GENERAL CONTINUING GUARANTY
Exhibit 10.2
This
GENERAL
CONTINUING GUARANTY (this
“Guaranty”),
dated
as of July 15, 2005, is executed and delivered by the Persons listed below
on
the signature page(s) hereof under the caption “Guarantors” and any additional
entities acceding hereto (collectively,
jointly and severally, the “Guarantors”
and
each a “Guarantor”),
in
favor of XXXXX
FARGO FOOTHILL, INC., a
California corporation, as arranger and administrative agent for the below
defined Lenders (in such capacity, together with its successors and assigns,
if
any, in such capacity, “Agent”),
in
light of the following:
WHEREAS,
pursuant to that certain Credit Agreement dated as of even date herewith (as
amended, restated, supplemented or otherwise modified from time to time,
including all schedules thereto, the “Credit
Agreement”)
among
PORTRAIT
CORPORATION OF AMERICA INC.,
a
Delaware corporation (“Parent
Guarantor”),
PCA
LLC,
a
Delaware limited liability company (“PCA”),
each
of PCA’s subsidiaries signatory thereto (such Subsidiaries, together with PCA,
are referred to hereinafter each individually as a “Borrower”,
and
individually and collectively, jointly and severally, as the “Borrowers”),
the
lenders party thereto as “Lenders” (such
lenders, together with their respective successors and permitted assigns, are
referred to hereinafter each individually as a “Lender”
and
collectively as the “Lenders”),
and
Agent, the Lender Group is willing to make certain financial accommodations
available to Borrowers from time to time pursuant to the terms and conditions
thereof;
WHEREAS,
each
Guarantor is an Affiliate of Borrowers and, as such, will benefit by virtue
of
the financial accommodations extended by the Lender Group to Borrowers under
the
Credit Agreement; and
WHEREAS,
in
order to induce the Lender Group to enter into the Credit Agreement and the
other Loan Documents and to extend the financial accommodations to Borrowers
pursuant to the Credit Agreement, and in consideration thereof, and in
consideration of any loans or other financial accommodations heretofore or
hereafter extended by the Lender Group to Borrowers pursuant to the Credit
Agreement and the other Loan Documents, Guarantors have agreed to guaranty
the
Guarantied Obligations.
NOW,
THEREFORE,
in
consideration of the foregoing, each Guarantor hereby agrees with Agent as
follows:
1. Definitions
and Construction.
(a) Definitions.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement. The following terms, as
used
in this Guaranty, shall have the following meanings:
“Agent”
has the
meaning set forth in the preamble to this Guaranty.
“Borrowers”
and
“Borrower”
have
the meanings set forth in the preamble to this Guaranty.
“Credit
Agreement”
has the
meaning set forth in the recitals hereto.
“Guarantied
Obligations”
means
(a) the due and punctual payment of the principal of, and interest
(including any interest that, but for the commencement of an Insolvency
Proceeding, would have accrued) on, any and all premium on, and any and all
fees, costs, indemnities, and expenses incurred in connection with, the
Indebtedness owed by Borrowers to any member of the Lender Group or any Bank
Product Provider pursuant to the terms of the Credit Agreement or any other
Loan
Document and (b) the due and punctual performance and payment of all
other
present or future Indebtedness owing by Borrowers to any member of the Lender
Group or any Bank Product Provider.
“Guarantor”
and
“Guarantors”
have
the meanings set forth in the preamble to this Guaranty.
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“Guaranty”
has the
meaning set forth in the preamble to this Guaranty.
“Indebtedness”
means
any and all obligations (including the Obligations), indebtedness, or
liabilities of any kind or character arising directly or indirectly out of
or in
connection with the Credit Agreement or any other Loan Document, including
with
respect to any Advances, Letters of Credit or LC Facility Letters of Credit
including all such obligations, indebtedness, or liabilities, whether for
principal, interest (including any interest which, but for 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, or
determined or indeterminate, whether individual or joint liability, 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 any member of the Lender Group or any Bank Product
Provider.
“Parent
Guarantor”
has the
meaning set forth in the recitals hereto.
“PCA”
has the
meaning set forth in the recitals hereto.
