EXHIBIT 10.30
EXECUTION
COPY
GUARANTY
This Guaranty (this "Guaranty") is dated as of July 31, 1998,
by the Persons listed on the signature pages hereof (each a "Guarantor"), in
favor of FIRST SOURCE FINANCIAL LLP, as agent, for its benefit and the benefit
of Lenders (in such capacity, the "Agent").
RECITALS:
WHEREAS, Gibraltar Packaging Group, Inc., a Delaware
corporation ("Borrower"), Agent and the Persons designated as lenders from time
to time thereunder ("Lenders") have entered into that certain Secured Credit
Agreement dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") providing for the extension
of loans and other financial accommodations from Lenders to Borrower (all
Liabilities being referred to herein as the "Guaranty Indebtedness");
WHEREAS, each Guarantor is a Subsidiary of Borrower and will
derive direct and indirect economic benefit from the financial accommodations to
Borrower set forth in the Credit Agreement, including, without limitation, the
loans and advances made and to be made to Borrower thereunder, and it will be to
each Guarantor's direct and indirect economic benefit to assist Borrower in
procuring such financial accommodations from Lenders; and
WHEREAS, a condition precedent to Agent and Lenders entering
into the Credit Agreement is that each Guarantor execute and deliver this
Guaranty;
NOW, THEREFORE, for and in consideration of the premises and
in order to induce Agent and Lenders to enter into the Credit Agreement and
Lenders to continue to make loans under the Credit Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby agrees as follows:
SECTION 1. Definitions.
Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings assigned to such terms in the Credit
Agreement.
SECTION 2. Guaranty of Payment.
(a) Each Guarantor hereby absolutely and unconditionally
guarantees the full and prompt payment to Agent, for its benefit and the benefit
of Lenders, when due, upon demand, at
maturity or by reason of acceleration or otherwise and at all times thereafter,
of any and all existing and future Guaranty Indebtedness.
(b) Each Guarantor acknowledges that valuable consideration
supports this Guaranty, including, without limitation, the consideration set
forth in the recitals above as well as any commitment to lend, extension of
credit or other financial accommodation, whether heretofore or hereafter made by
Lenders to Borrower; any extension, renewal or replacement of any of the
Guaranty Indebtedness; any forbearance with respect to any of the Guaranty
Indebtedness or otherwise; or any other valuable consideration.
(c) Guarantor agrees that all payments under this Guaranty
shall be made in United States currency and in the same manner as provided for
in the Guaranty Indebtedness.
SECTION 3. Costs and Expenses.
Each Guarantor agrees to pay or reimburse on demand, if not
paid by Borrower, all reasonable out of pocket costs and expenses of every kind
incurred by Agent or Lenders in connection with the Credit Agreement, including,
without limitation: (a) in enforcing this Guaranty, (b) in collecting any of the
Guaranty Indebtedness from Borrower or any Guarantor, (c) in realizing upon or
protecting any collateral for this Guaranty or for payment of any of the
Guaranty Indebtedness, and (d) for any other purpose related to the Guaranty
Indebtedness or this Guaranty. "Costs and expenses" as used in the preceding
sentence shall include, without limitation, reasonable attorneys' fees incurred
by Agent or any Lender in retaining counsel for advice, suit, appeal, any
insolvency or other proceedings under Title 11 of the United States Code (the
"Bankruptcy Code") or otherwise, or for any purpose specified in the preceding
sentence.
SECTION 4. Nature of Guaranty: Continuing, Absolute and
Unconditional.
(a) This Guaranty is and is intended to be a continuing
guaranty of payment of the Guaranty Indebtedness, independent of and in addition
to any other guaranty, indorsement, collateral or other agreement held by Agent
or Lenders therefor or with respect thereto, whether or not furnished by any
Guarantor. The obligations of each Guarantor to repay the Guaranty Indebtedness
hereunder shall be unconditional.
