EXHIBIT 10.30
EXECUTION COPY
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY, dated as of December 9, 2002 (this
"GUARANTY"), is issued by XXXXXX, INC., a Delaware corporation (formerly known
as Big Flower Press Holdings, Inc. and herein called "GUARANTOR"), for the
benefit of XXXXXX RECEIVABLES, LLC, a Delaware limited liability company
(formerly BFP Receivables Corporation and herein called "PURCHASER"), and its
successors and assigns.
WHEREAS, Guarantor issued the Guaranty dated March 19, 1996 (the "ORIGINAL
GUARANTY") for the benefit of Purchaser; and
WHEREAS, Guarantor desires that the Original Guaranty be amended and
restated on the terms and conditions set forth herein; it being the intention of
Guarantor and Purchaser that this Guaranty not effect a novation of the
obligations of Guarantor to Purchaser under the Original Guaranty but merely a
restatement and, where applicable, a substitution of the terms governing and
evidencing such obligations hereafter;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the Original Guaranty is amended and restated to
read in its entirety, and Guarantor agrees, as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Guaranty, unless
otherwise defined herein, shall have the meaning set forth in Appendix A to the
Amended and Restated Indenture and Servicing Agreement, dated as of December 9,
2002 (as it may be amended, supplemented or otherwise modified from time to
time, the "INDENTURE") among Purchaser, Guarantor, as Servicer, and
Manufacturers and Traders Trust Company, as Trustee.
SECTION 2. GUARANTY. FOR VALUE RECEIVED, Guarantor hereby unconditionally
guarantees the full and prompt payment when due, whether by acceleration or
otherwise, and at all times thereafter, and the full and prompt performance, of
each of the Sellers'(each, a "GUARANTEED PARTY") obligations, howsoever created,
arising or evidenced, whether direct or indirect, primary or secondary, absolute
or contingent, joint or several, now or hereafter existing or due or to become
due, which arise out of or in connection with any Seller Transaction Document
(all of such obligations being hereinafter collectively called the
"LIABILITIES"); PROVIDED that nothing contained herein shall be deemed to
constitute recourse liability for the payment of any Receivable or of the
principal of, or interest on, any Note. Guarantor further agrees to pay all
expenses (including reasonable attorneys' fees and legal expenses) paid or
incurred by Purchaser or its assigns in endeavoring to collect the Liabilities,
or any part thereof, and in enforcing this Guaranty.
SECTION 3. CONTINUING GUARANTY. This Guaranty shall in all respects be a
continuing, absolute and unconditional guaranty, and shall remain in full force
and effect (notwithstanding, without limitation, that at any time or from time
to time all Liabilities may have been paid in full), subject to discontinuance
only upon actual receipt by Trustee of written notice from
Guarantor of the discontinuance hereof; PROVIDED, HOWEVER, that no such notice
of discontinuance hereof shall affect or impair any of the agreements and
obligations of Guarantor (i) hereunder with respect to any and all Liabilities
existing prior to the time of actual receipt of such notice by Trustee, any and
all Liabilities created or acquired thereafter pursuant to any commitments and
agreements made by Purchaser under and with respect to the Purchase Agreement,
and any and all extensions or renewals thereof, and (ii) any and all expenses
paid or incurred by Purchaser or its assigns in endeavoring to collect any of
the foregoing and in enforcing this Guaranty; and all of the agreements and
obligations under this Guaranty shall, notwithstanding any such notice of
discontinuance, remain fully in effect until all such Liabilities (including any
extensions or renewals of any thereof) and all such other obligations and
expenses finally shall have been paid in full.
SECTION 4. RESCISSION. Guarantor further agrees that, if at any time all or
any part of any payment theretofore applied by Purchaser to any of the
Liabilities is or must be rescinded or returned by Purchaser for any reason
whatsoever, such Liabilities 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 Purchaser, and this
Guaranty shall continue to be effective or be reinstated, as the case may be, as
to such Liabilities, all as though such application by Purchaser had not been
made.
SECTION 5. CERTAIN ACTIONS. Purchaser may, from time to time at its sole
discretion and without notice to Guarantor, take any or all of the following
actions without affecting the obligations of Guarantor hereunder: (a) retain or
obtain a lien upon or a security interest in any property to secure any of the
Liabilities or any obligation hereunder; (b) retain or obtain the primary or
secondary obligation of any obligor or obligors, in addition to Guarantor, with
respect to any of the Liabilities or any obligation hereunder; (c) extend or
renew for one or more periods (regardless of whether longer than the original
period), alter or exchange any of the Liabilities, or release or compromise any
obligation of Guarantor hereunder or any obligation of any nature of any other
obligor (including any Guaranteed Party) with respect to any of the Liabilities;
(d) release or fail to perfect its lien upon or security interest in, or impair,
surrender, release or permit any substitution or exchange for, all or any part
of any property securing any of the Liabilities or any obligation hereunder, or
extend or renew for one or more periods (regardless of whether 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 (e) resort to
Guarantor for payment of any of the Liabilities, regardless of whether Purchaser
shall have resorted to any property securing any of the Liabilities or any
obligation hereunder or shall have proceeded against any other obligor primarily
or secondarily obligated with respect to any of the Liabilities.
SECTION 6. SUBROGATION. Any amounts received by Purchaser from whatsoever
source on account of the Liabilities may be applied by it toward the payment of
such of the Liabilities, and in such order of application, as Purchaser or its
assigns may from time to time elect. Until such time as Purchaser shall have
received payment of the full amount of all Liabilities and performance of all of
Guarantor's obligations hereunder, no payment made by or for the account of
Guarantor pursuant to this Guaranty shall entitle Guarantor by subrogation,
indemnity or otherwise to any payment by any Guaranteed Party or from or out of
any property of any Guaranteed Party and Guarantor shall not exercise any right
or remedy against any Guaranteed
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Party or any property of any Guaranteed Party by reason of any performance by
Guarantor of this Guaranty.
