CONTINUING GUARANTY
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THIS CONTINUING GUARANTY ("Guaranty"), dated as of November 25, 1996,
is executed and delivered by Market Media, Inc. ("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.
FACT THREE: Guarantor is a wholly-owned subsidiary of BPI
Packaging Technologies, Inc. and has and shall receive direct and substantial
benefits from the Borrower in consideration of this Guaranty.
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
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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
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.
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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, 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
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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.
(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
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Guaranteed Obligations, or any portion thereof.
8. No Election. Foothill shall have the right to seek recourse against
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
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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, 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
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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 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
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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.
MARKET MEDIA, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Its:
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