Exhibit 10.9
GUARANTY
Date: June 27, 2002
THE CIT GROUP/BUSINESS CREDIT, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Boundless Technologies, Inc.(the "Company")
Ladies & Gentlemen:
Reference is made to that certain Financing Agreement dated June 27, 2002
as amended (herein the "Agreement") between you, the above-named Company, and
the undersigned (the "Guarantor"). The undersigned hereby unconditionally
guarantees and agrees to be liable for the full and indefeasible payment and
performance when due of all now existing and future indebtedness, obligations or
liabilities of the Company to you, howsoever arising, whether direct or
indirect, absolute or contingent, secured or unsecured, whether arising under
the Agreement as now written or as amended or supplemented hereafter, or by
operation of law or otherwise, including, without limitation, all Obligations
(as defined in the Agreement) of the Company to you. Further the Guarantor
agrees to pay to you on demand the amount of all expenses (including reasonable
attorney's fees) incurred by you in collecting or attempting to collect any of
the Company obligations to you, whether from the Company, or from any other
obligor, or from the Guarantor, or in realizing upon any collateral; and agrees
to pay any interest at the highest lawful rate on all amounts payable to you
hereunder, even if such amount cannot be collected from the Company. (All of the
aforementioned obligations, liabilities, expenses and interest are hereinafter
collectively called the "Obligations"). To the extent you receive payment on
account of Obligations guaranteed hereby, which payment is thereafter set aside
or required to be repaid by you in whole or in part, then, to the extent of any
sum not finally retained by you (regardless of whether such sum is recovered
from you by the Company, its trustee, or any other party acting for, on behalf
of or through the Company or its representative), the Guarantor's obligation to
you under this Guaranty, as amended, modified or supplemented, shall remain in
full force and effect (or be reinstated) until the Guarantor has made payment to
you therefor, which payment shall be due upon demand.
This Guaranty is executed as an inducement to you to make loans or
advances to the Company or otherwise to extend credit or financial
accommodations to the Company, or to enter into or continue a financing
arrangement with the Company, and is executed in consideration of your doing or
having done any of the foregoing. The Guarantor agrees that any of the foregoing
shall be done or extended by you in your
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sole discretion, and shall be deemed to have been done or extended by you in
consideration of and in reliance upon the execution of this Guaranty, but that
nothing herein shall obligate you to do any of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances, or
the extension of credit under the Agreement, the amendment, execution or
termination of the Agreement or any other agreements in connection therewith,
and presentment, demand, protest, notice of protest, notice of non-payment and
all other notices to which the Guarantor may be entitled (whether under this
Guaranty or the Agreement), and your reliance on this Guaranty are hereby
waived. The Guarantor also waives notice of: changes in terms or extensions of
the time of payment, the taking and releasing of collateral or guarantees
(including the release of any other guarantors) and the settlement, compromise
or release of any Obligations, and agrees that the amount of the Obligations
shall not be diminished by any of the foregoing. The Guarantor also agrees that
you need not attempt to collect any Obligations from any other guarantors or any
other obligor or to realize upon any collateral, but may require the Guarantor
to make immediate payment of Obligations to you when due or at any time
thereafter. You shall not be liable for failure to collect Obligations or to
realize upon any collateral or security therefor, or any part thereof, or for
any delay in so doing, nor shall you be under any obligation to take any action
whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless of the
validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. The
liability of the Guarantor under this Guaranty shall be unaffected by the death
of any other guarantor. Payment by the Guarantor shall be made to you at your
office from time to time on demand as Obligations become due, and one or more
successive or concurrent actions may be brought hereon against the Guarantor
either in the same action or in separate actions. In the event any claim or
action, or action on any judgment, based on this Guaranty, is made or brought
against the Guarantor, the Guarantor agrees not to assert against you any
set-off or counterclaim which the Company may have, and, further, the Guarantor
agrees not to deduct, set-off, or seek to counterclaim for or recoup, any
amounts which are or may be owed by you to the Guarantor, or for any loss of
contribution from any other guarantor. Furthermore, in any litigation based on
the Guaranty in which you and the Guarantor or any other guarantor shall be
adverse parties, the Guarantor hereby waives trial by jury and waives the right
to interpose any defense based upon any Statute of Limitations or any claim of
laches and waives the performance of each and every condition precedent to which
the Guarantor might otherwise be entitled by law. The Guarantor hereby consents
to the in personal jurisdiction of the courts of the State of New York. In the
event that you bring any action or suit in any court of record of New York State
or the Federal Government to enforce any or all liabilities of the Guarantor
hereunder, service of process may be made on the Guarantor by mailing a copy of
the summons to the Guarantor at the address below set forth.
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All sums at any time to the credit of the Guarantor and any property of
the Guarantor on which you at any time have a lien or security interest, or of
which you at any time have possession, shall secure payment and performance of
all Obligations and any and all other obligations of the Guarantor to you
however arising. The Guarantor shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor, or to any assets of the Company.