(b) Until the Guaranty Indebtedness has been paid in full in
cash, no Guarantor shall have a right, claim or remedy of subrogation,
reimbursement, contribution or any similar rights against Borrower or any other
guarantor with respect to the Guaranty Indebtedness and each Guarantor hereby
waives all such rights including, without limitation, any right to enforce any
remedy which Agent or any Lender now has or may hereafter have against Borrower,
any endorser or any other guarantor of all or any part of the Guaranty
Indebtedness, and each Guarantor hereby waives any benefit of, and any right to
participate in, any security or collateral given to Agent, on behalf of Lenders,
to secure payment of the Guaranty Indebtedness or any part thereof or any other
liability of Borrower to Agent or Lenders. If any amount shall be paid to any
Guarantor on account of any payment made hereunder at any time when the Guaranty
Indebtedness shall not have been paid in full in cash, such amount shall be held
in trust for the benefit of Agent and Lenders and shall
forthwith be paid to Agent to be credited and applied, whether the Guaranty
Indebtedness is matured or unmatured, in accordance with the terms of the Credit
Agreement. Each Guarantor authorizes Agent, on behalf of itself and Lenders, to
take any action or exercise any remedy with respect to such collateral which
Agent, on behalf of itself and Lenders, in its sole discretion shall determine,
without notice to any Guarantor. Each Guarantor further agrees that any and all
claims of such Guarantor against Borrower, any endorser or any other guarantor
of all or any part of the Guaranty Indebtedness, or against any of their
respective properties, whether arising by reason of any payment by such
Guarantor to Agent, on behalf of itself and Lenders, pursuant to the provisions
hereof, or otherwise, shall be subordinate and subject in right of payment to
the prior payment, in full, of any and all principal and interest, all fees, all
reasonable costs of collection (including reasonable attorneys' fees and time
charges) and any other liabilities or obligations owing to Agent and Lenders by
Borrower which may arise either with respect to or on any note, instrument,
document, item, agreement or other writing heretofore, now or hereafter
delivered to any Lender or Agent. In the event Agent, on behalf of itself and
Lenders, in its sole discretion elects to give notice of any action with respect
to the collateral securing the Guaranty Indebtedness or any part thereof, ten
(10) days' written notice mailed to each Guarantor by ordinary mail at the
address shown hereon shall be deemed reasonable notice of any matters contained
in such notice. Each Guarantor consents and agrees that Agent, on behalf of
itself and Lenders, shall be under no obligation to xxxxxxxx any assets in favor
of Guarantor or against or in payment of any or all of the Guaranty
Indebtedness.
(c) For the further security of Agent and Lenders and without
in any way diminishing the liability of Guarantor, following the occurrence of
an Event of Default and acceleration of the Guaranty Indebtedness of Borrower,
all debts and liabilities, present or future of Borrower to any Guarantor and
all monies received from Borrower or for its account by any Guarantor in respect
thereof shall be received in trust for Lenders and forthwith upon receipt shall
be paid over to Agent, for the benefit of itself and Lenders, until all of such
Guaranty Indebtedness has been paid in full. The obligations of each Guarantor
in the preceding sentence shall be independent of and severable from this
Guaranty and shall remain in full force and effect whether or not such Guarantor
is liable for any amount under this Guaranty.
(d) This Guaranty and each Guarantor's obligations hereunder
are absolute and unconditional and shall not be changed or affected by any
representation, oral agreement, act or thing whatsoever. This Guaranty is
intended by each Guarantor to be the final, complete and exclusive expression of
the guaranty agreement between such Guarantor and Agent, on behalf of Lenders.
No modification or amendment of any provision of this Guaranty shall be
effective unless in writing and signed by a duly authorized officer of Agent, on
behalf of Lenders.
SECTION 5. Certain Rights and Obligations.
