EXECUTION
VERSION


 


Exhibit 10.2


 


CONTINUING
GUARANTY


 


CONTINUING
GUARANTY (“Guaranty”) dated as of July 28, 2008, made by and
between SMURFIT-STONE CONTAINER ENTERPRISES, INC., a Delaware corporation (“Guarantor”),
and UNION BANK OF CALIFORNIA, N.A. (“Bank”).


 


RECITALS


 


	
  (a)

  	
   

  	
  WHEREAS, Guarantor is a leading U.S.
  integrated manufacturer of various paperboard and paper-based packaging
  material;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  WHEREAS, Guarantor has agreed to acquire 90%
  of the membership interests of CALPINE CORRUGATED, LLC, a California limited
  liability company formerly known as Produce Container, LLC (“Borrower”),
  pursuant to a restructuring of the ownership interests of Borrower pursuant
  to the Amended and Restated Operating Agreement being entered into
  concurrently herewith;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  WHEREAS, Borrower and Bank have entered into the
  Loan and Security Agreement dated March 30, 2006, as amended by the
  First Amendment to Loan and Security Agreement dated as of August 30,
  2006, the Second Amendment to Loan and Security Agreement dated as of
  December 10, 2007, the Third Amendment to Loan and Security Agreement
  dated as of December 31, 2007, the Fourth Amendment to Loan and Security
  Agreement dated as of January 31, 2008, the Fifth Amendment to Loan and
  Security Agreement dated as of February 29, 2008, and the Sixth
  Amendment to Loan and Security Agreement of even date herewith (including all
  exhibits and schedules thereto, and as the same may be subsequently amended,
  restated, supplemented or otherwise modified from time to time, collectively,
  the “Loan Agreement”);

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  WHEREAS, Guarantor has agreed to guarantee the
  Obligations of Borrower;

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  WHEREAS, Guarantor has requested that Bank
  increase the maximum amount of its financing to Borrower by $3,000,000, to an
  aggregate principal amount not exceeding $12,000,000;

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  WHEREAS, Guarantor will derive substantial
  benefit if the financing continues to be provided by Bank, and the maximum
  amount of such financing is increased pursuant to the terms of the Sixth
  Amendment to Loan and Security Agreement between Borrower and Bank of even
  date herewith (the “Sixth Amendment”); and

  
	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  WHEREAS, it is a condition precedent, among
  others, to the obligation of Bank to continue to provide and increase the
  maximum amount of its financing to Borrower under the Sixth Amendment that
  the Guarantor shall have executed and delivered this Guaranty to the Bank.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOW, THEREFORE, in consideration of the foregoing
  premises, to induce the Borrower and Bank to enter into the 

  
	
  Sixth Amendment,
  Guarantor and Bank hereby agree as follows:

  



 


	
  1.

  	
   

  	
  Obligations Guaranteed. 
  For consideration, the adequacy and sufficiency of which is
  acknowledged, Guarantor unconditionally guaranties and promises (a) to
  pay to Bank on demand, in lawful United States money, all Obligations (as
  such term is defined below), and (b) to perform all undertakings of
  Borrower in connection with Obligations. 
  “Obligations” means all Obligations of Borrower when due and
  payable to Bank under the Loan Agreement and the other Loan Documents,
  whether made, incurred or created previously, concurrently or in the future,
  whether voluntary or involuntary and however arising, whether incurred
  directly or acquired by 

  



 


1

















 


	
   

  	
   