Upon the occurrence of any of the following events:
(1) any Event of Default under, or termination of, the Agreement;
(2) failure of the Guarantor to observe or perform any agreements,
warranties or covenants contained herein; or
(3) (a) death of the Guarantor, or dissolution or cessation of the
Guarantor's business;
(b) calling of a meeting of the creditors of the Guarantor for the
purposes of compromising the debts of the Guarantor;
(c) failure of the Guarantor to meet its debts as they mature;
(d) commencement by the Guarantor of any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceeds
under federal or state law (herein collectively "Insolvency
Proceeding");
(e) commencement of any Insolvency Proceeding against the
Guarantor,
then, in the case of event (1) above the liability of the Guarantor for the
entire Obligations shall mature, and in the case of events (2) and (3)(a)
through (e) above the liability of the Guarantor with respect to which such
event relates for the entire Obligations shall mature even if the liability of
the Company therefor does not.
This Guaranty may be terminated as to the Guarantor only as of any
Anniversary Date (as defined in the Agreement) and then only upon actual receipt
by one of your officers of at least ninety (90) days prior written notice of
termination sent by registered or certified mail; provided however, that the
Guaranty shall remain bound hereunder, and this Guaranty shall continue in full
force and effect, with respect to any and all Obligations created or arising
prior to the effective date of such termination and with respect to any and all
extensions, renewals or modifications of said pre-existing Obligations.
Termination as to any one of the guarantors shall not affect the obligations of
the Guarantor, nor relieve the one giving such notice from liability for any
post termination collection expenses or interest. This is a continuing agreement
and written notice as above provided shall be the only means of termination,
notwithstanding the fact that for certain periods of time there may be no
Obligations owing to you by the Company.
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Your books and records showing the account between you and the Company
shall be admissible in evidence in any action or proceeding as prima facie proof
of the items therein set forth. Your monthly statements rendered to the Company
shall be binding upon the Guarantor (whether or not the Guarantor received
copies thereof) and shall constitute an account stated between you and the
Company unless you shall have received a written statement of the Company
exceptions within thirty (30) days after the statement was mailed to the
Company.
The Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which it
may now or hereafter have against the Company or any other person directly or
contingently liable for the Obligations guaranteed hereunder, or against or with
respect to the Company property (including, without limitation, property
collateralizing its Obligations to you) arising from the existence or
performance of this Guaranty.
This Guaranty embodies the whole agreement of the parties and may not be
modified except in writing, and no course of dealing between you and the
Guarantor shall be effective to change or modify this Guaranty. Your failure to
exercise any right hereunder shall not be construed as a waiver of the right to
exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by the Guarantor
of the terms and provisions of this Guaranty shall constitute a waiver thereof,
nor a waiver of any obligations to be performed by the Guarantor hereunder.
This Guaranty may be assigned by you and shall be for your benefit and for
the benefit of any of your assignees or transferees, and shall cover any
Obligations owed to you at the time of assignment or transfer as well as any and
all future Obligations, loans, advances or extensions of credit made to the
Company by, or otherwise owed by the Company to, such assignee or transferee.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement, or satisfaction of, any other endorsements
or guarantees of the Obligations, now existing or hereafter executed by the
Guarantor or others in your favor.
When used in this agreement, all pronouns shall, wherever applicable, be
deemed to include the singular and plural as well as the masculine, feminine,
and neuter genders. This agreement shall inure to the benefit of you, your
successors and assigns and any parent, subsidiary or affiliate of yours; shall
be binding jointly and severally upon all guarantors, including the Guarantor,
and upon the respective heirs, executors, administrators, successors and assigns
of any of the guarantors including the Guarantor; and shall pertain to the
Company and its successors and assigns.
This Guaranty may be executed in any number of counterparts, each of which
when so executed shall be deemed an original and such counterparts shall
together constitute but one and the same document.
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This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF the Guarantor has executed and delivered this Guaranty
effective as of the date above set forth.
BOUNDLESS MANUFACTURING SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
Address: 000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
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STATE OF NEW YORK
COUNTY OF_________________
CORPORATE ACKNOWLEDGMENT
The undersigned, a Notary Public in and for the above State and County,
does hereby certify that on June 27, 2002, before me personally appeared
___________________________, to me known to be the identical individual(s)
described in and who executed the foregoing instrument of Guaranty as the
officer indicated of the BOUNDLESS MANUFACTURING SERVICES, INC., to whomz I
first made known the contents thereof, and who being by me duly sworn, did
depose and say that same was signed and delivered as a free and voluntary act
and deed, for the uses and purposes therein set forth, and that same was signed
by due authority of the Board of Directors of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand.
___________________________
Notary Public
Commission Expires:
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