Exhibit 10.9.5
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty"), dated November 15, 1995 is made and
entered into upon the terms hereinafter set forth, by FCOA ACQUISITION CORP., a
Delaware corporation ("Guarantor"), in favor of SIRROM CAPITAL CORPORATION, a
Tennessee corporation ("Creditor").
RECITALS:
A. Pursuant to a Loan Agreement of even date herewith, by and between
Factory Card Outlet of America Ltd., an Illinois corporation ("Borrower"), and
Creditor (the "Loan Agreement"), Creditor has made a loan to Borrower in the
original principal amount of $4,000,000 (the "Loan"). The Loan is evidenced by a
Secured Promissory Note of even date herewith, in the Loan amount, made and
executed by Borrower, payable to the order of Creditor (herein referred to,
together with any extensions, modifications, renewals and/or replacements
thereof, as the "Note").
B. It is a condition of Creditor's agreement to make the above-described
Loan to Borrower that Guarantor execute and deliver this Guaranty to Creditor.
C. Guarantor desires to execute and deliver this Guaranty to Creditor in
order to induce Creditor to make the above described Loan, which will be to the
direct interest, advantage and benefit of Guarantor as the sole shareholder of
Borrower.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and to induce Creditor to make loans and other
extensions of credit to Borrower pursuant to the Loan Agreement, Guarantor
hereby agrees as follows:
1. Guarantor hereby guarantees to Creditor the full and prompt payment and
performance of (a) the indebtedness evidenced by the Note, principal and any and
all interest accrued or to accrue thereon in accordance with the terms thereof,
and (1)) the obligations of Borrower to Creditor pursuant to the Loan Agreement
and any and all other instruments, documents and/or agreements now or hereafter
further evidencing, securing or otherwise related to the indebtedness evidenced
by the Note and/or the Loan Agreement (collectively the "Loan Documents") (the
aforesaid indebtedness and other obligations are sometimes herein collectively
referred to as the "Guaranteed Obligations"). Guarantor hereby agrees that if
the Guaranteed Obligations are not timely paid and/or performed, as the case may
be, in accordance with the terms thereof, Guarantor immediately will pay and/or
perform such Guaranteed Obligations. If for any reason any payment or obligation
in respect of the Guaranteed Obligations shall be determined at any time to be a
voidable preference or otherwise shall be set aside or required to be returned
or repaid, this Guaranty nevertheless shall remain in full force and effect and
shall be fully enforceable against Guarantor for the payment or obligation set
aside, returned or repaid, as well as any other Guaranteed Obligations still
outstanding, notwithstanding the fact that this Guaranty may have been
cancelled, released and/or returned to Guarantor by Creditor.
2. In addition to the obligations of Guarantor to Creditor pursuant to
Paragraph 1 hereof, Guarantor further agrees to pay any and all expenses
(including without limitation reasonable attorney's fees) reasonably incurred by
Creditor in endeavoring to collect and/or enforce the obligations of Guarantor
under this Guaranty.
3. Guarantor hereby waives notice of any breach or default by Borrower, and
hereby further waives presentment, demand, notice of dishonor and protest with
respect to any instrument now or hereafter evidencing any of the Guaranteed
Obligations.
4. Any act of Creditor consisting of a waiver of any of the terms,
covenants or conditions of the Guaranteed Obligations, or the giving of any
consent to any matter or thing relating to the Guaranteed Obligations, or the
granting of any indulgences or extensions of time to Borrower, may be done
without notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
5. The obligations of Guarantor hereunder shall not be released by
Creditor's receipt, application or release of any security given for the
payment, performance and observance of any of the Guaranteed Obligations, but in
the case of any such receipt and application, the liability of Guarantor shall
be deemed reduced by a corresponding amount. Similarly, the obligations of
Guarantor hereunder shall not be released by any modification of any of the
terms of the Guaranteed Obligations made by Creditor and Borrower, but in the
case of any such modification, the liability of Guarantor shall be deemed
modified in accordance with the terms of any such modification.
