LIMITED GUARANTY
Exhibit 10.11
LIMITED GUARANTY
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE ACKNOWLEDGED,
the undersigned unconditionally guaranties to Xxxxx Fargo Retail Finance, LLC, (together, with any
of its successors-in-interest the “Agent”), with an address at Xxx Xxxxxx Xxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, in its capacity as Agent for the benefit of the
Lenders under the Loan Agreement (as defined below), in accordance with the terms and conditions
hereof, the payment of the Guaranteed Amount (as defined below); provided, however, that in no
event shall Guarantor’s Liability under this Guaranty exceed the Maximum Guaranty Amount, plus
Costs of Collection (as defined below) as provided herein.
1. DEFINITIONS. All initially capitalized terms used here shall have the same meaning
as set forth in the Loan Agreement, unless otherwise defined herein. As used herein, the following
terms have the following meanings:
“Costs of Collection” means, all reasonable attorneys’ fees and reasonable
out-of-pocket expenses incurred by the Agent’s attorneys, and all reasonable costs and expenses
incurred by the Agent (including, without limitation, reasonable and documented costs and expenses
associated with travel), which fees, costs and expenses arise out of enforcement against Guarantor
of this Guaranty.
“Guaranteed Amount” means as of any date of determination thereof, the lesser of (i)
the Maximum Guaranty Amount or (ii) the aggregate amount of the outstanding Liabilities as of such
date, plus all reasonable and documented Costs of Collection incurred by Agent or Lenders
in connection with this Guaranty.
“Guarantor L/C” means one or more irrevocable standby letters of credit, which must
aggregate at all times at least the Maximum Guaranty Amount, which Guarantor L/C shall have a
minimum tenor of 365 days from the date of issuance, contain customary “evergreen” provisions, be
for the account of the Guarantor, be for the benefit of Agent, on behalf of the Lenders, and be
issued by an Acceptable Financial Institution (which at all times must remain an Acceptable
Financial Institution during the term of the Guarantor L/C) and otherwise be in form and substance
reasonably satisfactory to Agent in all material respects in Agent’s Permitted Discretion, together
with any supplement thereto, renewal thereof or replacement thereof.
“Guarantor L/C End Date” means the earliest of (A) the date on which all of the
following have occurred: (i) all Liabilities due and payable under the Loan Agreement have been
indefeasibly repaid to Agent and/or Lenders in full (except that any outstanding L/C’s may be cash
collateralized rather than paid as permitted under the Loan Agreement), (ii) the Commitments have
been terminated and (iii) the Revolving Credit Termination Date shall have occurred or (B)
January 1, 2014.
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“Key Date” means the date after Acceleration of the Liabilities on which any of the
following events first occur:
(a) Substantial completion by the Agent of the Agent’s disposition of the Collateral or
substantial completion of the exercise by the Agent of the Agent’s rights and remedies as a secured
creditor of the Borrowers, following the occurrence of an Event of Default under the Loan Agreement
or other Loan Document, in respect of the Collateral;
(b) Substantial completion of store closing or going-out-of business sales in respect to
substantially all of the Borrowers’ Inventory Collateral;
(c) Consummation of a sale of substantially all of the assets of the Borrowers or confirmation
of reorganization plan in a bankruptcy proceeding or other Insolvency Proceeding involving the
Borrowers as debtors; or
(d) The ninety-first (91st) day after Agent or Lenders have accelerated the
Obligations on account of the occurrence of an Event of Default under the Loan Agreement and has
commenced to Liquidate the Collateral provided that such Acceleration has not been rescinded in
writing by the Agent.
“Liabilities” means all Obligations, whether now existing or hereafter arising, of the
Borrowers to the Agent and Lenders under the Loan Agreement and other Loan Documents including, but
not limited to, any interest arising after the commencement of any case with respect to any of the
Borrowers under the Bankruptcy Code or other Insolvency Proceeding against any of the Borrowers as
debtors (including the payment of interest and other amounts, which would accrue and become due but
for the commencement of such case, whether or not such amounts are allowed or allowable in whole or
in part in any such case and including loans, interest, fees, charges and expenses related thereto
and all other Liabilities of any Borrower to Agent or Lenders under the Loan Agreement or other
Loan Documents) due in connection with the Loan Agreement and the Loan Documents.