  	
  Bank by assignment or
  succession, absolute or contingent, liquidated or unliquidated, legal or
  equitable, whether Borrower is liable individually or jointly with others,
  whether incurred before, during or after any bankruptcy, reorganization,
  insolvency, receivership or similar proceeding (“Insolvency Proceeding”),
  and whether recovery thereof is or becomes barred by a statute of limitations
  or is or becomes otherwise unenforceable, together with all expenses of, for
  and incidental to collection, including, without limitation, reasonable
  attorneys’ fees. All capitalized terms used and not otherwise defined herein
  shall have the respective meanings ascribed to them in the Loan Agreement.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Continuing
  Nature/Revocation/Reinstatement. This Guaranty (a) is in addition to any other
  guaranties of the Obligations, (b) is a continuing guaranty, and
  (c) covers all Obligations, including, without limitation, those arising
  under successive transactions which continue or increase the Obligations from
  time to time, renew all or part of the Obligations after they have been
  satisfied or create new Obligations. Revocation by one or more signers of
  this Guaranty or any other guarantors of the Obligations shall not
  (a) affect the obligations under this Guaranty of a non-revoking Guarantor,
  (b) apply to Obligations outstanding when Bank receives written notice
  of revocation, or to any extensions, renewals, readvances, modifications,
  amendments or replacements of such Obligations, or (c) apply to
  Obligations, arising after Bank receives such notice of revocation that are
  created pursuant to a commitment existing at the time of the revocation,
  whether or not there exists an unsatisfied condition to such commitment or
  Bank has another defense to its performance. All of Bank’s rights pursuant to
  this Guaranty continue with respect to amounts previously paid to Bank on
  account of any Obligations which are thereafter restored or returned by Bank,
  whether in an Insolvency Proceeding of Borrower or for any other reason, all
  as though such amounts had not been paid to Bank; and Guarantor’s liability
  under this Guaranty (and all of its terms and provisions) shall be reinstated
  and revived, notwithstanding any surrender or cancellation of this Guaranty.
  Bank, at its sole discretion, may determine whether any amount paid to it
  must be restored or returned; provided, however, that if Bank elects to
  contest any claim for return or restoration, Guarantor agrees to indemnify
  and hold Bank harmless from and against all costs and expenses, including, without
  limitation, reasonable attorneys’ fees, expended or incurred by Bank in
  connection with such contest. If any Insolvency Proceeding is commenced by or
  against Borrower or Guarantor, at Bank’s election, Guarantor’s obligations
  under this Guaranty shall immediately and without notice or demand become due
  and payable, whether or not then otherwise due and payable.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Authorization. Guarantor authorizes Bank, without
  notice and without affecting Guarantor’s liability under this Guaranty, from
  time to time, whether before or after any revocation of this Guaranty, to:
  (a) renew, compromise, extend, accelerate, release, subordinate, waive,
  amend and restate, or otherwise amend or change, the interest rate, time or
  place for payment or any other terms of all or any part of the Obligations to
  the extent permitted in the Loan Agreement; (b) accept delinquent or
  partial payments of the Obligations; (c) take or not take security or
  other credit support for this Guaranty or for all or any part of the
  Obligations, and exchange, enforce, waive, release, subordinate, fail to
  enforce or perfect, sell, or otherwise dispose of any such security or credit
  support; (d) apply proceeds of any such security or credit support and
  direct the order or manner of its sale or enforcement as Bank, at its sole
  discretion may determine; and (e) release or substitute Borrower or any
  guarantor or other person or entity liable on the Obligations.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Waivers. To the maximum extent permitted by
  law, Guarantor waives (a) all rights to require Bank to proceed against
  Borrower, or any other guarantor, or proceed against, enforce or exhaust any
  security for the Obligations or to marshal assets or to pursue any other
  remedy in Bank’s power whatsoever; (b) all defenses arising by reason of
  any disability or other defense of Borrower, the cessation for any reason of
  the liability of Borrower, any defense that any other indemnity, guaranty or
  security was to be obtained, any claim that Bank has made Guarantor’s
  obligations more burdensome or more burdensome than Borrower’s obligations,
  and the use of any proceeds of the Obligations other than as intended or
  understood by Bank or Guarantor; (c) all presentments, demands for
  performance, notices of nonperformance, protests, notices of protest, notices
  of dishonor, notices of acceptance of this Guaranty and the existence or
  creation

  



 


2

















 


	
   