SECTION 7. WAIVER. Guarantor hereby expressly waives: (a) notice of
Purchaser's acceptance of this Guaranty; (b) notice of the existence or creation
or non-payment of all or any of the Liabilities; (c) presentment, demand, notice
of dishonor, protest, and all other notices whatsoever (PROVIDED that nothing
contained in this CLAUSE (C) shall affect any obligations to give notice or make
demand as set forth in the Purchase Agreement or the Indenture); and (d) all
diligence in collection or protection of or realization upon the Liabilities or
any thereof, any obligation hereunder, or any security for or guaranty of any of
the foregoing.
SECTION 8. UNCONDITIONAL NATURE OF GUARANTY. No delay on Purchaser's part
in the exercise of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by Purchaser 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 Purchaser except as expressly set forth in a writing duly signed
by Purchaser. No action of Purchaser permitted hereunder shall in any way affect
or impair Purchaser's rights or Guarantor's obligations under this Guaranty. For
the purposes of this Guaranty, Liabilities shall include all of each Guaranteed
Party's obligations under the Transaction Documents, notwithstanding any right
or power of such Guaranteed Party 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 Guarantor hereunder.
Guarantor's obligations under this Guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever which might constitute a legal or
equitable discharge or defense of Guarantor. Guarantor hereby acknowledges that
there are no conditions to the effectiveness of this Guaranty.
SECTION 9. INFORMATION. Guarantor has and will continue to have independent
means of obtaining information concerning each Guaranteed Party's affairs,
financial condition and business. Purchaser shall not have any duty or
responsibility to provide Guarantor with any credit or other information
concerning any Guaranteed Party's affairs, financial condition or business which
may come into Purchaser's possession.
SECTION 10. REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants as follows:
(a) ORGANIZATION AND GOOD STANDING. It has been duly organized and is
validly existing as a corporation in good standing under the laws of its
state of incorporation, with corporate power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted.
(b) DUE QUALIFICATION. It is duly licensed or qualified to do business
as a foreign corporation in good standing in each jurisdiction in which (i)
the ownership or lease of its property or the conduct of its business
requires such licensing or qualification, and (ii) the failure to be so
licensed or qualified would be reasonably likely to have a Material Adverse
Effect.
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(c) POWER AND AUTHORITY; DUE AUTHORIZATION. It has (i) all necessary
power, authority and legal right to execute, deliver and perform its
obligations under this Guaranty and (ii) duly authorized by all necessary
corporate action such execution, delivery and performance of this Guaranty.
(d) BINDING OBLIGATIONS. This Guaranty constitutes the legal, valid
and binding obligation of Guarantor, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or
at law.
(e) NO VIOLATION. The execution, delivery and performance of this
Guaranty will not (i) conflict with, or result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a default under (A) the certificate of incorporation or
by-laws of Guarantor or (B) any indenture, loan agreement, receivables
purchase agreement, mortgage, deed of trust, or other agreement or
instrument to which Guarantor is a party or by which it or its property is
bound, (ii) result in or require the creation or imposition of any Adverse
Claim (other than a Permitted Adverse Claim) upon any of its properties
pursuant to the terms of any such indenture, loan agreement, receivables
purchase agreement, mortgage, deed of trust, or other agreement or
instrument or (iii) violate any law or any order, rule, regulation
applicable to Guarantor of any court or of any federal, state or foreign
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Guarantor or any of its
properties.
SECTION 11. SUCCESSORS AND ASSIGNS. (a) This Guaranty shall be binding upon
Guarantor and upon Guarantor's successors and assigns and all references herein
to Guarantor or any Guaranteed Party shall be deemed to include any successor or
successors, whether immediate or remote, to such Person. Guarantor shall not
assign any of its obligations hereunder without the prior written consent of
Purchaser.
(b) This Guaranty shall inure to the benefit of Purchaser and its
successors and assigns. Guarantor acknowledges and agrees that Purchaser's
rights to receive payment and pursue remedies under this Guaranty are being
assigned to Trustee, for the benefit of the Noteholders and the Indemnified
Parties, pursuant to the Indenture.
SECTION 12. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES. 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 only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
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SECTION 13. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. Purchaser may
enforce any claim arising out of this Guaranty in any state or federal court
having subject matter jurisdiction and located in New York, New York and with
respect to any such claim, Guarantor hereby irrevocably submits to the
jurisdiction of such courts. Guarantor irrevocably consents to the service of
process out of said courts by mailing a copy thereof, by registered mail,
postage prepaid, to Guarantor, and agrees that such service, to the fullest
extent permitted by law, (i) shall be deemed in every respect effective service
of process upon it in any such suit, action or proceeding and (ii) shall be
taken and held to be valid personal service upon and personal delivery to it.
Nothing herein contained shall preclude Purchaser from bringing an action or
proceeding in respect hereof in any other country, state or place having
jurisdiction over such action. Guarantor irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court located in New York, New York and any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum.
GUARANTOR HEREBY EXPRESSLY WAIVES 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 WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY 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.
SECTION 14. NOTICES. All notices hereunder shall be given in the manner set
forth in Section 13.5 of the Indenture.
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IN WITNESS WHEREOF, this Guaranty has been executed and delivered by
Guarantor's duly authorized officer as of the date first written above.
XXXXXX, INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
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Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
Address: 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention:
Telephone: 000-000-0000
Facsimile: 000-000-0000
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