CONTINUING GUARANTY
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THIS CONTINUING GUARANTY ("Guaranty"), dated as of November 25, 1996,
is executed and delivered by BPI Packaging (UK) Limited ("Guarantor") in favor
of Foothill Capital Corporation, a California corporation ("Foothill") and in
light of the following:
FACT ONE: BPI Packaging Technologies, Inc. and RC America,
Inc. (collectively, the "Borrower") and Foothill are, contemporaneously
herewith, entering into the Loan Documents; and
FACT TWO: In order to induce Foothill to extend financial
accommodations to Borrower pursuant to the Loan Documents, and in consideration
thereof, and in consideration of any loans or other financial accommodations
heretofore or hereafter extended by Foothill to Borrower, whether pursuant to
the Loan Documents or otherwise, Guarantor has agreed to guarantee the
Guaranteed Obligations.
NOW, THEREFORE, in consideration of the foregoing, Guarantor
hereby agrees, in favor of Foothill, as follows:
1. Definitions and Construction.
(a) Definitions. The following terms, as used in this
Guaranty, shall have the following meanings:
"Bankruptcy Code" means The Bankruptcy Reform Act of
1978 (11 U.S.C. Sections 101-1330), as amended or supplemented from time to
time, and any successor statute, and any and all rules issued or promulgated in
connection therewith.
"Guaranteed Obligations" means any and all
obligations, indebtedness, or liabilities of any kind or character owed by
Borrower to Foothill including all such obligations, indebtedness, or
liabilities, whether for principal, interest (including any interest which, but
for the application of the provisions of the Bankruptcy Code, would have accrued
on such amounts), premium, reimbursement obligations, fees, costs, expenses
(including, attorneys' fees), or indemnity obligations, whether heretofore, now,
or hereafter made, incurred, or created, whether voluntarily or involuntarily
made, incurred, or created, whether secured or unsecured (and if secured,
regardless of the nature or extent of the security), whether absolute or
contingent, liquidated or unliquidated, determined or indeterminate, whether
Borrower is liable individually or jointly with others, and whether recovery is
or hereafter becomes barred by any statute of limitations or otherwise becomes
unenforceable for any reason whatsoever, including any act or failure to act by
Foothill.
"Loan Documents" shall mean that certain Loan and
Security Agreement, of even date herewith, between Foothill and Borrower, any
promissory notes issued by Borrower in connection therewith, and those
documents, instruments, and agreements which either now or in the future exist
among Borrower, Guarantor, or any affiliate of Borrower, on the one hand, and
Foothill, on the other hand.
(b) Construction. Unless the context of this Guaranty clearly
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requires otherwise, references to the plural include the singular, references to
the singular include the plural, and the term "including" is not limiting. The
words "hereof," "herein," "hereby," "hereunder," and other similar terms refer
to this Guaranty as a whole and not to any particular provision of this
Guaranty. Any reference herein to any of the Loan Documents includes any and all
alterations, amendments, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable. Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed or resolved against Foothill or Guarantor,
whether under any rule of construction or otherwise. On the contrary, this
Guaranty has been reviewed by Guarantor, Foothill, and their respective counsel,
and shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of Foothill
and Guarantor.
2. Guaranteed Obligations. Guarantor hereby irrevocably and
unconditionally guarantees to Foothill, as and for its own debt, until final and
indefeasible payment thereof has been made, (a) payment of the Guaranteed
Obligations, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty
set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance,
and fulfillment by Borrower of all of the agreements, conditions, covenants, and
obligations of Borrower contained in the Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guaranteed
Obligations arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the Guaranteed
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guaranteed Obligations after
prior Guaranteed Obligations have been satisfied in whole or in part. To the
maximum extent permitted by law, Guarantor hereby waives any right to revoke
this Guaranty as to future indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a)
no such revocation shall be effective until written notice thereof has been
received by Foothill, (b) no such revocation shall apply to any Guaranteed
Obligations in existence on such date (including, any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guaranteed Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Foothill in existence on the
date of such revocation, (d) no payment by Guarantor, Borrower, or from any
other source, prior to the date of such revocation shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrower or from any
source other than Guarantor, subsequent to the date of such revocation, shall
first be applied to that portion of the Guaranteed Obligations as to which the
revocation is effective and which are not, therefore, guaranteed hereunder, and
to the extent so applied shall not reduce the maximum obligation of Guarantor
hereunder.
