EXHIBIT 10.27
GUARANTY - COMPANY
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FOR VALUE RECEIVED and in consideration of any loan or other financial
accommodation heretofore or hereafter at any time made or granted to AGI
INCORPORATED, an Illinois corporation ("AGI"), and/or KLEARFOLD, INC., a
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Pennsylvania corporation ("Klearfold", and together with AGI, each a "Debtor"
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and collectively, the "Debtors"), IMPAC GROUP, INC., a Delaware corporation
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(the "Guarantor") hereby absolutely, irrevocably and unconditionally guarantees
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(this "Guaranty") the full and prompt payment when due, whether by acceleration
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or otherwise, and at all times thereafter, of (a) all obligations of a Debtor
from time to time existing or arising under or pursuant to the Credit Agreement,
dated as of even date herewith among Debtors, Guarantor, the financial
institutions from time to time party thereto (the "Lenders") and Bank of
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America National Trust & Savings Association, as agent (the "Agent") (as from
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time to time restated, amended or modified, the "Credit Agreement"; any term
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used but not otherwise defined herein shall have the meaning ascribed to such
term in the Credit Agreement), (b) all obligations of a Debtor from time to time
existing or arising under or pursuant to any (i) obligations under a Swap
Contract with Bank of America National Trust & Savings Association ("BofA"), in
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its individual capacity, any Lender or syndicate of financial institutions
organized by BofA, or an affiliate of BofA, or any Lender (even if BofA or any
such Lender ceases to be a Lender under the Credit Agreement for any reason) and
any institution that participates in, and in each case their subsequent assigns,
such Swap Contract (collectively, the "Swap Creditors"), or (ii) Indebtedness of
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a Debtor evidenced by a letter of credit issued pursuant to Section 8.05(i) of
the Credit Agreement (a "Section 8.05 Letter of Credit", and together with the
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Credit Agreement, the Loan Documents and each Swap Contract, individually a
"Debt Agreement" and collectively, the "Debt Agreements") by BofA or any Lender,
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in each case in its individual capacity (even if BofA or any such Lender ceases
to be a Lender under the Credit Agreement for any reason) and any institution
that participates in, and in each case their subsequent assigns, such Section
8.05 Letter of Credit (collectively, the L/C Creditors", and together with the
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Agent, the Lenders and the Swap Creditors, each a "Creditor" and collectively,
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the "Creditors") and (c) all other amounts from time to time owing to the
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Creditors by the Debtors under the Debt Agreements, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or to become due
(all such obligations being hereinafter collectively called the "Obligations"),
and the Guarantor further agrees to pay all expenses (including attorneys' fees
and legal expenses) paid or incurred by any Creditor, in endeavoring to collect
the Obligations, or any part thereof, and in enforcing this Guaranty.
The Guarantor agrees that, in the event of the dissolution or
insolvency of a Debtor or the inability of a Debtor to pay debts as they
mature, or an assignment by a Debtor for the benefit of creditors, or the
institution of any proceeding by or against a Debtor alleging that such Debtor
is insolvent or unable to pay debts as they mature, and if such event shall
occur at a time when any of the Obligations may not then be due and payable, the
Guarantor will pay to the relevant Creditor
forthwith the full amount that would be payable hereunder by the Guarantor if
all Obligations were then due and payable.
This Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, that at any time or from time to time all
Obligations may have been paid in full).
The Guarantor further agrees that, if at any time all or any part of
any payment theretofore applied by any Creditor to any of the Obligations is or
must be rescinded or returned by such Creditor for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
a Debtor), such Obligations shall, for the purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application by such Creditor, and
this guaranty shall continue to be effective or be reinstated, as the case may
be, as to such Obligations, all as though such application by such Creditor had
not been made.
The Agent, on behalf of any Creditor, may, from time to time, whether
before or after any discontinuance of this Guaranty, at its sole discretion and
without notice to the Guarantor retain or obtain a security interest in any
property to secure any of the Obligations or any obligation hereunder.
Any Creditor may, from time to time, whether before or after any
discontinuance of this Guaranty, at its sole discretion and without notice to
the Guarantor take any or all of the following actions: (a) retain or obtain
the primary or secondary obligation of any obligor or obligors, in addition to
the Guarantor, with respect to any of the Obligations; (b) extend or renew for
one or more periods (whether or not longer than the original period), alter,
amend or exchange any of the Obligations or any of the documentation pertaining
thereto, or release or compromise any obligation of the Guarantor hereunder or
any obligation of any nature of any other obligor with respect to any of the
Obligations; (c) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
securing any of the Obligations or any obligation hereunder, or extend or renew
for one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and (d) resort to the Guarantor for
payment of any of the Obligations, whether or not such Creditor (i) shall have
resorted to any property securing any of the Obligations or any obligation
hereunder or (ii) shall have proceeded against any other obligor primarily or
secondarily obligated with respect to any of the Obligations (all of the actions
referred to in preceding clauses (i) and (ii) being hereby expressly waived by
the Guarantor).
