial accommodations to Borrower as
set forth in the Loan and Security Agreement, dated of even date
herewith, by and among Agent, the financial institutions from time
to time party thereto as lenders (collectively, together with their
successors and assigns, “Lenders”), Borrower and
Guarantor (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced,
the “Loan Agreement”) and the other agreements,
documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related
thereto, including, but not limited to, this Guarantee (all of the
foregoing, together with the Loan Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to
herein as the “Financing Agreements”); and
WHEREAS, due to the close business
and financial relationships between Borrower and Guarantor, and in
consideration of the benefits which will accrue to Guarantor and as
an inducement for and in consideration of Agent and Lenders making
loans and advances and providing other financial accommodations to
Borrower pursuant to the Loan Agreement and the other Financing
Agreements, Guarantor has agreed to make this Guarantee in favor of
Agent, for itself and the benefit of the Lenders; and
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor
hereby agrees in favor of Agent and Lenders as follows:
1. Guarantee .
(a) Guarantor absolutely and
unconditionally, jointly and severally with any subsequent
guarantors of the Guaranteed Obligations (as hereinafter defined),
guarantees and agrees to be liable for the full and indefeasible
payment and performance when due of the following (all of which are
collectively referred to herein as the “Guaranteed
Obligations”): (i) the Obligations (as defined in the Loan
Agreement), whether now existing or hereafter
arising, whether arising before,
during or after the initial or any renewal term of the Loan
Agreement or after the commencement of any case with respect to
Borrower under the United States Bankruptcy Code or any similar
statute (including, without limitation, the payment of interest and
other amounts, which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowed
or allowable in whole or in part in any such case and including
loans, interest, fees, charges and expenses related thereto and all
other obligations of Borrower or its successors to Agent and
Lenders arising after the commencement of such case), whether
direct or indirect, absolute or contingent, joint or several, due
or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, and however acquired by Agent and Lenders,
and (ii) all expenses (including, without limitation, reasonable
attorneys’ fees and legal expenses) incurred by Agent or any
Lender in connection with the preparation, execution, delivery,
recording, administration, collection, liquidation, enforcement and
defense of Borrower’s obligations, liabilities and
indebtedness as aforesaid to Agent or any Lender, the rights of
Agent or any Lender in any collateral as set forth in the Financing
Agreements or under this Guarantee and all other Financing
Agreements or in any way involving claims by or against Agent or
any Lender directly or indirectly arising out of or related to the
relationships between Borrower, Guarantor or any other Obligor (as
hereinafter defined) and Agent or any Lender, whether such expenses
are incurred before, during or after the initial or any renewal
term of the Loan Agreement and the other Financing Agreements or
after the commencement of any case with respect to Borrower or
Guarantor under the United States Bankruptcy Code or any similar
statute.
(b) This Guarantee is a guaranty of
payment and not of collection. Guarantor agrees that Agent and
Lenders need not attempt to collect any Guaranteed Obligations from
Borrower, Guarantor or any other Obligor or to realize upon any
collateral, but may require Guarantor to make immediate payment of
all of the Guaranteed Obligations to Agent and Lenders when due,
whether by maturity, acceleration or otherwise, or at any time
thereafter. Agent and Lenders may apply any amounts received in
respect of the Guaranteed Obligations to any of the Guaranteed
Obligations, in whole or in part (including reasonable
attorneys’ fees and legal expenses incurred by Agent or any
Lender with respect thereto or otherwise chargeable to Borrower or
Guarantor) and in such order as Agent may elect.
(c) Any payment required to be made
by Guarantor under this Guarantee shall be made to Agent at the
office of Agent from time to time on demand as Guaranteed
Obligations become due. Guarantor shall make all such payments to
Agent free and clear of, and without deduction or withholding for
or on account of, any setoff, counterclaim, defense, duties, taxes,
levies, imposts, fees, deductions, withholding, restrictions or
conditions of any kind. In the event any claim or action, or action
on any judgment, based on this Guarantee is brought against
Guarantor, Guarantor agrees not to deduct, set-off, or seek any
counterclaim for or recoup any amounts which are or may be owed by
Agent or any Lender to Guarantor.
