REPAYMENT GUARANTY
Exhibit
10.8
THIS
REPAYMENT GUARANTY (as amended, modified, extended, and renewed from
time to time, the “Guaranty”), dated as of March 14, 2007, is
made by XXXXXXXX XXXXX PRINTING, INC., a Utah corporation,
FRANKLIN DEVELOPMENT CORPORATION, a Utah corporation,
XXXXXXXX XXXXX TRAVEL, INC., a Utah corporation,
XXXXXXXX XXXXX CATALOG SALES, INC., a Utah corporation,
XXXXXXXX XXXXX CLIENT SALES, INC., a Utah corporation,
XXXXXXXX XXXXX PRODUCT SALES, a Utah corporation,
XXXXXXXX XXXXX SERVICES, L.L.C., a Utah limited liability
company, and XXXXXXXX XXXXX MARKETING, LTD., a Utah limited
partnership (individually and collectively, as the context requires, and
jointly
and severally, “Guarantor”), in favor of ZIONS FIRST
NATIONAL BANK, a national banking association
(“Lender”), in conjunction with the Loan made to
XXXXXXXX XXXXX CO., a Utah corporation
(“Borrower”), by Lender pursuant to the Loan
Agreement.
1.
DEFINITIONS. Except as otherwise provided in this
Guaranty, all terms defined in the Loan Agreement shall have the same meaning
when used in this Guaranty. In addition, the following terms shall have
the following meanings:
(a)
“Change of Control” (a) means the closing of a sale or other
disposition of all or substantially all of Guarantor’s assets; (b) shall be
deemed to have occurred at such time as a “person” or “group” (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934,
as amended), becomes the “beneficial owner” (as defined in Rule 13d3 under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of
more
than fifty percent (50%) of the total voting power of all classes of stock
then
outstanding of Guarantor entitled to vote in the election of directors; or
(c)
Guarantor’s merger into or consolidation with any other entity, or any other
reorganization or transfer, directly or indirectly, of the ownership interests
in Guarantor, in which the holders of the outstanding ownership interests
in
Guarantor immediately prior to such transaction receive or retain, in connection
with such transaction on account of their ownership interests, ownership
interests representing less than fifty percent (50%) of the voting power
of the
entity surviving such transaction; provided, however, that a Change of
Control shall not include a merger effected exclusively for the purpose of
changing the domicile of Guarantor or a merger of a Guarantor into Borrower
or
another Guarantor.
(b)
“Guarantor Loan Documents” means this Guaranty and any other
guaranties, agreements, documents, or instruments now or hereafter executed
by
Guarantor evidencing, guarantying, securing or otherwise related to the
Guarantor Obligations or the Loan, as this Guaranty and such other guaranties,
agreements, documents, and instruments may be amended, modified, extended,
renewed, or supplemented from time to time.
(c)
“Guaranty” means this Guaranty, as it may be amended, modified,
extended, and renewed, from time to time.
(d)
“Loan” means a revolving line of credit in the maximum
principal amount of SEVEN MILLION AND NO/100 DOLLARS ($7,000,000.00) made
to
Borrower by Lender pursuant to the Loan Agreement.
(e)
“Loan Agreement” means that certain Revolving Line of Credit
Agreement of approximate even date herewith between Borrower and Lender,
as
amended, modified, extended or renewed from time to time.
(f)
“Loan Party” means Borrower, Guarantor, and each other person
that from time to time is obligated to Lender under any Loan Document or
grants
any of the Collateral.
(g)
“Obligations” means the following:
(i)
Payment of principal, interest, costs, expenses, fees, and other amounts
under
the Note or other Loan Documents;
(ii)
Payment of all other amounts payable from time to time by Borrower under
the
Loan Documents; and
(iii)
The prompt and complete performance of the obligations of Borrower, as set
forth
in the Loan Agreement and other Loan Documents.
(h)
Actions by Lender. Unless otherwise expressly provided in
this Guaranty, all determinations, consents, approvals, disapprovals,
calculations, requirements, requests, acts, actions, elections, selections,
opinions, judgments, options, exercise of rights, remedies or indemnities,
satisfaction of conditions or other decisions of or to be made by Lender
under
this Guaranty shall be made in the reasonable discretion of Lender. Any
reference to Lender’s “sole and absolute discretion” or similar phrases has the
meaning represented by the phrase “sole and absolute discretion, acting in good
faith”.
2.
