EXHIBIT 10.28
GUARANTY - L/C BORROWERS
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FOR VALUE RECEIVED and in consideration of any loan or other financial
accommodation heretofore or hereafter at any time made or granted to IMPAC
GROUP, INC., a Delaware corporation (the "Debtor"), the undersigned (each a
"Guarantor" and collectively the "Guarantors") hereby, jointly and severally,
absolutely, irrevocably and unconditionally guarantee the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, of (a) all obligations of the Debtor or the other Guarantor from
time to time existing or arising under or pursuant to the Credit Agreement,
dated as even date herewith among the Debtor, the Guarantors, the financial
institutions from time to time party thereto (the "Lenders") and Bank of America
National Trust & Savings Association, as agent (the "Agent") (as from time to
time restated, amended or modified, the "Credit Agreement"; any term used but
not otherwise defined herein shall have the meaning ascribed to such term in the
Credit Agreement), (b) all obligations of the Debtor or the other Guarantor from
time to time existing or arising under or pursuant to any (i) obligations under
a Swap Contract relating to the Revolving Loans with Bank of America National
Trust & Savings Association ("BofA"), in its individual capacity, any Lender or
syndicate of financial institutions organized by BofA, or an affiliate of BofA,
or any Lender (even if BofA or any such Lender ceases to be a Lender under the
Credit Agreement for any reason) and any institution that participates in, and
in each case their subsequent assigns, such Swap Contract (collectively, the
"Swap Creditors"), or (ii) Indebtedness of Debtor or the other Guarantor
evidenced by a letter of credit issued pursuant to Section 8.05(i) of the Credit
Agreement (a "Section 8.05 Letter of Credit", and together with the Credit
Agreement, the Loan Documents, and each Swap Contract, individually a "Debt
Agreement" and Collectively, the "Debt Agreements") by BofA or any Lender, in
each case in its individual capacity (even if BofA or any such Lender ceases to
be a Lender under the Credit Agreement for any reason) and any institution that
participates in, and in each case their subsequent assigns, such Section 8.05
Letter of Credit (collectively, the LC Creditors", and together with the Agent,
the Lenders and the Swap Creditors, each a "Creditor" and collectively, the
"Creditors") and (c) all other amounts from time to time owing to the Creditors
by the Debtor or the other Guarantor under the Debt Agreements, whether direct
or indirect, absolute or contingent, or now or hereafter existing, or due or to
become due (all such obligations being hereinafter collectively called the
"Obligations"), and the Guarantors further agree to pay all expenses (including
attorneys' fees and legal expenses) paid or incurred by any Creditor, in
endeavoring to collect the Obligations, or any part thereof, and in enforcing
this guaranty; provided, however, that each Guarantor shall only be liable under
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this guaranty for the greater of (I) the net amount of all loans advanced to
Debtor under the Credit Agreement and reloaned or otherwise transferred to such
Guarantor or (II) the maximum amount of such liability that can be hereby
incurred without rendering this guaranty, as it relates to such Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This guaranty constitutes a guaranty
of payment when due and not of collection, and the Guarantors specifically agree
that it shall not be necessary or required that any Creditor exercise any right,
assert any claim or demand, or enforce any remedy whatsoever
against the Debtor (or any other Person) before or as a condition to the
obligations of the Guarantors hereunder.
The Guarantors agree that, in the event of the dissolution or
insolvency of the Debtor or any of the Guarantors, or the inability of the
Debtor or any of the Guarantors to pay debts as they mature, or an assignment by
the Debtor or any of the Guarantors for the benefit of creditors, or the
institution of any proceeding by or against the Debtor or any of the Guarantors
alleging that the Debtor or such Guarantor is insolvent or unable to pay debts
as they mature, and if such event shall occur at a time when any of the
Obligations may not then be due and payable, the Guarantors will pay to the
relevant Creditor forthwith the full amount that would be payable hereunder by
the Guarantors if all Obligations were then due and payable.
This guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the Guarantors
or that at any time or from time to time all Obligations may have been paid in
full).
The Guarantors further agree that, if at any time all or any part of
any payment theretofore applied by any Creditor to any of the Obligations is or
must be rescinded or returned by such Creditor for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
the Debtor or any Guarantor), such Obligations shall, for the purposes of this
guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
such Creditor, and this guaranty shall continue to be effective or be
reinstated, as the case may be, as to such Obligations, all as though such
application by such Creditor had not been made.
The Agent, on behalf of any Creditor, may, from time to time, whether
before or after any discontinuance of this guaranty, at its sole discretion and
without notice to the Guarantors, retain or obtain a security interest in any
property to secure any of the Obligations or any obligation hereunder.
Any Creditor may, from time to time, whether before or after any
discontinuance of this guaranty, at its sole discretion without notice to the
Guarantor, take any of the following actions: (a) retain or obtain the primary
or secondary obligation of any obligor or obligors, in addition to the
Guarantors, with respect to any of the Obligations; (b) extend or renew for one
or more periods (whether or not longer than the original period), alter, amend
or exchange any of the Obligations or any of the documentation pertaining
thereto, or release or compromise any obligation of any Guarantor hereunder or
any obligation of any nature of any other obligor with respect to any of the
Obligations; (c) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
securing any of the Obligations or any obligation hereunder, or extend or renew
for one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and (d) resort to any Guarantor for
payment of any of the Obligations, whether or not such Creditor (i) shall have
resorted to any property securing any of the Obligations or any obligation
hereunder or (ii) shall have proceeded against any other obligor primarily or
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secondarily obligated with respect to any of the Obligations (all of the actions
referred to in preceding clauses (i) and (ii) being hereby expressly waived by
the Guarantors).