“Loan Agreement” means that certain First Amended and Restated Loan and Security
Agreement dated as of even date herewith by and between Xxxxxxxx Fine Papers, d/b/a Papyrus, a
California corporation, Papyrus Franchise Corporation, a Delaware corporation, both with its
principal executive offices at 000 Xxxxxxxxxx Xxxx, Xxxxxx Xxx 0000, Xxxxxxxxx, XX 00000, and
644064 N.B. Inc., a New Brunswick corporation with its principal executive offices at 00 Xxxxxxx
Xxxx, Xxxxxxxxxx Xxx 0000, Xxx: X, Xxxxx 0000, Xxxxx Xxxx, XX X0X0X0, Xxxxxx, and each of their
respective Subsidiaries which are Borrowers under the Loan Agreement, from time to time,
(collectively, the “Borrowers”), and Xxxxx Fargo Retail Finance, LLC, and its respective
successors-in-interest, as the Agent (the “Agent”), with an address at Xxx Xxxxxx Xxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and each of the Lenders under the Loan
Agreement, as it may be amended, modified, supplemented extended, renewed or replaced in accordance with the
terms thereof (provided that definitions from the Loan Agreement of “Accelerate” and
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“Liquidate” as used in the definition of “Key Date” herein shall be such definitions as defined in the Loan
Agreement on the date hereof).
“Maximum Guaranty Amount” means $12,000,000.
“Subordinated Loan Documents” means the “Loan Documents” as defined in the Loan
Agreement, dated as of the date hereof, by and between Xxxxxxxx Fine Papers, d/b/a Papyrus and
Guarantor, as it may be amended, modified, supplemented extended, renewed or replaced.
“Transaction Documents” means the Purchase & Sale Documents.
2. GUARANTEE.
(a) The undersigned Guarantor absolutely and unconditionally guarantees and agrees to be
liable for the full and indefeasible payment in cash of the Guaranteed Amount as in effect on the
date when demand for payment is made hereunder on or after the occurrence of the Key Date plus all
reasonable and documented Costs of Collection incurred by Agent in connection with this Guaranty.
(b) In order to secure the undersigned’s obligations hereunder with respect to the Guaranteed
Amount, the undersigned has arranged for the issuance of one or more Guarantor L/Cs in an aggregate
amount at least equal to the Maximum Guaranty Amount to the Agent as beneficiary. Guarantor agrees
that, except as expressly permitted under Section 2(c) hereof, it shall at all times until the
Guarantor L/C End Date has occurred, maintain Guarantor L/Cs in an amount at least equal to the
Maximum Guaranty Amount. Notwithstanding anything to the contrary contained in this Guaranty,
Agent agrees that (i) so long as Guarantor maintains a Guarantor L/C in full force and effect in an
aggregate undrawn amount at least equal to the Maximum Guaranty Amount, Agent’s sole recourse
against Guarantor pursuant to this Guaranty shall be to draw upon the Guarantor L/C for the
Guaranteed Amount plus any Costs of Collection (or to apply cash proceeds from a draw on the
Guarantor L/C pursuant to Section 2(c) hereof) and to recover any other Costs of Collection due
hereunder from Guarantor and (ii) except as provided in subparagraph 2(c) hereof, it shall not draw
upon the Guarantor L/C or exercise any other right or remedy available to it against the Guarantor
until the Key Date has occurred. Guarantor acknowledges that if, for any reason whatsoever, Agent
has not received payment in full of the Liabilities by the Key Date (regardless of whether Agent
has been able to complete the liquidation of the Collateral by such date), the Agent may, at any
time after the second business day following the Key Date, draw upon the Guarantor L/C (without the
requirement of further notice of the Guarantor or exhaustion or completion of any other rights and
remedies) in an amount equal to the Guaranteed Amount due as of the date of such draw, plus Costs
of Collection then due under subparagraph 2(a) hereof. The Guarantor acknowledges that the Agents’
and Lenders’ efforts to liquidate the Collateral or pursue other rights and remedies may become
subject to a stay, injunction or restraining order issued by a court in an Insolvency Proceeding or
another court, which order prohibits or delays the Agent and Lenders from pursuing liquidation or sale
of the Collateral or other rights and remedies and further acknowledges and agrees that the
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dates set forth in the definition of “Key Date” (or its right to draw on the Guarantor L/Cs on or after
the occurrence of the Key Date) shall not be deemed to have been extended by virtue of such stay,
injunction or restraining order. If Agent determines that it has received indefeasible payment in
full in cash of all of the Liabilities at any time during or after the occurrence of the Key Date
without having to draw upon the Guarantor L/C or that Agent only needs to draw upon a portion of
the Guarantor L/C in order for Guarantor’s obligations then due and payable hereunder to be paid in
cash and satisfied in full, promptly following such determination, after having drawn any amount
necessary for it to receive payment of all obligations due hereunder, Agent shall return the
Guarantor L/C to Guarantor and Guarantor shall be permitted to terminate it or permit it to expire.
