EXHIBIT 10.35
XXXXXX CORPORATE GUARANTY
This Corporate Guaranty (this "Guaranty") is executed and delivered as
of December 14, 1999, by Xxxxxx, Inc., a Delaware corporation ("Guarantor"), to
American National Bank and Trust Company of Chicago, a national banking
association (the "Bank").
1. BACKGROUND.
A. Contemporaneously herewith, The Xxxxxx Subscription Agency,
Incorporated, a Delaware corporation ("Xxxxxx"), XxXxxxxx Subscription Service,
Inc., an Illinois corporation ("XxXxxxxx"), and The Xxxxx Company, Inc., a
Massachusetts corporation ("Xxxxx") (Xxxxxx, XxXxxxxx and Xxxxx are collectively
the "Borrower"), desire the Bank to provide certain extensions of credit, loans
or other financial accommodations to Borrower (the "Financial Accommodations")
pursuant to the following documents (collectively the "Loan Documents"): that
certain Loan and Security Agreement of even date herewith by and between the
Bank and Borrower (as amended, renewed or restated from time to time, the "Loan
Agreement"), and the other agreements, documents and instruments referenced in
or executed and delivered pursuant to the Loan Agreement, including, without
limitation, that certain Revolving Note of even date herewith executed and
delivered by Borrower to the Bank in a maximum aggregate principal amount not to
exceed Thirty-Five Million and no/100 Dollars ($35,000,000.00).
B. The Bank is willing to provide the Financial Accommodations to
Borrower, provided, among other things, Guarantor executes and delivers this
Guaranty to the Bank.
C. Guarantor acknowledges and agrees that (i) Guarantor owns one
hundred percent (100%) of the issued and outstanding capital stock of each
Borrower, and Guarantor is, thus, benefitted by the Financial Accommodations
made by the Bank to Borrower, (ii) Guarantor's execution and delivery of this
Guaranty is a material inducement to the Bank providing the Financial
Accommodations to Borrower, and (iii) without this Guaranty, the Bank would not
have provided the Financial Accommodations to Borrower.
D. In consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of such consideration is hereby
acknowledged by Guarantor, Guarantor hereby covenants unto and agrees with the
Bank as set forth in this Guaranty.
2. DEFINITIONS.
A. "BORROWER'S LIABILITIES" shall mean, individually and collectively,
all debts, liabilities, covenants, duties, obligations and agreements of any
kind, nature or description whatsoever of each Borrower to and with the Bank
heretofore, now or hereafter made, incurred, evidenced or created, whether
voluntary or involuntary, and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, direct or
indirect, insured or uninsured or foreseeable or unforeseeable, whether pursuant
to the Loan Documents or otherwise.
B. "COVENANTS" shall mean all now existing and hereafter arising
covenants, duties, obligations and agreements of each Borrower to and with the
Bank, whether pursuant to the Loan Documents or otherwise.