GUARANTY. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH GUARANTOR ACKNOWLEDGES, GUARANTOR UNCONDITIONALLY AND
IRREVOCABLY, AND JOINTLY AND SEVERALLY, GUARANTEES THE FULL PAYMENT
AND PERFORMANCE WHEN DUE, BY ACCELERATION OR OTHERWISE, OF EACH AND ALL
OBLIGATIONS. GUARANTOR AGREES THAT IMMEDIATELY UPON A FAILURE IN PAYMENT
OR PERFORMANCE WHEN DUE OF ANY OR ALL OBLIGATIONS, GUARANTOR WILL PAY TO
LENDER
THE FULL AMOUNT OF, OR PERFORM IN FULL, SUCH OBLIGATIONS. ALL PAYMENTS
UNDER THIS GUARANTY SHALL BE MADE TO LENDER IN LAWFUL MONEY OF THE UNITED
STATES
OF AMERICA AT THE ADDRESS OF LENDER DESIGNATED IN THE LOAN AGREEMENT OR SUCH
OTHER LOCATION AS LENDER MAY DESIGNATE IN WRITING. ANY AMOUNT PAYABLE
UNDER THIS GUARANTY NOT PAID WHEN DUE, AND ANY JUDGMENT FOR SUCH AN AMOUNT
AND
INTEREST THEREON, SHALL BEAR INTEREST AT THE DEFAULT INTEREST RATE FROM THE
DUE
DATE OR SUCH JUDGMENT DATE, RESPECTIVELY, UNTIL SUCH AMOUNT AND INTEREST
THEREON
ARE PAID IN FULL. GUARANTOR AGREES TO PAY SUCH INTEREST ON DEMAND.
ALL OF GUARANTOR’S OBLIGATIONS HEREUNDER WILL BE PAID AND PERFORMED BY GUARANTOR
WITHOUT COUNTERCLAIM, DEDUCTION, DEFENSE, DEFERMENT, REDUCTION, OR SET-OFF
(all
of the foregoing obligations of Guarantor and any and all other obligations,
duties and responsibilities of Guarantor hereunder shall be referred to herein
collectively as the “Guarantor Obligations”).
3.
SECURITY. Payment and performance of the Guarantor
Obligations by Guarantor shall be secured by a Security Agreement of even
date
herewith by and between Guarantor and Lender, creating a first priority security
interest in all personal property assets of each Guarantor.
4.
GUARANTOR REPRESENTATIONS AND WARRANTIES. Guarantor
represents and warrants to Lender as of the date of this Guaranty:
(a)
Organization and Powers. Guarantor is either a corporation, a
limited liability company, or a limited partnership duly organized and validly
existing under the laws of the State of Utah. Guarantor has all requisite
power and authority, rights and franchises to own and operate its properties,
to
carry on its business as now conducted and as proposed to be conducted, and
to
enter into and perform this Guaranty and the other Loan Documents to which
it is
a party. The address of Guarantor’s chief executive office and principal
place of business is c/o Xxxxxxxx Xxxxx Co, 0000 Xxxx Xxxxxxx Xxxx., Xxxx
Xxxx
Xxxx, Xxxx 00000.
(b)
Good Standing. Guarantor has made all filings and is in good
standing in the State of Utah, and in each other jurisdiction in which the
character of the property it owns or the nature of the business it transacts
makes such filings necessary and where failure to make such filings would
result
in a Material Adverse Change.
(c)
Authorization. The execution, delivery and performance of the
Guarantor Loan Documents by Guarantor are within Guarantor’s corporate, limited
liability company or partnership powers and have been duly authorized by
all
necessary action by Guarantor and its directors, shareholders, members, managers
and partners, as applicable.
(d)
No Conflict. The execution, delivery and performance of the
Guarantor Loan Documents by Guarantor will not violate (1) any provision
of the
Guarantor Operating Documents; (2) any legal requirement affecting Guarantor
or
any of Guarantor’s respective properties except where a violation of such
requirement would not result in a Material Adverse Change; or (3) any agreement
to which Guarantor is bound or to which Guarantor is a party, except where
a
violation of any such agreement would not result in a Material Adverse Change,
and will not result in or require the creation (except as provided in or
contemplated by this Guaranty and the Loan Agreement) of any Lien or Encumbrance
upon any of such properties.