(d) Notwithstanding anything to the
contrary contained herein, the amount of the obligations payable by
Guarantor under this Guarantee shall be the aggregate amount of the
Guaranteed Obligations unless a court of competent jurisdiction
adjudicates Guarantor’s obligations to be invalid, avoidable
or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to
fraudulent conveyances or transfers), in which case the amount of
the Guaranteed Obligations payable by Guarantor
- 2 -
hereunder shall be limited to the
maximum amount that could be guaranteed by Guarantor without
rendering Guarantor’s obligations under this Guarantee
invalid, avoidable or unenforceable under such applicable
law.
2. Waivers and Consents
.
(a) Notice of acceptance of this
Guarantee, the making of loans and advances and providing other
financial accommodations to Borrower and presentment, demand,
protest, notice of protest, notice of nonpayment or default and all
other notices to which Borrower or Guarantor is entitled are hereby
waived by Guarantor to the extent permitted by applicable law.
Guarantor also waives notice of and hereby consents to, (i) any
amendment, modification, supplement, extension, renewal, or
restatement of the Loan Agreement and any of the other Financing
Agreements, including, without limitation, extensions of time of
payment of or increase or decrease in the amount of any of the
Guaranteed Obligations, the interest rate, fees, other charges, or
any collateral, and the guarantee made herein shall apply to the
Loan Agreement and the other Financing Agreements and the
Guaranteed Obligations as so amended, modified, supplemented,
renewed, restated or extended, increased or decreased, (ii) the
taking, exchange, surrender and releasing of collateral or
guarantees now or at any time held by or available to Agent for
itself and for the benefit of the Lenders for the obligations of
Borrower or any other party at any time liable on or in respect of
the Guaranteed Obligations or who is the owner of any property
which is security for the Guaranteed Obligations (individually, an
“Obligor” and collectively, the
“Obligors”), (iii) the exercise of, or refraining from
the exercise of any rights against Borrower, Guarantor or any other
Obligor or any collateral, (iv) the settlement, compromise or
release of, or the waiver of any default with respect to, any of
the Guaranteed Obligations and (v) any financing by Agent and/or
any Lender of Borrower under Section 364 of the United States
Bankruptcy Code or consent to the use of cash collateral by Agent
and Lenders under Section 363 of the United States Bankruptcy Code.
Guarantor agrees that the amount of the Guaranteed Obligations
shall not be diminished and the liability of Guarantor hereunder
shall not be otherwise impaired or affected by any of the
foregoing.
(b) No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations
shall affect, impair or be a defense to this Guarantee, nor shall
any other circumstance which might otherwise constitute a defense
available to or legal or equitable discharge of Borrower in respect
of any of the Guaranteed Obligations, or Guarantor in respect of
this Guarantee, affect, impair or be a defense to this Guarantee.
Without limitation of the foregoing, the liability of Guarantor
hereunder shall not be discharged or impaired in any respect by
reason of any failure by Agent to perfect or continue perfection of
any lien or security interest in any collateral or any delay by
Agent in perfecting any such lien or security interest. As to
Guaranteed Obligations consisting of interest, fees and expenses,
whether arising before or after the commencement of any case with
respect to Borrower under the United States Bankruptcy Code or any
similar statute, Guarantor shall be liable therefor, even if
Borrower’s liability for such amounts does not, or ceases to,
exist by operation of law. Guarantor acknowledges that neither
Agent nor any Lender has made any representations to Guarantor with
respect to Borrower, any other Obligor or otherwise in connection
with the execution and delivery by Guarantor of this Guarantee and
Guarantor is not in any respect relying upon Agent or any Lender or
any statements by Agent or any Lender in connection with this
Guarantee.
- 3 -
(c) Unless and until the termination
of the Commitments and the indefeasible payment and satisfaction in
full of all outstanding and unpaid Guaranteed Obligations in
immediately available funds and
