REPAYMENT GUARANTY
Exhibit
10.4
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 JPMORGAN
CHASE BANK, N.A.,
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 EIGHTEEN MILLION
AND
NO/100 DOLLARS ($18,000,000.00) 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§
57-1-32 and
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: JPMorgan
Chase Bank, N.A.
00
Xxxx
Xxxxxxxx, Xxxxx 000
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attn:
Xxxx Xxxxxx
with
a
copy to: Xxxxx
& Xxxxxx L.L.P.
Gateway
Tower West
00
Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxxxx, 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 |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
| Title: Vice President | ||
| XXXXXXXX XXXXX MARKETING, LTD. | ||
| |
|
a
Utah limited partnership |
|
By:
|
XXXXXXXX XXXXX DEVELOPMENT CORPORATION | |
|
a Utah corporation, its general
partner
|
||
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Vice President
"Guarantor"
|
||