(e)
No Approvals, etc. All governmental or regulatory orders, consents,
permits, authorizations and approvals required for the present use and operation
of the Guarantor’s business and the Collateral pledged by Guarantor have been
obtained and are in full force and effect, except where failure to obtain
such
orders, consents, permits, authorizations or approvals would not result in
a
Material Adverse Change. To the knowledge of Guarantor, no additional
governmental or regulatory actions, filings or registrations with respect
to the
Guarantor’s business and the Collateral pledged by Guarantor, and no approvals,
authorizations or consents of any trustee or holder of any Indebtedness or
obligation of Guarantor are required for the due execution, delivery and
performance by Guarantor of their respective duties and obligations under
the
Guarantor Loan Documents.
(f)
Binding Obligations. This Guaranty and the other Guarantor Loan
Documents have been duly executed by Guarantor, and are the legally valid
and
binding obligations of Guarantor, enforceable against Guarantor in accordance
with their terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Requirements of Laws affecting
creditors’ rights generally and by general principles of equity.
(g)
Solvency. After giving effect to this Guaranty, Guarantor is
solvent. As used in the preceding sentence, “solvent”
means, with respect to any person, that at the time of
determination:
(i)
the fair value of its assets, both at fair valuation and at present fair
saleable value, is in excess of the total amount of its liabilities, including,
without limitation, contingent claims; and
(ii)
it is then able and expects to be able to pay its debts as they mature;
and
(iii)
it has capital sufficient to carry on its business as conducted and as proposed
to be conducted.
Contingent
liabilities (such as litigation, guaranties, including but not limited to
this
Guaranty, and pension plan liabilities) shall be computed at the amount which,
in light of all the facts and circumstances existing at the time, represents
the
amount which can reasonably be expected to become an actual or matured
liability.
(h)
Inducement. Guarantor acknowledges and agrees that this Guaranty is
being executed and delivered in connection with, and as an inducement for
Lender
to extend, various credit accommodations to Borrower that are beneficial
to the
ongoing business and operations of Borrower and Guarantor.
5.
GUARANTOR COVENANTS. Until the Obligations are paid and
performed in full, Guarantor agrees that, unless Lender otherwise agrees
in
writing in Lender’s absolute and sole discretion:
(a)
Keeping Informed About Borrower and Transaction. Guarantor
understands the Obligations and the Guarantor Obligations and has had access
to
information about the financial condition of Borrower and the ability of
Borrower to perform the Obligations. Guarantor assumes responsibility for
acquiring and maintaining all necessary information concerning the financial
condition of the Borrower, and any and all endorsers and other guarantors
of any
instrument or document evidencing all or any part of the Obligations, and
of all
other circumstances bearing upon the risk of nonpayment of the Obligations
or
any part thereof that diligent inquiry would reveal, and Guarantor hereby
agrees
that Lender shall have no duty to advise Guarantor of information known to
Lender regarding such condition or circumstances.
(b)
Transfer of Assets. Unless such action would result in a Material
Adverse Change (without taking into consideration subsections (iii) and (iv)
of
the definition of Material Adverse Change), Guarantor may sell, convey,
transfer, assign or dispose of Guarantor’s properties or assets, or any right,
title or interest, or any part thereof, or enter into any lease covering
all or
any portion thereof or an undivided interest therein, either voluntarily,
involuntarily, or otherwise; provided, however, that
Guarantor shall not sell, transfer, lease,
or otherwise dispose of all or any substantial part of its properties or
assets
other than such a sale, transfer, lease or disposition to Borrower or another
Guarantor.
(c)
Change of Control. Without the prior written consent of Lender,
which consent will not be unreasonably withheld or delayed, Guarantor shall
not
cause, permit, or suffer any Change of Control to occur.
6.
SPECIAL PROVISIONS.
(a)
Nature of Guaranty. This Guaranty is absolute, continuing,
irrevocable, and unconditional. This Guaranty is a guaranty of payment and
performance when due and not of collection. This Guaranty shall be
effective and remain in full force and effect until all Obligations are paid
and
performed in full, regardless of (i) the genuineness, regularity, legality,
validity, or enforceability of any or all of the liens and encumbrances securing
the Obligations, the Loan Documents, or the Obligations, (ii) any law,
regulation, or rule (federal, state, or local) or any action by any Governmental
Authority discharging, reducing, varying the terms of payment, or otherwise
modifying any of the Obligations or any of the liens and encumbrances securing
the Obligations, or (iii) the death, dissolution, or liquidation of Borrower
or
any Guarantor.
(b)
Enforcement Against Guarantor Without Other Action. Lender, in its
sole and absolute discretion, may enforce this Guaranty against any Guarantor
without first having sought enforcement of any Loan Documents against Borrower,
any other Guarantor, or any collateral.
