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GUARANTEE
of
BIG FLOWER PRESS HOLDINGS, INC.
in favour of
BANKERS TRUST COMPANY
in respect of obligations
of BIG FLOWER LIMITED under
a Facility Letter
dated 18 September 1997
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THIS GUARANTEE is made the 18 day of September 1997
by
(1) BIG FLOWER PRESS HOLDINGS, INC. (the "Guarantor")
in favour of
(2) BANKERS TRUST COMPANY, at its branch in London, (the "Bank").
WHEREAS, BIG FLOWER LIMITED, a company incorporated under the laws of
England and Wales with its registered office at Xxxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxx, XX0X 0XX, and Bankers Trust Company have entered into a
Facility Letter, dated 18 September 1997 (as modified, supplemented or
amended from time to time, the "Facility Letter"), providing for the making
of Loans as contemplated therein;
WHEREAS, it is a condition to the making of loans under the Facility
Letter that the Guarantor shall have executed and delivered this Guarantee;
and
WHEREAS, the Guarantor will obtain benefits as a result of the loans made
to the Borrower and to the Olwen Direct Mail Limited under the Facility
Letter and, accordingly, desires to execute and deliver this Guarantee in
order to satisfy the condition described in the preceding paragraph;
NOW THIS GUARANTEE WITNESSES as follows:
1. Interpretation
Terms defined in the Facility Letter shall, except as otherwise expressly
provided herein or as the context otherwise requires, have the same meanings
in this Guarantee (including, without limitation, the preamble and recitals
hereto).
2. Guarantee
The Guarantor, as primary obligor and not merely as surety,
unconditionally and irrevocably:
(a) guarantees to the Bank the due and punctual payment of any and
all sums from time to time due from the Borrower under the Facility
Letter and the due and punctual performance of each of the Borrower's
other obligations under the Facility Letter, including, without
limitation, the payment of all sums and the performance of all
obligations due from the Borrower by virtue of its joint and several
liability for the obligations of Olwen thereunder;
(b) undertakes to pay to the Bank on demand any sum due from the
Borrower under the Facility Letter which is unpaid; and
(c) agrees to indemnify the Bank on demand against any loss
incurred by the
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Bank as a result of the Facility Letter or this Guarantee being or
becoming, in whole or in part, void, voidable or unenforceable for any
reason whatsoever, whether or not known to the Bank (the amount of such
loss being the amount which the Bank would otherwise have been entitled
to recover from the Borrower).
3. Preservation of Guarantee
3.1 The Bank shall be at liberty without thereby affecting its rights
hereunder or otherwise conferred by law at any time at its absolute
discretion and with or without the assent or knowledge of or notice to the
Guarantor:
(a) to give time to the Borrower or Olwen for the payment of all or
any sums due or payable under the Facility Letter;
(b) to neglect or forbear to enforce payment of all or any sums due
or payable under the Facility Letter and (without prejudice to the
foregoing) to grant any time or other indulgence or forbearance to and
fail to assert or pursue or delay in asserting or pursuing any right or
remedy against the Borrower or Olwen;
(c) to accept, vary, exchange, renew, abstain from perfecting or
release any security (other than this Guarantee) now held or to be held
by it for or on account of any sums payable or expressed to be payable
under the Facility Letter;
(d) to amend, add to or vary the terms of the Facility Letter; and
(e) to compound with, accept compositions from and make any other
arrangements with the Borrower or Olwen.
3.2 This Guarantee and the rights of the Bank hereunder or otherwise
conferred by law shall not be affected by the appointment of a receiver or
liquidator or by any alteration of the Borrower's or Olwen's status or any
defective or irregular exercise of the powers of the Borrower or Olwen to
raise finance or by any other act or circumstance which (apart from this
provision) would or might constitute a legal or equitable defence for or
discharge of a surety or guarantor. This Guarantee may be called up and
enforced without steps or proceedings first being taken against the Borrower
or Olwen or the exercise of any remedy under the Facility Letter and the
Guarantor irrevocably waives any right it may have of first requiring the
Bank (or any trustee, agent or other person acting on its behalf) to proceed
against or enforce any other rights or security or claim payment from any
person (including without limitation the Borrower or Olwen) before claiming
from the Guarantor under this Guarantee.
3.3 Any unenforceability, illegality or invalidity of any obligation of
any person (including without limitation the Borrower or Olwen) under the
Facility Letter or any other document or security delivered in connection
therewith shall not reduce, release or prejudice any obligation of the
Guarantor under this Guarantee, which obligation shall remain in full force
and effect notwithstanding any such unenforceability, illegality or
invalidity.