C. "EVENT OF DEFAULT" shall mean the occurrence of any one of the
following events: (i) Guarantor fails or neglects to perform, keep or observe
any term, provision, condition, warranty, representation or covenant contained
in this Guaranty or any other agreement, document or instrument executed and
delivered by Guarantor to the Bank; (ii) any of Guarantor's assets are seized,
attached, subjected to a writ or distress warrant, or are levied upon, if such
seizure, attachment, writ or distress warrant could have a material adverse
effect on Guarantor's
business, assets or financial condition as determined by the Bank in its
reasonable discretion, or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors; (iii) Guarantor shall make
an assignment for the benefit of creditors, or an application is made by or
against Guarantor for the appointment of a receiver, trustee, custodian or
conservator for Guarantor or any of Guarantor's assets; (iv) a petition under
the United States Bankruptcy Code or any similar federal, state or local law,
statute or regulation shall be filed by Guarantor; (v) a petition under the
United States Bankruptcy Code or any similar federal, state or local law,
statute or regulation shall be filed against Guarantor and such petition is
granted or is not dismissed within thirty (30) days after the filing thereof;
(vi) Guarantor is enjoined, restrained or in any way prevented by court order
from conducting any part of Guarantor's business; (vii) a lawsuit or other
proceeding is filed by or against Guarantor to liquidate any of Guarantor's
assets and such lawsuit or other proceeding could have a material adverse effect
on Guarantor's business, assets or financial condition as determined by the Bank
in its reasonable discretion; (viii) one or more notices of a lien, levy or
assessment are filed of record for past due Indebtedness which individually or
in the aggregate is in excess of Fifty Thousand and no/100 Dollars ($50,000.00)
with respect to any of Guarantor's assets by the United States of America or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental department, agency or instrumentality; (ix)
Guarantor defaults in the payment of any of its other obligations or liabilities
which individually or in the aggregate are in excess of $1,000,000.00 and such
default is not cured within the time, if any, specified therefor; (x) the
dissolution of Guarantor; or (xi) an "Event of Default" (as defined in the Loan
Agreement) occurs under the Loan Documents.
D. "GUARANTOR'S LIABILITIES" shall mean all of Guarantor's now existing
or hereafter arising debts, liabilities, covenants, duties, obligations and
agreements to and with the Bank, whether pursuant to this Guaranty or otherwise.
3. GUARANTY.
A. Guarantor hereby (i) unconditionally guaranties the full and timely
payment of Borrower's Liabilities when due or declared due, whether by
acceleration, maturity or otherwise; (ii) unconditionally guaranties the full
and timely performance of the Covenants; (iii) agrees to pay all costs, expenses
and fees, including, but not limited to, attorneys' fees, incurred by the Bank
in connection with this Guaranty, Borrower's Liabilities or any collateral or
security securing Borrower's Liabilities; and (iv) agrees to pay to the Bank the
amount of any payments made to the Bank in full or partial satisfaction of
Borrower's Liabilities, and which are subsequently invalidated, declared to be
preferential or fraudulent, set aside or required to be repaid by the Bank to
Borrower, its estate, a trustee, a receiver or any other party under the United
States Bankruptcy Code or any similar federal, state or local law, statute or
regulation.
B. This Guaranty and the full and timely performance of the Covenants
and the full and timely payment of Borrower's Liabilities by Guarantor pursuant
to this Guaranty shall be a continuing, absolute and unconditional guaranty of
payment and not of collection, irrespective of (i) the validity or
enforceability of any instrument, agreement or document evidencing all or any
part of Borrower's Liabilities; (ii) the absence of any attempt to collect or
enforce Borrower's Liabilities from or against Borrower or other action to
enforce the full and timely performance of the Covenants and the full and timely
payment of Borrower's Liabilities, and the absence of any such attempt shall in
no way preclude or be a condition precedent to proceeding against Guarantor;
(iii) any waiver or consent by the Bank with respect to any term or provision of
any instrument, agreement or document executed and delivered by Borrower or
Guarantor to the Bank; (iv) the Bank obtaining any additional guaranties or any
collateral to secure Borrower's Liabilities from Guarantor or any other person
or entity; (v) any failure by the Bank to take any steps to preserve its rights
to any security or collateral securing Borrower's Liabilities or the Covenants
or to utilize any of its remedies, which failure shall in no way preclude or be
a condition precedent to the Bank proceeding against Guarantor; (vi) the
existence or extent of collateral or security pledged, assigned, hypothecated or
granted by Guarantor to secure Borrower's Liabilities, Guarantor's Liabilities
or the Covenants; or
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(vii) any other fact, event, act, omission or circumstance which might otherwise
constitute a legal or equitable discharge of liability or performance by a
guarantor.
