EXHIBIT 10.29
GUARANTY - SUBSIDIARY GUARANTORS
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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 "Company"), AGI Incorporated ("AGI"),
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Klearfold, Inc. ("Klearfold", and together with the Company and AGI, each a
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"Debtor" and collectively, the "Debtors"), the undersigned (each a "Guarantor"
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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 Debtors or the other Guarantor from time to time existing or
arising under or pursuant to the Credit Agreement, dated as of even date
herewith, among the Debtors, 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 a Debtor from time to time existing or arising under or
pursuant to any (i) obligations under a Swap Contract relating to the 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 a 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 Debtors 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
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shall only be liable under 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) 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 any 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
a Debtor or any of the Guarantors, or the inability of a Debtor or any of the
Guarantors to pay debts as they mature, or an assignment by a Debtor or any of
the Guarantors for the benefit of creditors, or the institution of any
proceeding by or against a Debtor or any of the Guarantors alleging that a
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 a 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
Guarantors, take any or all 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
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).
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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 a Debtor or
from or out of any property of a Debtor and such Guarantor shall not exercise
any right or remedy against a Debtor or any property of a 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 a
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 a 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 relevant 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 shall be fully
subordinated in time and priority of payment to the Obligations and all other
indebtedness of the Debtors to each Creditor.
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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 Debtors. 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
Debtors 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 such Guarantor 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 Debtors to each
Creditor arising under or in connection with the agreements relating to the
Obligations, notwithstanding any right or power of a 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.
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 Debtors 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.
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Any notice required or permitted to be given under this Guaranty shall be
given (i) in the case of a Guarantor, at the address specified on Schedule A
hereto, (ii) in the case of the Agent and each Lender, in accordance with the
Credit Agreement, (iii) in the case of a L/C Creditor, in accordance with the
relevant Section 8.05 Letter of Credit and (iv) in the case of a Swap Creditor,
in accordance with the relevant Swap Contract. Any Guarantor, the Agent or any
Secured Creditor may change the address for service of notice upon it by a
notice in writing to the other.
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.
EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS AGI
WITH OFFICES ON THE DATE HEREOF AT 0000 XXXX XXXX, XXXXXXX XXXX, XXXXXXXX 00000,
AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND
ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION
OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, EACH GUARANTOR AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN ILLINOIS ON THE TERMS AND FOR THE PURPOSES OF
THIS PROVISION SATISFACTORY TO THE AGENT UNDER THIS AGREEMENT. EACH GUARANTOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE RELEVANT
GUARANTOR AT ITS ADDRESS SET FORTH ON SCHEDULE A, SUCH SERVICE TO BECOME
EFFECTIVE 10 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE AGENT OR ANY SECURED CREDITOR TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST A GUARANTOR
IN ANY OTHER JURISDICTION.
AGI hereby irrevocably accepts its appointment as agent for service of
process for each Guarantor set forth in the above paragraph and agrees that it
(i) shall inform the Agent promptly in writing of any change of its address in
the State of Illinois, (ii) shall terminate any of the agency
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relationships created by the above paragraph only upon 60 days prior written
notice to the Agent, and (iii) shall perform its obligations as such agent in
accordance with the provisions of the above paragraph. AGI, as process agent,
and its successor or successors agrees to discharge the above-mentioned
obligations and will not refuse fulfillment of such obligations under the above
paragraph or the Loan Documents, as the case may be. AGI agrees that it will
maintain an office in Melrose Park, Illinois until such time as the Guarantors
shall have entered into a letter agreement in form and substance satisfactory to
the Agent appointing another agent for service of process in the State of
Illinois, which agent shall be acceptable to the Agent.
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 12th day of March, 1998.
KF-DELAWARE, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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KF-INTERNATIONAL, INC.
By /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
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Title: Treasurer
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Acknowledged and Agreed as of
the 12th day of March, 1998:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
as Agent
By /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Vice President
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S-1
[TO GUARANTY-SUBSIDIARY GUARANTORS]
SCHEDULE A
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NOTICE INFORMATION
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KF-Delaware, Inc.
000 Xxxxxx Xxxx
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Warrington, Bucks County, Pennsylvania
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Fax: 000-000-0000
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Telephone: 000-000-0000
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Attn:[Xxxxxx Xxxxxx]
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KF-International, Inc.
000 Xxxxxx Xxxx
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Warrington, Bucks County, Pennsylvania
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Fax: 000-000-0000
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Telephone: 000-000-0000
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Attn:[Xxxxxx Xxxxxx]
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