  	
   

  	
  of new or additional
  Obligations, and all other notices or demands to which Guarantor might
  otherwise be entitled; (d) all rights to file a claim in connection with
  the Obligations in an Insolvency Proceeding filed by or against Borrower
  except as subordinate to Bank’s claim; (e) all rights to require Bank to
  enforce any of its remedies; and (f) until the Obligations are satisfied
  and fully and finally paid with such payment not subject to return
  (i) all rights of subrogation, contribution, indemnification or
  reimbursement, (ii) all rights of recourse to any assets or property of
  Borrower, or to any collateral or credit support for the Obligations except
  as subordinate to Bank’s rights, (iii) all rights to participate in or
  benefit from any security or credit support Bank may have or acquire, and
  (iv) all rights, remedies and defenses Guarantor may have or acquire against
  Borrower. Guarantor understands that if Bank forecloses by trustee’s sale on
  a deed of trust securing any of the Obligations, Guarantor would then have a
  defense preventing Bank from thereafter enforcing Guarantor’s liability for
  the unpaid balance of the secured Obligations. This defense arises because
  the trustee’s sale would eliminate Guarantor’s right of subrogation, and
  therefore Guarantor would be unable to obtain reimbursement from Borrower.
  Guarantor specifically waives this defense and all rights and defenses that
  Guarantor may have against Bank because the Obligations are secured by real
  property. This means, among other things: (A) Bank may collect from
  Guarantor without first foreclosing on any real property collateral pledged
  by Borrower; and (B) if Bank forecloses on any real property collateral
  pledged by Borrower, then: (I) the amount of the Obligations may be
  reduced only by the price for which the collateral is sold at the foreclosure
  sale, even if the collateral is worth more than the sale price, and
  (II) Bank may collect from Guarantor even if Bank, by foreclosing on the
  real property collateral, has destroyed any right Guarantor may have to
  collect from Borrower. This is an unconditional and irrevocable waiver of any
  rights and defenses Guarantor may have because the Obligations are secured by
  real property. These rights and defenses include, but are not limited to, any
  rights or defenses based upon Section 580a, 580b, 580d or 726 of the
  California Code of Civil Procedure or similar laws in other states. In
  addition, Guarantor waives all rights and defenses arising out of an election
  of remedies by Bank, even though that election of remedies, such as
  non-judicial foreclosure with respect to security for a secured obligation,
  may have destroyed Guarantor’s rights of subrogation by the operation of
  Section 580d of the California Code of Civil Procedure or otherwise.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Guarantor to Keep Informed. Guarantor warrants having established
  with Borrower adequate means of obtaining, on an ongoing basis, such
  information as Guarantor may require concerning all matters bearing on the
  risk of nonpayment or nonperformance of the Obligations. Guarantor assumes
  sole, continuing responsibility for obtaining such information from sources
  other than from Bank. Bank has no duty to provide any information to
  Guarantor until Bank receives Guarantor’s written request for specific
  information in Bank’s possession and Borrower has authorized Bank to disclose
  such information to Guarantor.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Intentionally Omitted.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Authorization. Where Borrower is a corporation,
  partnership or other entity, Bank need not inquire into or verify the powers
  of Borrower or authority of those acting or purporting to act on behalf of
  Borrower, and this Guaranty shall be enforceable with respect to any
  Obligations Bank grants or creates in reliance on the purported exercise of
  such powers or authority.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Assignments. Without notice to Guarantor, Bank may
  assign the Obligations and this Guaranty, in whole or in part, in accordance
  with the terms of the Loan Agreement and may disclose to any prospective or
  actual purchaser of all or part of the Obligations any and all information
  Bank has or acquires concerning Guarantor, this Guaranty and any security for
  this Guaranty.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Counsel Fees and Costs. The prevailing party shall be entitled
  to reasonable attorneys’ fees and all other reasonable out-of-pocket costs
  and expenses which it may incur in connection with the enforcement or
  preservation of its rights under, or defense of, this Guaranty or in
  connection with any other dispute or proceeding relating to this Guaranty
  whether or not incurred in any

