EXHIBIT 10.27
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SECOND AMENDED AND RESTATED GUARANTY AGREEMENT
dated as of August 6, 2002
Among
MAIL-WELL, INC.
ABP BOOKS, INC.
DISCOUNT LABELS, INC.
HILL GRAPHICS, INC.
MAIL-WELL COMMERCIAL PRINTING, INC.
MAIL-WELL GOVERNMENT PRINTING, INC.
MAIL-WELL MEXICO HOLDINGS, INC.
MAIL-WELL SERVICES, INC.
MAIL-WELL TEXAS FINANCE LP
MAIL-WELL WEST, INC.
MMTP HOLDINGS, INC.
NATIONAL GRAPHICS COMPANY
POSER BUSINESS FORMS, INC.
WISCO III, L.L.C.
Guarantors
MAIL-WELL I CORPORATION
Lessee
FLEET CAPITAL CORPORATION
Agent
FLEET NATIONAL BANK
ORIX FINANCIAL SERVICES, INC.
U.S. BANK, NATIONAL ASSOCIATION
Trust Certificate Purchasers
AND
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
individually and as
trustee under the Second Amended and Restated
Lessor Trust Agreement,
dated as of August 6, 2002, as Lessor Trustee,
in respect of
MAIL-WELL I CORPORATION
Second Amended and Restated Equipment Lease
dated as of August 6, 2002
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TABLE OF CONTENTS
Page
SECTION 1. GUARANTEE.......................................................2
SECTION 2. GENERAL PROVISIONS RELATING TO THE GUARANTEE....................3
SECTION 3. SUBROGATION.....................................................5
SECTION 4. BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES...............6
Section 4.1. Books and Records.............................................6
Section 4.2. Financial Information.........................................6
Section 4.3. Notices to the Agent and the Certificate Holders..............8
SECTION 5. AFFIRMATIVE AND NEGATIVE COVENANTS OF THE GUARANTY PARTIES......9
Section 5.1. Taxes and Other Obligations..................................10
Section 5.2. Legal Existence and Good Standing............................10
Section 5.3. Compliance with Law and Agreements; Maintenance of Licenses..10
Section 5.4. Mortgagee Waiver.............................................10
Section 5.5. Tax Returns..................................................10
Section 5.6. [not used]...................................................11
Section 5.7. [not used]...................................................11
Section 5.8. [not used]...................................................11
Section 5.9. Mergers, Consolidations or Sales............................11
Section 5.10. Distributions; Restricted Investments.......................11
Section 5.11. Transactions Affecting Obligations..........................11
Section 5.12. Guaranties..................................................11
Section 5.13. Debt........................................................12
Section 5.14. Prepayment..................................................12
Section 5.15. Transactions with Affiliates................................12
Section 5.16. [not used]..................................................12
Section 5.17. Business Conducted..........................................12
Section 5.18. [not used]..................................................12
Section 5.19. [not used]..................................................12
Section 5.20. Additional Subsidiaries.....................................12
Section 5.21. Fiscal Year.................................................12
Section 5.22. Fixed Charge Coverage Ratio.................................12
Section 5.23. Adjusted Tangible Net Worth.................................13
Section 5.24. [not used]..................................................13
Section 5.25. Further Assurances..........................................13
SECTION 6. DEFINITIONS; ACCOUNTING PRINCIPLES.............................14
Section 6.1. Certain Defined Terms.......................................14
Section 6.2. Accounting Principles.......................................15
SECTION 7. REPRESENTATIONS AND WARRANTIES OF GUARANTORS. .................16
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SECTION 8. MISCELLANEOUS..................................................17
Section 8.1. Actions and Proceedings.....................................17
Section 8.2. Binding Effect..............................................18
Section 8.3. Waivers; Cumulative Effect..................................18
Section 8.4. Amendments; Waivers.........................................18
Section 8.5. Section Headings............................................19
Section 8.6. Severability................................................19
Section 8.7. Survival of Representations and Warranties..................19
Section 8.8. Notices.....................................................19
Section 8.9. Counterparts................................................19
Section 8.10. Further Assurances..........................................20
Section 8.11. Governing Law...............................................20
ATTACHMENTS TO AMENDED AND RESTATED GUARANTY AGREEMENT:
Exhibit A - Acknowledgment to Second Amended and Restated Guaranty Agreement
from U.S. Subsidiaries
ii
SECOND AMENDED AND RESTATED GUARANTY AGREEMENT
THIS SECOND AMENDED AND RESTATED GUARANTY AGREEMENT (this "Agreement"),
dated as of August 6, 2002, is among MAIL-WELL, INC., a Colorado corporation
("Mail-Well" or "Parent"), ABP BOOKS, INC., a Michigan corporation, DISCOUNT
LABELS, INC., an Indiana corporation, HILL GRAPHICS, INC., a Texas
corporation, MAIL-WELL COMMERCIAL PRINTING, INC., a Delaware corporation,
MAILWELL GOVERNMENT PRINTING, INC., a Colorado corporation, MAIL-WELL MEXICO
HOLDINGS, INC., a Colorado corporation, MAIL-WELL SERVICES, INC., a Colorado
corporation, MAIL-WELL TEXAS FINANCE LP, a Texas limited partnership,
MAIL-WELL WEST, INC., a Delaware corporation, MMTP HOLDINGS, INC., a
Colorado corporation, NATIONAL GRAPHICS COMPANY, a Colorado corporation,
POSER BUSINESS FORMS, INC., a Delaware corporation, WISCO III, L.L.C., a
Delaware limited liability company (Mail-Well and the foregoing entities
collectively, together with any Subsidiary of the Lessee which becomes a
party hereto pursuant to Section 20.1 of the Lease, the "Guarantors");
MAIL-WELL I CORPORATION, a Delaware corporation (the "Lessee"); FLEET
CAPITAL CORPORATION, a Rhode Island corporation, as agent for the Trust
Certificate Purchasers (the "Agent"); FLEET NATIONAL BANK, a national
banking association, ORIX FINANCIAL SERVICES, INC., a New York corporation,
and U.S. BANK, NATIONAL ASSOCIATION, a national banking association (the
"Trust Certificate Purchasers"); and WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, a national banking association, in its individual capacity and
as trustee (in such capacity, the "Lessor Trustee") under the Second Amended
and Restated Lessor Trust Agreement dated as of August 6, 2002 between it
and the Trust Certificate Purchasers.