(a) Each Guarantor authorizes Agent and Lenders, without
notice, demand or any reservation of rights against such Guarantor and without
impairing or affecting the validity or enforceability of this Guaranty or such
Guarantor's obligations hereunder, from time to time: (i) to renew, extend,
increase, accelerate or otherwise change the time for payment of, the terms of
or the interest on the Guaranty
-3-
Indebtedness or any part thereof or grant other indulgences to Borrower or other
Persons; (ii) to accept from any Person and hold collateral for the payment of
the Guaranty Indebtedness or any part thereof, and to modify, exchange, enforce
or refrain from enforcing, or release, compromise, settle, waive, subordinate or
surrender, with or without consideration, such collateral or any part thereof;
(iii) to accept and hold any endorsement or guaranty of payment of the Guaranty
Indebtedness or any part thereof, and to discharge, release or substitute any
such obligation of any such endorser or guarantor, or any Person who has given
any security interest in any collateral as security for the payment of the
Guaranty Indebtedness or any part thereof, or any other Person in any way
obligated to pay the Guaranty Indebtedness or any part thereof, and to enforce
or refrain from enforcing, or compromise or modify, the terms of any obligation
of any such indorser, guarantor, or Person; (iv) subject to the notice provision
set forth in Section 4(b) hereof, to dispose of any and all collateral securing
the Guaranty Indebtedness in any manner as Agent or Lenders, in its or their
sole discretion, may deem appropriate, and to direct the order or manner of such
disposition and the enforcement of any and all endorsements and guaranties
relating to the Guaranty Indebtedness or any part thereof as Agent or Lenders,
in its or their sole discretion, may determine; (v) except as otherwise provided
in the Credit Agreement, to determine the manner, amount and time of application
of payments and credits, if any, to be made on all or any part of any component
or components of the Guaranty Indebtedness (whether principal, interest, fees,
costs, and expenses, or otherwise) including, without limitation, the
application of payments received from any source to the payment of indebtedness
other than the Guaranty Indebtedness even though Agent and Lenders might
lawfully have elected to apply such payments to the Guaranty Indebtedness or to
amounts which are not covered by this Guaranty; and (vi) to take advantage or
refrain from taking advantage of any security or accept or make or refrain from
accepting or making any compositions or arrangements when and in such manner as
Agent or Lenders, in its or their sole discretion, may deem appropriate and
generally do or refrain from doing any act or thing which might otherwise, at
law or in equity, release the liability of such Guarantor as a guarantor or
surety in whole or in part, and in no case shall Agent or Lenders be responsible
or shall such Guarantor be released either in whole or in part for any act or
omission in connection with Agent or Lenders having sold any collateral at less
than fair market value.
(b) If any default shall be made in the payment of any of the
Guaranty Indebtedness and any grace period has expired with respect thereto,
each Guarantor hereby agrees to pay the same in full to the extent hereinafter
provided: (i) without deduction by reason of any setoff, defense (other than
payment) or counterclaim of Borrower; (ii) without requiring presentment,
protest or notice of nonpayment or notice of default to such Guarantor, to
Borrower or to any other Person; (iii) without demand for payment or proof of
such demand or filing of claims with a court in the event of receivership,
bankruptcy or reorganization of Borrower; (iv) without requiring Agent or
Lenders to resort first to Borrower (this being a guaranty of payment and not of
collection) or to any other guarantor or any other Person obligated with respect
to the Guaranty Indebtedness or any collateral which Lenders may hold; (v)
without requiring notice of acceptance hereof or assent hereto by Agent or
Lenders; and (vi) without requiring notice that any of the Guaranty Indebtedness
has been incurred, extended or continued or of the reliance by Agent or Lenders
upon this Guaranty; all of which such Guarantor hereby waives.
(c) This Guaranty and each Guarantor's obligation hereunder
shall at all times until the expiration or termination of the Commitments and
the payment and performance in full of the Guaranteed Obligations be valid and
enforceable and shall not be impaired or affected by any
-4-
other agreements or circumstances of any nature whatsoever which otherwise
constitute a defense to this Guaranty, including, without limitation, any of the
following, all of which each Guarantor hereby waives to the extent permitted by
law: (i) any failure or omission to perfect or continue the perfection of any
security interest in or other lien on, or preserve rights to, any collateral
securing payment of any of the Guaranty Indebtedness or such Guarantor's
obligation hereunder; (ii) the invalidity, unenforceability, propriety of manner
of enforcement of, or loss or change in priority of any such security interest
or other lien or guaranty of the Guaranty Indebtedness; (iii) any failure or
omission to protect, preserve or insure any such collateral; (iv) failure of
such Guarantor to receive notice of any intended disposition of such collateral;
(v) any defense arising by reason of the cessation from any cause whatsoever of
liability of Borrower including, without limitation, any failure, negligence or
omission by Agent or Lenders in enforcing their claims against Borrower; (vi)