3.4 Where any discharge (whether in respect of the obligations of the
Borrower or Olwen under the Facility Letter or any security for those
obligations or otherwise) is made in
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whole or in part or any arrangement is made on the faith of any payment,
security or other disposition which is avoided or must be restored upon an
insolvency or liquidation or any similar event, the liability of the
Guarantor hereunder shall continue or be reinstated (as the case may be) as
if such discharge or arrangement had not occurred. The Bank (or any trustee,
agent or other person acting on its behalf) may concede or compromise any
claim that any payment, security or other disposition is liable to avoidance
or restoration.
3.5 Until all amounts which may be or become payable by the Borrower or
Olwen under or in connection with the Facility Letter have been irrevocably
paid in full, the Bank (or any trustee, agent or other Person acting on its
behalf) may:
(i) refrain from applying or enforcing any other moneys, security
or rights held or received by the Bank (or such trustee, agent or other
Person) in respect of such amounts, or apply and enforce the same in such
manner and order as it sees fit (whether against such amounts or otherwise)
and the Guarantor shall not be entitled to the benefit of the same; and
(ii) hold in a suspense account any moneys received from the
Guarantor or on account of the Guarantor's liability under the Guarantee,
bearing interest at such market rates as the Bank shall reasonably
determine.
4. Demand upon the Guarantor
4.1 Any demand to be made by the Bank hereunder may be made on the
Guarantor as provided in Section 13 hereof.
4.2 The Bank shall not be required before exercising any of the rights,
powers or remedies available to or conferred on it under the Guarantee or by
law (a) to make any demand on or of the Borrower or Olwen, (b) to take any
other action or obtain any judgment in any court against the Borrower or
Olwen, (c) to make or file any action or proof in any winding-up, dissolution
or other similar proceeding in respect of the Borrower or Olwen or (d) to
enforce or seek to enforce any other security as may then have been granted
or pledged in respect of the obligations of the Borrower or Olwen guaranteed
hereunder.
5. Continuing Guarantee
This Guarantee is a continuing guarantee and shall remain in force until
any commitments under the Facility Letter shall have been terminated and all
sums payable or expressed to be payable by the Borrower or Olwen under the
Facility Letter have been paid in full. Any full or partial settlement or
discharge between the Guarantor and the Bank entered into as a consequence of
payment by the Borrower or Olwen of sums hereby guaranteed or any other act
shall be conditional upon such payment or other act not being avoided or
reduced by virtue of any provision of law or enactment (including, without
limitation, any such relating to liquidation of the Borrower or Olwen) for
the time being in force.
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6. Additional Security
This Guarantee shall be in addition to and shall not be in any way
prejudiced or affected by any collateral or other security hereafter held by
the Bank for any or all the moneys payable or expressed to be payable by the
Borrower or Olwen under the Facility Letter nor shall such collateral or
other security or any lien to which the Bank may be otherwise entitled or the
liability of any person or persons for all or any part of such moneys be in
any manner prejudiced or affected by the Guarantee.
7. Non-Competition; Subrogation
7.1 Unless and until all sums payable or expressed to be payable under
the Facility Letter shall have first been completely discharged, the
Guarantor shall not (a) be entitled as against the Bank by paying off all or
part only of the moneys hereby secured or on any other ground to claim any
set-off or counterclaim against the Borrower in respect of any liability on
the part of the Guarantor to the Bank in respect of any payment by the
Guarantor hereunder or (b) be entitled to claim or have the benefit of any
set-off, counterclaim or proof against or dividend, composition or payment by
the Borrower or any benefit of any security which the Bank may now or
hereafter hold for such sums or to have any share therein or (c) claim
payment of, or prove in any bankruptcy, winding-up, liquidation, composition
or arrangement relating to the Borrower for, any other moneys for the time
being due to the Guarantor from the Borrower or exercise any right or a
remedy in respect thereof.
7.2 If the Borrower or Olwen shall become bankrupt or go into
liquidation or be wound up or enter into a composition or make any
arrangements with its creditors, the Bank shall be at liberty to prove for
the whole of the moneys so owing to it under the Facility Letter in priority
to any right of proof on the part of the Guarantor and to accept any
composition or any dividends or payments, as if this Guarantee had not been
given, and to appropriate any such composition, dividends or payments in
reduction of any obligation of the Borrower in priority to any claim by the
Guarantor in respect thereof, and so that its right to recover from the
Guarantor to the full extent of this Guarantee shall not be prejudiced and so
that this Guarantee shall apply to and secure any ultimate balance which
after receipt of such composition, dividends or payments may remain due and
owing to it or them under the Facility Letter.