  



 


3

















 


	
   

  	
   

  	
  Insolvency Proceeding,
  arbitration, litigation or other proceeding.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Multiple Guarantors/Borrowers. When there is more than one Borrower
  named herein or when this Guaranty is executed by more than one Guarantor,
  then the words “Borrower” and “Guarantor”, respectively, shall mean all and
  any one or more of them, and their respective successors and assigns,
  including, without limitation, debtors-in-possession and bankruptcy trustees;
  words used herein in the singular shall be considered to have been used in
  the plural where the context and construction so requires in order to refer
  to more than one Borrower or Guarantor, as the case may be.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Integration/Severability/Amendments. This Guaranty is intended by Guarantor
  and Bank as the complete, final expression of their agreement concerning its
  subject matter. It supersedes all prior understandings or agreements with
  respect thereto and may be changed only by a writing signed by Guarantor and
  Bank. No course of dealing, or parole or extrinsic evidence shall be used to
  modify or supplement the express terms of this Guaranty. If any provision of
  this Guaranty is found to be illegal, invalid or unenforceable, such
  provision shall be enforced to the maximum extent permitted, but if fully
  unenforceable, such provision shall be severable, and this Guaranty shall be
  construed as if such provision had never been a part of this Guaranty, and
  the remaining provisions shall continue in full force and effect.

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Joint and Several. If more than one Guarantor signs this
  Guaranty, the obligations of each under this Guaranty are joint and several,
  and independent of the Obligations and of the obligations of any other person
  or entity. A separate action or actions may be brought and prosecuted against
  any one or more guarantors, whether action is brought against Borrower or
  other guarantors of the Obligations, and whether Borrower or others are
  joined in any such action.

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Notice. Any notice, including, without
  limitation, notice of revocation, given by any party under this Guaranty
  shall be effective only upon its receipt by the other party and only if
  (a) given in writing and (b) personally delivered, sent by United
  States mail, postage prepaid, or sent out by facsimile transmission (with
  such facsimile promptly confirmed by delivery of a copy by personal delivery
  or United States mail as otherwise provided in this paragraph), and addressed
  to Bank or Guarantor at their respective addresses for notices indicated
  below. Guarantor and Bank may change the place to which notices, requests,
  and other communications are to be sent to them by giving written notice of
  such change to the other.

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Governing Law. This Guaranty shall be governed by and
  construed according to the laws of California, and Guarantor submits to the
  nonexclusive jurisdiction of the state or federal courts in California.

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Patriot Act. Bank is subject to the Patriot Act and
  hereby notifies Guarantor that pursuant to the requirements of the Patriot
  Act, Bank is required to obtain, verify and record information that
  identifies Guarantor, which information includes the name and address of
  Guarantor and other information that will allow Bank to identify Guarantor in
  accordance with the Patriot Act.

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  JUDICIAL REFERENCE. TO THE EXTENT PERMITTED BY LAW, IN
  CONNECTION WITH ANY CLAIM, CAUSE OF ACTION, PROCEEDING OR OTHER DISPUTE
  CONCERNING THE LOAN DOCUMENTS (EACH A “CLAIM”), THE PARTIES TO THIS AGREEMENT
  EXPRESSLY, INTENTIONALLY, AND DELIBERATELY WAIVE ANY RIGHT THAT EACH OF THEM
  MAY OTHERWISE HAVE TO TRIAL BY JURY. IN THE EVENT THAT THE WAIVER OF
  JURY TRIAL SET FORTH IN THE PREVIOUS SENTENCE IS NOT ENFORCEABLE UNDER THE
  LAW APPLICABLE TO THIS AGREEMENT, THE PARTIES TO THIS AGREEMENT AGREE THAT
  ANY CLAIM, INCLUDING ANY QUESTION OF LAW OR FACT RELATING THERETO, SHALL, AT
  THE WRITTEN REQUEST OF ANY PARTY, BE DETERMINED BY JUDICIAL REFERENCE
  PURSUANT TO THE STATE LAW APPLICABLE TO THIS AGREEMENT. THE PARTIES