“Voidable
Transfer”
has the
meaning set forth in Section 9
of this
Guaranty.
(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,
the
terms “includes” and “including” are not limiting, and the term “or” has, except
where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,”“herein,”“hereby,”“hereunder,” and similar terms in
this Guaranty refer to this Guaranty as a whole and not to any particular
provision of this Guaranty. Section, subsection, clause, schedule, and exhibit
references herein are to this Guaranty unless otherwise specified. Any reference
in this Guaranty to any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements, thereto and thereof,
as
applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements set forth herein). Neither this Guaranty nor any
uncertainty or ambiguity herein shall be construed against the Lender Group,
any
Bank Product Provider, any Guarantor or Borrowers, whether under any rule of
construction or otherwise. On the contrary, this Guaranty has been reviewed
by
all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes and intentions
of all parties hereto. Any reference herein to the satisfaction or payment
in
full of the Guarantied Obligations shall mean the payment in full in cash (or
cash collateralization in accordance with the terms of the Credit Agreement)
of
all Guarantied Obligations other than contingent indemnification Guarantied
Obligations and other than any Bank Product Obligations that, at such time,
are
allowed by the applicable Bank Product Provider to remain outstanding and are
not required to be repaid or cash collateralized pursuant to the provisions
of
the Credit Agreement. Any reference herein to any Person shall be construed
to
include such Person’s successors and assigns. Any requirement of a writing
contained herein shall be satisfied by the transmission of a Record and any
Record transmitted shall constitute a representation and warranty as to the
accuracy and completeness, in all material respects, of the information
contained therein.
2. Guarantied
Obligations.
Each
Guarantor hereby irrevocably and unconditionally, jointly and severally,
guaranties to Agent, for the benefit of the Lender Group and the Bank Product
Providers, as and for its own debt, until final payment in full thereof has
been
made, (a) the prompt payment of the Guarantied Obligations, 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
each 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 Borrowers of all of the
agreements, conditions, covenants, and obligations of Borrowers contained in
the
Credit Agreement and under each of the other Loan Documents.
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3. Continuing
Guaranty.
This
Guaranty includes Guarantied Obligations arising under successive transactions
continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guarantied Obligations, changing the interest rate, payment terms,
or other terms and conditions thereof, or creating new or additional Guarantied
Obligations after prior Guarantied Obligations have been satisfied in whole
or
in part. To the maximum extent permitted by law, each Guarantor hereby waives
any right to revoke this Guaranty as to future Guarantied Obligations. If such
a
revocation is effective notwithstanding the foregoing waiver, each Guarantor
acknowledges and agrees, to the maximum extent permitted by law, that
(a) no such revocation shall be effective until written notice thereof
has
been received by Agent, (b) no such revocation shall apply to any
Guarantied 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 Guarantied Obligations made or created after
such
date to the extent made or created pursuant to a legally binding commitment
of
Agent in existence on the date of such revocation, (d) no payment by
any
Guarantor, Borrowers, or from any other source, prior to the date of such
revocation shall reduce the maximum obligation of such Guarantor hereunder,
and
(e) any payment by Borrowers or from any source other than Guarantor
subsequent to the date of such revocation shall first be applied to that portion
of the Guarantied Obligations as to which the revocation is effective and which
are not, therefore, guarantied hereunder, and to the extent so applied shall
not
reduce the maximum obligation of the Guarantors hereunder.
4. Performance
Under this Guaranty.
In the
event that Borrowers fail to make any payment of any Guarantied Obligations,
on
or prior to the due date thereof, or if Borrowers shall fail to perform, keep,
observe, or fulfill any other obligation referred to in clause
(b)
of
Section
2
of this
Guaranty in the manner, and subject to any cure periods, provided in the Credit
Agreement or any other Loan Document, each of the Guarantors immediately shall
cause, as applicable, such payment to be made or such obligation to be
performed, kept, observed, or fulfilled.
5. Primary
Obligations.
