OfficeMax 2013 Annual Report Download - page 311

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Guaranteed Party.
This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the
meaning of Section 678 of the UK Companies Act 2006, or section 60 of the Irish Companies Act 1963, or any equivalent and applicable provisions under
the laws of the jurisdiction of incorporation of the relevant Loan Guarantor.
(b) Notwithstanding anything to the contrary in the Credit Agreement, the aggregate obligations and liabilities of any entity incorporated under the
laws of the Grand Duchy of Luxembourg (a “Luxembourg Guarantor”) with respect to the repayment under a joint and several liability clause of any
borrowing, costs or expenses, and the granting of any guarantee, indemnity or security under this Agreement:
(i) shall not include any payment which, if made, would either constitute a misuse of corporate assets as defined under article 171-1 of the
LSC or amount to prohibited financial assistance as provided in article 49-6 of the LSC; and
(ii) shall be limited to the aggregate of:
(A) any sums borrowed by such Luxembourg Guarantor or any obligation or liability of such Luxembourg Guarantor’s direct or indirect
subsidiaries incurred under the Credit Agreement; and
(B) ninety-five percent (95%) of the net assets of such Luxembourg Guarantor, where the net assets means the shareholder’s equity
(, as referred to in article 34 of the Luxembourg law of December 19, 2002 on the commercial register and annual accounts) of
such Luxembourg Guarantor as (i) shown in the latest financial statements ( ) available at the date of the relevant payment
hereunder and approved by the shareholders of such Luxembourg Guarantor or (ii) existing as of the Closing Date.
SECTION 10.02 Guaranty of Payment. This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to
require any Agent, any Issuing Bank or any Lender to sue any Borrower, any other Loan Guarantor, any other guarantor, or any other Person obligated for all
or any part of the Guaranteed Obligations (each, an “ Obligated Party”), or otherwise to enforce its payment against any collateral securing all or any part of the
Guaranteed Obligations.
As an original and independent obligation under this Loan Guaranty, each Loan Guarantor shall:
(a) indemnify each Guaranteed Party and its successors, endorsees, transferees and assigns and keep the Guaranteed Parties indemnified against
all costs, losses, expenses and liabilities of whatever kind resulting from the failure by the Loan Parties or any of them, to make due and punctual
payment of any of the Secured Obligations (excluding, with respect to any Loan Guarantor, any Excluded Swap Obligations of such Loan Guarantor)
or resulting from any of the Secured Obligations being or becoming void, voidable, unenforceable or ineffective against any Loan Party (including, but
without limitation, all legal and other costs, charges and expenses incurred by each Guaranteed Party, or any of them, in connection with preserving or
enforcing, or attempting to preserve or enforce, its rights under this Loan Guaranty); and
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