GUARANTY
AGREEMENT
THIS GUARANTY , dated March 31, 2005, to be effective as of
January 3, 2005 (the " Guaranty "), is given by Home
Solutions of America, Inc., a Delaware corporation (the "
Guarantor "), in favor of Anthony Leeber, Jr., and
individual resident of the State of Florida (the " Seller
").
Recitals :
WHEREAS, this Guaranty is
entered into as a condition to that certain Reorganization
Agreement and Plan of Merger (the " Purchase Agreement ") of
even date herewith between the Guarantor, CBR Acquisition Corp., a
Florida corporation (the " Buyer "), and the Seller.
This Guaranty guaranties the payment and performance of all
obligations, including reasonable attorneys' fees and expenses,
whether or not involving litigation and/or appellate or bankruptcy
proceedings (collectively, the " Obligations "), owed by the
Buyer to the Seller pursuant to those certain Promissory Notes in
the original principal amounts of $2,000,000 and $2,300,000,
respectively (together, the " Notes "), issued by the Buyer
to the Seller in connection with the Purchase Agreement;
WHEREAS, the
Buyer is a wholly-owned subsidiary of the Guarantor and the
Guarantor acknowledges that without this Guaranty the Seller would
not be willing to enter into the Purchase Agreement.
Agreement:
NOW, THEREFORE , in consideration of the premises and the
mutual covenants set forth herein, and for other good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, the Guarantor hereby agrees as follows:
1. Guaranty
.
1.1 Guaranty
. The Guarantor, as direct obligor and not merely as a
surety, hereby unconditionally, absolutely, and irrevocably
guarantees to the Seller the full and prompt performance and
payment of all of the Obligations under the Notes. If the
Buyer should default in the payment or performance of any of the
Obligations, the Guarantor, as direct obligor and not merely as a
surety, shall forthwith pay or perform such Obligations without
notice or demand by the Seller in the manner and on the day
required by this Guaranty.
1.2 Continuing
Guaranty . The Guarantor agrees that its obligations
pursuant to this Section 1 are unconditional, absolute, and
irrevocable and shall not be released, discharged or affected in
any way by any circumstances or condition, including, without
limitation:
(a) Any amendment or
modification or other change to the Notes;
(b) Any failure, omission
or delay on the part of the Buyer to conform or comply with any
term of either of the Notes;
(c) Any release or
discharge by operation of law of the Buyer or any guarantor from
any obligation or agreement contained in the Notes or this
Guaranty; and
(d) Any other occurrence,
circumstance, happening or event, whether similar or dissimilar to
the foregoing and whether foreseen or unforeseen, which otherwise
might constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which otherwise might limit
recourse against the Buyer or the Guarantor.
1.3. Guaranty of Payment and
Not of Collection . The liability of the
Guarantor shall be continuing, direct and immediate and not
conditional or contingent upon either the pursuit of any remedies
against the Buyer or any other person. The Seller may accept
any payment(s), plan for adjustment of debts, plan of
reorganization or liquidation, or plan of composition or extension
proposed by, or on behalf of, the Buyer or any other guarantor
without in any way affecting or discharging the liability of the
Guarantor. If the Obligations are partially paid, the
Guarantor shall remain liable for any balance of such
Obligations. This Guaranty shall be revived and reinstated in
the event any payment received by the Seller on any Obligation is
required to be repaid or rescinded under present or future federal
or state law or regulation relating to bankruptcy, insolvency or
other relief of debtors.
1.4 No Discharge
. The Guarantor covenants and agrees that this Guaranty will
not be discharged, except by complete performance of its
obligations contained herein.
1.5 Costs and
Expenses . Without limiting any obligation of the
Guarantor hereunder, the Guarantor agrees to pay all reasonable
fees and costs incurred by the Seller in collecting or securing or
attempting to collect or secure this Guaranty or the Obligations,
including, without limitation, reasonable attorneys' fees and
expenses, whether or not involving litigation and/or appellate or
bankruptcy proceedings.
1.6 Representations and
Warranties . The Guarantor hereby represents
and warrants to the Seller as follows: (a) the Guarantor has
full power, right and authority to enter into and perform its
obligations under this Guaranty, and (b) this Guaranty has been
duly executed and delivered by the Guarantor and constitutes the
valid and binding obligation of the Guarantor and is enforceable
against the Guarantor in accordance with its terms. No
permits, approvals or consents of or notifications to (a) any
governmental entities, or