This
Guaranty is a primary and original obligation of each 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. Each Guarantor
hereby agrees that it is directly, jointly and severally with each other
Guarantor, and any other guarantor of the Guarantied Obligations, liable to
Agent, for the benefit of the Lender Group and the Bank Product Providers,
that
the obligations of each Guarantor hereunder are independent of the obligations
of Borrowers, each other Guarantor or any other guarantor, and that a separate
action may be brought against Guarantor, whether such action is brought against
Borrowers, any other Guarantor, or any other guarantor or whether Borrowers,
any
other Guarantor or any other guarantor is joined in such action. Each Guarantor
hereby agrees that its liability hereunder shall be immediate and shall not
be
contingent upon the exercise or enforcement by any member of the Lender Group
or
any Bank Product Provider of whatever remedies they may have against Borrowers,
any other Guarantor or any other guarantor, or the enforcement of any lien
or
realization upon any security by any member of the Lender Group or any Bank
Product Provider. Each Guarantor hereby agrees that any release which may be
given by Agent to Borrowers, any other Guarantor or any other guarantor shall
not release such Guarantor. Each Guarantor consents and agrees that no member
of
the Lender Group nor any Bank Product Provider shall be under any obligation
to
marshal any property or assets of Borrowers, any other Guarantor or any other
guarantor in favor of Guarantor, or against or in payment of any or all of
the
Guarantied Obligations.
6. Waivers.
(a) To
the
fullest extent permitted by applicable law, each Guarantor hereby waives:
(i) notice of acceptance hereof; (ii) notice of any loans or
other
financial accommodations made or extended under the Credit Agreement, or the
creation or existence of any Guarantied Obligations; (iii) notice of
the
amount of the Guarantied Obligations, subject, however, to such Guarantor’s
rights to make inquiry of Agent to ascertain the amount of the Guarantied
Obligations at any reasonable time; (iv) notice of any adverse change
in
the financial condition of Borrowers or of any other fact that might increase
such Guarantor’s risk hereunder; (v) notice of presentment for payment,
demand, protest, and notice thereof as to any instrument among the Loan
Documents; (vi) notice of any Default or Event of Default under the
Credit
Agreement; and (vii) all other notices (except if such notice is
specifically required to be given to any Guarantor under this Guaranty or any
other Loan Documents to which any Guarantor is a party) and demands to which
any
Guarantor might otherwise be entitled.
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(b) To
the
fullest extent permitted by applicable law, each Guarantor hereby waives the
right by statute or otherwise to require any member of the Lender Group or
any
Bank Product Provider, to institute suit against Borrowers or to exhaust any
rights and remedies which any member of the Lender Group or any Bank Product
Provider, has or may have against Borrowers. In this regard, each Guarantor
agrees that it is bound to the payment of each and all Guarantied Obligations,
whether now existing or hereafter arising, as fully as if the Guarantied
Obligations were directly owing to Agent, the Lender Group, or the Bank Product
Providers, as applicable, by each Guarantor. Each Guarantor further waives
any
defense arising by reason of any disability or other defense (other than the
defense that the Guarantied Obligations shall have been performed and paid
in
the manner provided for by the applicable Loan Documents, to the extent of
any
such payment) of Borrowers or by reason of the cessation from any cause
whatsoever of the liability of Borrowers in respect thereof.
(c) To
the
fullest extent permitted by applicable law, each Guarantor hereby waives:
(i) any right to assert against any member of the Lender Group or any
Bank
Product Provider, any defense (legal or equitable), set-off, counterclaim,
or
claim which such Guarantor may now or at any time hereafter have against
Borrowers or any other party liable to any member of the Lender Group or any
Bank Product Provider; (ii) 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 Guarantied
Obligations or any security therefor; (iii) any right or defense arising
by
reason of any claim or defense based upon an election of remedies by any member
of the Lender Group or any Bank Product Provider; (iv) the benefit of
any
statute of limitations affecting such 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 Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to Guarantor’s liability hereunder.
(d) Until
such time as all of the Guarantied Obligations have been paid in full:
(i) each Guarantor hereby waives and postpones any right of subrogation
Guarantor has or may have as against Borrowers with respect to the Guarantied
Obligations; (ii) Guarantor hereby waives and postpones any right to
proceed against Borrowers, any other Guarantor or any of their respective
Affiliates, now or hereafter, for contribution, indemnity, reimbursement, or
any
other suretyship rights and claims (irrespective of whether direct or indirect,
liquidated or contingent), with respect to the Guarantied Obligations; and
(iii) each Guarantor also hereby waives and postpones any right to proceed
or to seek recourse against or with respect to any property or asset of
Borrowers.