(c)
Events Not Affecting Guarantor Obligations. The following shall
not affect, impair, or delay the enforcement of this Guaranty, regardless
of the
impact upon any contribution, exoneration, indemnification, reimbursement,
subrogation, and other rights of Guarantor:
(i)
The bankruptcy, death, disability, dissolution, incompetence, insolvency,
liquidation, or reorganization of Borrower.
(ii)
Any defense of Borrower to payment or performance of any or all Obligations, or
enforcement of any or all liens and encumbrances securing the Obligations
on
this Guaranty.
(iii)
The disallowance, discharge, modification of the terms of, reduction in the
amount of, or stay of enforcement of any or all Obligations, or any or all
liens
and encumbrances securing the Obligations, in any bankruptcy, insolvency,
reorganization, or other legal proceeding or by any law, ordinance, regulation,
or rule (federal, state, or local).
(iv)
The cessation of liability of Borrower for any or all Obligations without
full
satisfaction of such Obligations.
(d)
Acts and Omissions of Lender Not Affecting this Guaranty. The
following acts and omissions of Lender, in each case in its sole and absolute
discretion, shall not affect, delay, or impair this Guaranty, regardless
of the
impact upon any contribution, exoneration, indemnification, reimbursement,
subrogation, or other rights of Guarantor:
(i)
Lender may compromise, delay enforcement, fail to enforce, release, settle,
or
waive any or all Obligations of Borrower or any or all rights and remedies
of
Lender against Borrower.
(ii)
Lender may make advances, issue letters of credit, or grant other financial
accommodations for Borrower without requiring satisfaction of all conditions
precedent in the Loan Documents.
(iii)
Lender may obtain, substitute, and release collateral or additional collateral
for the Obligations or this Guaranty.
(iv)
Lender may fail to perfect, fail to protect the priority of, and fail to
insure
any or all liens and encumbrances in such collateral.
(v)
Lender may fail to inspect, insure, maintain, preserve, or protect any or
all
such collateral.
(vi)
Lender may enforce, compromise, delay enforcement, fail to enforce, settle,
or
waive any rights and remedies of Lender as to any or all such
collateral.
(vii)
Lender may assemble, sell, or otherwise dispose of any collateral in any
manner
and order Lender determines in its absolute and sole discretion, and disposition
may be for no value, or for less than fair market value, of the collateral
in
the absolute and sole discretion of Lender. With respect to any collateral
that is personal property, Lender shall give Guarantor ten (10) days’ prior
written notice of any sale or other disposition, except for personal property
collateral that is perishable, threatens to decline speedily in value, is
of a
type customarily sold on a recognized market, or is cash, cash equivalents,
certificates of deposit or the like, and except as to Lender’s right of
set-off. Guarantor’s sole right with respect to all collateral shall be to
bid at a sale thereof in accordance with applicable law.
(viii)
Lender may obtain additional obligors for any or all Obligations, and may
substitute or release Borrower or any other obligor.
(ix)
Lender may fail to file or pursue a claim in any bankruptcy, insolvency,
probate, reorganization, or other proceeding as to any or all Obligations
or any
or all liens and encumbrances securing the Obligations.
(x)
Lender may subordinate (A) any or all liens and encumbrances securing the
Obligations or this Guaranty, or (B) any or all Obligations.
(xi)
Lender may amend, modify, extend, renew, restate, supplement, or terminate
in
whole or in part any or all Loan Documents.
(xii)
Lender may assign any or all of its rights and delegate its obligations under
the Loan Documents, in whole or in part (including, without limitation, by
participation).
(xiii)
Lender may do any other act or make any other omission that might otherwise
constitute an extinguishment or a legal or equitable discharge of, or defense
by, Guarantor.
7.
GUARANTOR WAIVERS.
(a)
Note and Notice Waivers. Guarantor waives, to the full extent
permitted by law, presentment, notice of dishonor, protest, notice of protest,
notice of intent to accelerate, notice of acceleration, and all other notices
or
demands of any kind (including, without limitation, notice of the acceptance
by
Lender of this Guaranty, notice of the existence, creation, non-payment,
or
non-performance of any or all Obligations, and notice of the acts or omissions
described in Sections 6(c)and 6(d),excepting
only notices specifically provided for in this Guaranty).
(b)
Waiver of Acts and Omissions of Lender. Guarantor waives any
defense to enforcement of the Guarantor Obligations or any liens and
encumbrances granted by Guarantor based on acts and omissions of Lender
described in Sections 6(c) and
6(d).