any waiver of any right, remedy or power or of any default with respect to the
Guaranty Indebtedness or any part thereof or any release, settlement or
compromise of any obligation of Borrower; (vii) the invalidity or
unenforceability of any of the Guaranty Indebtedness or the invalidity or
unenforceability of any agreement relating thereto or with respect to any
collateral securing the Guaranty Indebtedness or any part thereof; (viii) any
change of ownership of Borrower or the insolvency, bankruptcy or any other
change in the legal status of Borrower; (ix) any change in, or the imposition
of, any law, decree, regulation or other governmental act which does or might
impair, delay or in any way affect the validity, enforceability or the payment
when due of the Guaranty Indebtedness; (x) the existence of any claim, setoff or
other right which such Guarantor may have at any time against Agent, any Lender,
Borrower or any other guarantor in connection herewith or any unrelated
transaction; (xi) the failure of Borrower or such Guarantor to maintain in full
force, validity or effect or to obtain or renew when required all governmental
and other approvals, licenses or consents required in connection with the
Guaranty Indebtedness or this Guaranty, or to take any other action required in
connection with the performance of all obligations pursuant to the Guaranty
Indebtedness or this Guaranty; (xii) Agent's election, on behalf of Lenders, in
any case instituted under chapter 11 of the Bankruptcy Code, of the application
of section 1111(b)(2) of the Bankruptcy Code; (xiii) any borrowing, use of cash
collateral, or grant of a security interest by Borrower, as debtor in
possession, under section 363 or 364 of the Bankruptcy Code; (xiv) the
disallowance of all or any portion of Agent's or any of Lenders' claims for
repayment of the Guaranty Indebtedness under section 502 or 506 of the
Bankruptcy Code; or (xv) any other fact or circumstance which might otherwise
constitute grounds at law or in equity for the discharge or release of such
Guarantor from its obligations hereunder, all whether or not such Guarantor
shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (i) through (xiv) of this subsection 5(c). It is agreed that
each Guarantor's liability hereunder is independent of any other guaranties or
other obligations at any time in effect with respect to the Guaranty
Indebtedness or any part thereof and that each Guarantor's liability hereunder
may be enforced regardless of the existence, validity, enforcement or
non-enforcement of any such other guaranties or other obligations or any
provision of any applicable law or regulation purporting to prohibit payment by
Borrower of the Guaranty Indebtedness in the manner agreed upon between Agent
and Lenders and Borrower.
(d) Credit may be granted or continued from time to time by
Agent and Lenders to Borrower without notice to or authorization from any
Guarantor regardless of Borrower's financial or other condition at the time of
any such grant or continuation. Neither Agent nor any Lender shall have an
obligation to disclose or discuss with any Guarantor its assessment of the
financial condition of Borrower.
-5-
SECTION 6. Representations and Warranties.
Each Guarantor represents and warrants that:
(a) Existence. Such Guarantor (i) is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has been duly qualified to conduct business
and is in good standing in each other jurisdiction where its ownership or lease
of property or the conduct of its business requires such qualification except
for such failures which could not reasonably be expected to have a Material
Adverse Effect; (ii) has the requisite authority and the legal right to own,
pledge, mortgage or otherwise encumber and operate its properties, to lease the
property it operates under lease and to conduct its business as now, heretofore
and proposed to be conducted; (iii) has all licenses, permits, consents or
approvals from or by, and has made all filings with, and has given all notices
to, all governmental authorities having jurisdiction, to the extent required for
such ownership, operation and conduct except for such failures which could not
reasonably be expected to have a Material Adverse Effect; (iv) is in compliance
with its organizational documents; and (v) is in compliance with all applicable
provisions of law except where such non-compliance could not reasonably be
expected to have a Material Adverse Effect.
(b) Authority. Such Guarantor has full power, authority and
legal right to enter into this Guaranty and the Related Documents to which it is
a party. The execution, delivery and performance by such Guarantor of this
Guaranty and such Related Documents: (i) have been duly authorized by all
necessary corporate action on the part of such Guarantor; (ii) are not in
contravention of the terms of such Guarantor's articles of incorporation, bylaws
or of any indenture, agreement or undertaking to which such Guarantor is a party
or by which it or any of its property is bound; (iii) do not and will not
require any governmental consent, registration or approval or the consent of any
other Person that has not been obtained; (iv) do not and will not contravene any
contractual or governmental restriction to which such Guarantor or any of its
property may be subject; and (v) do not and will not, except as contemplated
herein, result in the imposition of any Lien upon any property of such Guarantor
under any existing indenture, mortgage, deed of trust, loan or credit agreement
or other material agreement or instrument to which it is a party or by which it
or any of its property may be bound or affected.