4. Performance Under This Guaranty. In the event that Borrower
fails to make any payment of any Guaranteed Obligations on or before the due
date thereof, or if Borrower shall fail to perform, keep, observe, or fulfill
any other obligation referred to in clause (b) of Section 2 hereof in the manner
provided in the Loan Documents,
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Guarantor immediately shall cause such payment to be made or each of such
obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and
original obligation of Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions, including any change of law or any
invalidity or irregularity with respect to the issuance of any promissory notes.
Guarantor agrees that it is directly, jointly and severally with any other
guarantor of the Guaranteed Obligations, liable to Foothill, that the
obligations of Guarantor hereunder are independent of the obligations of
Borrower or any other guarantor, and that a separate action may be brought
against Guarantor whether such action is brought against Borrower or any other
guarantor or whether Borrower or any such other guarantor is joined in such
action. Guarantor agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by Foothill of whatever
remedies it may have against Borrower or any other guarantor, or the enforcement
of any lien or realization upon any security Foothill may at any time possess.
Guarantor agrees that any release which may be given by Foothill to Borrower or
any other guarantor shall not release Guarantor. Guarantor consents and agrees
that Foothill shall be under no obligation to marshal any assets of Borrower or
any other guarantor in favor of Guarantor, or against or in payment of any or
all of the Guaranteed Obligations.
6. Waivers.
(a) To the maximum extent permitted by law, Guarantor hereby
waives: (1) notice of acceptance hereof; (2) notice of any loans or other
financial accommodations made or extended under the Loan Documents or the
creation or existence of any Guaranteed Obligations; (3) notice of the amount of
the Guaranteed Obligations, subject, however, to Guarantor's right to make
inquiry of Foothill to ascertain the amount of the Guaranteed Obligations at any
reasonable time; (4) notice of any adverse change in the financial condition of
Borrower or of any other fact that might increase Guarantor's risk hereunder;
(5) notice of presentment for payment, demand, protest, and notice thereof as to
any promissory notes or other instruments among the Loan Documents; (6) notice
of any breach, default or Event of Default under the Loan Documents; and (7) all
other notices (except if such notice is specifically required to be given to
Guarantor hereunder or under any Loan Document to which Guarantor is a party)
and demands to which Guarantor might otherwise be entitled.
(b) To the maximum extent permitted by law, Guarantor hereby
waives any right Guarantor may have by statute or otherwise to require Foothill
to institute suit against Borrower or to exhaust any rights and remedies which
Foothill has or may have against Borrower. In this regard, Guarantor agrees that
it is bound to the payment of all Guaranteed Obligations, whether now existing
or hereafter accruing, as fully as if such Guaranteed Obligations were directly
owing to Foothill by Guarantor. Guarantor further waives any defense arising by
reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and finally performed and
indefeasibly paid) of Borrower or by reason of the cessation from any cause
whatsoever of the liability of Borrower in respect thereof.
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(c) To the maximum extent permitted by law, Guarantor hereby
waives: (1) any rights to assert against Foothill any defense (legal or
equitable), set-off, counterclaim, or claim which Guarantor may now or at any
time hereafter have against Borrower or any other party liable to Foothill; (2)
any defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guaranteed Obligations or any
security therefor; (3) any defense arising by reason of any claim or defense
based upon an election of remedies by Foothill; (4) the benefit of any statute
of limitations affecting Guarantor's liability hereunder or the enforcement
thereof, and any act which shall defer or delay the operation of any statute of
limitations applicable to the Guaranteed Obligations shall similarly operate to
defer or delay the operation of such statute of limitations applicable to
Guarantor's liability hereunder.