(c)
Waiver of Statutory Provisions. Guarantor waives any and all rights
and benefits under Utah Code Annotated§ 78-37-1, Utah Code
Annotated§ 57-1-32and any other similar or replacement statutes or rules now
or hereafter in effect and any other statutes or rules now or hereafter in
effect that purport to confer specific rights upon, or make specific defenses
or
procedures available to, guarantors, or limit the right of Lender to recover
a
deficiency judgment, or to otherwise proceed, against any person or entity
obligated for payment of the Loan, after any trustee’s sale, any judicial
foreclosure sale or any personal property sale of any collateral securing
the
Loan.
(d)
Waiver of Statute of Limitations. To the full extent permitted by
law, Guarantor waives any and all statutes of limitations as a defense to
any or
all Obligations.
(e)
Waiver of Law and Equitable Principles Conflicting With This
Guaranty. Guarantor waives any and all provisions of law and equitable
principles that conflict with this Guaranty.
(f)
Waiver of Any Obligation of Lender to Inform Guarantor. Guarantor
waives any right to require Lender, and Lender shall have no obligation,
to
provide to Guarantor any information concerning performance of the Obligations,
the ability of Borrower to perform the Obligations, or any other matter,
regardless of what information Lender may have from time to time.
(g)
Waiver of Contribution, Exoneration, Indemnification, Reimbursement,
Subrogation, and Other Rights Against Borrower and Other Loan Parties.
Until such time as the Obligations have been fully satisfied, Guarantor
waives
any and all present and future claims, remedies, and rights of Guarantor
against
Borrower or any other guarantor, any collateral, and any other property,
interests in property, or rights to property of Borrower or any other guarantor
(i) arising from any performance by Guarantor hereunder, (ii) arising from
any
application of any collateral or any other property, interests in property,
or
rights to property of Guarantor to payment or performance of the Obligations,
or
(iii) otherwise arising in respect of the Loan Documents, regardless of whether
such claims, remedies, and rights arise under any present or future agreement,
document, or instrument or are provided by any law, ordinance, regulation,
or
rule (federal, state, or local) (including, without limitation, (A) any and
all
rights of contribution, exoneration, indemnity, reimbursement, and subrogation,
and (B) any and all rights to participate in the rights and remedies of Lender
against Borrower, any other guarantor, and any collateral).
(h)
WAIVER OF JURY TRIAL. EACH OF GUARANTOR AND LENDER (BY ITS
ACCEPTANCE HEREOF) HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER
THEORY). EACH OF GUARANTOR AND LENDER (BY ITS ACCEPTANCE HEREOF) (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS
SECTION.
(i)
WAIVER OF SPECIAL DAMAGES. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, GUARANTOR SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM
AGAINST LENDER, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL
OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT
OF, IN
CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTY OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY, THE TRANSACTIONS, THE LOAN OR THE USE OF THE PROCEEDS
THEREOF.
(j)
MISCELLANEOUS WAIVERS. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, GUARANTOR HEREBY WAIVES ANY AND ALL RIGHTS TO REQUIRE
MARSHALLING OF ASSETS BY LENDER. WITH RESPECT TO ANY SUIT, ACTION OR
PROCEEDINGS RELATING TO THIS GUARANTY OR THE OTHER GUARANTOR LOAN DOCUMENTS
(EACH, A “PROCEEDING”), GUARANTOR IRREVOCABLY (A) SUBMITS TO
THE JURISDICTION OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION IN THE
CITY
OF SALT LAKE, COUNTY OF SALT LAKE AND STATE OF UTAH, AND (B) WAIVES ANY
OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING
BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY PROCEEDING HAS BEEN
BROUGHT
IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT
TO
SUCH PROCEEDING, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH
PARTY. NOTHING IN THIS GUARANTY SHALL PRECLUDE LENDER FROM BRINGING A
PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A PROCEEDING
IN
ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A PROCEEDING IN ANY
OTHER
JURISDICTION. GUARANTOR FURTHER AGREES AND CONSENTS THAT, IN ADDITION TO
ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL
SERVICE
OF PROCESS IN ANY PROCEEDING IN ANY UTAH STATE OR UNITED STATES COURT SITTING
IN
THE CITY OF SALT LAKE AND COUNTY OF SALT LAKE MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO GUARANTOR AT THE ADDRESS
INDICATED BELOW, AND SERVICE SO MADE SHALL BE COMPLETE UPON RECEIPT;
EXCEPT THAT IF GUARANTOR SHALL REFUSE TO ACCEPT DELIVERY, SERVICE SHALL
BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED.
8.