7.3 Subject to Clauses 7.1 and 7.2 (including without limitation the
complete payment and discharge of all sums payable under the Facility
Letter), the Guarantor shall be fully subrogated, to the extent of its
payments hereunder, to the rights under the Facility Letter of the Person for
whose benefit such payment is applied.
7.4 Following an Event of Default which is continuing any moneys
obtained by the Guarantor from the Borrower prior to the complete payment and
discharge of all sums payable under the Facility Letter, whether in breach of
the provisions of this Guarantee or otherwise, shall be held by the Guarantor
on trust to pay the same in or towards discharge of its obligations hereunder.
8. Representations
8.1 In order to induce the Bank to enter into the Facility Letter and to
make the loans
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as therein provided, the Guarantor represents and warrants to the Bank as
follows:
8.1.1 It is incorporated and existing under the laws of Delaware
and has full power and authority to enter into, exercise its rights and
perform and comply with its obligations hereunder;
8.1.2 All actions and things required by its constitutional
documents and applicable law to be taken, fulfilled and done (including the
obtaining of any consents or the making of any registrations) in order to:
(a) enable the Guarantor lawfully to agree to be bound by,
enter into, exercise its rights and perform and comply with its obligations
hereunder;
(b) to ensure that those obligations are legal, valid,
binding and enforceable; and
(c) to make this Guarantee admissible in evidence in the
English courts have been taken, fulfilled and done;
8.1.3 The obligations expressed to be assumed by the Guarantor
hereunder are legal, valid, binding and enforceable;
8.1.4 The Guarantor is not in default in respect of any
obligation nor does any default exist in respect of, or under any agreement
relating to, any of its indebtedness for or in respect of moneys borrowed or
raised (whether as principal debtor or otherwise) which default has or could
have an adverse effect on the Guarantor's ability to perform and comply with
its obligations hereunder;
8.1.5 No petition has been presented or meeting convened for
winding up the Guarantor.
8.2 Each of the representations made by the Guarantor in this Guarantee
shall be deemed to be repeated by the Guarantor on the date a notice of
drawing (as referred to in the Facility Letter) is issued by the Borrower or
Olwen and on the date of any drawing by the Borrower or Olwen under the
Facility Letter.
9. Covenants
The Guarantor hereby agrees to comply with the covenants set out in
Sections 8.01(g), 8.03, 8.09, 9.01 and 9.04 of the Credit Agreement as if the
same were set out fully in this Guarantee.
10. Payments; Taxes; Indemnities
Clauses 5.1, 5.2, 10.2 and 10.3 of the Facility Letter shall be
incorporated herein as if each such Clause were set forth in its entirety
herein, but as if references therein (i) to "the Borrower" were references to
"the Guarantor", (ii) to "this letter" were references to "this Guarantee"
and (iii) in the case of Clause 10.2, references to overdue sums were
references to
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sums due hereunder.
11. Separability; Headings
11.1 In case of any one or more of the provisions contained in this
Guarantee shall be invalid, illegal or unenforceable in any respect under any
law, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
11.2 The section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this Guarantee.
12. Enforceability; Transfer of Rights
This Guarantee shall take effect for the benefit of the Bank. The Bank
may at any time assign or transfer all or any part of its rights or interests
under or in respect of this Guarantee with the prior written consent of the
Guarantor, which consent shall not be unreasonably withheld or delayed. The
Guarantor may not assign or tranfer any of its respective rights, interests
or obligations under or in resepect of this Guarantee to any person.
13. Notices
Unless otherwise provided herein, any communication, demand or notice to
be given hereunder will be duly given when delivered in writing or sent by
telex (answerback received) to a party at its address below or by facsimile
transmission. A communication, demand or notice given pursuant to this
Guarantee shall be in English and addressed, until such party shall have
notified the other parties of a change in address:
If to the Guarantor:
Big Flower Press Holdings, Inc.
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx
XX00000
Attention:
Telex:
Facsimile:
If to the Bank:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxx
XX0X 0XX
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Attention: Xxxxx Xxxxxxxx
Facsimile: 0171 982 1182
with a copy to:
BT Services Ireland Limited
0xx Xxxxx, Xxxxx Xxxxx,
Xxxxx Life Centre
Xxxxx Xxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xx. Xxx X'Xxxxxxx, Loans Administration
Facsimile: 00 353 1 670 1708/9
Any such communication, demand or notice shall be deemed received on
the date of receipt, if delivered by hand, telex or facsimile transmission,
or on the seventh Business Day following dispatch, if posted, except as
otherwise provided therein.