RECITALS:
WHEREAS, except as provided in Section 6.1 hereof and unless otherwise
defined herein, all capitalized terms used in this Agreement shall have the
respective meanings assigned thereto in Annex I to the Second Amended and
Restated Participation Agreement, dated as of August 6, 2002 (the
"Participation Agreement"), among the Lessee, the Lessor Trustee and the
Trust Certificate Purchasers;
WHEREAS, the Lessee entered into the Original Participation Agreement
with the Original Lessor Trustee and the Original Certificate Purchasers,
providing for the synthetic lease financing of the portion of the Equipment
which was leased to the Lessee pursuant to the Original Equipment Lease;
WHEREAS, pursuant to the Original Guaranty Agreement, the Existing
Guarantors jointly and severally guaranteed, among other things, the
obligations of the Lessee under the Original Participation Agreement and the
Original Equipment Lease in favor of the Original Lessor Trustee,
individually, as lessor under the Original Equipment Lease and for the
benefit of the Original Certificate Holders;
WHEREAS, the Original Lessor Trust Agreement has been amended by the
Amended and Restated Trust Agreement, the Original Equipment Lease has been
amended by the Amended and Restated Equipment Lease, the Original
Participation Agreement has been amended by the Amended and Restated
Participation Agreement and the Original Guaranty Agreement has been amended
by the Amended and Restated and Guaranty Agreement.
WHEREAS, the Lessee, the Lessor Trustee and the Trust Certificate
Purchasers now desire to refinance the Equipment and the Existing Trust
Certificates and, in connection therewith, amend and restate the Amended and
Restated Participation Agreement, the Amended and Restated Equipment Lease
and the Amended and Restated Trust Agreement;
WHEREAS, (a) the Lessee is a Wholly-Owned Subsidiary of Mail-Well and
(b) the Guarantors other than Mail-Well are all direct or indirect
Wholly-Owned Subsidiaries of the Lessee, and (c) Mail-Well and such
Subsidiaries of the Lessee will benefit from the refinancing of the
Equipment and the lease by the Lessee of the Equipment pursuant to the
Lease;
WHEREAS, the parties hereto now desire to amend and restate the Amended
and Restated Guaranty Agreement to provide for the joint and several
guarantee by the Guarantors of, among other things, the obligations of the
Lessee under the Operative Agreements in favor of the other parties thereto,
and to make certain other changes as set forth herein; and
WHEREAS, the Guarantors are entering into this Agreement for such
purpose and in order to induce each of the other parties thereto to enter
into and to perform its obligations under each of the other Operative
Agreements to which it is a party.
NOW, THEREFORE, each of the Guarantors, jointly and severally, the
Lessee, the Agent, the Trust Certificate Purchasers and the Lessor Trustee
hereby agree that the Amended and Restated Guaranty Agreement shall be
amended and restated in its entirety as follows.
SECTION 1. GUARANTEE.
Each Guarantor, jointly and severally, does hereby unconditionally and
irrevocably guarantee, as primary obligor and not merely as surety, the
following:
(a) to each Person entitled to the payment thereof under the
terms of the respective Operative Agreements, the full and prompt payment
when due of each and every payment due from the Lessee to such Person
pursuant to the Operative Agreements, including, but not limited to,
amounts due pursuant to Section 18.4 of the Lease, Periodic Rent,
Stipulated Loss Value, Lease Balance, Purchase Price and all other
amounts of Supplemental Rent payable under the Lease;
(b) to each Person entitled thereto under the terms of the respective
Operative Agreements, the full and prompt performance and observance by
the Lessee of each and all other covenants and agreements not described
in clause (a) above required to be performed or observed by the Lessee
under the terms of the Operative Agreements; and
(c) the payment in Dollars, upon demand by the Lessor Trustee, the
Agent or any Certificate Holder of all costs and expenses (including,
reasonable attorneys' fees), as shall have been reasonably expended or
incurred in the seizure, rental or sale of the Equipment, or any part
thereof, as a result of an Event of Default or in the protection or
enforcement of any right, privilege or liability of the Lessor Trustee,
the Agent or any Certificate Holder under the Operative Agreements or
any action in connection therewith.
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SECTION 2. GENERAL PROVISIONS RELATING TO THE GUARANTEE.
(a) Each and every default in any payment or performance of any
obligation of the Lessee under the Operative Agreements shall give rise
to a separate claim and cause of action hereunder, and separate claims
or suits may be made and brought, as the case may be, hereunder for each
such default.
(b) This Agreement shall be a continuing, absolute and unconditional
guaranty of payment and performance and not of collection and shall remain
in full force and effect until each and all of the obligations of the
Lessee guaranteed hereunder shall have been fully, satisfactorily and
indefeasibly discharged in accordance with the terms and provisions of
the Operative Agreements and until each Guarantor shall have fully,
satisfactorily and indefeasibly discharged all of its obligations under
this Agreement.
(c) This Agreement and the liability of each Guarantor hereunder
shall remain in full force and effect irrespective of and shall in no
way be affected or impaired by (and no notice to any Guarantor shall
be required in respect of):
(i) the illegality, invalidity, irregularity or
unenforceability of the Operative Agreements, or any of them, or
of any assignment, amendment, modification or termination of the
Operative Agreements, or any of them, or any subleasing or further
subleasing of the Equipment, any compromise, waiver, settlement,
release, renewal, extension, indulgence, amendment, addition,
deletion, change in, modification of, or release of any security
for, any of the obligations and liabilities of the Lessee under the
Operative Agreements, or any of them, or any redelivery,
repossession, sale, transfer or other disposition, surrender or
destruction of the Equipment, in whole or part;
(ii) the transfer, assignment, subletting or mortgaging or
the purported transfer, assignment, subletting or mortgaging
of all or any part of the interest of the Lessor Trustee, any
Certificate Holder or the Lessee in the Equipment;
(iii) any failure of title with respect to the Lessor
Trustee's, any Certificate Holder's or the Lessee's interest
in the Equipment;
(iv) any failure, neglect or omission on the part of the
Lessor Trustee, the Agent, any Certificate Holder or any other
Person to give any Guarantor notice of the occurrence of any
default, Default or Event of Default by the Lessee under the
Operative Agreements, or any of them, or to realize upon any
obligations or liabilities of the Lessee, or to obtain any
insurance on the Equipment, or to establish or maintain the
priority or perfection of any interest in the Equipment or any
other property included in the Lessor Trust Estate;
(v) any defect in the compliance with specifications,
condition, design, operation or fitness for use of, or any damage
to or loss or destruction of, or any interruption or cessation in
the use of the Equipment or any portion thereof by the Lessee or
any other Person for any reason whatsoever (including, without
limitation, any governmental prohibition or restriction,
condemnation, requisition,
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seizure or any other act on the part of any governmental or military
authority, or any act of God or of the public enemy, including
without limitation terrorists and criminals) regardless of the
duration thereof (even though such duration would otherwise
constitute a frustration of purpose of the Lease), whether or not
with fault on the part of the Lessee, the Lessor Trustee, the Agent,
any Certificate Holder or any other Person;
(vi) any merger or consolidation of the Lessee or any
Guarantor into or with any other Person or any sale, lease or
transfer of any of the assets of the Lessee or any Guarantor to any
other Person;
(vii) any change in the ownership of any shares of Capital
Stock of any Guarantor or the Lessee; or
(viii) any other occurrence or circumstance whatsoever, whether
similar or dissimilar to the foregoing and any other circumstance
that might otherwise constitute a legal or equitable defense or
discharge of the liabilities of a guarantor or surety or that might
otherwise limit recourse against any Guarantor.