(c) Binding Effect. This Guaranty and all of the Related
Documents to which such Guarantor is a party have been duly executed and
delivered by such Guarantor, are the legal, valid and binding obligations of
such Guarantor and are enforceable against such Guarantor in accordance with
their terms except as enforceability may be limited by bankruptcy, insolvency,
or similar laws affecting the rights of creditors generally or by application of
general principles of equity.
(d) Solvency. Such Guarantor is solvent and will continue to
be solvent following the consummation of the transactions contemplated by this
Guaranty and the Related Documents.
(e) Tax Obligations. Such Guarantor has filed complete and
correct federal, state and local tax reports and returns required to be filed,
prepared in accordance with applicable laws
-6-
or regulations, and, except for extensions duly obtained, have either duly paid
all taxes, duties and charges owed, or made adequate provisions for the payment
thereof. There are no material unresolved questions or claims concerning any tax
liability of such Guarantor or any Subsidiary of such Guarantor.
(f) Litigation and Proceedings. Except as set forth on
Schedule 10.4 to the Credit Agreement, no action, claim or proceeding is now
pending or, to the best knowledge of such Guarantor, threatened against or
affecting such Guarantor or Borrower, before any governmental authority, or
before any arbitrator or panel of arbitrators, nor, to the best knowledge of
such Guarantor, does a state of facts exist which is reasonably likely to give
rise to such proceedings. None of the actions, claims or proceedings set forth
on Schedule 10.4 to the Credit Agreement challenges such Guarantor's or
Borrower's right or power to enter into or perform any of its obligations under
the Related Documents, or the validity or enforceability of any Related Document
or any action taken thereunder or (ii) if adversely determined, could reasonably
be expected to have a Material Adverse Effect.
(g) Compliance with Laws and Regulations. The execution and
delivery by such Guarantor of this Guaranty and all of the Related Documents to
which it is a party and the performance of such Guarantor's obligations
hereunder and thereunder are not in contravention of any order applicable to
such Guarantor or, to such Guarantor's best knowledge, any laws, regulations or
ordinances applicable to such Guarantor which could reasonably be expected to
have a Material Adverse Effect on such Guarantor. Such Guarantor is in
compliance in all material respects with all applicable laws, orders,
regulations and ordinances of all federal, foreign, state and local governmental
authorities relating to the business operations and the property of such
Guarantor or Borrower.
(h) Full Disclosure. This Guaranty and the representations and
warranties of such Guarantor in any Related Document delivered or to be
delivered by such Guarantor, do not and will not contain any untrue statement of
a material fact or omit a material fact known to such Guarantor necessary to
make the statements contained therein or herein, in light of the circumstances
under which they were made, not misleading. There is no material fact which such
Guarantor has not disclosed to Agent in writing which has had or could
reasonably be expected to have a Material Adverse Effect.
(i) Subsidiaries. Except for Niemand Holdings, Inc. ("Niemand
Holdings"), no Guarantor has any existing Subsidiaries. Niemand Holdings is the
owner of 100% of the issued and outstanding capital stock of Niemand Industries,
Inc., a Delaware corporation ("Niemand Industries").
(j) Negative Pledge. Such Guarantor is not a party to or bound
by any indenture, contract, instrument or other agreement which prohibits the
creation, incurrence or sufferance to exist of any Lien upon its property,
except the Related Documents and non-assignment provisions of any contract or
lease which provisions could not reasonably be expected to have a Material
Adverse Effect on such Guarantor.
-7-
(k) Incorporation and Survival of Representations and
Warranties. Each Guarantor represents and warrants that all representations and
warranties relating to such Guarantor contained in the Credit Agreement are true
and correct in all material respects. All representations and warranties
contained in this Guaranty or any of the Related Documents to which such
Guarantor is a party shall survive the execution and delivery of this Guaranty
and the termination hereof.
SECTION 7. Covenants
Each Guarantor covenants and agrees that until the Guaranty
Indebtedness is paid in full in cash and the commitments are terminated:
(a) Such Guarantor shall: (i) do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a corporation and its rights and franchises and (ii) continue to conduct its
business as permitted hereunder or under the Credit Agreement;
(b) Such Guarantor shall comply in all material respects with
all federal, state, local and foreign laws and regulations applicable to it,
including, without limitation, those relating to licensing, ERISA, Environmental
Laws and labor matters.