14. Reinstatement of Obligation
14.1 Any settlement or discharge between the Guarantor and the Bank shall
be conditional upon no security or payment to the Bank by the Borrower, Olwen
or the Guarantor or any other person on behalf of the Borrower, Olwen or, as
the case may be, the Guarantor being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency, liquidation or
similar laws of general application for the time being in force and, if any
such security or payment is so avoided or reduced, the Bank shall be entitled
to recover the value or amount of such security or payment from the Guarantor
subsequently as if such settlement or discharge had not occurred.
15. Law
This Guarantee shall be governed by and construed in accordance with
English law.
16. Judgement Currency, Jurisdiction and Immunity.
16.1 Any amount received or recovered by the Bank (whether under this
Guarantee or otherwise) in respect of any sum expressed to be due to it from
the Guarantor under this Guarantee in a currency (the "other currency") other
than that in which the relevant obligation is expressed to be payable,
whether as a result of, or enforcement of, a judgment or order of a court or
tribunal of any jurisdiction, in the dissolution of the Guarantor or
otherwise, shall only constitute a discharge of the Guarantor to the extent
of the amount in the currency in which the relevant obligation is expressed
to be payable which the Bank would be able to purchase in accordance with
normal banking procedures with the amount so received or recovered in the
other currency (after any premium and costs of exchange) on the date of that
receipt or recovery (or, if it would not be practicable to make that purchase
on that date, on the first date on which it is practicable to do so). If
that amount in the other currency is less than the amount in the currency in
which the relevant obligation is expressed to be payable to the Bank, the
Guarantor shall indemnify it against any loss sustained by it as a result.
In such event, the Guarantor shall
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also indemnify the Bank against the cost of making any such purchase. These
indemnities constitute a separate and independent obligation from the other
obligations in this Guarantee, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence granted by the
Bank and shall continue in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any sum due under this
Guarantee or any judgment or order. No proof or evidence of any actual loss
may be required other than proof of the actual amount in the currency in
which the relevant obligation is expressed to be payable purchased by the
Bank as mentioned above and the date upon which such purchase was effected.
16.2 In relation to any legal action or proceedings arising out of or in
connection with this Guarantee ("Proceedings"), the Guarantor irrevocably
submits to the non-exclusive jurisdiction of the High Court of Justice in
England. The Guarantor irrevocably waives any objection to Proceedings in
any such court on the grounds of venue or on the grounds that the Proceedings
have been brought in an inconvenient forum. The submissions contained, and
the taking of Proceedings in any of the jurisdictions referred to, in this
Section 16.2 shall not preclude any party from taking Proceedings in any
other of such jurisdictions or in any other jurisdiction in which Proceedings
may be commenced against the Guarantor.
16.3 Without prejudice to any other permitted mode of service, the
Guarantor agrees that service of any writ, notice or other document for the
purpose of any proceedings in such courts shall be duly served upon it if
delivered or sent by registered post to Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (marked for the attention of Xxxxxxx Xxxxxxx) or such other
address in England or Wales as the Guarantor may notify from time to time to
the Bank.
16.4 To the extent that the Guarantor may now or hereafter be entitled,
in any jurisdiction in which Proceedings may at any time be commenced with
respect to this Guarantee, to claim for itself or any of its properties,
assets or revenues any immunity (sovereign or otherwise) from suit,
jurisdiction of any court, attachment prior to judgment, attachment in aid of
execution of a judgment, execution of a judgment or from set-off, banker's
lien, counterclaim or any other legal process or remedy with respect to its
obligations under this Guarantee and/or to the extent that in any such
jurisdiction there may be attributed to the Guarantor, any such immunity
(whether or not claimed), the Guarantor hereby to the fullest extent
permitted by applicable law irrevocably agrees not to claim, and hereby to
the fullest extent permitted by applicable law irrevocably waives, any such
immunity. The Guarantor irrevocably and generally consents in respect of any
Proceedings anywhere to the giving of any relief or the issue of any process
in connection with those Proceedings including, without limitation, the
making, enforcement or execution against any property, assets or revenues
whatsoever (irrespective of their use or intended use) of any order or
judgment which may be made or given in those Proceedings.
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IN WITNESS WHEREOF this Guarantee has been duly executed and is intended
to be and is hereby delivered as a deed on the date first above written.
Executed as a deed by )
BIG FLOWER PRESS )
HOLDINGS, INC. )
Executed as a deed by )
BANKERS TRUST COMPANY )
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