(d) The obligation and liability of each Guarantor hereunder
shall not be impaired, diminished, abated or otherwise affected (i) by any
setoff, counterclaim or defense that the Lessee or such Guarantor or any
other Person may have or claim to have, at any time or from time to time,
or (ii) by the commencement by or against the Lessee or such Guarantor
or any other Person of any proceedings under any bankruptcy or insolvency
law or laws relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or extension or
other similar laws.
(e) No Guarantor shall be entitled to, and each Guarantor does
hereby waive, to the fullest extent permitted by Applicable Law, every
defense available to guarantors, sureties and other secondary parties
at law or in equity. Without limiting the generality of the foregoing,
each Guarantor hereby waives notice of acceptance of this Agreement and
of the nonperformance by the Lessee, diligence, presentment, protest,
dishonor, demand for payment from the Lessee, or any other Person,
notice of nonpayment or failure to perform on the part of the Lessee
and all other notices whatsoever. The guarantee hereunder is a guarantee
of payment, performance and compliance and not of collectibility. In
order to hold any Guarantor liable hereunder, there shall be no
obligation on the part of the Lessor Trustee or any Certificate Holder
at any time to demand or resort for payment or performance to the Lessee,
to any Guarantor or to any other Person, its properties or assets or to
any security, property or other rights or remedies whatsoever, nor shall
there be any requirement that the Lessee or any other Person be joined
as a party to any proceeding for the enforcement of any provision of
this Agreement, and the Lessor Trustee, the Agent, each Certificate
Holder, and each other Person entitled to receive payments or
the benefit of performance guaranteed hereunder shall have the right to
enforce this Agreement irrespective of whether or not legal proceedings
or other enforcement efforts against the Lessee are pending, seeking
resort to or realization upon or from any of the foregoing. Without
limiting the foregoing, it is understood that repeated and successive
demands may be made and recoveries may be
4
had hereunder as and when, from time to time, the Lessee shall default
under the terms of the Operative Agreements, and that, notwithstanding
recovery hereunder for or in respect of any such default, this Agreement
shall remain in force and effect and shall apply to each and every
subsequent default. Each Guarantor further agrees that, without limiting
the generality of this Agreement, if any Event of Default shall have
occurred and be continuing and the Lessor Trustee (or any assignee
thereof) or the Agent is prevented by Applicable Law from exercising
its remedies under Section 16.2 of the Lease, the Lessor Trustee (or
any assignee thereof) or the Agent shall be entitled to receive hereunder
from any Guarantor, upon demand therefor, the sums which would have
otherwise been due from the Lessee had such remedies been exercised.
So long as the Lessee shall not have fully paid, performed or discharged
all of its obligations under the Operative Agreements, any claim which any
Guarantor shall have against the Lessee or any other Person by reason of
any payment to the Lessor Trustee, the Agent, any Certificate Holder or
any other Person pursuant to this Agreement shall not be asserted or
enforced or collected as against, from or to the detriment of the Lessee
(including without limitation, any liquidator, trustee in bankruptcy,
assignee for the benefit of creditors or receiver of property or assets
of the Lessee), the Lessor Trustee, the Agent, any Certificate Holder
or such Person in any action, suit or proceeding.
(f) No act or omission of any kind or at any time on the part of the
Lessor Trustee, the Agent, any Certificate Holder or any other Person in
respect of any matter whatsoever including, without limitation, any
omission in performance of their respective obligations under the
Operative Agreements, shall in any way affect or impair the guarantee
hereunder, save for an express written waiver or variation of its
terms, which shall be effective only with respect to the Person
granting the same and its successors and assigns.
(g) The guarantee hereunder shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the obligations hereunder or under the Operative
Agreements is rescinded or must otherwise be restored or returned by the
Lessor Trustee, the Agent or any Certificate Holder upon or in connection
with the insolvency, bankruptcy or reorganization of the Lessee, or
otherwise, all as though such payment had not been made.
(h) If any Guarantor fails to pay any amount hereunder when due,
such Guarantor shall pay interest, on demand, on such amount at the Late
Rate, to the Person entitled thereto. Each Guarantor, jointly and
severally, further agrees to pay to any party hereto any and all
reasonable out-of-pocket costs and expenses, including legal fees and
expenses and court costs, incurred by such party in connection with
enforcing its rights under this Agreement.
SECTION 3. SUBROGATION.
No Guarantor may enforce any of its rights hereunder, whether by way of
subrogation or otherwise, until all amounts due from the Lessee under the
Operative Agreements shall have been paid in full to the parties entitled
thereto. Each Guarantor agrees (a) not to take any action to hinder or delay
the exercise of any right or remedy granted under the Operative Agreements or
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any Applicable Law to the Lessor Trustee or the Agent in respect of the
Equipment, any other property included in the Lessor Trust Estate or the
guarantee hereunder or granted to the Lessor Trustee, the Agent or any
Certificate Holder under the Operative Agreements or the guarantee
hereunder, and (b) not to exercise or pursue any rights, remedies, powers,
privileges or benefits of any kind hereunder (whether available to such
Guarantor hereunder or at law or in equity) until such time as all
obligations owing from the Lessee under the Operative Agreements have been
paid in full to the Persons entitled thereto.
SECTION 4. BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES.
So long as any Trust Certificate or other Obligation guaranteed under
this Agreement shall remain unpaid or unsatisfied, unless the Majority
Certificate Holders waive compliance in writing:
Section 4.1. Books and Records. Parent shall, and shall cause each of
its Subsidiaries to, maintain, at all times, correct and complete books,
records and accounts in which complete, correct and timely entries are made
of its transactions in accordance with GAAP applied consistently with the
audited Financial Statements required to be delivered pursuant to Section
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4.2(a). Parent shall, and shall cause each of its Subsidiaries to, by means
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of appropriate entries, reflect in such accounts and in all Financial
Statements proper liabilities and reserves for all taxes and proper
provision for depreciation and amortization of property and bad debts, all
in accordance with GAAP. Parent shall, and shall cause each of its
Subsidiaries to maintain at all times books and records pertaining to the
Equipment and the Additional Collateral in such detail, form and scope as
the Agent or any Certificate Holder shall reasonably require.
Section 4.2. Financial Information. Parent shall, and shall cause each
of its Subsidiaries to promptly furnish to the Agent and each Certificate
Holder, all such financial information as the Agent shall reasonably
request. Without limiting the foregoing, Parent and its Subsidiaries will
furnish to the Agent and each Certificate Holder, in such detail as the
Agent or the Certificate Holders shall request, the following:
(a) As soon as available, but in any event not later than 90 days
after the close of each Fiscal Year, consolidated and consolidating (by
business segment) audited balance sheets, income statements, cash flow
statements and changes in stockholders' equity for Parent and its
consolidated Subsidiaries for such Fiscal Year, and the accompanying
notes thereto, setting forth in each case in comparative form figures
for the immediately preceding Fiscal Year, all in reasonable detail,
fairly presenting the financial position and the results of operations
of Parent and its consolidated Subsidiaries as at the date thereof and
for the Fiscal Year then ended, and prepared (except for consolidating
statements) in accordance with GAAP. Such Financial Statements shall be
examined in accordance with generally accepted auditing standards by
and accompanied by a report thereon unqualified in any respect of
independent certified public accountants of nationally recognized
standing selected by Parent and reasonably satisfactory to the Agent.