  



 


4

















 


	
   

  	
   

  	
  SHALL SELECT A SINGLE
  NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE. IN THE EVENT
  THAT THE PARTIES CANNOT AGREE UPON A REFEREE, THE COURT SHALL APPOINT THE
  REFEREE. THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT.
  NOTHING IN THIS SECTION 16
  SHALL LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE SELF-HELP
  REMEDIES, FORECLOSE AGAINST COLLATERAL OR OBTAIN PROVISIONAL REMEDIES. THE
  PARTIES SHALL BEAR THE FEES AND EXPENSES OF THE REFEREE EQUALLY, UNLESS THE
  REFEREE ORDERS OTHERWISE. THE REFEREE SHALL ALSO DETERMINE ALL ISSUES
  RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS SECTION 16. THE PARTIES
  ACKNOWLEDGE THAT IF A REFEREE IS SELECTED TO DETERMINE THE CLAIMS, THEN THE
  CLAIMS WILL NOT BE DECIDED BY A JURY.

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Counterparts. This Guaranty may be executed in any
  number of counterparts, which shall, collectively and separately, constitute
  one agreement. Delivery of an executed counterpart of a signature
  page hereto by facsimile transmission shall be effective as delivery of
  a manually executed counterpart thereof.

  



 


[Remainder of Page Intentionally
Left Blank]


 


5

















 


Executed as of the date
first written above, Guarantor acknowledges having received a copy of this
Guaranty and having made each waiver contained in this Guaranty with full
knowledge and consequences.


 


 


	
  “Bank”:

  	
   

  	
   

  	
  “Guarantor”:

  
	
   

  	
   

  	
   

  	
   

  
	
  UNION BANK OF
  CALIFORNIA, N.A.,

  	
   

  	
  SMURFIT-STONE CONTAINER
  

  ENTERPRISES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ Shawn Lipman

  	
   

  	
  By:

  	
  /s/ Charles A.
  Hinrichs_

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
    Shawn Lipman

  	
   

  	
  Name:

  	
       Charles
  A. Hinrichs

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
    Vice President

  	
   

  	
  Title:

  	
  Senior Vice
  President & Chief Financial 

  
	
   

  	
   

  	
   

  	
   

  	
  Officer

  
							



 


	
  Addresses for Notices:

  	
   

  	
  Addresses for Notices:

  
	
   

  	
   

  	
   

  
	
  Union Bank of
  California, N.A.

  	
   

  	
  Smurfit-Stone Container Enterprises, Inc.

  
	
  445 South Figueroa
  Street, G13-300

  	
   

  	
  Six CityPlace Drive

  
	
  Los Angeles, California
  90071

  	
   

  	
  Creve Coeur, MO 63141

  
	
  Attn: Commercial
  Finance Division

  	
   

  	
  Attn: Charles A. Hinrichs

  
	
  Telephone No.: (213)
  236-5301

  	
   

  	
  Telephone No.: (314) 656-5276

  
	
  Facsimile No.: (213)
  236-6089

  	
   

  	
  Facsimile No.: (314) 787-6162

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
  McDermott
  Will & Emery LLP

  	
   

  	
  Winston & Strawn LLP

  
	
  2049 Century Park East,
  38th Floor

  	
   

  	
  35 W. Wacker Drive

  
	
  Los Angeles, CA 90067

  	
   

  	
  Chicago, IL 60601

  
	
  Attn: Gary B.
  Rosenbaum, Esq.

  	
   

  	
  Attn: Brian S. Hart

  
	
  Telephone No.: (310)
  284-6133

  	
   

  	
  Telephone No.: (312) 668-5702

  
	
  Facsimile No.: (310)
  277-4730

  	
   

  	
  Facsimile No.: (312) 558-5700

  



 


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