MASTER RENTAL AND FINANCING AGREEMENT GUARANTY
Exhibit 10.34
| GUARANTOR: | LESSOR: |
| THE SHERIDAN GROUP INC. | HP FINANCIAL SERVICES (SINGAPORE) PTE |
| 00000 XxXxxxxxx Xxxx | LTD |
| Suite 260 | 000 Xxxxxxxxx Xxxx |
| Xxxx Xxxxxx | Xxxxxxxxx 000000. |
| Xxxxxxxx 00000 | |
| Xxxxxx Xxxxxx of America. | |
| LESSEE: | Master Rental and Financing Agreement Number |
| GPN Asia Pte Ltd | 30242/S/l (the "Master Agreement") |
| 00 Xxxxx Xxxx 0, | |
|
#00-00X
Xxxxxxxxx Xxxx Xxxxxx, Xxxxxxxxx 000000
|
WITNESSETH:
WHEREAS,
GPN Asia Pte Ltd of 00
Xxxxx Xxxx 0, #00-00X Xxxxxxxxx Xxxx Xxxxxx, Xxxxxxxxx 000000 (the
"Lessee"), desires that HP Financial Services (Singapore) Pte
Ltd (the "Lessor"), purchase and lease and/or provide financing to
Lessee from time to time certain Equipment pursuant to that certain Master
Rental and Financing Agreement Number 30242/S/l dated as of August 14,
2007 by
and between Lessor and Lessee (the "Master Agreement") and Equipment Schedules
and Certificates of Acceptance
executed and delivered by Lessee
thereunder (the Master Agreement, such Schedules and Certificates of Acceptance
together with all other agreements, documents and instruments related thereto
being referred, to herein collectively as the "Lease Documents");
and
WHEREAS,
Lessor requires, as a condition of its purchase of such Equipment and lease
and/or financing thereof to Lessee pursuant to the Lease Documents, that
The Sheridan Group Inc., a Maryland USA corporation, as
"Guarantor" execute and deliver this Master Rental and Financing Agreement
Guaranty ("Guaranty") to unconditionally guarantee to Lessor the full and
prompt
observance and performance when due of all obligations of the Lessee under
the
Lease Documents;
WHEREAS,
Guarantor derives substantial direct and indirect benefit (economic or
otherwise) from the operations of Lessee and from Lessor's extension of
leasing
and/or financing facility to Lessee and is willing to execute and deliver
this
Guaranty:
NOW,
THEREFORE, in order to
induce Lessor to purchase and lease and/or finance Equipment to the Lessee
pursuant to the Lease Documents, and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the Guarantor
intending to be legally bound, hereby agrees as follows:
1. GUARANTY. Guarantor
hereby unconditionally and irrevocably guarantees to Lessor the full and
prompt
payment,
observance and performance of all present and future debts, liabilities
and
obligations, direct or indirect, now or at any time and from time to time
hereafter due or owing from Lessee to the Lessor (collectively, "Guaranteed
Obligations") under the Lease Documents to the extent not satisfied by
Lessee
but subject to the limitation that Guarantor's liability shall not exceed
in
total aggregate seventy five percent (75%) of all amounts now or at any
time and
from time to time due and owing from Lessee to Lessor up to a maximum cap
of USD4,000,000 (USD4million). This Guaranty is absolute, continuing, unlimited
(except as explicitly set forth herein) and independent, and shall not
be
affected, diminished or released for any reason whatsoever (except as expressly
provided in Clause 5 hereof), and, except as expressly provided in the
last
sentence of this Section 1, Guarantor waives all rights and defenses relating
thereto, including but not limited to, the following: (a) any invalidity
or lack
of enforceability of any of the Guaranteed Obligations; or (b) the absence
of
any attempt by Lessor to collect any of the Guaranteed Obligations from
Lessee
or any other guarantor, or the absence of any other action to enforce the
same:
or (c) the renewal, extension (without regard to the number or term thereof),
acceleration or any other change in the time for payment of, or other terms
relating to the Guaranteed Obligations; or (d) any modification, amendment,
waiver, or other change of the terms of any instrument evidencing the Guaranteed
Obligations: or (e) the failure by Lessor to take any steps to perfect
and
maintain its security interest in, or to preserve rights to, any security
or
collateral relating to the Guaranteed Obligations or the release (except
as
expressly provided in Clause 5 hereof), by operation of law or otherwise,
of any