Parent and its Subsidiaries hereby authorize the Agent to communicate
directly with their certified public accountants with the approval of,
or in the presence of, a Responsible Officer of Parent, and, by this
provision, authorize those accountants to disclose to the Agent with
the approval of, or in the presence of, a Responsible Officer of
6
Parent, any and all Financial Statements and other supporting financial
documents and schedules relating to Parent and its Subsidiaries and to
discuss directly with the Agent with the approval of, or in the presence of,
a Responsible Officer of Parent, the finances and affairs of Parent and its
Subsidiaries.
(b) As soon as available, but in any event not later than 30 days
after the end of each fiscal quarter of each Fiscal Year, consolidated and
consolidating (by business segment) unaudited balance sheets of Parent
and its consolidated Subsidiaries as at the end of such quarter, and
consolidated and consolidating (by business segment) unaudited income
statements and cash flow statements for Parent and its consolidated
Subsidiaries for such quarter and for the period from the beginning of
the Fiscal Year to the end of such quarter, all in reasonable detail,
fairly presenting the financial position and results of operations of
Parent and its consolidated Subsidiaries as at the date thereof and for
such periods, and, in each case, in comparable form, figures for the
corresponding period in the prior Fiscal Year and in the forecast of
Parent and its Subsidiaries delivered pursuant to Section 4.2(e), and
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prepared (except for consolidating statements) in accordance with GAAP
applied consistently with the audited Financial Statements required to
be delivered pursuant to Section 4.2(a). Parent shall certify by a
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certificate signed by a Responsible Officer that all such statements
have been prepared (except for consolidating statements) in accordance
with GAAP and present fairly the financial position of Parent and its
Subsidiaries as at the dates thereof and its results of operations for
the periods then ended, subject to the absence of notes and normal
year-end adjustments.
(c) With each of the audited Financial Statements delivered
pursuant to Section 4.2(a), a certificate of the independent certified
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public accountants that examined such Financial Statement to the effect
that they have reviewed and are familiar with this Agreement and that,
in examining such Financial Statements, they did not become aware of
any fact or condition which then constituted a Default or Event of
Default (as such terms are defined in the Credit Agreement) with
respect to a financial covenant, except for those, if any, described in
reasonable detail in such certificate.
(d) With each of the annual audited Financial Statements delivered
pursuant to Section 4.2(a), and within 30 days after the end of each month,
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a certificate of a Responsible Officer of Parent setting forth in
reasonable detail the calculations required to establish that Parent
and its Subsidiaries were in compliance with the covenants set forth in
Sections 5.22 and 5.23 during the period covered (excluding the
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comparable prior period) in such Financial Statements and as at the end
thereof. Within 30 days after the end of each month, a certificate of a
Responsible Officer of Parent stating that, except as explained in
reasonable detail in such certificate, (i) all of the representations
and warranties of the Lessee and the Guarantors contained in this
Agreement and the other Operative Agreements are correct and complete
in all material respects as at the date of such certificate as if made
at such time, except for those that speak as of a particular date, (ii)
the Lessee and the Guarantors are, at the date of such certificate, in
compliance in all material respects with all of their respective
covenants and agreements in this Agreement and the other Operative
Agreements, (iii) no Default or Event of Default then exists or existed
during the period covered by the Financial Statements for such month,
(iv) describing and analyzing in reasonable detail all material trends,
changes, and
7
developments in such Financial Statements; and (v) explaining the
variances of the figures in the corresponding budgets and prior Fiscal Year
financial statements, which explanations, descriptions, and analysis to
be given pursuant to Sections 4.2(d)(iv) or (v) shall be in form and
------------------- ---
substance similar to the discussion appearing in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operation" sections of either Parent's Annual Report on Form 10-K or
Parent's Quarterly Report on Form 10-Q. If any such certificate
discloses that a representation or warranty is not correct or complete,
or that a covenant has not been complied with, or that a Default or
Event of Default existed or exists, such certificate shall set forth
what action the Lessee and the Guarantors have taken or propose to take
with respect thereto.
(e) No more than 60 days and not less than 15 days prior to the
beginning of each Fiscal Year, annual forecasts (to include forecasted
consolidated and consolidating (by business segment) balance sheets,
income statements and cash flow statements) for Parent and its
Subsidiaries as at the end of and for each quarter of such Fiscal Year.
(f) [not used]
(g) Promptly upon the filing thereof, copies of all reports,
if any, or other documents filed by Parent or any of its Subsidiaries with
the Securities and Exchange Commission under the Exchange Act, and all
reports, notices, or statements sent or received by Parent or any of
its Subsidiaries to or from the holders of any equity interests of
Parent (other than routine non-material correspondence sent by
shareholders of Parent to Parent) or any such Subsidiary or of any Debt
of Parent or any of its Subsidiaries registered under the Securities
Act of 1933 or to or from the trustee under any indenture under which
the same is issued.
(h) As soon as available, but in any event not later than 15 days
after the Lessee's or any Guarantor's receipt thereof, a copy of all
management reports and management letters prepared for such Person by
any independent certified public accountants.
(i) Promptly after their preparation, copies of any and all proxy
statements, financial statements, and reports which Parent makes available
to its shareholders.
(j) [not used]
(k) [not used]
(l) Such additional information as the Agent and/or any Certificate
Holder may from time to time reasonably request regarding the financial
and business affairs of Parent or any Subsidiary thereof.
Section 4.3. Notices to the Agent and the Certificate Holders. The
Lessee and each Guarantor shall notify the Agent and the Certificate Holders
in writing of the following matters at the following times:
(a) Immediately after becoming aware of any Default or Event of
Default;
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(b) Immediately after becoming aware of the assertion by the holder
of any Capital Stock of Parent or of any of its Subsidiaries or the holder
of any Debt of Parent or any such Subsidiary in a face amount in excess
of $1,000,000 that a default exists with respect thereto or that Parent
or such Subsidiary is not in compliance with the terms thereof, or the
threat or commencement by such holder of any enforcement action because
of such asserted default or non-compliance;
(c) Immediately after becoming aware of any event or circumstance
which could reasonably be expected to have a Material Adverse Effect;
(d) [not used]
(e) [not used]
(f) [not used]
(g) [not used]
(h) [not used]
(i) [not used]
(j) (i) At least 10 Business Days' prior written notice of any
change in the Lessee's or any Guarantor's name as it appears in the state
of its incorporation or other organization, state of incorporation or
organization, type of entity, organizational identification number, or
form of organization, trade names under which it will sell inventory or
create accounts, or to which instruments in payment of accounts may be
made payable, and (ii) written notice, concurrent with such change, of
any change in the location of any Item of Equipment or;
(k) Within 10 Business Days after Parent or any of its ERISA
Affiliates knows or has reason to know, that an ERISA Event or a prohibited
transaction (as defined in Sections 406 of ERISA and 4975 of the Code
(and which could reasonably be expected to result in liability of one
or more Guaranty Parties in excess of $500,000)) has occurred, and,
when known, any action taken or threatened by the IRS, the DOL or the
PBGC with respect thereto.