SUBORDINATION. If from time to time Borrower shall have
liabilities or obligations to Guarantor, such liabilities and obligations
and
any and all assignments as security, grants in trust, liens, mortgages, security
interests, other encumbrances, and other interests and rights securing such
liabilities and obligations shall at all times be fully subordinate with
respect
to (a) assignment as security, grant in trust, lien, mortgage, security
interest, other encumbrance, and other interest and right (if any), (b) time
and
right of payment and performance, and (c) rights against any collateral therefor
(if any), to payment and performance in full of the Obligations and the right
of
Lender to realize upon any or all Collateral. Guarantor agrees that such
liabilities and obligations of Borrower to Guarantor shall not be secured
by any
assignment as security, grant in trust, lien, mortgage, security interest,
other
encumbrance or other interest or right in any property, interests in property,
or rights to property of Borrower and that during the continuance of an Event
of
Default, Borrower shall not pay, and Guarantor shall not receive, payments
of
any or all liabilities or obligations of Borrower to Guarantor until after
payment and performance of the Obligations in full, unless Lender consents
thereto in writing. If, notwithstanding the foregoing, during the
continuance of an Event of Default, Guarantor receives any payment from
Borrower, such payment shall be held in trust by Guarantor for the benefit
of
Lender, shall be segregated from the other funds of Guarantor, and shall
forthwith be paid by Guarantor to Lender and applied to payment of the
Obligations, whether or not then due. To secure this Guaranty, Guarantor
grants to Lender a lien and security interest in all liabilities and obligations
of Borrower to Guarantor, in any assignments as security, grants in trust,
liens, mortgages, security interests, other encumbrances, other interests
or
rights securing such liabilities and obligations, and in all of Guarantor’s
right, title, and interest in and to any payments, property, interests in
property, or rights to property acquired or received by Guarantor from Borrower
in respect of any liabilities or obligations of Borrower to
Guarantor.
9.
LIMITATION ON OBLIGATIONS. The provisions of this
Guaranty are severable, and in any action or proceeding involving any state
corporate law, or any state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally,
if the
obligations of Guarantor under this Guaranty would otherwise be held or
determined to be avoidable, invalid or unenforceable on account of the amount
of
Guarantor’s liability under this Guaranty, then, notwithstanding any other
provision of this Guaranty to the contrary, the amount of such liability
shall,
without any further action by Guarantor or Lender, be automatically limited
and
reduced to the highest amount that is valid and enforceable as determined
in
such action or proceeding (such highest amount determined hereunder being
Guarantor’s “Maximum Liability”). This Section
9 with respect to the Maximum Liability of Guarantor is intended
solely
to preserve the rights of Lender hereunder to the maximum extent not subject
to
avoidance under applicable law, and neither Guarantor nor any other person
or
entity shall have any right or claim under this Section 9 with
respect to the Maximum Liability, except to the extent necessary so that
the
obligations of Guarantor hereunder shall not be rendered voidable under
applicable law.
10.
RIGHTS AND REMEDIES OF LENDER. The rights and remedies of
Lender shall be cumulative and non-exclusive. Delay, discontinuance, or
failure to exercise any right or remedy of Lender shall not be a waiver thereof,
of any other right or remedy of Lender, or of the time of the essence
provision. Exercise of any right or remedy of Lender shall not cure or
waive any Event of Default or invalidate any act done in response to any
Event
of Default.
11.
SURVIVAL. The representations, warranties, and covenants
of Guarantor in this Guaranty shall survive the execution and delivery of
this
Guaranty.
12.
INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, WAIVER,
APPROVAL, CONSENT, ETC. This Guaranty contains the complete
understanding and agreement of Guarantor and Lender and supersedes all prior
representations, warranties, agreements, arrangements, understandings, and
negotiations. No provision of this Guaranty may be changed, discharged,
supplemented, terminated, or waived except in a writing signed by the parties
thereto. Delay or failure by Lender to insist on performance of any
obligation when due or compliance with any other term or condition in this
Guaranty shall not operate as a waiver thereof or of any other obligation,
term,
or condition or of the time of the essence provision. Acceptance of late
payments or performance shall not be a waiver of the time of the essence
provision, the right of Lender to require that subsequent payments or
performance be made when due, or the right of Lender to declare an Event
of
Default if subsequent payments or performance are not made when due. Any
approval, consent, or statement that a matter is satisfactory by Lender under
this Guaranty must be in writing executed by Lender and shall apply only
to the
person(s) and facts specifically set forth in the writing.
13.