(c) Notwithstanding anything contained herein to the contrary, the Agent shall also be
permitted to draw upon the Guarantor L/C at any time prior to the occurrence of the Guarantor L/C
End Date if either or both of the following events described in the following clauses “i” or “ii”
occur:
(i) Prior to the date that is at least thirty (30) days before the expiry date of the
Guarantor L/C (if such expiry date is before January 1, 2014), the expiry date of the
Guarantor L/C has not been extended or a replacement Guarantor L/C has not been provided to
Agent with a later expiry date and the Key Date has not previously occurred. The Agent must
provide notice of its failure to receive a notice of renewal of the Guarantor L/C at least
fifteen (15) days prior to the Agent’s drawing on the Guarantor L/C (the Agent may send such
a notice either before, on, or after the sixtieth (60th) day prior to the date of
the expiration of the term (or renewal term) of any Guarantor L/C, provided that the Agent
may make a drawing premised on the failure to renew a Guarantor L/C (as opposed to the
occurrence of the Key Date) only on or after the thirtieth (30th) day prior to
the date of the expiration of the term (or renewal term) of a Guarantor L/C.
(ii) At any time after the date hereof, the issuer of any Guarantor L/C ceases to
comply with the definition of “Acceptable Financial Institution” set forth in the Loan
Agreement as determined by Agent in its Permitted Discretion.
If, on or prior to the fifteenth (15th) day after the Agent receives the proceeds
of a drawing on the Guarantor L/C made after the occurrence of one of the events described in the
immediately preceding clauses “i” and “ii”, the undersigned delivers a replacement Guarantor L/C to
the Agent that is identical to the initial Guarantor L/C from an Acceptable Financial Institution,
or that contains modifications acceptable to the Agent in the Agent’s good faith discretion, and is
in an amount at least equal to the Maximum Guaranty Amount, then the Agent shall return the cash
amount so drawn to the undersigned or as the undersigned may otherwise direct; provided that, if no
such replacement Guarantor L/C is delivered prior to the expiration of such fifteen (15) day
period, the Agent shall retain all cash proceeds realized from the draw on the Guarantor L/C on
deposit in a separate depositary account at Xxxxx Fargo (such account, the “Guarantor
Collateral Account”) in respect to which Agent shall have a duly perfected first lien security
interest as
security for Guarantor’s obligations hereunder. Following the occurrence of the Key Date,
Agent
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shall apply the funds in the Guarantor Collateral Account to reduce the Liabilities in an
amount not in excess of the Guaranteed Amount then due hereunder (plus any Costs of Collection
incurred by Agent or Lender) at any time that it would be entitled to draw on the Guarantor L/C
pursuant to Section 2(b) hereof. Any funds remaining in the Guarantor Collateral Account
following the indefeasible payment in full in cash of all obligations of the Guarantor to the Agent
and Lenders hereunder shall be released to the undersigned or as the undersigned otherwise directs.
(d) Any amounts paid by the Guarantor pursuant to this Guarantee on account of the Guaranty
Amount (including by virtue of draws on the Guarantor L/C) shall reduce the Maximum Guaranty Amount
and once so reduced, the Maximum Guaranty Amount may not be increased above such decreased amount,
except with the Guarantor’s prior written consent.
(e) Agent agrees that in the event that Agent seeks to replace any original Guarantor L/C
provided by Guarantor which has been lost stolen or destroyed, Agent will deliver to Guarantor a
Lost Letter of Credit Indemnity Agreement in the form attached hereto as Exhibit A.