(d) To the maximum extent permitted by law, Guarantor hereby
waives any right of subrogation Guarantor has or may have as against Borrower
with respect to the Guaranteed Obligations. In addition, Guarantor hereby waives
any right to proceed against Borrower, now or hereafter, for contribution,
indemnity, reimbursement, and any other suretyship rights and claims, whether
direct or indirect, liquidated or contingent, whether arising under express or
implied contract or by operation of law, which Guarantor may now have or
hereafter have as against the Borrower with respect to the Guaranteed
Obligations. Guarantor also hereby waives any rights to recourse to or with
respect to any asset of Borrower. Guarantor agrees that in light of the
immediately foregoing waivers, the execution of this Guaranty shall not be
deemed to make Guarantor a "creditor" of Borrower, and that for purposes of
Sections 547 and 550 of the Bankruptcy Code Guarantor shall not be deemed a
"creditor" of Borrower.
7. Releases. Guarantor consents and agrees that, without
notice to or by Guarantor and without affecting or impairing the obligations of
Guarantor hereunder, Foothill may, by action or inaction:
(a) compromise, settle, extend the duration or the
time for the payment of, or discharge the performance of,
or may refuse to or otherwise not enforce the Loan
Documents;
(b) release all or any one or more parties to any one
or more of the Loan Documents or grant other indulgences to
Borrower in respect thereof;
(c) amend or modify in any manner and at any time (or
from time to time) any of the Loan Documents; or
(d) release or substitute any other guarantor, if
any, of the Guaranteed Obligations, or enforce, exchange,
release, or waive any security for the Guaranteed
Obligations (including, the collateral referred to in
Section 18 hereof) or any other guaranty of the Guaranteed
Obligations, or any portion thereof.
8. No Election. Foothill shall have the right to seek recourse
against
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Guarantor to the fullest extent provided for herein, and no election by Foothill
to proceed in one form of action or proceeding, or against any party, or on any
obligation, shall constitute a waiver of Foothill's right to proceed in any
other form of action or proceeding or against other parties unless Foothill has
expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by Foothill under any
document or instrument evidencing the Guaranteed Obligations shall serve to
diminish the liability of Guarantor under this Guaranty except to the extent
that Foothill finally and unconditionally shall have realized indefeasible
payment by such action or proceeding.
9. Indefeasible Payment. The Guaranteed Obligations shall not
be considered indefeasibly paid for purposes of this Guaranty unless and until
all payments to Foothill are no longer subject to any right on the part of any
person, including Borrower, Borrower as a debtor in possession, or any trustee
(whether appointed under the Bankruptcy Code or otherwise) of Borrower's assets
to invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. Upon such full and final performance and indefeasible payment of
the Guaranteed Obligations whether by Guarantor or Borrower, Foothill shall have
no obligation whatsoever to transfer or assign its interest in the Loan
Documents to Guarantor. In the event that, for any reason, any portion of such
payments to Foothill is set aside or restored, whether voluntarily or
involuntarily, after the making thereof, then the obligation intended to be
satisfied thereby shall be revived and continued in full force and effect as if
said payment or payments had not been made, and Guarantor shall be liable for
the full amount Foothill is required to repay plus any and all costs and
expenses (including attorneys' fees) paid by Foothill in connection therewith.
10. Financial Condition of Borrower. Guarantor represents and
warrants to Foothill that Guarantor is currently informed of the financial
condition of Borrower and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guaranteed
Obligations. Guarantor further represents and warrants to Foothill that
Guarantor has read and understands the terms and conditions of the Loan
Documents. Guarantor hereby covenants that Guarantor will continue to keep
informed of Borrower's financial condition, the financial condition of other
guarantors, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Guaranteed Obligations.
11. Subordination. Guarantor hereby agrees that any and all
present and future indebtedness of Borrower owing to Guarantor is postponed in
favor of and subordinated to payment, in full, in cash, of the Guaranteed
Obligations. In this regard, no payment of any kind whatsoever shall be made
with respect to such indebtedness until the Guaranteed Obligations have been
indefeasibly paid in full.
12. Payments; Application. All payments to be made hereunder
by Guarantor shall be made in lawful money of the United States of America at
the time of payment, shall be made in immediately available funds, and shall be
made without deduction (whether for taxes or otherwise) or offset. All payments
made by Guarantor hereunder shall be applied as follows: first, to all costs and
expenses (including attorneys' fees) incurred by Foothill in enforcing this
Guaranty or in collecting the Guaranteed Obligations; second, to all accrued and
unpaid interest, premium, if any,
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and fees owing to Foothill constituting Guaranteed Obligations; and third, to
the balance of the Guaranteed Obligations.