6. The liability of Guarantor hereunder shall in no way be affected by (a)
the release or discharge of Borrower in any creditors' receivership, bankruptcy
or other proceedings, (b) the impairment, limitation or modification of the
liability of Borrower or the estate of Borrower in bankruptcy, or of any remedy
for the enforcement of any of the Guaranteed Obligations resulting from the
operation of any present or future provision of the Federal bankruptcy law or
any other statute or the decision of any court, (c) the rejection or
disaffirmance of any instrument, document or agreement evidencing any of the
Guaranteed Obligations in any such proceedings, (d) the assignment or transfer
of any of the Guaranteed Obligations by Creditor in accordance with the terms of
the Loan Agreement, or (e) the cessation from any cause whatsoever (other than
full payment and performance) of the liability of Borrower with respect to the
Guaranteed Obligations.
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7. Until all of the covenants, terms and conditions of Borrower with
respect to the Guaranteed Obligations are fully paid, performed, kept and/or
observed, Guarantor: (a) shall have no rights of reimbursement or subrogation
against Borrower or any of its property by reason of any payment or acts of
performance by Guarantor in compliance with the obligations of Guarantor
hereunder, (b) waives any right to enforce any remedy that Guarantor now or
hereafter shall have against Borrower by reason of any one or more payments or
acts of performance in compliance with the obligations of Guarantor hereunder,
and (c) subordinates any liability or indebtedness of Borrower now or hereafter
held by Guarantor to the obligations of Borrower to Creditor under the
Guaranteed Obligations.
8. This is a guaranty of payment and performance and not of collection. The
liability of Guarantor hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or
any other person, nor against any collateral available to Creditor. Guarantor
hereby waives any right to require that an action be brought against Borrower or
any other person or to require that resort be had to any collateral in favor of
Creditor prior to discharging its obligations hereunder. Guarantor further
waives any right of Guarantor to require that an action be brought against
Borrower under the provisions of Title 47, Chapter 12, Tennessee Code Annotated,
as the same may be amended from time to time.
9. Guarantor hereby consents and agrees that all payments and credits
received from Borrower or Guarantor or realized from any collateral may be
applied by Creditor to the Guaranteed Obligations in such priority as Creditor
in its sole judgment shall see fit.
10. This Guaranty is assignable by Creditor to any person or entity to
which Creditor may assign its rights under the Loan Agreement pursuant to the
terms thereof and any assignment of the Guaranteed Obligations or any portion
thereof by Creditor shall operate to vest in the assignee the rights and powers
of Creditor hereunder to the extent of such assignment. This Guaranty shall be
binding upon Guarantor and Guarantor's representatives, successors,
successors-in-title, and assigns, and shall inure to the benefit of Creditor,
its representatives, successors, successors-in-title and assigns.
11. This Guaranty shall be construed in accordance with and governed by the
laws of the State of Tennessee applicable to contracts to be performed within
said state. No amendment or modification hereof shall be effective unless
evidenced by a writing signed by Guarantor and Creditor.
12. Guarantor hereby waives notice of acceptance of this Guaranty by
Creditor.
13. Guarantor hereby consents to the jurisdiction of the courts of the
State of Tennessee and the United States District Court for the Middle District
of Tennessee, as well as to the jurisdiction of all courts from which an appeal
may be taken from such courts, for the purpose of any suit, action or other
proceeding arising out of any of its obligations arising under this Agreement or
with respect to the transactions contemplated hereby, and expressly waives any
and all objections it may have as to venue in any of such courts.
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14. CREDITOR AND GUARANTOR HEREBY WAIVE TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTERCLAIMS, WHETHER IN CONTR5ACT OR TORT, AT LAW OR IN
EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty,
or has caused this Guaranty to be executed by its duly authorized
representative, as of the date first above written.
WITNESS FCOA ACQUISITION CORP., a Delaware
corporation
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxx Title: Chairman
ACCEPTED this 15th day of By: /s/ Xxxxxxx X. Xxxxxxx
November 1995 Title: Chairman
SIRROM CAPITAL CORPORATION, a
Tennessee corporation
By: /s/ Xxxxxxx Xxxxxxx
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Title: CFO
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