(f) Agent shall use commercially reasonable efforts to give notice to the Guarantor pursuant
to Section 11 hereof of the occurrence of any Key Date with the understanding that, in the event AG
is party to any Insolvency Proceeding, the parties agree that Agent shall have no obligation under
this Guaranty to send any such notice to AG or any other Person. Agent’s failure to notify
Guarantor (or of Guarantor to receive such notice) of the occurrence of the Key Date shall not
waive, diminish, restrict, stay, interfere with, impair, or otherwise negatively impact the Agent’s
rights and remedies hereunder (including Agent’s right to request and receive a drawing on the
Guarantor L/C) or under any other Loan Document or at law or equity. Guarantor agrees that Agent
is under no obligation to provide any notice to Guarantor of Agent’s intention to draw on a
Guarantor L/C or of any actual drawings on the Guarantor L/C.
3. OBLIGATIONS NOT AFFECTED. The obligations of the undersigned hereunder shall not be
affected by: any fraudulent, illegal, or improper act by the Borrowers, the undersigned or any
person liable or obligated to the Agent or any Lender for or on the Liabilities; any release,
discharge, or invalidation, by operation of law or otherwise, of the Liabilities; or the legal
incapacity of the Borrowers, the undersigned, or any other person liable or obligated to the Agent
or any Lender for or on the Liabilities. Interest and Agent’s and Lenders’ Expenses included in
the Liabilities shall continue to accrue and shall continue to be deemed Liabilities guarantied
hereby notwithstanding any stay to the enforcement thereof against the Borrowers or the
disallowance of any claim therefor against the Borrowers.
4. INCORPORATION OF ALL DISCUSSIONS. This Guarantee and the Loan Agreement
incorporate all discussions and negotiations between the undersigned and the Agent, for the benefit
of the Lenders, concerning the guaranty provided by the undersigned hereby. No such discussions or
negotiations shall limit, modify, or otherwise affect the provisions hereof. No provision hereof
may be altered, amended, waived cancelled or modified, except by a written
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instrument executed, sealed, and acknowledged by a duly authorized officer of the Agent and
the undersigned.
5. GENERAL WAIVERS. The undersigned waives: presentment, demand, notice, and protest
with respect to the Liabilities and this Guaranty (except as provided herein); any delay on the
part of the Agent; any claim which the undersigned may have or to which the undersigned may become
entitled to the extent that such claim might otherwise cause any transfer to the Agent by or on
behalf of the Borrowers to be avoided as having been, or in the nature of, a preference; and notice
of acceptance of this Guaranty.
6. WAIVER OF SURETYSHIP. The undersigned hereby expressly waives all suretyship
defenses, including, without limitation: (i) surrender, release, exchange, substitution, dealing
with or taking any additional collateral, and (ii) any impairment of Collateral, including but not
limited to failure to perfect a security interest in the Collateral.
7. WAIVER OF SUBROGATION. The undersigned shall not exercise any right against the
Borrowers, by way of subrogation, set-off, reimbursement, indemnity, contribution, or the like with
respect to any amounts paid or deemed paid from a draw under the Guarantor L/C in respect of the
guaranteed obligations unless and until the Guarantor L/C End Date (defined for purposes of this
Section 7 without regard to clause “B” of the definition of such term contained herein) has
occurred; provided, however, that nothing contained herein shall restrict the ability of the
Guarantor to exercise any rights or remedies available to it under any other agreement with any
Borrower or affiliate, including, without limitation, under any Transaction Document or
Subordinated Loan Document.
8. SUBORDINATION. The payment of any amounts due with respect to any indebtedness of
the Borrowers now or hereafter owed to the undersigned arising in any way from the exercise of the
Agent’s rights and remedies under this Guaranty is hereby subordinated to the prior payment in full
of the Liabilities. Any amounts which are collected, enforced and received by the undersigned in
violation of this Section 8 shall be held by the undersigned as trustee for the Agent and shall be
paid over to the Agent on account of the Liabilities without affecting in any manner the liability
of the undersigned under this Guaranty.
9. AGENT’S BOOKS AND RECORDS. The books and records of the Agent showing the account
between the Agent and the Borrowers shall be admissible in any action or proceeding and constitute
prima facie evidence and proof of the items contained therein.