C. The Bank shall not be required or obligated to (i) take any action
to collect from, or to file any claim of any kind against, Borrower, any other
guarantor, or any other person or entity liable, jointly or severally, for the
full and timely performance of any of the Covenants or the full and timely
payment of any of Borrower's Liabilities, prior to pursuing any rights or
remedies the Bank may have against Guarantor; (ii) take any steps to protect,
enforce, take possession of, perfect any interest in, foreclose or realize on
any collateral or security, if any, securing the Covenants or Borrower's
Liabilities; or (iii) in any other respect, exercise any diligence whatsoever in
enforcing, collecting or attempting to collect any of Borrower's Liabilities by
any means.
4. WAIVERS.
A. Guarantor unconditionally and irrevocably waives each and every
defense which would otherwise impair, restrict, diminish or affect any of
Guarantor's Liabilities. Without limiting the foregoing, the Bank shall have the
exclusive right from time to time without impairing, restricting, diminishing or
affecting any of Guarantor's Liabilities, and without notice of any kind to
Guarantor, to (i) provide additional financial accommodations to Borrower; (ii)
renew, extend, accelerate, modify or otherwise change the terms of any of the
Covenants or any of Borrower's Liabilities, or any instrument, agreement or
document between the Bank and Borrower; (iii) accept partial payments on
Borrower's Liabilities; (iv) take and hold collateral or security to secure the
Covenants or Borrower's Liabilities, or take any other guaranty to secure the
Covenants and Borrower's Liabilities; (v) in its sole discretion, apply any such
collateral or security, and direct the order or manner of sale thereof, and the
application of the proceeds thereof; (vi) release any other guarantor, person or
entity guarantying Borrower's Liabilities; and (vii) settle, release,
compromise, collect or otherwise liquidate Borrower's Liabilities or exchange,
enforce, sell, lease, use, maintain, impair and release any collateral or
security therefor in any manner, without affecting or impairing any of
Guarantor's Liabilities hereunder. Nothing contained in this Guaranty, except
the full and timely performance of the Covenants and the full and timely payment
of Borrower's Liabilities to the Bank, shall operate to discharge any of
Guarantor's Liabilities.
B. Guarantor hereby unconditionally waives (i) notice of acceptance of
this Guaranty; (ii) notice of any default by Borrower in the full and prompt
performance of the Covenants or the full and prompt payment of Borrower's
Liabilities; (iii) presentment, notice of dishonor, protest, demand for payment
and any other notices of any kind; and (iv) any rights of set-off or
counterclaim against the Bank which would otherwise impair the Bank's rights
against Guarantors hereunder.
5. INFORMATION.
Guarantor assumes full responsibility for keeping informed of (A) the
financial condition of Borrower; (B) Borrower's Liabilities; and (C) all other
circumstances bearing upon Borrower or the risk of non-payment of Borrower's
Liabilities. Guarantor agrees that the Bank shall have no duty or obligation to
advise, furnish or supply Guarantor of or with any information known to the
Bank, including, but not limited to, Borrower's Liabilities, the financial
condition of Borrower, any other circumstances relating to non-payment of
Borrower's Liabilities or otherwise. If the Bank, in its sole discretion,
provides any advice or information to Guarantor, the Bank shall be under no
obligation to investigate the matters contained in such advice or information,
or to correct such advice or information if the Bank thereafter knows or should
have known that such advice or information is misleading or untrue, in whole or
in part, or to update or provide any other advice or information in the future.
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6. WAIVER OF GUARANTOR'S RIGHTS OF INDEMNIFICATION, SUBROGATION,
CONTRIBUTION AND REIMBURSEMENT.
Guarantor acknowledges and agrees that it may have a right of
indemnification, subrogation, contribution and reimbursement from Borrower based
upon its execution of this Guaranty. Guarantor understands the benefits of
having such rights, including, but not limited to, (A) Guarantor's right to
reimbursement from Borrower of all monies expended for the payment of Borrower's
Liabilities by Guarantor; and (B) Guarantor's subrogation to the rights of the
Bank after payment of Borrower's Liabilities. Guarantor knowingly and
voluntarily waives, releases and relinquishes its rights of indemnification,
subrogation, contribution and reimbursement from Borrower.