Any amounts received by a Creditor from whatsoever source on account
of the Obligations may be applied by it toward the payment of such of the
Obligations, and in such order of application, as such Creditor may from time to
time elect, subject to the terms of the other Debt Agreement.
Until such time as this guaranty shall have been discontinued as to
all Guarantors and the Creditors shall have received payment of the full amount
of all Obligations and of all obligations of the Guarantor hereunder, no payment
made by or for the account of any Guarantor pursuant to this guaranty shall
entitle such Guarantor by subrogation or otherwise to any payment by the Debtor
or from or out of any property of the Debtor and such Guarantor shall not
exercise any right or remedy against the Debtor or any property of the Debtor by
reason of any performance by such Guarantor of this guaranty.
The Guarantors hereby expressly waive: (a) notice of the acceptance by
any Creditor of this guaranty, (b) notice of the existence or creation or
nonpayment of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon the Obligations or any thereof,
any obligation hereunder, or any security for or guaranty of any of the
foregoing.
Until the irrevocable payment in full of all of the Obligations (other
than Obligations under the relevant agreement with a Creditor which expressly
survive the termination of such agreement) and termination of all Commitments,
(a) each Guarantor waives any right of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or otherwise),
including any claim or right of subrogation under the Bankruptcy Code or any
successor statute, against the Debtor arising from the existence or performance
of this guaranty and (b) each Guarantor waives any right to enforce any remedy
which any Creditor now has or may hereafter have against the Debtor, and waives
any benefit of, and any right to participate in, any security now or hereafter
held by a Creditor securing the Obligations. Upon such irrevocable payment and
termination, the Debtor shall indemnify such Guarantor for the full amount of
any payment made by such Guarantor under this Guaranty and such Guarantor shall
be subrogated to the rights of the person to whom such payment shall have been
made to the extent of such payment.
Each Guarantor (a "Contributing Guarantor") agrees that, in the event
a payment shall be made by any other Guarantor under this guaranty and such
other Guarantor (the "Claiming Guarantor") shall not have been fully indemnified
by the Company as provided above, the Contributing Guarantor shall indemnify the
Claiming Guarantor in an amount equal to the amount of such payment multiplied
by a fraction of which the numerator shall be the net worth of the Contributing
Guarantor as of date hereof and the denominator shall be the aggregate net worth
of all the Guarantors on such date. Any Contributing Guarantor making any
payment to a Claiming Guarantor pursuant to this section shall be subrogated to
the rights of such Claiming Guarantor to the extent of such payment. All rights
of contribution and subrogation of any Guarantor hereunder
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shall be fully subordinated in time and priority of payment to the Obligations
and all other indebtedness of the Debtor to each Creditor.
Any Creditor may, from time to time, whether before or after any
discontinuance of this guaranty, without notice to the Guarantors, assign or
transfer any or all of the Obligations or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Obligations shall be and remain Obligations for the
purposes of this guaranty, and each and every immediate and successive assignee
or transferee of any of the Obligations or of any interest therein shall, to the
extent of the interest of such assignee or transferee in the Obligations, be
entitled to the benefits of this guaranty to the same extent as if such assignee
or transferee were a Creditor.
Each Guarantor hereby warrants to each Creditor that such Guarantor
now has and will continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the Debtor. No
Creditor shall have any duty or responsibility to provide the Guarantors with
any credit or other information concerning the affairs, financial condition or
business of the Debtor that may come into the possession of such Creditor.
Each Guarantor represents and warrants to each Creditor that all
representations and warranties relating to such Guarantor contained in Article
VI of the Credit Agreement are true and correct in all material respects.
Each Guarantor hereby agrees that until all Obligations have been paid
in full and any and all documents relating thereto have been terminated, it
shall comply with all covenants relating to it contained in Articles VII and
VIII of the Credit Agreement.
No delay on the part of any Creditor in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
any Creditor of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy; nor shall any modification
or waiver of any of the provisions of this guaranty be binding upon any Creditor
except as expressly set forth in a writing duly signed and delivered (or
consented to) by or on behalf of each Creditor. No action of any Creditor
permitted hereunder shall in any way affect or impair the rights of any Creditor
and the obligations of the Guarantors under this guaranty. For the purposes of
this guaranty, Obligations shall include all obligations of the Debtor to each
Creditor arising under or in connection with the agreements relating to the
Obligations, notwithstanding any right or power of the Debtor or anyone else to
assert any claim or defense as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of the Guarantors hereunder. The obligations of the Guarantors under this
guaranty shall be absolute and unconditional irrespective of any circumstance
whatsoever that might constitute a legal or equitable discharge or defense of
the Guarantors. The Guarantors hereby acknowledge that there are no conditions
to the effectiveness of this guaranty.
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This guaranty shall be binding upon the Guarantors, and upon the legal
representatives, successors and assigns of the Guarantors; and all references
herein to the Debtor and to the Guarantors, respectively, shall be deemed to
include any successor or successors, whether immediate or remote, to such
entities. All obligations of the Guarantors hereunder shall be joint and
several.
Neither the Agent nor any Secured Creditor shall be under any
obligation to xxxxxxxx any assets in favor of the Guarantor or any other party
or against or in payment of any or all of the Secured Obligations.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF ILLINOIS. WHEREVER POSSIBLE EACH PROVISION OF
THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID
UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS GUARANTY SHALL BE PROHIBITED
BY OR INVALID UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT
OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH
PROVISION OR THE REMAINING PROVISIONS OF THIS GUARANTY.
THE GUARANTORS HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Guarantors have executed this Guaranty by
their duly authorized officers as of the 12 day of March, 1998.
AGI INCORPORATED
By /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: President
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KLEARFOLD, INC.
By /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: President
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Acknowledged and Agreed as of
the 12 day of March, 1998:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
as Agent
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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[TO GUARANTY L.C. BORROWERS]