10. CHANGES IN LIABILITIES. Subject to the terms of the Loan Agreement, the
undersigned assents to any indulgence or waiver which the Agent might grant or give the Borrowers
and/or any other person liable or obligated to the Agent or Lenders for or on the Liabilities. The
undersigned authorizes the Agent and Lenders to alter, amend, cancel, waive, or modify any term or
condition of the Liabilities and of the obligations of any other person liable or obligated to the
Agent or any Lender for or on the Liabilities, without notice to, or consent from, the undersigned.
No compromise, settlement, or release by the Agent of the Liabilities or of the
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obligations of any such other person (whether or not jointly liable with the undersigned) and
no release of any collateral securing the Liabilities or securing the obligations of any such other
person shall affect the obligations of the undersigned hereunder provided that such compromise,
settlement or release is in accordance with the provisions of the Loan Agreement. No action by the
Agent which has been assented to herein shall affect the obligations of the undersigned to the
Agent or the Lenders hereunder.
11. NOTICES. Unless otherwise provided in this Guaranty, all notices hereunder shall
be in writing and shall be personally delivered or sent by registered or certified mail (postage
prepaid, return receipt requested), overnight courier, by one party to the other party hereunder at
the address set forth below:
| To Agent: | Xxxxx Fargo Retail Finance, LLC Xxx Xxxxxx Xxxxx, 00xx Xxxxx Xxxxxx, XX 00000 Attn: Xxxxxx Xxxx Fax No. (000) 000-0000 |
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| With copies to: | Xxxxx Xxxxxxx LLP Xxx Xxxxxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: Xxxxxx Xxxxxx, Esquire Fax No. (000) 000-0000 |
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| To Guarantor: | American Greetings Corporation Xxx Xxxxxxxx Xxxx Xxxxxxxxx, XX 00000 Attn: Xxxxxxxxx X. Xxxxxxx, SVP |
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| With copies to: | Xxxxx Day One American Road 000 Xxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx Fax: (000) 000-0000 |
All notices or demands sent in accordance with this Section 11, other than notices by
Agent in connection with enforcement of any of its rights or remedies hereunder, shall be deemed
received on the earlier of the date of actual receipt or 3 Business Days after the deposit thereof
in the mail. Guarantor acknowledges and agrees that notices sent by the Agent in connection with
the exercise of its rights and remedies hereunder shall be deemed sent when deposited in the mail
or personally delivered, or, where permitted by law, transmitted by telefacsimile or any other
method set forth above.
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12. COSTS OF ENFORCEMENT. The undersigned will pay on demand, without limitation, all
reasonable and documented Costs of Collection that have not been reimbursed with the proceeds of a
draw on the Guarantor L/C.
13. BINDING EFFECT. This instrument shall inure to the benefit of the Agent, its
successors and assigns; shall be binding upon the successors and assigns of the undersigned; and
shall apply to all Liabilities of the Borrowers and any successor to the Borrowers, including any
successor by operation of law.
14. AGENT’S RIGHTS AND REMEDIES. The rights, powers, privileges, and discretions of
the Agent hereunder (herein, the “Agent’s Rights and Remedies”) shall be cumulative and not
exclusive of any rights or remedies which it would otherwise have. No delay or omission by the
Agent in exercising or enforcing any of the Agent’s Rights and Remedies shall operate as, or
constitute a waiver thereof. No waiver by the Agent of any of the Agent’s Rights and Remedies or
of any default or remedies under any other agreement with the undersigned, or of any default under
any agreement with the Borrowers, or any other person liable or obligated for or on the
Liabilities, shall operate as a waiver of any other of the Agent’s Rights and Remedies or of any
default or remedy hereunder or thereunder. No exercise of any of the Agent’s Rights and Remedies
and no other agreement or transaction of whatever nature entered into between the Agent the
undersigned, and the Borrowers; and/or any such other person at any time shall preclude any other
exercise of the Agent’s Rights and Remedies, but without prejudice to the definition of Key Date.
No waiver by the Agent of any of the Agent’s Rights and Remedies on any one occasion shall be
deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing waiver. All of the
Agent’s Rights and Remedies, and all of the Agent’s rights, remedies, powers, privileges, and
discretions under any other agreement or transaction with the undersigned, the Borrowers, or any
such other person, shall be cumulative and not alternative or exclusive, and may be exercised by
the Agent at such time or times and in such order of preference as the Agent in its sole discretion
may determine.