security-interest, security, collateral or right of recourse or liability
relating to the Guaranteed Obligations; or (f) any action affecting any
Equipment, lessee or any other guarantor; (g) any judicial or governmental
action affecting Lessee, the Equipment or the Guaranteed Obligations, including
but not limited to, Lessee's release of the Guaranteed Obligations or the
rejection or disaffirmance of the Master Agreement, any Schedule or Certificate
of Acceptance or any other Lease Document or any of the terms thereof:
or (h)
disability, defense or cessation of the liability of Lessee; or (i) any
assignment
or transfer of any rights relating to the Guaranteed Obligations: or (j)
the
disallowance of all or any portion of Lessor's claim(s) for repayment of
the
Guaranteed Obligations under any provision of the United States Bankruptcy
Code
or the Bankruptcy and Insolvency Act of Canada, or any similar or successor
statute, or any other rule, regulation or ordinance; or (k) any other
circumstances which might otherwise constitute a defense or a discharge
of
Lessee, Guarantor or any other guarantor. Notwithstanding the foregoing,
Guarantor may assert the defense of prior payment of the Guaranteed Obligations
and any defense available to Lessee that results from a material breach
by the
Lessor of the Lease Documents other than that as expressly waived in the
preceding sentence.
2. GUARANTOR'S
REPRESENTATIONS AND WARRANTIES. The Guarantor
represents and warrants that: (a) The Guarantor's execution and performance
of
this Guaranty shall not (i) violate or result in a default or breach
(immediately or with the passage of time) under any contract, agreement
or
instrument to which the Guarantor is a party or by which the Guarantor
is bound,
(ii) violate or result in a default or breach under any order, decree,
award,
injunction, judgment, law, regulation or rule applicable to Guarantor,
(iii) cause or result in the imposition or creation of any
lien upon any property of the Guarantor, or (iv) violate or result in a
breach
of the articles of incorporation or bylaws of the
Guarantor; and (b) the Guarantor has the full power and capacity to enter
into
and perform under this Guaranty, which has been authorized by all necessary
corporate action on behalf of the Guarantor; and (c) No consent, license
or
approval of, or filing or registration with, any governmental authority
is
necessary for the execution and performance hereof by the Guarantor; and
(d)
this Guaranty constitutes the valid and binding obligation of the Guarantor
enforceable in accordance with its terms; and (e) this Guaranty promotes
and
furthers the business and interests of the Guarantor and the creation of
the
obligations hereunder will result in direct financial benefit to the
Guarantor.
3. WAIVERS.
As a further inducement to Lessor and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Guarantor
irrevocably waives diligence, presentment, demand for payment, protest
or notice
of any default or nonperformance by Lessee, all affirmative defenses, offsets
and counterclaims against Lessor (except as stated in the last sentence
of
Section 1 above or any claim based on the gross negligence or willful misconduct
of Lessor), any right to the benefit of any security or statute of limitations,
and any requirement that Lessor proceed first against Lessee, any other
guarantor or any collateral security. Until the Guaranteed Obligations
shall
have been, paid in full,Guarantor shall have no right of subrogation. Guarantor
hereby waives any and all defenses to payment and suretyship claims (except
as
stated in the last sentence of Section 1 above or any claim based on the
gross
negligence or willful misconduct of Lessor) as may arise by virtue of Lessor's
dealings with Lessee.
4. SUBORDINATION.
Guarantor hereby subordinates any sums now or hereafter due to Guarantor
from
Lessee or any other guarantor to the payment of any sums now or hereafter
due to
Lessor. Notwithstanding the foregoing subordination, Guarantor may receive
and
hold any ordinary dividends or other payments made to Guarantor by Lessee
or any
other guarantor in the ordinary course of business until such time as Lessor
shall have notified Guarantor that Lessee is in default under the Lease
Documents.