7. REMEDIES UPON AN EVENT OF DEFAULT.
Upon an Event of Default, Guarantor's Liabilities shall be immediately
due and payable by Guarantor, whether or not Borrower's Liabilities are then due
and payable or declared due and payable, and the Bank may, in its sole
discretion, exercise any of its rights or remedies provided in this Guaranty, at
law, in equity or otherwise; provided, however, if Guarantor is not a debtor in
any state or federal bankruptcy proceeding, the Bank shall be required to give
Guarantor notice of the occurrence of such Event of Default prior to Guarantor's
Liabilities becoming immediately due and payable by Guarantor hereunder. All of
the Bank's rights and remedies are cumulative and non-exclusive, and the
exercise by the Bank of any right or remedy shall not preclude the Bank from
subsequently exercising any other right or remedy, in any other respect or at
any other time.
8. TERM OF GUARANTY.
This Guaranty and Guarantor's Liabilities shall apply to all
transactions between Borrower and the Bank. This Guaranty may only be terminated
by Guarantor giving notice of such termination to the Bank in accordance with
Paragraph 10 hereof. Such notice of termination, however, shall not release or
affect any of Guarantor's Liabilities existing as of the effective date of such
termination.
9. SUBORDINATION.
Guarantor acknowledges and agrees that all indebtedness, obligations
or liabilities now and at any time or times hereafter owing by any Borrower to
Guarantor are hereby subordinated to the full and timely performance of the
Covenants and the full and timely payment of Borrower's Liabilities to the Bank.
Guarantor will not accept any payments on the indebtedness, obligations or
liabilities of Borrower due and owing to Guarantor until Borrower's Liabilities
to the Bank have been fully paid and satisfied. If Guarantor receives any
payments on account of such indebtedness, obligations or liabilities from
Borrower in violation of this Guaranty, Guarantor shall receive and hold such
payments in trust for the benefit of and as the property of the Bank, and shall
immediately deliver all such payments to the Bank.
10. NOTICE.
Any and all notices, demands, requests, consents, designations, waivers
and other communications required or desired hereunder shall be in writing and
shall be deemed effective upon personal delivery, upon confirmed facsimile
transmission, upon receipted delivery by overnight carrier, or three (3) days
after mailing if mailed by registered or certified mail, return receipt
requested, postage prepaid, to Guarantor or the Bank at the following addresses
or facsimile numbers or such other address or facsimile number as Guarantor or
the Bank specify in like manner; provided, however, that notices of termination
of this Guaranty and notices of a change of address or facsimile number shall be
effective only upon receipt thereof.
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If to Guarantor, then to: If to the Bank, then to:
Xxxxxx, Inc. American National the Bank and Trust
00 Xxxxxxxxx Xxxx Company of Chicago
Westwood, Massachussets 02090 XX0-0000
Xxxxxxxxx: Dr. Xxxxxxx Xxxx 000 X. XxXxxxx Xxxxxx, 0xx Xxxxx
Facsimile Number: (000) 000-0000 Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to: with a copy to:
Xxxxxxx Xxxx LLP Xxxxx & Xxxxx
000 Xxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx Suite 1400
Attention: Xxxxxxx Xxxxxxx, Esq. Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000 Attention: Xxxxxx X. Des Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
11. APPLICATION OF PAYMENTS.
Guarantor hereby agrees that all payments to the Bank made by or on behalf
of Borrower, including, without limitation, payments from Guarantor, may be
applied and reapplied, in whole or in part, to any of Borrower's Liabilities or
Guarantor's Liabilities as the Bank sees fit in its sole discretion.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor represents, warrants
and covenants unto the Bank that: (A) Guarantor is and at all times hereafter
shall be a corporation duly organized and existing and in good standing under
the laws of the State of Delaware; (B) Guarantor has the right, power and
capacity and is duly authorized and empowered to enter into, execute, deliver
and perform this Guaranty; and (C) the execution, delivery and performance by
Guarantor of this Guaranty shall not, by the lapse of time, the giving of notice
or otherwise, constitute a violation of any applicable law or breach of any
provision contained in Guarantor's Articles of Incorporation or By-Laws, or
contained in any agreement, instrument or document to which Guarantor is now or
hereafter a party or by which it is or may become bound.