15. COPIES AND FACSIMILES. This instrument and all documents which have been or may
be hereinafter furnished by the undersigned to the Agent may be reproduced by the Agent by any
photographic, microfilm, xerographic, digital imaging, or other process. Any such reproduction
shall be admissible in evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such reproduction was made in the
regular course of business). Any facsimile which bears proof of transmission shall be binding on
the party which or on whose behalf such transmission was initiated and likewise so admissible in
evidence as if the original of such facsimile had been delivered to the party which or on whose
behalf such transmission was received.
16. CHOICE OF LAWS. This instrument shall be governed, construed, and interpreted in
accordance with the laws of the State of New York.
17. CONSENT TO JURISDICTION.
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(a) The undersigned agrees that any legal action, proceeding, case, or
controversy brought against or by the undersigned with respect to this Guaranty, may
be brought in the United States District Court of the Southern District of New York
(or any appellate court thereof). By execution and delivery of this Guaranty, the
undersigned accepts, submits, and consents generally and unconditionally, to the
jurisdiction of the aforesaid courts.
(b) The undersigned WAIVES personal service of any and all process and
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
certified mail, postage prepaid, to the undersigned at the address listed underneath
its signature or such other address of the undersigned of which the Agent then has
been provided with written notice by Guarantor, such service to become effective
five (5) business days after such mailing.
(c) The undersigned WAIVES, at the option of Agent, any objection based
on forum non conveniens and any objection to venue of any action or
proceeding instituted hereunder in the aforementioned courts.
(d) Nothing herein shall affect the right of the Guarantor or Agent to bring
legal actions or proceedings in any other competent jurisdiction.
18. BROAD SCOPE OF GUARANTY. Subject to the limitations set forth herein in Section 2
of this Guaranty and elsewhere herein, it is the intention of the undersigned that the provisions
of the within Guaranty be liberally construed to the end that the Agent, for the benefit of the
Lenders, may be put in as good a position as if the Borrowers had promptly, punctually, and
faithfully performed all Liabilities and that the undersigned had promptly, punctually, and
faithfully performed hereunder.
19. SEVERABILITY. Any determination that any provision herein is invalid, illegal, or
unenforceable in any respect in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance and shall not affect the validity, legality,
or enforceability of any other provision contained herein.
20. RIGHT OF SET-OFF. Any and all deposits or other sums at any time credited by or
due to the undersigned from the Agent or any Lender or from any participant with any Lender in the
Liabilities (a “Participant”) and any cash, securities, instruments or other property of the
undersigned in the possession of the Agent, any Lender or any Participant, whether for safekeeping
or otherwise (regardless of the reason the Agent, any Lender or any Participant had received the
same) may be applied or set off against the obligations of the undersigned to the Agent hereunder.
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21. TERMINATION. The obligations of the undersigned hereunder shall remain in full
force and effect as to all Liabilities, without regard to any reduction of the Liabilities (other
than on account of payments made pursuant to the within Guaranty and as provided in Section 2 hereof)
until the Guarantor L/C End Date. This Guaranty shall continue to be effective or, if previously
terminated, shall be automatically reinstated, without any further action, if at any time payment
made or value received with respect to a Liability is rescinded or must otherwise be returned by
the Agent or any Lender upon the insolvency, bankruptcy or reorganization of the undersigned, or
otherwise, all as though such payment had not been made or value received. THE UNDERSIGNED
GUARANTOR ACKNOWLEDGES THAT ITS TERMINATION OF THIS GUARANTY OR FAILURE TO MAINTAIN A GUARANTOR L/C
AS REQUIRED HEREUNDER FROM AN ACCEPTABLE FINANCIAL INSTITUTION WITHOUT AGENT’S PRIOR WRITTEN
CONSENT SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE LOAN AGREEMENT.
22. MISCELLANEOUS. The undersigned represents and warrants that, prior to the
execution of this Guaranty, the undersigned carefully read and reviewed all of the provisions of
this Guaranty and was afforded an opportunity to consult with counsel independently selected by the
undersigned. The undersigned further represents and warrants that the undersigned has freely and
willingly executed this Guaranty with full appreciation of the legal effect of this Guaranty. The
undersigned recognizes that the titles to the paragraphs of the within Guaranty are for ease of
reference; are not part of this Guaranty; and do not alter or affect substantive provisions hereof.