(e) If
any of
the Guarantied Obligations or the obligations of any Guarantor under this
Guaranty at any time are secured by a mortgage or deed of trust upon real
property, any member of the Lender Group or any Bank Product Provider may elect,
in its sole discretion, upon a default with respect to the Guarantied
Obligations or the obligations of the Guarantors under this Guaranty, to
foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of such Guarantor hereunder. Each
Guarantor understands that (a) by virtue of the operation of antideficiency
law applicable to nonjudicial foreclosures, an election by any member of the
Lender Group or any Bank Product Provider to nonjudicially foreclose on such
a
mortgage or deed of trust probably would have the effect of impairing or
destroying rights of subrogation, reimbursement, contribution, or indemnity
of
the Guarantors against Borrowers or other guarantors or sureties, and
(b) absent the waiver given by Guarantors herein, such an election would
estop the Lender Group and the Bank Product Providers from enforcing this
Guaranty against Guarantor. Understanding the foregoing, and understanding
that
each Guarantor hereby is relinquishing a defense to the enforceability of this
Guaranty, each Guarantor hereby waives any right to assert against any member
of
the Lender Group or any Bank Product Provider any defense to the enforcement
of
this Guaranty, whether denominated “estoppel” or otherwise, based on or arising
from an election by any member of the Lender Group or any Bank Product Provider
to nonjudicially foreclose on any such mortgage or deed of trust. Each Guarantor
understands that the effect of the foregoing waiver may be that such Guarantor
may have liability hereunder for amounts with respect to which such Guarantor
may be left without rights of subrogation, reimbursement, contribution, or
indemnity against Borrowers, the Guarantors or other guarantors or
sureties.
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(f) Without
limiting the generality of any other waiver or other provision set forth in
this
Guaranty, to the maximum extent permitted by applicable law, each Guarantor
waives all rights and defenses that such Guarantor may have if all or part
of
the Guarantied Obligations are secured by real property. This means, among
other
things:
(i) Any
member of the Lender Group or any Bank Product Provider may collect from such
Guarantor without first foreclosing on any real or personal property collateral
that may be pledged by such Guarantor, Borrowers, the other Guarantors or any
other guarantor.
(ii) If
any
member of the Lender Group or any Bank Product Provider forecloses on any real
property collateral that may be pledged by such Guarantor, Borrowers, the other
Guarantors or any other guarantor:
| (1) |
The
amount of the Guarantied Obligations or any obligations of any Guarantor
in respect thereof may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral
is
worth more than the sale price.
|
| (2) |
Agent
may collect from such Guarantor even if any member of the Lender
Group or
any Bank Product Provider, by foreclosing on the real property collateral,
has destroyed any right such Guarantor may have to collect from Borrowers,
the other Guarantors, or any other
guarantor.
|
To
the
maximum extent permitted by applicable law, this is an unconditional and
irrevocable waiver of any rights and defenses Guarantor may have if all or
part
of the Guarantied Obligations are secured by real property.
(G) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN
THIS
GUARNTY, TO
THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH
GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES
BY ANY MEMBER OF THE LENDER GROUP OR ANY BANK PRODUCT PROVIDER, EVEN THOUGH
SUCH
ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY
FOR THE GUARANTIED OBLIGATIONS, HAS DESTROYED SUCH GUARANTOR’S RIGHTS OF
SUBROGATION AND REIMBURSEMENT AGAINST BORROWERS BY THE OPERATION OF APPLICABLE
LAW.
(h) Without
limiting the generality of any other waiver or other provision set forth in
this
Guaranty, each Guarantor hereby agrees as follows:
(i) Agent’s
right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of any of the Loan Documents. Each
Guarantor agrees that Agent’s rights under this Guaranty shall be enforceable to
the extent any Guarantied Obligations remain outstanding even if Borrowers
had
no liability at the time of execution of the Loan Documents or later ceases
to
be liable.