BINDING EFFECT. This Guaranty shall be binding upon
Guarantor and shall inure to the benefit of Lender and their successors and
assigns, and the executors, legal administrators, personal representatives,
heirs, devisees, and beneficiaries of Guarantor, provided, however, that
Guarantor may not delegate any of its obligations under this Guaranty and
any
purported delegation shall be void. Lender may from time to time in its
absolute and sole discretion assign its rights and delegate its obligations
under the Loan Documents, in whole or in part, without notice to or consent
by
Guarantor (including, without limitation, participation). In addition to
any greater or lesser limitation provided by law, Guarantor shall not assert
against any assignee of Lender any claims or defenses Guarantor may have
against
Lender, except claims and defenses, if any, arising under this
Guaranty.
14.
COSTS, EXPENSES, AND FEES. Guarantor shall promptly pay
to Lender, upon demand, with interest thereon at the Default Interest Rate,
reasonable attorneys’ fees and all costs and other expenses paid or incurred by
Lender in enforcing or exercising its rights or remedies created by, connected
with or provided for in this Guaranty.
15.
SEVERABILITY. If any provision or any part of any
provision of this Guaranty is unenforceable, the enforceability of the other
provisions or the other provisions and the remainder of the subject provision,
respectively, shall not be affected and they shall remain in full force and
effect.
16.
CHOICE OF LAW. THIS GUARANTY AND THE TRANSACTIONS
CONTEMPLATED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF UTAH WITHOUT GIVING EFFECT TO CONFLICT OF LAWS
PRINCIPLES. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY AND THE OTHER GUARANTOR LOAN DOCUMENTS MAY
BE
TRIED AND LITIGATED IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY
OF
SALT LAKE, STATE OF UTAH OR, IN ANY OTHER COURT IN WHICH A PARTY SHALL INITIATE
LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION
OVER
THE MATTER IN CONTROVERSY. EACH OF GUARANTOR, AND BY ACCEPTANCE
HEREOF, LENDER WAIVES, 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 ANY STATE OR FEDERAL
COURT
LOCATED IN THE COUNTY OF SALT LAKE, STATE OF UTAH.
17.
TIME OF THE ESSENCE. Time is of the essence with regard
to each provision of this Guaranty as to which time is a factor.
18.
NOTICES AND DEMANDS. All notices, requests, demands and
consents to be made hereunder to the parties hereto shall be in writing and
shall be delivered by hand or sent by registered mail or certified mail,
postage
prepaid, return receipt requested (except for any notice address which is
a post
office box, in which case notice may be given by first class mail), through
the
United States Postal Service to the addresses shown below, or such other
address
which the parties may provide to one another in accordance herewith. Such
notices, requests, demands and consents, if sent by mail, shall be deemed
given
two (2) Business Days after deposit in the United States mail, and if delivered
by hand, shall be deemed given when delivered.
To
Lender:
Zions First National Bank
00
Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attn:
Xxxxxx Xxxxx
with
a
copy
to: Xxxxxxxxx Xxxxxxx &
XxXxxxxxxx
00
Xxxx
Xxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxx, Esq.
To
Guarantor: c/o Xxxxxxxx Xxxxx
Co.
0000
Xxxx
Xxxxxxx Xxxx.
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attn:
Xxxxxxx Xxxxxx
with
a
copy
to: Xxxxxx & Xxxxxxx
LLP
000
Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attn:
Xxxxx X. Xxxxxx, Esq.
19.
JOINT AND SEVERAL OBLIGATIONS. This Guaranty may be
executed by more than one person, and in such event the obligations hereunder
shall be the joint and several obligations of each such person. Each
reference to Guarantor shall be a reference to each person executing this
Guaranty individually and to all such persons collectively. Each
Guarantor’s liability is independent of the obligations of the other
Guarantors. Lender may bring an action against any Guarantor to enforce
this Guaranty, whether an action is brought against the other
Guarantors.
20.
PARTIAL PERFORMANCE. Guarantor’s performance of a
portion, but not all, of the Obligations shall in no way limit, affect, modify
or abridge Guarantor’s liability for the Obligations which are not
performed. Without in any way limiting the generality of the foregoing, in
the event that Lender is awarded a judgment in any suit brought to enforce
Guarantor’s covenant to perform a portion of the Obligations, such
judgment shall in no way be deemed to release Guarantor from its covenant
to
perform any portion of the Obligations which is not the subject of the
suit.
21.
INDEMNIFICATION OF LENDER.