Each notice given under this Section 4.3 shall describe the subject
-----------
matter thereof in reasonable detail, and shall set forth the action that
Parent or any of its Subsidiaries, or any of their ERISA Affiliates, as
applicable, has taken or proposes to take with respect thereto.
9
SECTION 5. AFFIRMATIVE AND NEGATIVE COVENANTS OF THE GUARANTY PARTIES.
The Lessee and each Guarantor covenants to the Agent and each
Certificate Holder that so long as any of the Obligations remain outstanding
or this Agreement is in effect:
Section 5.1. Taxes and Other Obligations. Parent shall, and shall cause
each of its Subsidiaries to, (a) file when due all tax returns and other
reports which it is required to file; (b) pay, or provide for the payment,
when due, of all taxes, fees, assessments and other governmental charges
against it or upon its property, income and franchises, make all required
withholding and other tax deposits, and establish adequate reserves for the
payment of all such items, and provide to the Agent and the Certificate
Holders, upon request, satisfactory evidence of its timely compliance with
the foregoing; (c) pay when due all Debt owed by it; and (d) pay when due
all claims of materialmen, mechanics, carriers, warehousemen, landlords,
processors and other like Persons, and all other indebtedness owed by it and
perform and discharge in a timely manner all other obligations undertaken by
it; provided, however, neither Parent nor any of its Subsidiaries need pay
-------- -------
any tax, fee, assessment, or governmental charge under clause (b) above, or
----------
pay any claim or indebtedness under clause (d) above (i) that it is
----------
contesting in good faith by appropriate proceedings diligently pursued, (ii)
for which Parent or such Subsidiary, as the case may be, has established
proper reserves as required under GAAP, (iii) the nonpayment of which does
not result in the imposition of a Lien (other than a Permitted Lien), and
(iv) with respect to any such taxes, fees, assessments, charges, claims, or
indebtedness in an amount greater than $500,000, so long as Parent has
notified the Agent thereof in writing.
Section 5.2. Legal Existence and Good Standing. Parent shall, and shall
cause each of its Subsidiaries to, maintain its legal existence and its
qualification and good standing in all jurisdictions in which the failure to
maintain such existence and qualification or good standing could reasonably
be expected to have a Material Adverse Effect.
Section 5.3. Compliance with Law and Agreements; Maintenance of
Licenses. Parent shall comply, and shall cause each of its Subsidiaries to
comply, in all material respects with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business
(including the federal Fair Labor Standards Act and all Environmental Laws).
Parent shall, and shall cause each of its Subsidiaries to, obtain and
maintain all licenses, permits, franchises, and governmental authorizations
necessary to own its property and to conduct its business as conducted on
the Closing Date. Parent shall not, nor shall any of its Subsidiaries,
modify, amend or alter its articles of incorporation or certificate of
formation, or its bylaws or limited liability company operating agreement,
as applicable, other than in a manner which does not adversely affect the
rights of the Certificate Holders or the Agent.
Section 5.4. Mortgagee Waiver. Lessee shall (a) cause to be delivered
to the Agent within 60 days after the Closing Date either a mortgagee waiver
covering the Items of Equipment located at 4444 N. Detroit Avenue, Toledo,
Ohio, or cause an opinion of reputable outside counsel licensed to practice
in Ohio, in form and substance satisfactory to the Agent, that the Items of
Equipment located at that site are not fixtures under local law, or (b)
substitute for those Items of Equipment within 120 days after the Closing
Date Replacement Equipment in accordance with Section 15.1 of the Lease.
Section 5.5. Tax Returns. Lessee agrees to prepare such tax returns,
reports or filings as shall be required of the Lessor Trust Estate by
federal law or the laws of the State of Utah. It is the intent of the
parties hereto that the Trust Certificates be indebtedness of the Lessee for
federal income tax purposes and Lessee shall prepare all such returns,
reports and filings required under federal tax law in a manner consistent
with such intent.
10
Section 5.6. [not used]
Section 5.7. [not used]
Section 5.8. [not used]
Section 5.9. Mergers, Consolidations or Sales. Neither Parent nor any
of its Subsidiaries shall enter into any transaction of merger,
reorganization, or consolidation, or consummate any transaction that results
in a change in the beneficial ownership of 35% or more of Parent's Capital
Stock (other than an issuance of Capital Stock in exchange for cash in which
no single investor or group of investors acting in concert will become the
beneficial owner(s) of more than 50% of Parent's Capital Stock), or
transfer, sell, assign, lease, or otherwise dispose of all or any part of
its property, or wind up, liquidate or dissolve, or agree to do any of the
foregoing, except:
(a) Permitted Dispositions;
(b) with concurrent notice to the Agent, any Subsidiary of Parent
may merge with, or sell all or substantially all of its assets to, Parent
or any other Subsidiary of Parent, provided, the Agent's, the Lessor
--------
Trustee's and the Certificate Holders' rights, remedies and other
interests under the Operative Agreements shall remain unimpaired, and
the surviving Person shall enter into any documentation reasonably
requested by the Agent to evidence the continuing liability of such
Person for any obligations of the disappearing Subsidiary to the Lessor
Trustee, the Agent and the Certificate Holders; and
(c) [not used]
(d) [not used]
(e) any Permitted Acquisition which is consummated as a merger or
consolidation.
Section 5.10. Distributions; Restricted Investments. Neither
Parent nor any of its Subsidiaries shall:
(a) directly or indirectly declare or make, or incur any liability
to make, any Distribution, except as permitted by the Credit Agreement; or
(b) make any Restricted Investment, except as permitted by the
Credit Agreement.
Section 5.11. Transactions Affecting Obligations. Neither Parent nor any
of its Subsidiaries shall enter into any transaction which would be reasonably
expected to have a Material Adverse Effect.
11
Section 5.12. Guaranties. Neither Parent nor any of its Subsidiaries
shall make, issue, or become liable on any Guaranty, except:
(a) as permitted by the Operative Agreements; or
(b) as permitted by the Credit Agreement.
Section 5.13. Debt. Neither Parent nor any of its Subsidiaries shall
incur or maintain any Debt, except:
(a) as permitted by the Operative Agreements; or
(b) as permitted by the Credit Agreement.