(c) Except as contemplated by the Credit Agreement, such
Guarantor shall not (i) engage in any business activity other than the business
described on Schedule 11.18 to the Credit Agreement, and the related activities
incidental thereto; (ii) directly or indirectly incur or assume or suffer to
exist any Indebtedness or other obligations, investments or guaranty (other than
this Guaranty); (iii) create or permit to exist any Lien on its assets; (iv)
merge or consolidate with, acquire any assets or capital stock of, or otherwise
combine with any Person; (v) make any change in its capital structure; (vi)
amend its articles of incorporation or bylaws other than any amendment that is
not, in the reasonable judgment of Agent, adverse in any material respect to the
value of the interests or rights of Agent or Lenders thereunder or the rights or
interests of Agent or Lenders; (vii) except as otherwise permitted by the Credit
Agreement with respect to Borrower, sell, transfer, convey, assign or otherwise
dispose of any of its property; (viii) execute any agreements or contracts that
would be prohibited by the Credit Agreement or the Related Documents; or (ix)
change its fiscal year. Notwithstanding the foregoing sentence, each Guarantor
may engage in any activity incidental to the maintenance of the existence of
such Guarantor.
(d) Such Guarantor shall not enter into any indenture,
agreement, instrument or other arrangement which, (i) directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence of the obligations of
such Guarantor hereunder, or (ii) contains any provisions which would be
violated or breached by the performance by such Guarantor of its obligations
hereunder.
(e) Such Guarantor shall comply with all of the covenants
relating to it and set forth in the Credit Agreement and shall cause Borrower to
comply with all covenants set forth in the Credit Agreement.
-8-
SECTION 8. Termination.
This Guaranty shall remain in full force and effect until all
of the Guaranty Indebtedness shall be finally and irrevocably paid in full in
cash and the commitments under the Credit Agreement shall have been terminated.
Payment of all of the Guaranty Indebtedness from time to time shall not operate
as a discontinuance of this Guaranty. Each Guarantor further agrees that, to the
extent that Borrower makes a payment or payments to Agent or any Lender on the
Guaranty Indebtedness, or Agent or Lenders receive any proceeds of collateral
securing the Guaranty Indebtedness, which payment or receipt of proceeds or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be returned or repaid to Borrower, its
estate, trustee, receiver, debtor in possession or any other Person, including,
without limitation, any guarantor, under any insolvency or bankruptcy law,
state, federal or foreign law, common law or equitable cause, then to the extent
of such payment, return or repayment, the Guaranty Indebtedness or part thereof
which has been paid, reduced or satisfied by such amount shall be reinstated and
continued in full force and effect as of the date when such initial payment,
reduction or satisfaction occurred, and this Guaranty shall continue in full
force notwithstanding any contrary action which may have been taken by Agent or
Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to Agent's or Lenders' rights under this Guaranty and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
SECTION 9. Guaranty of Performance.
Each Guarantor also guarantees the full, prompt and
unconditional performance of all obligations and agreements of every kind owed
or hereafter to be owed by Guarantor or Borrower to Agent or Lenders under or in
connection with the Related Documents. Every provision for the benefit of Agent
or Lenders contained in this Guaranty shall apply to the guaranty of performance
given in this Section 9.
SECTION 10. Taxes.
Subject to the provisions of the Credit Agreement, all
payments hereunder shall be made without any counterclaim or setoff, free and
clear of, and without reduction by reason of, any taxes (except income taxes of
Agent and Lenders), levies, imposts, charges and withholdings, restrictions or
conditions of any nature ("Taxes"), which are now or may hereafter be imposed,
levied or assessed by any country, political subdivision or taxing authority,
all of which will be for the account of and paid by each Guarantor. If for any
reason, any such reduction is made or any Taxes are paid by Agent or any Lender,
each Guarantor will pay to Agent, for its benefit and the benefit of Lenders,
such additional amounts as may be necessary to ensure that Agent and Lenders
receive the same net amount which they would have received had no reduction been
made or Taxes paid.
SECTION 11. Miscellaneous.