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(ii) Guarantor
agrees that Agent’s rights under the Loan Documents will remain enforceable even
if the amount secured by the Loan Documents is larger in amount and more
burdensome than that for which Borrowers are responsible. The enforceability
of
this Guaranty against each Guarantor shall continue until all sums due under
the
Loan Documents have been paid in full and shall not be limited or affected
in
any way by any impairment or any diminution or loss of value of any security
or
collateral for Borrowers’ obligations under the Loan Documents, from whatever
cause, the failure of any security interest in any such security or collateral
or any disability or other defense of Borrowers, any other Guarantor, or any
other guarantor of Borrowers’ obligations under any other Loan Document, any
pledgor of collateral for any Person’s obligations to Agent or any other Person
in connection with the Loan Documents.
(iii) To
the
maximum extent permitted by applicable law, each Guarantor waives the right
to
require Agent to (A) proceed against Borrowers, any other Guarantor,
or any
guarantor of Borrowers’ obligations under any Loan Document, any other pledgor
of collateral for any person’s obligations to Agent or any other person in
connection with the Guarantied Obligations, (B) proceed against or exhaust
any other security or collateral Agent may hold, or (C) pursue any other
right or remedy for such Guarantor’s benefit, and agrees that Agent may exercise
its right under this Guaranty without taking any action against Borrowers,
any
other Guarantor or any other guarantor of Borrowers’ obligations under the Loan
Documents, any pledgor of collateral for any Person’s obligations to Agent or
any other Person in connection with the Guarantied Obligations, and without
proceeding against or exhausting any security or collateral Agent
holds.
(iv) Each
Guarantor’s liability with respect to the Guaranteed Obligations shall remain in
full force and effect without regard to, and shall not be impaired or affected
by, nor shall the Guarantor be exonerated or discharged by, any acts of any
Governmental Authority of or in any jurisdiction affecting Borrowers, such
Guarantor, any other Guarantor, or any other guarantor of Borrowers’ obligations
under the Loan Documents, any pledgor of collateral for any Person’s obligations
to Agent or any other Person, including any restrictions on the conversion
or
exchange of currency or repatriation or control of funds, a declaration of
banking moratorium or any suspension of payments by banks in any jurisdiction
or
the imposition by any jurisdiction or any Governmental Authority thereof or
therein of any moratorium on, the required rescheduling or restructuring of,
or
required approval of payments on, any indebtedness in such jurisdiction, or
any
total or partial expropriation, confiscation, nationalization or requisition
of
any such Person’s property; any war (whether or not declared), insurrection,
revolution, hostile act, civil strife or similar events occurring in any
jurisdiction; or any economic, political, regulatory or other events in any
jurisdiction
7. Releases.
Each
Guarantor consents and agrees that, without notice to or by any Guarantor and
without affecting or impairing the obligations of any Guarantor hereunder,
any
member of the Lender Group or any Bank Product Provider may, by action or
inaction, compromise or settle, extend the period of duration or the time for
the payment, or discharge the performance of, or may refuse to, or otherwise
not
enforce, or may, by action or inaction, release all or any one or more parties
to, any one or more of the terms and provisions of the Credit Agreement or
any
other Loan Document or may grant other indulgences to Borrowers in respect
thereof, or may amend or modify in any manner and at any time (or from time
to
time) any one or more of the Credit Agreement or any other Loan Document, or
may, by action or inaction, release or substitute any Guarantor or any other
guarantor, if any, of the Guarantied Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the Guarantied
Obligations or any other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No
Election.
The
Lender Group and the Bank Product Providers shall have the right to seek
recourse against each Guarantor to the fullest extent provided for herein and
no
election by any member of the Lender Group or any Bank Product Provider to
proceed in one form of action or proceeding, or against any party, or on any
obligation, shall constitute a waiver of the Lender Group’s or any Bank Product
Provider’s right to proceed in any other form of action or proceeding or against
other parties unless Agent, on behalf of the Lender Group or the Bank Product
Providers, has expressly waived such right in writing. Specifically, but without
limiting the generality of the foregoing, no action or proceeding by the Lender
Group or the Bank Product Providers under any document or instrument evidencing
the Guarantied Obligations shall serve to diminish the liability of any
Guarantor under this Guaranty except to the extent that the Lender Group and
the
Bank Product Providers finally and unconditionally shall have realized payment
in full of the Guarantied Obligations by such action or proceeding.