Section 5.14. Prepayment. Neither Parent nor any of its Subsidiaries
shall voluntarily prepay any Debt, except:
(a) as permitted by the Operative Agreements; or
(b) as permitted by the Credit Agreement.
Section 5.15. Transactions with Affiliates. Except as permitted by the
Operative Agreements or by the Credit Agreement, neither Parent nor any of
its Subsidiaries shall sell, transfer, distribute, or pay any money or
property, including, but not limited to, any fees or expenses of any nature
(including, but not limited to, any fees or expenses for management
services), to any Affiliate, or lend or advance money or property to any
Affiliate, or invest in (by capital contribution or otherwise) or purchase
or repurchase any stock or indebtedness, or any property, of any Affiliate,
or become liable on any Guaranty of the indebtedness, dividends, or other
obligations of any Affiliate.
Section 5.16. [not used]
Section 5.17. Business Conducted. Parent shall not and shall not permit
any of its Subsidiaries to, engage directly or indirectly, in any line of
business other than the businesses in which it is engaged on the Credit
Agreement Closing Date, or any substantially similar or ancillary line of
business.
Section 5.18. [not used]
Section 5.19. [not used]
Section 5.20. Additional Subsidiaries. Parent shall not, directly or
indirectly, organize, create, acquire or permit to exist any direct or
indirect Subsidiary other than as permitted by the Credit Agreement.
Section 5.21. Fiscal Year. Parent shall not change its Fiscal Year, and
shall not permit any of its Subsidiaries to have a fiscal year different
from Parent's.
Section 5.22. Fixed Charge Coverage Ratio. Parent will maintain a Fixed
Charge Coverage Ratio for each period of four consecutive fiscal quarters
ended on the last day of each fiscal quarter set forth below (or with
respect to the fiscal quarters ending on or before June 28,
12
2003, the period commencing on the first day of the fiscal quarter ending
September 28, 2002, and ending on the last day of such fiscal quarter) of at
least the ratio set forth below opposite each such fiscal quarter:
Fiscal Quarter Ending Minimum Fixed Charge Coverage Ratio
--------------------- -----------------------------------
September 2002 through and including 1.10:1.00
December 2002
March 2003 and thereafter 1.15:1.00
provided, however, that following the Permitted Disposition of the Printed
- -------- -------
Office Products division, and the reduction of the Maximum PP&E Loan Amount
to $0, the above minimum Fixed Charge Coverage Ratios will each be reduced
by 0.05:1.00.
Section 5.23. Adjusted Tangible Net Worth. Parent will maintain
Adjusted Tangible Net Worth, determined as of the last day of each of the
following fiscal months, of at least the amounts below opposite such month:
Measurement Date Minimum Amount
---------------- --------------
June 2002 - August 2002 $295,000,000
September 2002 - November 2002 $300,000,000
December 2002 - February 2003 $310,000,000
March 2003 - May 2003 $315,000,000
June 2003 - August 2003 $325,000,000
September 2003 - November 2003 $335,000,000
December 2003 and thereafter $350,000,000
provided, however, that the foregoing Minimum Amounts shall be adjusted, by:
- -------- -------
(a) increasing such amounts to reflect 100% of the net cash proceeds
received by Parent from the issuance of Capital Stock since June 27, 2002,
and any gains recognized by Parent or its Subsidiaries resulting from the
disposition of Assets Held For Disposition or Restructuring Assets since
June 27, 2002, and (b) decreasing such amounts to reflect any losses (not to
exceed an aggregate amount of $32,000,000) recognized by Parent or its
Subsidiaries since June 27, 2002 resulting from the disposition of Assets
Held For Disposition or Restructuring Assets, and to reflect any reduction
in Adjusted Tangible Net Worth resulting from a Permitted Acquisition (but
only up to an aggregate amount for all Permitted Acquisitions equal to 25%
of the amount received by Parent from the issuance of Capital Stock since
June 27, 2002).
Section 5.24. [not used]
Section 5.25. Further Assurances. Parent shall execute and deliver, or
cause to be executed and delivered, to the Agent and/or the Certificate
Holders such documents and agreements, and shall take or cause to be taken
such actions, as the Agent or any Certificate Holder may, from time to time,
request to carry out the terms and conditions of this Agreement and the
other Operative Agreements.
13
SECTION 6. DEFINITIONS; ACCOUNTING PRINCIPLES.
Section 6.1. Certain Defined Terms. The following terms have the
following meanings when used in Sections 4 and 5 and this Section 6. If the
Credit Agreement definition of any term specified below as being defined in
the Credit Agreement contains additional capitalized terms, such additional
capitalized terms for the purpose of such definition shall have the meanings
specified therefor in the Credit Agreement.
"Adjusted Tangible Net Worth" has the meaning specified in the Credit
Agreement.
"Affiliate" has the meaning specified in the Credit Agreement.
"Agent" means, if the reference is to the transactions contemplated by
the Participation Agreement, the "Agent" as defined therein or, if the
reference is to the transactions contemplated by the Credit Agreement, the
"Agent" as defined therein.
"Assets Held for Disposition" has the meaning specified in the Credit
Agreement.
"Capital Stock" has the meaning specified in the Credit Agreement.
"Credit Agreement" means the Amended and Restated Credit Agreement,
dated as of June 27, 2002, among Mail-Well, certain affiliates of Mail-Well,
including the Lessee, Bank of America, N.A. and the other financial
institutions party thereto.
"Credit Agreement Closing Date" means June 27, 2002.
"Debt" has the meaning specified in the Credit Agreement.
"Distribution" has the meaning specified in the Credit Agreement.
"DOL" has the meaning specified in the Credit Agreement.
"Environmental Laws" has the meaning specified in the Credit Agreement.
"ERISA Affiliate" has the meaning specified in the Credit Agreement.
"ERISA Event" has the meaning specified in the Credit Agreement.
"Financial Statements" means any financial statements required to be
given to the Agent, the Certificate Holders or the Lessor Trustee pursuant
to the Operative Agreements.
"Fiscal Year" has the meaning specified in the Credit Agreement.
"Fixed Charge Coverage Ratio" has the meaning specified in the Credit
Agreement.
"GAAP" has the meaning specified in the Credit Agreement.
"Governmental Authority" has the meaning specified in the Credit
Agreement.
14
"IRS" has the meaning specified in the Credit Agreement.
"Material Adverse Effect" means a material adverse change in or a
material adverse effect upon (a) the operations, business, properties,
condition (financial or otherwise) or prospects of (i) the Lessee, (ii)
Parent or (iii) any of Parent's primary operating divisions (i.e., print or
envelopes) taken as a whole, (b) the Equipment or the Additional Collateral;
(c) the ability of the Lessee or any Guarantor to perform under any
Operative Agreement to which it is a party; or (d) the legality, validity,
binding effect or enforceability against (i) the Lessee, (ii) Parent or
(iii) the other Guarantors taken as a whole, of any Operative Agreement to
which it is or they are a party.