5. CONTINUING
GUARANTY; JOINT LIABILITY. This is a continuing Guaranty and shall not
be revoked or terminated by Guarantor so long as any amount owed to Lessor
under
the Lease Documents remains unpaid. Notwithstanding the foregoing, Guarantor
may
terminate this Guaranty prospectively as to any obligations of Lessee under
the
Lease Documents arising after the receipt by Lessor of a written notice
from
Guarantor of such termination, provided that no such termination shall
release
Guarantor or in any way affect Guarantor's obligations hereunder with respect
to
the obligations of Lessee under the Lease Documents arising prior to Lessor's
receipt of such notice. This Guaranty shall be reinstated if and to the
extent
that for any reason any payment of the Guaranteed Obligations is rescinded
or
must be otherwise restored, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise. If more than one Guarantor is named hereunder,
the liability of each shall be joint and several.
6. ASSIGNMENT.
This Guaranty may not be assigned by Guarantor and is binding upon the
respective successors and permitted assigns of Guarantor. Lessor shall
have the
unqualified right to assign this Guaranty or any benefits
hereunder to any party, without the consent of Guarantor or
Lessee.
7. COSTS
AND EXPENSES. Guarantor shall pay or reimburse Lessor on demand for all
costs and expenses, including, without limitation, all court costs and
reasonable legal fees and expenses incurred by the Lessor at any time to
enforce, protect, preserve or defend its rights and remedies hereunder
and with
respect to any other security granted by Lessee to and in favor of the
Lessor.
8. FINANCIAL
STATEMENTS; LESSEE'S FINANCIAL CONDITION. Upon Lessor's reasonable
request, Guarantor hereby agrees to furnish to Lessor copies of its annual
report or its annual audited financial statements, including a copy of
the
Balance Sheet and Income Statement of Guarantor or copies of Guarantor's
annual
statement on Form 10-K to the Securities and Exchange Commission. In the
event
Guarantor is no longer required to file or no longer voluntarily files
periodic
reports with the Securities and Exchange Commission pursuant to the Securities
and Exchange Act of 1934, or any other law requiring such public reports,
Guarantor shall furnish to Lessor financial statements
of any corporation that owns a controlling interest in Guarantor and is
required
to file such statements. Guarantor hereby agrees that it will keep itself
informed as to the financial condition of Lessee and as to all other
circumstances respecting Lessee and its business as are
relevant to the Guaranteed Obligations and that Lessor shall have no duty
to so
inform Guarantor.
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9.
ENTIRE
AGREEMENT. This document contains the entire agreement of the parties
concerning the guarantee of the Guaranteed Obligations by Guarantor and
may not
be amended or modified except by a writing signed by Guarantor and
Lessor.
10. DEFINITIONS.
Capitalized terms used in this Guaranty and not otherwise defined herein
shall
have the meanings set forth in the Master Agreement
11. CHOICE
OF LAW; SUCCESSORS. THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS
(AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW
JERSEY. If any provision of this Guaranty shall be prohibited by or
invalid under that law, such provision shall be ineffective only to the
extent
of such prohibition or invalidity, without invalidating the remainder of
such
provision or the remaining provisions of this Guaranty. GUARANTOR WAIVES
ANY RIGHT TO TRIAL BY JURY. Guarantor consents to the jurisdiction of
any local, state or Federal court located within the State of New Jersey,
and
waives any objection relating to improper venue or forum non conveniens
to the conduct of any proceeding in any such, court.
IN
WITNESS WHEREOF, the undersigned has executed and delivered, or has
caused this Guaranty to be executed and delivered by its
representatives duly authorized as of the date first
set forth
hereinabove.
| GUARANTOR: THE SHERIDAN GROUP INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
| Title: EVP and Chief Financial Officer | ||
| Date: October 3, 2007 | ||
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