13. REPORTING. From time to time hereafter, Guarantor covenants to promptly
deliver to the Bank, such information, financial or otherwise, as the Bank may
reasonable request.
14. CONSTRUCTION.
A. This Guaranty shall be interpreted, construed and governed by and under
the laws of the State of Illinois. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be valid and enforceable
under applicable law, but if any provision of this Guaranty is held to be
invalid or unenforceable by a court of competent jurisdiction, such provision
shall be severed herefrom and such invalidity or unenforceability shall not
affect any other provision of this Guaranty, the balance of which shall remain
in and have its intended full force and effect. Provided, however, if such
provision may be modified so as to be valid and enforceable as a matter of law,
such provision shall be deemed to be modified so as to be valid and enforceable
to the maximum extent permitted by law.
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B. The Paragraph headings contained in this Guaranty are solely for the
purpose of reference, are not part of the agreement between Guarantor and the
Bank, and shall not in any way affect the meaning or interpretation of this
Guaranty or any Paragraph. This Guaranty shall be binding on Guarantor and
upon the successors of Guarantor, its affiliates, divisions and shareholders,
as the case may be, and shall inure to the benefit of the Bank, its
successors, assigns, affiliates, divisions, parents and shareholders, and may
be assigned by the Bank without notice to Guarantor. This Guaranty may not be
assigned by Guarantor.
C. No failure to exercise, and no delay in exercising, any right, power or
privilege hereunder shall operate as a waiver thereof. No waiver of any breach
of any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision. No extension of time for performance
of Guarantor's Liabilities or any other obligation or act hereunder or under any
other agreement shall be deemed to be an extension of the time for performance
of any other obligation or any other act. This Guaranty may not be altered,
changed, amended or modified except by an agreement in writing signed by the
Bank and Guarantor.
D. All references to Borrower shall mean Xxxxxx, XxXxxxxx and Xxxxx, both
individually and collectively, and jointly and severally.
15. CONSENT TO JURISDICTION.
Guarantor and the Bank irrevocably agree, and hereby consent and submit to
the non-exclusive jurisdiction of the Circuit Court of Xxxx County, Illinois,
and the United States District Court for the Northern District of Illinois,
Eastern Division, with regard to any litigation, actions or proceedings arising
from, relating to or in connection with Borrower's Liabilities, the Covenants,
Guarantor's Liabilities, this Guaranty or any collateral or security therefor.
Guarantor hereby waives any right Guarantor may have to transfer or change the
venue of any litigation, actions or proceedings filed in the Circuit Court of
Xxxx County, Illinois, or the United States District Court for the Northern
District of Illinois, Eastern Division.
16. SERVICE OF PROCESS.
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENTS
THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO THE BORROWERS AS SET FORTH HEREIN IN THE MANNER PROVIDED
BY APPLICABLE STATUTE, LAW, RULE OF COURT OR OTHERWISE.
17. WAIVER OF JURY TRIAL.
GUARANTOR AND THE BANK EACH HEREBY ABSOLUTELY AND UNCONDITIONALLY WAIVE
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER OR RELATING TO THIS GUARANTY,
GUARANTOR'S LIABILITIES OR BORROWER'S LIABILITIES, OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED AND DELIVERED IN CONNECTION THEREWITH OR RELATED
THERETO.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty on the day and
year first above written.
XXXXXX, INC.,
a Delaware corporation
By:
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Name:
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Title:
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