(a) In addition to and without limiting any other right, power
or remedy of Agent or any Lender, at any time after the occurrence and during
the continuance of an Event of Default,
-9-
Lenders at their sole election without notice to any Guarantor may appropriate
and setoff against the Guaranty Indebtedness: (i) any and all indebtedness or
other monies due or to become due to any Guarantor by Agent or Lenders in any
capacity; and (ii) any monies, credits or other property belonging to any
Guarantor (including all account balances, whether provisional or final and
whether or not collected or available) at any time held by or coming into the
possession of Agent or any of Lenders, or any affiliate of Agent or any of
Lenders, whether for deposit or otherwise, whether or not the Guaranty
Indebtedness or the obligation to pay such monies owed by Agent or Lenders is
then due, and Agent, on its behalf and on behalf of Lenders, is hereby granted a
security interest in and Lien upon such monies, credits and other property.
Agent or Lenders shall be deemed to have exercised such right of setoff
immediately at the time of such election even though any charge therefor is made
or entered on Agent's or Lenders' records subsequent thereto.
(b) In the event that acceleration of the time for payment of
any of the Guaranty Indebtedness is stayed, upon the insolvency, bankruptcy or
reorganization of Borrower, or otherwise, all such amounts shall nonetheless be
payable by each Guarantor forthwith upon demand by Agent, on its behalf and on
behalf of Lenders.
(c) No delay on the part of Agent or any Lender in the
exercise of any right, power or remedy shall operate as a waiver thereof, and no
single or partial exercise by Agent or any Lender of any right, power or remedy
shall preclude any further exercise thereof; nor shall any amendment,
supplement, modification or waiver of any of the terms or provisions of this
Guaranty be binding upon Agent or Lenders, except as expressly set forth in a
writing duly signed and delivered by Agent. The failure by Agent or any Lender
at any time or times hereafter to require strict performance by Borrower or any
Guarantor of any of the provisions, warranties, terms and conditions contained
in any Related Document or promissory note, security agreement, agreement,
indenture, guaranty, instrument or document now or at any time or times
hereafter executed by Borrower or any Guarantor and delivered to Agent or any
Lender shall not waive, affect or diminish any right of Agent or any Lender at
any time or times hereafter to demand strict performance thereof, and such right
shall not be deemed to have been waived by any act or knowledge of Agent or any
Lender, their agents, officers or employees, unless such waiver is contained in
an instrument in writing duly signed and delivered by Agent and/or Lenders, as
the case may be. No waiver by Agent or Lenders of any default shall operate as a
waiver of any other default hereunder or the same default on a future occasion,
and no action by Agent or Lenders permitted hereunder shall in any way affect or
impair Agent's or any Lender's rights, powers or remedies or the obligations of
any Guarantor under this Guaranty. Any determination by a court of competent
jurisdiction of the amount of any Guaranty Indebtedness owing by Borrower to
Lenders shall be conclusive and binding on each Guarantor irrespective of
whether Borrower was a party to the suit or action in which such determination
was made. The rights and remedies of Agent and Lenders hereunder are cumulative
and may be exercised singly or concurrently, and are not exclusive of any rights
or remedies provided by law.
(d) This Guaranty shall bind Guarantor and the successors and
assigns of such Guarantor and shall inure to the benefit of Agent and Lenders
and their successors and assigns. All references herein to any Lender shall for
all purposes also include all participants. All references
-10-
herein to Borrower shall be deemed to include its successors and assigns
including, without limitation, a receiver, trustee or debtor in possession of or
for Borrower.
(e) Section headings in this Guaranty are included herein for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purpose or be given any substantive effect.
(f) Whenever possible, each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under applicable law.
Any provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remainder of such
provision or the remaining provisions of this Guaranty, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(g) It is understood that while the amount of the Guaranty
Indebtedness is not limited, if, in any action or proceeding involving any state
or federal bankruptcy, insolvency or other law affecting the rights of creditors
generally, this Guaranty would be held or determined to be void, invalid or
unenforceable on account of the amount of the aggregate liability under this
Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the aggregate amount of such liability shall, without any further
action of any Guarantor, Lenders, Agent or any other Person, be automatically
limited and reduced to the highest amount which is valid and enforceable as
determined in such action or proceeding.
(h) This Guaranty sets forth the entire understanding and
agreement of each Guarantor and Agent with respect to the subject matter hereof
and supersedes all other understandings, oral or written, with respect to the
subject matter hereof.