TO
THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR AGREES TO PROTECT, INDEMNIFY,
DEFEND AND SAVE HARMLESS LENDER, ITS DIRECTORS, OFFICERS, AGENTS, ATTORNEYS,
AND
EMPLOYEES FOR, FROM, AND AGAINST ANY AND ALL LIABILITY, EXPENSE, OR DAMAGE
OF
ANY KIND OR NATURE AND FOR, FROM, AND AGAINST ANY SUITS, CLAIMS, OR DEMANDS,
INCLUDING REASONABLE ATTORNEY’S FEES AND EXPENSES ON ACCOUNT OF ANY MATTER OR
THING OR ACTION, WHETHER IN SUIT OR NOT, ARISING OUT OF THIS GUARANTY, OR
IN
CONNECTION HEREWITH, EXCLUDING HOWEVER, ANY MATTERS ARISING OUT OF AN
INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ANY MATTERS
ARISING AFTER LENDER HAS TAKEN TITLE TO OR POSSESSION OF THE COLLATERAL PLEDGED
BY ANY GUARANTOR DOCUMENT. Upon receiving knowledge of any suit, claim, or
demand asserted by a third party that Lender believes is covered by this
indemnity, Lender shall give Guarantor notice of the matter and an opportunity
to defend it, at Guarantor's sole cost and expense, with legal counsel
satisfactory to Lender. Lender may also require Guarantor to so defend the
matter. The obligations on the part of Guarantor under this
Section 21 shall survive the payment and performance of the
Obligations.
22.
RESCISSION OR RETURN OF PAYMENTS. If at any time or from
time to time, whether before or after payment and performance of the Obligations
in full, all or any part of any amount received by Lender in payment of,
or on
account of, any Obligation is or must be, or is claimed to be, avoided,
rescinded, or returned by Lender to Guarantor or any other person for any
reason
whatsoever (including, without limitation, bankruptcy, insolvency, or
reorganization of Guarantor or any other person), such Obligation and any
liens
and encumbrances that secured such Obligation at the time such avoided,
rescinded, or returned payment was received by Lender shall be deemed to
have
continued in existence or shall be reinstated, as the case may be, all as
though
such payment had not been received.
23.
COUNTERPART EXECUTION. This Guaranty may be executed in
one or more counterparts, each of which will be deemed an original and all
of
which together will constitute one and the same document. Signature pages
may be detached from the counterparts and attached to a single copy of this
Guaranty to physically form one document. Facsimile signature pages will
be acceptable, provided originally signed signature pages are provided to
each
of the other parties by overnight courier.
24.
RIGHT OF SET-OFF. In addition to any other rights and
remedies of Lender, upon the occurrence of an Event of Default, including
the
failure of Guarantor to timely perform any obligation hereunder, Lender is
authorized at any time and from time to time during the continuance of such
default or Event of Default, without prior notice to Guarantor (any such
notice being waived by Guarantor to the fullest extent permitted by law)
to
set-off and apply any and all deposits or deposit accounts (general or special,
time or demand, provisional or final) at any time held by Lender to or for
the
credit or the account of Guarantor against any and all obligations of Guarantor
under the Loan Documents, now or hereafter existing, irrespective of whether
or
not Lender shall have made demand under this Guaranty or any other Loan Document
and although such amounts owed may be contingent or unmatured.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, guarantor has caused this Guaranty to be executed as of the
date first above written.
| XXXXXXXX XXXXX PRINTING, INC. | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer
|
||
| FRANKLIN DEVELOPMENT CORPORATION | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Vice President
|
||
| XXXXXXXX XXXXX TRAVEL, INC. | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer
|
||
| XXXXXXXX XXXXX CATALOG SALES, INC. | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer
|
||
| XXXXXXXX XXXXX CLIENT SALES, INC. | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer
|
||
| XXXXXXXX XXXXX PRODUCT SALES, INC. | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer
|
||
| XXXXXXXX XXXXX SERVICES, L.L.C. | ||
| |
|
a
Utah limited liability company |
|
By:
|
XXXXXXXX XXXXX CLIENT SALES, INC. | |
|
a
Utah corporation, its member
|
||
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer
|
||
|
By:
|
FRANKLIN DEVELOPMENT CORPORATION | |
| |
|
a
Utah
corporation, its member |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Vice President
|
||
| XXXXXXXX XXXXX MARKETING, LTD. | ||
| |
|
a
Utah limited partnership |
|
By:
|
FRANKLIN DEVELOPMENT CORPORATION | |
|
a
Utah corporation, its general partner
|
||
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Vice President
"Guarantor"
|
||