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9. Revival
and Reinstatement.
If the
incurrence or payment of the Guarantied Obligations or the obligations of any
Guarantor under this Guaranty by such Guarantor or the transfer by such
Guarantor to Agent of any property of such Guarantor should for any reason
subsequently be declared to be void or voidable under any state or federal
law
relating to creditors’ rights, including provisions of the Bankruptcy Code
relating to fraudulent conveyances, preferences, or other voidable or
recoverable payments of money or transfers of property (collectively, a
“Voidable
Transfer”),
and
if the Lender Group is required to repay or restore, in whole or in part, any
such Voidable Transfer, or elects to do so upon the reasonable advice of its
counsel, then, as to any such Voidable Transfer, or the amount thereof that
the
Lender Group is required or elects to repay or restore, and as to all reasonable
costs, expenses, and attorneys fees of the Lender Group related thereto, the
liability of each Guarantor automatically shall be revived, reinstated, and
restored and shall exist as though such Voidable Transfer had never been
made.
10. Financial
Condition of Borrowers.
Each
Guarantor represents and warrants to the Lender Group and the Bank Product
Providers that it is currently informed of the financial condition of Borrowers
and of all other circumstances which a diligent inquiry would reveal and which
bear upon the risk of nonpayment of the Guarantied Obligations. Each Guarantor
further represents and warrants to the Lender Group and the Bank Product
Providers that it has read and understands the terms and conditions of the
Credit Agreement and each other Loan Document. Each Guarantor hereby covenants
that it will continue to keep itself informed of Borrowers’ financial condition,
the financial condition of other Guarantors and guarantors, if any, and of
all
other circumstances which bear upon the risk of nonpayment or nonperformance
of
the Guarantied Obligations.
11. Payments;
Application.
All
payments to be made hereunder by any Guarantor shall be made in Dollars, in
immediately available funds, and without deduction (whether for taxes or
otherwise) or offset and shall be applied to the Guarantied Obligations in
accordance with the terms of the Credit Agreement.
12. Attorneys
Fees and Costs.
Subject
to any limitation on expense reimbursement contained in the Credit Agreement,
each Guarantor jointly and severally agrees to pay, on demand, all attorneys
fees and all other costs and expenses which may be incurred by Agent or the
Lender Group in connection with the protection, assertion, or enforcement of
this Guaranty or in any way arising out of, or consequential to, the protection,
assertion, or enforcement of the Guarantied Obligations (or any security
therefor), irrespective of whether suit is brought.
13. Notices.
All
notices and other communications hereunder to Agent shall be in writing and
shall be mailed, sent, or delivered in accordance Section
11
of the
Credit Agreement. All notices and other communications hereunder to Guarantors
shall be in writing and shall be mailed, sent, or delivered in care of Borrowers
in accordance with Section
11
of the
Credit Agreement.
14. Cumulative
Remedies.
No
remedy under this Guaranty, under the Credit Agreement, or any other 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
under this Guaranty, under the Credit Agreement, or any other Loan Document,
and
those provided by law. No failure on the part of the Lender Group or Agent
on
behalf thereof to exercise, and no delay in exercising, any right under this
Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise
thereof or the exercise of any other right.
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15. Severability
of Provisions.
If any
provision of this Guaranty is held to be illegal, invalid or unenforceable
under
present or future laws, the legality, validity and enforceability of the
remaining provisions of this Guaranty shall not be affected
thereby.
16. Entire
Agreement; Amendments.
This
Guaranty constitutes the entire agreement among the Guarantors and the Lender
Group 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
each Guarantor and Agent, on behalf of the Lender Group. 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.
17. Successors
and Assigns.