Any amounts received by a Creditor from whatsoever source on account
of the Obligations may be applied by it toward the payment of such of the
Obligations, and in such order of application, as such Creditor may from time to
time elect, subject to the terms of other Debt Agreements.
Until such time as the Creditors shall have received payment of the
full amount of all Obligations and of all obligations of the Guarantor
hereunder, no payment made by or for the
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account of the Guarantor pursuant to this Guaranty shall entitle the Guarantor
by subrogation or otherwise to any payment by a Debtor or from or out of any
property of such Debtor and the Guarantor shall not exercise any right or remedy
against any Debtor or any property of any Debtor by reason of any performance by
the Guarantor of this Guaranty.
The Guarantor hereby expressly waives: (a) notice of the acceptance by
any Creditor of this Guaranty, (b) notice of the existence or creation or
nonpayment of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon the Obligations or any thereof,
any obligation hereunder, or any security for or guaranty of any of the
foregoing.
Until the irrevocable payment in full of all of the Obligations (other
than Obligations under the relevant Debt Agreement with a Creditor which
expressly survive the termination of such agreement) and termination of all
Commitments (as defined in the Credit Agreement), (a) the Guarantor waives any
right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or right of
subrogation under the Bankruptcy Code or any successor statute, against any
Debtor arising from the existence or performance of this guaranty and (b) the
Guarantor waives any right to enforce any remedy which any Creditor now has or
may hereafter have against any Debtor, and waives any benefit of, and any right
to participate in, any security now or hereafter held by a Creditor securing the
Obligations. Upon such irrevocable payment and termination, each Debtor shall
indemnify the Guarantor for the full amount of any payment made by the Guarantor
under this Guaranty and such Guarantor shall be subrogated to the rights of the
person to whom such payment shall have been made to the extent of such payment.
All rights of subrogation of the Guarantor hereunder shall be fully
subordinated in time and priority of payment to the Obligations and all other
indebtedness of each Debtor to each Creditor.
Any Creditor may, from time to time, whether before or after any
discontinuance of this Guaranty, without notice to the Guarantor, assign or
transfer any or all of the Obligations or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Obligations shall be and remain Obligations for the
purposes of this Guaranty, and each and every immediate and successive assignee
or transferee of any of the Obligations or of any interest therein shall, to the
extent of the interest of such assignee or transferee in the Obligations, be
entitled to the benefits of this Guaranty to the same extent as if such assignee
or transferee were a Creditor.
The Guarantor hereby warrants to each Creditor that it now has and
will continue to have independent means of obtaining information concerning the
affairs, financial condition and business of each Debtor. No Creditor shall
have any duty or responsibility to provide the Guarantor with any credit or
other information concerning the affairs, financial condition or business of
any Debtor that may come into the possession of such Creditor.
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The Guarantor represents and warrants to each Creditor that all
representations and warranties relating to it contained in Article VI of the
Credit Agreement are true and correct in all material respects.
The Guarantor hereby agrees that until all Obligations have been paid
in full and any and all documents relating thereto have been terminated, it
shall comply with all covenants relating to it contained in Articles VII and
VIII of the Credit Agreement.
No delay on the part of any Creditor in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
any Creditor of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy; nor shall any modification
or waiver of any of the provisions of this Guaranty be binding upon any Creditor
except as expressly set forth in a writing duly signed and delivered (or
consented to) by or on behalf of each Creditor. No action of any Creditor
permitted hereunder shall in any way affect or impair the rights of any Creditor
and the obligations of the Guarantor under this Guaranty. For the purposes of
this Guaranty, Obligations shall include all obligations of each Debtor to each
Creditor arising under or in connection with the agreements relating to the
Obligations, notwithstanding any right or power of a Debtor or anyone else to
assert any claim or defense as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of the Guarantor hereunder. The obligations of the Guarantor under this
Guaranty shall be absolute and unconditional irrespective of any circumstance
whatsoever that might constitute a legal or equitable discharge or defense of
the Guarantor. The Guarantor hereby acknowledges that, except as provided in
the first paragraph of this Guaranty, there are no conditions to the
effectiveness of this Guaranty.
This Guaranty shall be binding upon the Guarantor, and upon the legal
representatives, successors and assigns of the Guarantors; and all references
herein to a Debtor and to the Guarantor, respectively, shall be deemed to
include any successor or successors, whether immediate or remote, to such
entities.
Neither the Agent nor any Secured Creditor shall be under any
obligation to xxxxxxxx any assets in favor of the Guarantor or any other party
or against or in payment of any or all of the Secured Obligations.
THIS GUARANTY AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. WHEREVER POSSIBLE EACH PROVISION
OF THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND
VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS GUARANTY SHALL BE
PROHIBITED BY OR INVALID UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO
THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER
OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS GUARANTY.
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THE GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty by its
duly authorized officer as of the 12 day of March, 1998.
IMPAC GROUP, INC.
By /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: President
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Acknowledged and Xxxxxx as of
the 12 day of March, 1998:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
as Agent
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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[TO GUARANTY-COMPANY]