"Maximum PP&E Loan Amount" has the meaning specified in the Credit
Agreement.
"Permitted Acquisition" has the meaning specified in the Credit
Agreement.
"Permitted Disposition" has the meaning specified in the Credit
Agreement.
"Restricted Investment" has the meaning specified in the Credit
Agreement.
"Restructuring Assets" has the meaning specified in the Credit
Agreement.
"Subsidiary" has the meaning specified in the Credit Agreement.
"U.S. Subsidiary" means a Subsidiary or a Wholly-Owned Subsidiary that
is incorporated under the laws of any jurisdiction of the United States
(including territories) or located in and a resident of the United States.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the Capital Stock of
each class having ordinary voting power, and 100% of the Capital Stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Lessee, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
Section 6.2. Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance
with GAAP, consistently applied; provided, however, that if GAAP shall
have been modified after the First Closing Date and the application of
such modified GAAP shall have a material effect on such financial
computations (including the computations required for the purpose of
determining compliance with the covenants set forth in Section 5), then
such computations shall be made and such financial statements,
certificates and reports shall be prepared, and all accounting terms
not otherwise defined herein shall be construed, in accordance with
GAAP as in effect prior to such modification, unless and until the
Majority Certificate Holders and the Lessee shall have agreed upon the
terms of the application of such modified GAAP.
15
(b) References herein to "fiscal quarter" or "quarter" refer to
such fiscal periods of Parent.
(c) Without limiting the generality of the preceding subsection
(a), all pro forma financial computations required under this Agreement
shall be made in accordance with the SEC Pro Forma Rules.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF GUARANTORS.
Each Guarantor hereby represents and warrants to the Lessor Trustee,
the Agent and the Trust Certificate Purchasers as follows.
(a) Such Guarantor and each of its Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of the
jurisdiction of their formation, are duly qualified to do business as a
foreign corporation or limited liability company, as the case may be,
and are in good standing in all jurisdictions in which failure to be so
qualified would have a Material Adverse Effect on such Guarantor's or
Subsidiary's business or, in the case of such Guarantor, the
performance of its obligations under this Agreement, and have full
power and authority and all necessary licenses and permits to carry on
their present business and operations, to own or lease their properties
and, in the case of such Guarantor, to enter into and perform its
obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by such Guarantor and constitutes the legal, valid and binding obligation
of such Guarantor enforceable against such Guarantor in accordance with
its terms.
(c) The execution and delivery of this Agreement and compliance by
such Guarantor with all of the provisions thereof do not and will not
contravene any law, governmental rule or regulation or any order of any
court or governmental authority or agency applicable to or binding on
such Guarantor or contravene the provisions of, or constitute a default
under, or result in the creation of any Lien upon the property of such
Guarantor under, its articles of incorporation or by-laws, or its
certificate of formation or operating agreement, as the case may be, or
any indenture, mortgage, contract or other agreement or instrument to
which such Guarantor is a party or by which it or any of its properties
may be bound or affected.
(d) There are no proceedings pending or, to the knowledge of such
Guarantor, threatened, and to the knowledge of such Guarantor there is
no existing basis for any such proceedings, against or affecting such
Guarantor or any of its Subsidiaries in any court or before any
governmental authority or arbitration board or tribunal which, if
adversely determined, might individually or in the aggregate have a
Material Adverse Effect on properties, business, profits or condition
(financial or otherwise) of such Guarantor or its Subsidiaries or
impair the ability of such Guarantor to perform its obligations under
this Agreement. Such Guarantor is not in default with respect to any
order of any court or governmental authority or arbitration board or
tribunal.
(e) Neither the nature of such Guarantor, or of any of its
businesses or properties, nor any relationship between such Guarantor
and any other Person, nor any
16
circumstance in connection with the execution and delivery of this
Agreement, nor the consummation by such Guarantor of any of the
transactions contemplated by this Agreement, is such as to require a
consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of such
Guarantor in connection with the execution, delivery and performance of
this Agreement.
(f) Neither such Guarantor nor any of its Subsidiaries is or, but
for the passage of time, will be in violation in any material respect
of any term of any charter instrument, by-law or other material
agreement or instrument to which it is a party or by which it may be
bound. Such Guarantor and each of its Subsidiaries is in compliance
with all laws, ordinances, governmental rules and regulations to which
it is subject, the failure to comply with which would have a Material
Adverse Effect on its operations or condition, financial or otherwise,
or would impair the ability of such Guarantor to perform its
obligations under this Agreement, and has obtained all licenses,
permits, franchises and other governmental authorizations material to
the conduct of its business.
(g) The consolidated financial statements provided to the Trust
Certificate Purchasers by Mail-Well, and the related consolidated
statements of income and retained earnings, were prepared in accordance
with GAAP and fairly present the consolidated financial condition of
Mail-Well with respect to its assets, liabilities and operations.
Mail-Well has no contingent liabilities for Taxes, unusual forward or
long-term commitments, or unrealized or anticipated losses from any
unfavorable commitments which could have a Material Adverse Effect on
it or any of its Subsidiaries. No event has caused a Material Adverse
Effect on Mail-Well or any of its Subsidiaries since the date of the
audited financial statements last delivered to the Trust Certificate
Purchasers.
(h) The representations and warranties of the Lessee contained in
Section 3.2 of the Participation Agreement are true and correct.
SECTION 8. MISCELLANEOUS.
Section 8.1. Actions and Proceedings. Any legal action or proceeding
against any Guaranty Party with respect to this Agreement or any other
Operative Agreement may be brought in any court of competent jurisdiction
located in Boston, Massachusetts as the Lessor Trustee, the Agent, any
Certificate Holder or their respective successors and assigns, as the case
may be, may elect, and by execution and delivery of this Agreement each
Guaranty Party irrevocably submits to the nonexclusive jurisdiction of any
such court for purposes of legal actions and proceedings hereunder and, in
the case of any such legal action or proceeding brought in any such court,
hereby irrevocably consents to the service of process out of any such court
in any such action or proceeding by the mailing of copies thereof by
registered mail, postage prepaid, to such Guaranty Party at its address as
provided in Section 8.8 hereof, or by any other means permitted by
Applicable Law. If it becomes necessary for the purpose of service of
process out of any such court, each Guaranty Party agrees that any of its
Responsible Officers is and will be authorized to receive, for and on behalf
of it, service of process in any such legal action or proceeding. To the
extent permitted by law, final judgment (a certified copy of which shall be
conclusive evidence of the fact and of the amount of any indebtedness of
each Guaranty Party to the Lessor Trustee, the Agent or any Certificate
Holder, as the case may be)
17
against such Guaranty Party in any such legal action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on an
unsatisfied judgment. Each Guaranty Party hereby irrevocably waives and
agrees not to assert, by way of motion, as a defense or otherwise, in any
legal action or proceeding brought hereunder (a) that it or any of its
property is immune from the above described legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise), (b) that such action or proceeding is brought in an
inconvenient forum, that venue for the action or proceeding is improper or
that this Agreement or any other Operative Agreement may not be enforced in
or by such court, or (c) any defense that would hinder or delay the levy,
execution or collection of any amount to which any party hereto is entitled
pursuant to a final judgment of any court having jurisdiction. Nothing in
these provisions shall limit any right of the Lessor Trustee, the Agent or
any Certificate Holder to bring actions, suits or proceedings in the courts
of any other jurisdiction.