This
Guaranty shall be binding upon each Guarantor and its successors and assigns
and
shall inure to the benefit of the successors and permitted assigns of the Lender
Group and the Bank Product Providers; provided,
however,
that no
Guarantor may assign this Guaranty or delegate any of its duties hereunder
without Agent’s prior written consent and any unconsented to assignment shall be
absolutely void. In the event of any assignment or other transfer of rights
by
the Lender Group (in accordance with the terms of the Credit Agreement) or
the
Bank Product Providers, the rights and benefits herein conferred upon the Lender
Group and the Bank Product Providers shall automatically extend to and be vested
in such permitted assignee or other permitted transferee.
18. No
Third Party Beneficiary.
This
Guaranty is solely for the benefit of each member of the Lender Group, each
Bank
Product Provider, and each of their successors and assigns and may not be relied
on by any other Person.
19. Choice
of Law and Venue; Jury Trial Waiver.
THE
VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANAHTTAN,
COUNTY OF NEW YORK, STATE OF NEW YORK, PROVIDED,
HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY
MAY
BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT
ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY
BE
FOUND. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH 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 THE PROVISIONS OF THIS SECTION
19.
EACH
GUARANTOR AND EACH MEMBER OF THE LENDER GROUP (BY ITS ACCEPTANCE HEREOF) HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH GUARANTOR AND EACH
MEMBER OF THE LENDER GROUP (BY ITS ACCEPTANCE HEREOF) REPRESENTS THAT EACH
HAS
REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
A
COPY OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
8
20. Counterparts;
Telefacsimile Execution.
This
Guaranty may be executed in any number of counterparts and by different parties
on separate counterparts, each of which, when executed and delivered, shall
be
deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Guaranty. Delivery of an executed counterpart
of
this Guaranty by telefacsimile shall be equally as effective as delivery of
an
original executed counterpart of this Guaranty. Any party delivering an executed
counterpart of this Guaranty by telefacsimile also shall deliver an original
executed counterpart of this Guaranty but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Guaranty.
21. Agreement
to be Bound.
Each
Guarantor hereby agrees to be bound by each and all of the terms and provisions
of the Credit Agreement. Without limiting the generality of the foregoing,
by
its execution and delivery of this Guaranty, each Guarantor that is a Subsidiary
of Parent Guarantor hereby: (a) makes to the Lender Group each of the
representations and warranties set forth in the Credit Agreement applicable
to
such Guarantor fully as though such Guarantor were a party thereto, and such
representations and warranties are incorporated herein by this reference,
mutatis
mutandis;
and
(b) agrees and covenants (i) to do each of the things set forth
in the
Credit Agreement that Parent Guarantor and Borrowers agree and covenant to
cause
their respective Subsidiaries to do, and (ii) to not do each of the
things
set forth in the Credit Agreement that Parent Guarantor and/or Borrowers agree
and covenant to cause their Subsidiaries not to do, in each case, fully as
though such Guarantor was a party thereto, and such agreements and covenants
are
incorporated herein by this reference, mutatis
mutandis.
[Signature
page to follow]
9
IN
WITNESS WHEREOF,
the
undersigned has executed and delivered this Guaranty as of the date first
written above.
|
PORTRAIT
CORPORATION OF AMERICA, INC.,
a
Delaware corporation
|
|
By:
/s/
Xxxxxx Norsworthy___________
|
|
Name:
Xxxxxx Xxxxxxxxxx
|
|
Title:
Executive Vice President and Chief Financial Officer
|
|
PCA
FINANCE CORP.,
a
Delaware corporation
|
|
By:
/s/
Xxxxxx Norsworthy___________
|
|
Name:
Xxxxxx Xxxxxxxxxx
|
|
Title:
Executive Vice President and Chief Financial Officer
|
|
PHOTO
CORPORATION OF AMERICA,
a
North Carolina corporation
|
|
By:
/s/
Xxxxxx Norsworthy___________
|
|
Name:
Xxxxxx Xxxxxxxxxx
|
|
Title:
Executive Vice President and Chief Financial Officer
|
|
XXXXX
FARGO FOOTHILL, INC.,
a
California corporation,
as
Agent
|
|
By:
/s/ Xxxxx MacDonald______________
|
|
Name:
Xxxxx XxxXxxxxx
|
|
Title:
Vice President
|
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