23. WAIVER OF JURY TRIAL. The undersigned makes the following waiver knowingly,
voluntarily, and intentionally, and understands that the Agent, in the establishment and
maintenance of the Agent relationship with the Borrowers and the undersigned, is relying thereon.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY PRESENT OR FUTURE RIGHT OF THE UNDERSIGNED,
THE BORROWERS OR ANY ENDORSER OR ANY OTHER GUARANTOR OF THE BORROWERS, OR ANY OTHER SIMILAR PERSON,
TO A TRIAL BY JURY OF ANY CASE OR CONTROVERSY IN WHICH THE AGENT IS OR BECOMES A PARTY (WHETHER
SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE AGENT OR IN WHICH THE AGENT IS JOINED AS A
PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT OF THIS GUARANTY OR THE
LOAN DOCUMENTS.
24. AUTHORIZATION. Guarantor is a corporation duly organized and in good standing
under the laws of the State of Ohio. The execution, delivery and performance of this Guaranty is
within the corporate powers of Guarantor, has been duly authorized and is not in contravention of
(i) law or (ii) the terms of the organizational documentation of Guarantor, or (iii) any indenture,
agreement or undertaking to which Guarantor is a party or by which Guarantor or its property are
bound. This Guaranty constitutes the legal, valid and binding obligation of Guarantor enforceable
in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability. Guarantor is a holder of the
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Borrowers’ Common Stock and in its capacity as such, will derive material financial benefit from the extensions of credit to the
Borrowers to be made under the Loan Agreement.
25. AMENDMENTS TO LOAN DOCUMENTS. Notwithstanding any other provision of this
Guaranty, Agent and Lenders shall not, without Guarantor’s prior written consent: (i) increase the
aggregate amount of Guarantor L/C required to be provided by the Guarantor above the Maximum
Guaranty Amount, (ii) amend or otherwise modify Section 6.21 of the Loan Agreement, or (iii) extend
the Revolving Credit Maturity Date beyond June 30, 2013 if a condition of such extension requires
that the Guarantor L/C must be maintained beyond January 1, 2014.
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It is intended that this Guaranty take effect as a sealed instrument this 12 day of
April, 2009.
| AMERICAN GREETINGS CORPORATION |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxxx | |||
| Title: | SVP | |||
| Address: | ||||
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EXHIBIT A
LOST LETTER OF CREDIT
INDEMNITY AGREEMENT
INDEMNITY AGREEMENT
This Agreement is made between [____________________] (the “Bank”) and
[______________________________] (the “Guarantor”) with respect to that certain Irrevocable Standby
Letter of Credit No. [______ ](the “L/C”) issued by [_______________________] (the
“Issuer”) to Bank as beneficiary on behalf of Guarantor as applicant.
WHEREAS
1 The L/C requires that Issuer, promptly, upon Bank’s demand, issue a certified true copy of
the L/C to replace the original L/C in the event that the original L/C is lost, stolen or destroyed
(a “Lost L/C”), and Bank has requested the issuance of such a certified true copy (a
“Replacement L/C”).
2. In connection with the issuance of the replacement L/C Bank may be required to issue to
Issuer an Indemnity Agreement in the form exhibited to the L/C (an “Issuer Indemnity”).
3. The Bank has additionally agreed to enter into this agreement in favor of the Guarantor.
BANK HEREBY AGREES,
1. To indemnify and hold harmless each of the Guarantor, its members, its affiliates and the
respective successors and assigns of the foregoing from and against any and all liability, loss,
damage and expense (including reasonable attorneys’ fees) (collectively “Losses”) arising
from or on account of any Lost L/C, including on account of the presentment for payment of any Lost
L/C.
2. Notwithstanding anything to the contrary herein, the Bank not be liable to Guarantor
pursuant to Section 1 to the extent that the Bank has indemnified for such Losses by payment to
Issuer pursuant to the Issuer Indemnity.
3. This Agreement shall be governed by and construed in accordance with the laws of the State
of California. EACH OF THE PARTIES HERETO HEREBY WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING ARISING UNDER OR PURSUANT TO THIS INDEMNITY AGREEMENT.
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4. This Agreement may only be amended by a written instrument signed by all of the parties
hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed as an instrument under seal this
_____ day of ___________, 20_.
| By__________________________________ Name: Title: |
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| By __________________________________ Name: Title: |
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Liquidity Guarantee
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