Section 8.2. Binding Effect. This Agreement and every part hereof shall
be binding upon each Guaranty Party and its successors and assigns, and
shall inure to the benefit of, and to the extent provided herein shall be
directly enforceable by, the Lessor Trustee, the Agent and each Certificate
Holder and their respective successors and assigns.
Section 8.3. Waivers; Cumulative Effect. A waiver by the Lessor Trustee,
the Agent or any Certificate Holder of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which
the Lessor Trustee, the Agent or such Certificate Holder would otherwise
have had on any future occasion with regard to any subsequent breach. No
failure to exercise nor any delay in exercising on the part of the Lessor
Trustee, the Agent or any Certificate Holder any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and may be
exercised singlely or concurrently, and are not exclusive of any rights and
remedies provided by law.
Section 8.4. Amendments; Waivers.
(a) [not used]
(b) The covenants in Sections 5.1, 5.2, 5.3, 5.12, 5.13, 5.14,
5.15, 5.17, 5.20, 5.22 and 5.23 shall be deemed automatically amended
or waived to the extent the corresponding covenants in the Credit
Agreement are amended or waived, and any related definitions set forth
in Section 6, except for the definitions applicable to Sections 5.22
and 5.23, shall be deemed automatically amended to the extent the
corresponding definitions in the Credit Agreement are amended, in each
case in accordance with the Credit Agreement, such amendments or
waivers to be effective as and when effective under the Credit
Agreement; provided that (i) no such amendment or waiver shall affect
any other provisions of the Operative Agreements, (ii) if the Credit
Agreement is terminated, the foregoing sections and definitions shall
survive for the purposes of this Agreement as they were immediately
prior to such termination, (iii) the Lessor Trustee, the Agent and the
Certificate Holders shall receive copies of all notices,
correspondence, information and documents related to such amendments or
waivers under the Credit Agreement at the time such are received by any
of the parties to the Credit Agreement,
18
(iv) the Certificate Holders shall receive from the Lessee fees
and other consideration proportionate in amount to any fees and other
consideration paid to the parties to the Credit Agreement as to such
amendment or waiver (such fees and other consideration paid to the
Certificate Holders shall be in the same proportion to the then
outstanding Lease Balance as the proportion of such fees and
consideration paid with respect to the amendment or waiver as to the
Credit Agreement bear to the aggregate of outstanding principal and
available credit under such agreement) and (v) no amendment or waiver
under the Credit Agreement shall waive or reduce the applicable Minimum
Fixed Charge Coverage Ratio in Section 5.22 or the applicable Minimum
Adjusted Tangible Net Worth in Section 5.23 below the minimums
specified in this Agreement as of the date of this Agreement.
Section 8.5. Section Headings. The section headings in this Agreement are
for convenience of reference only and shall neither be deemed to be a part
of this Agreement nor modify, define, expand or limit any of the terms or
provisions hereof. All references herein to numbered sections, unless
otherwise indicated, are to sections of this Agreement.
Section 8.6. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or any
provision in any other Operative Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 8.7. Survival of Representations and Warranties. All warranties,
representations and covenants made by any Guaranty Party herein, in any
other Operative Agreement or in any certificate or other instrument
delivered on the Closing Date by it or on its behalf under this Agreement or
any of the other Operative Agreements have been relied upon by the Lessor
Trustee, the Agent and each Certificate Holder, regardless of any
investigation made by the Lessor Trustee, the Agent or such Certificate
Holder or on their behalf, and shall survive the execution and delivery of
this Agreement. All statements in any such certificate or other instrument
shall constitute warranties and representations by such Guaranty Party
hereunder. Except for the warranties, representations and covenants referred
to above, no Guaranty Party has made any further or other warranties,
representations or covenants upon which any of the parties has relied upon
in entering into the transactions contemplated by the Operative Agreements.
Section 8.8. Notices. All communications and notices required or permitted
hereunder shall be given in the manner specified in Section 10.2 of the
Participation Agreement and, if to any Guarantor, to such Guarantor at 8310
South Valley Highway, Suite 400, Englewood, Colorado 80112, Attention:
President, Telecopy: 303-397-7400, or such other address as such Guarantor
may designate by notice to the other parties duly given in accordance with
this Section.
Section 8.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute but one and the same instrument.
19
Section 8.10. Further Assurances. Each Guaranty Party hereby agrees to
execute and deliver all such instruments and take all such action as the
Lessor Trustee or any Certificate Holder may from time to time reasonably
request in order to fulfill the purposes of this Agreement.
Section 8.11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING ITS CHOICE-OF-LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION).
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year set forth above.
GUARANTORS
MAIL-WELL, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
ABP BOOKS, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
DISCOUNT LABELS, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
HILL GRAPHICS, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL COMMERCIAL PRINTING, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Second Amended & Restated Guaranty Agreement]
GUARANTORS
MAIL-WELL GOVERNMENT PRINTING, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL MEXICO HOLDINGS, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL SERVICES, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL TEXAS FINANCE LP
By: MAIL-WELL I CORPORATION,
its General Partner
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL WEST, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Second Amended & Restated Guaranty Agreement]
GUARANTORS
MMTP HOLDINGS, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
NATIONAL GRAPHICS COMPANY
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
POSER BUSINESS FORMS, INC.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
WISCO III, L.L.C.
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Second Amended & Restated Guaranty Agreement]
LESSEE
MAIL-WELL I CORPORATION
By
-----------------------------------
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Second Amended & Restated Guaranty Agreement]
AGENT
FLEET CAPITAL CORPORATION
By
-----------------------------------
Peter Salvadore
Vice President
[Second Amended & Restated Guaranty Agreement]
TRUST CERTIFICATE PURCHASER
FLEET NATIONAL BANK
By
-----------------------------------
Edward W. O'Brien
Banking Officer
[Second Amended & Restated Guaranty Agreement]
TRUST CERTIFICATE PURCHASER
ORIX FINANCIAL SERVICES, INC.
By
-----------------------------------
Mark Kassis
Senior Vice President
[Second Amended & Restated Guaranty Agreement]
TRUST CERTIFICATE PURCHASER
U.S. BANK, NATIONAL ASSOCIATION
By
-----------------------------------
Its:
[Second Amended & Restated Guaranty Agreement]
LESSOR TRUSTEE
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, as trustee under
MW 1997-1 Trust, as Lessor Trustee
By
-----------------------------------
C. SCOTT NIELSEN
Its: VICE PRESIDENT
[Second Amended & Restated Guaranty Agreement]