(i) Each Guarantor agrees to pay all costs, fees and expenses
(including reasonable attorneys' fees) incurred by Agent or Lenders after a
default by such Guarantor under this Guaranty.
(J) EACH GUARANTOR AND AGENT HEREBY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF XXXX,
STATE OF ILLINOIS, AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
RELATING TO THIS GUARANTY OR THE RELATED DOCUMENTS TO WHICH ANY GUARANTOR IS A
PARTY SHALL BE LITIGATED IN SUCH COURTS, AND EACH GUARANTOR AND AGENT EACH
WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON
CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND EACH WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO IT AT THE ADDRESS
SET FORTH IN SECTION 12 HEREOF AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING CONTAINED IN THIS SECTION 11 SHALL AFFECT THE RIGHT
OF AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
-11-
PERMITTED BY LAW OR AFFECT THE RIGHT OF AGENT TO BRING ANY ACTION OR PROCEEDING
AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION TO THE EXTENT
NECESSARY TO ENFORCE ITS LIENS AGAINST ASSETS LOCATED IN SUCH JURISDICTION.
(K) THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
UNDER AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
SECTION 12. Notices.
Except as otherwise expressly provided herein, any notice
required or desired to be served, given or delivered hereunder shall be in
writing, and shall be deemed to have been validly served, given or delivered (a)
if delivered in person, when delivered, (b) if delivered by telecopy or similar
electronic medium, on the date of confirmed transmission, (c) if delivered by
overnight courier, one (1) Business Day after delivery to such courier properly
addressed or (d) if by U.S. Mail, five (5) days after deposit in the United
States mails (by certified mail, return receipt requested), with proper postage
prepaid, to the following addresses:
Notices shall be addressed as follows:
(a) If to a Guarantor:
c/o Gibraltar Packaging Group, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
(b) If to Agent:
First Source Financial LLP
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Contract Administration
Telecopy: (000) 000-0000, 7911
or in any case, to such other address as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section 12. A notice not given as provided above shall, if
it is in writing, be deemed given if and when actually received by the party to
whom given.
-12-
SECTION 13. Waivers.
(a) EACH GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION,
APPRAISAL AND EXEMPTION LAWS.
(b) IN THE EVENT OF A DEFAULT UNDER THE CREDIT AGREEMENT, EACH
GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY AGENT OR LENDERS OF THEIR RIGHTS TO REPOSSESS ANY COLLATERAL
WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON ANY COLLATERAL
WITHOUT PRIOR NOTICE OR HEARING. EACH GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN
ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS
GUARANTY.
(c) EACH GUARANTOR AND AGENT ACKNOWLEDGE THAT THE TIME AND
EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A
BENCH TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND WAIVE ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF AGENT OR LENDERS.
(d) TO THE EXTENT PERMITTED BY LAW, EACH GUARANTOR ABSOLUTELY,
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHT TO ASSERT ANY DEFENSE, SETOFF,
NONCOMPULSORY COUNTERCLAIM OR CROSSCLAIM OF ANY NATURE WHATSOEVER WITH RESPECT
TO THIS GUARANTY OR THE OBLIGATIONS OF SUCH GUARANTOR HEREUNDER OR THE
OBLIGATIONS OF ANY OTHER PERSON OR PARTY (INCLUDING BORROWER) RELATING TO THIS
GUARANTY, THE GUARANTY INDEBTEDNESS OR THE OBLIGATIONS OF SUCH GUARANTOR IN ANY
ACTION OR PROCEEDING BROUGHT BY AGENT OR LENDERS TO COLLECT THE GUARANTY
INDEBTEDNESS OR TO ENFORCE THE OBLIGATIONS OF SUCH GUARANTOR HEREUNDER.
[signature page follows]
-13-
IN WITNESS WHEREOF, this Guaranty has been executed as of the
date and year first written above.
RIDGEPAK CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name:____________________________________
Title: Secretary
----------------------------------
NIEMAND HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name:____________________________________
Title: Secretary
----------------------------------
NIEMAND INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name:____________________________________
Title: Secretary
----------------------------------
GB LABELS, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name:____________________________________
Title: Secretary
----------------------------------
STANDARD PACKAGING AND PRINTING CORP.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name:____________________________________
Title: Secretary
----------------------------------
[S-1]