13. Attorneys' Fees and Costs. Guarantor agrees to pay, on
demand, all reasonable attorneys' fees and all other costs and expenses which
may be incurred by Foothill in the enforcement of this Guaranty or in any way
arising out of, or consequential to the protection, assertion, or enforcement of
the Guaranteed Obligations (or any security therefor), whether or not suit is
brought.
14. Indemnification. Guarantor agrees to indemnify Foothill
and hold Foothill harmless against all obligations, demands, or liabilities
asserted by any party and against all losses in any way suffered, incurred, or
paid by Foothill as a result of or in any way arising out of, following, or
consequential to Foothill's transactions with Borrower, other than losses
arising primarily from the gross negligence or intentional misconduct of
Foothill.
15. Notices. All notices or demands by Guarantor or Foothill
to the other relating to this Guaranty shall be in writing and either personally
served or sent by registered or certified mail, postage prepaid, return receipt
requested, or by prepaid telex, telefacsimile, or telegram, and shall be deemed
to be given received on the earlier of actual receipt or three (3) days after
the deposit of such notice in the mail. Unless otherwise specified in a notice
sent or delivered in accordance with the provisions of this section, such
writing shall be sent, if to Guarantor, then to the attention of Xxxxxx
Xxxxxxxxx at Guarantor's address set forth on the signature page hereof, and if
to Foothill, then as follows:
Foothill Capital Corporation
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Business Finance Division Manager
16. Cumulative Remedies. No remedy under this Guaranty or
under any Loan Document is intended to be exclusive of any other remedy, but
each and every remedy shall be cumulative and in addition to any and every other
remedy given hereunder or under any Loan Document, and those provided by law or
in equity. No delay or omission by Foothill to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No
failure on the part of Foothill to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
17. Books and Records. Guarantor agrees that Foothill's books
and records showing the account between Foothill and Borrower shall be
admissible in any action or proceeding and shall be binding upon Guarantor for
the purpose of establishing the items therein set forth and shall constitute
prima facie proof thereof.
18. Severability of Provisions. Any provision of this Guaranty
which is prohibited or unenforceable under applicable law, shall be ineffective
to the extent of
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such prohibition or unenforceability without invalidating the remaining
provisions hereof.
19. Entire Agreement; Amendments. This Guaranty constitutes
the entire agreement between Guarantor and Foothill pertaining to the subject
matter contained herein. This Guaranty may not be altered, amended, or modified,
nor may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by both Guarantor and Foothill. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given. No
course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar right or
default or otherwise prejudice the rights and remedies hereunder.
20. Successors and Assigns. The dissolution of Guarantor shall
not terminate this Guaranty. This Guaranty shall be binding upon Guarantor's
representatives, successors, and assigns and shall inure to the benefit of the
successors and assigns of Foothill; provided, however, Guarantor shall not
assign this Guaranty or delegate any of its duties hereunder without Foothill's
prior written consent. Any assignment without the consent of Foothill shall be
absolutely void. In the event of any assignment or other transfer of rights by
Foothill, the rights and benefits herein conferred upon Foothill shall
automatically extend to and be vested in such assignee or other transferee.
21. Choice of Law and Venue. THE VALIDITY OF THIS GUARANTY,
ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF GUARANTOR
AND FOOTHILL, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND DETERMINED ONLY IN THE STATE
AND FEDERAL COURTS LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS, THE COUNTY OF LOS
ANGELES, CALIFORNIA, OR, AT THE SOLE OPTION OF FOOTHILL, IN ANY OTHER COURT IN
WHICH FOOTHILL SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS
JURISDICTION OVER THE PARTIES AND MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
22. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS GUARANTY, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF GUARANTOR AND FOOTHILL WITH RESPECT TO THIS GUARANTY, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, GUARANTOR HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF
ACTION, CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
JURY AND THAT FOOTHILL MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of the date set forth in the first paragraph hereof.
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BPI PACKAGING (UK) LIMITED
By: /s/ Xxxxxx Xxxxxxxxx
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Its:
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