0
XXX XXXXX XXXXXXXXX BANK, N.A. XXXXXX X. XXXXXX
380 Madison Avenue Vice President
Xxx Xxxx, Xxx Xxxx 00000
[LOGO] CHASE
January 12, 1996
Xx. Xxxxxxx Xxx, President
Linographics Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxx:
Reference is made to the Credit Agreement dated as of December 19, 1995, as
amended, between Linographics Corporation (the "Borrower") and The Chase
Manhattan Bank, N.A. (the "Bank") (as amended or otherwise modified from time to
time). Terms used herein which are defined in the Credit Agreement are used
herein as therein.
It is hereby agreed by the Borrower and the Bank as follows:
The Credit Agreement is, effective as of January 12, 1996, hereby amended as
follows:
1. All references to T/X Corporation will now apply to Linographics (Delaware
Corporation). Linographics (Delaware Corporation) will be a wholly owned
subsidiary of Unidigital Corp. We delete our reference to T/X Corporation as a
wholly owned subsidiary of Linographics Corp.
2. Covenants, Post Distribution of S-Corp Earnings, is amended to require a
Minimum Tangible Net Worth of $775,000 through 3/31/96, at which time the
requirement for the Minimum Tangible Net Worth Covenant shall increase to
$800,000.
3. With reference to the Minimum Debt Service Coverage Covenant, it is noted
that no principal defined as Short Term Bank Borrowing is included in the Fixed
Principal calculation of this covenant.
4. The Business Term Loan Agreement dated 12/21/95 is amended by deleting
Section i, Loans or Investments, and Section j, Dividends.
On and after the effective date of this letter amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", or words of like
import referring to the Credit Agreement, shall mean the Credit Agreement as
amended by this letter amendment.
2
If you agree to the terms and provisions hereof, please evidence your agreement
by executing and returning this letter to The Chase Manhattan Bank, N.A., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx. This letter
amendment shall become effective as of January 12, 1996 when and if the
counterparts of this letter amendment shall have been executed by the Lender and
the Borrower.
Except as specifically amended above, the Credit Agreement and all other Loan
Documents, shall remain in full force and effect and are hereby ratified and
confirmed.
Sincerely,
THE CHASE MANHATTAN BANK, N.A,
/s/Xxxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx, Vice President
The foregoing is acknowledged and agreed to as of January 1996:
--,
Linographics Corporation
By: /s/ Xxxxxxx X. Xxx
----------------------
ITS: President
Date: 11/12/96
3
GRID TIME PROMISSORY NOTE
(PRIME RATE--360-DAY BASIS)
$850,000.00 New York, New York
12/22, 1995
For value received, the undersigned unconditionally (and if more than one,
jointly and severally) promises to pay to the order of THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) (the "Bank"), at its principal office located at 0
Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal amount of
Eight Hundred Fifty Thousand DOLLARS ($850,000.00) or, if less, the unpaid
principal amount of each loan made to the undersigned by the Bank and
outstanding under this Note, on the maturity date(s) as shown on the attached
schedule or any continuation of the schedule.
The undersigned promise(s) to pay interest on the unpaid balance of the
principal amount of each such loan from and including the date of each such
loan to but excluding the due date of such loan at a variable rate per annum
equal to: (a) that rate of interest from time to time announced by the Bank at
said principal office as its prime commercial lending rate (the "Prime Rate")
plus (b) 1/2% (the "Margin"). Interest shall be payable on the first day of
each calendar month (commencing on the first such date occurring after the date
of the first such loan) and on any payment of such principal. Any principal not
paid when due (whether at stated maturity, by acceleration or otherwise) shall
bear interest from and including the date due to but excluding the date paid in
full at a variable rate per annum equal to: (x) 2% plus (y) the Prime Rate plus
(z) the Margin; such interest to be payable on demand and on any payment of
such principal. The interest rate on this Note shall change in accordance with,
and changes in such interest rate shall be effective as of the effective date
of, announcements by the Bank of changes in the Prime Rate. Interest shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
All payments under this Note shall be made in lawful money of the United
States of America and in immediately available funds at the Bank's principal
office specified above. If any loan evidenced by this Note becomes due and
payable on a Saturday, Sunday or a day that is not a banking day in New York
City, the maturity of such loan shall be extended to the next succeeding
banking day, and interest shall be payable for such extension on such loan at
the rate of interest specified in this Note. The Bank may (but shall not be
obligated to) debit the amount of any payment under this Note that is not made
when due to any deposit account of (any of) the undersigned with the Bank. If
the undersigned are more than one, all obligations of each of the undersigned
under this Note shall be joint and several. This Note may be prepaid without
penalty.
The date, amount and maturity date of each loan under this Note and each
payment of principal, loan(s) to which such principal is applied (which shall
be at the discretion of the Bank) and the outstanding principal balance of
loans, shall be recorded by the Bank on its books and prior to any transfer of
this Note (or, at the discretion of the Bank at any other time) endorsed by the
Bank on the schedule attached or any continuation of the schedule. Any such
endorsement shall be conclusive in the absence of manifest error.
If any of the following events of default shall occur with respect to (any of)
the undersigned: (a) the undersigned shall fail to pay the principal of, or
interest on, this Note, or any other amount payable under this Note, as and
when due and payable; (b) any representation or warranty made or deemed made by
the undersigned in this Note or in any document granting security or support
for (or otherwise executed in connection with) this Note or by any third party
supporting or liable with respect to this Note (whether by guaranty,
subordination, grant of security or any other credit support, a "Third Party")
in any document evidencing the obligations of a Third Party (this Note and all
of the foregoing documents of the undersigned or a Third Party being the
"Facility Documents") or which is contained in any certificate, document,
opinion, financial or other statement furnished at any time under or in
connection with any Facility Document, shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; (c) the
undersigned or any Third Party shall fail to perform or observe any term,
covenant or agreement contained in any Facility Document on its part to be
performed or observed; (d) the undersigned or any Third Party shall fail to pay
when due any indebtedness (including but not limited to indebtedness for
borrowed money) or if any such indebtedness shall become due and payable, or
shall be capable of becoming due and payable at the option of any holder
thereof, by acceleration of its maturity, or if there shall be any default by
the undersigned or any Third Party under any agreement relating to such
indebtedness; (e) the undersigned or any Third Party: (i) shall generally not,
or be unable to, or shall admit in writing its inability to, pay its debts as
such debts become due; (ii) shall make an assignment for the benefit of
creditors; (iii) shall file a petition in bankruptcy or for any relief under
any law of any jurisdiction relating to reorganization, arrangement,
readjustment of debt, dissolution or liquidation; (iv) shall have any such
petition filed against it and the same shall remain undismissed for a period of
30 days or shall consent or acquiesce thereto; or (v) shall have had a
receiver, custodian or trustee appointed for all or a substantial part of its
property; (f) the undersigned or any Third Party shall die, dissolve or for any
reason cease to be in existence or if the undersigned or any Third Party is a
partnership, any general partner shall die, dissolve or for any reason cease to
be in existence or cease to be a partner; (g) any Third Party Facility Document
shall at any time and for any reason cease to be in full force and effect or
shall be declared null and void, or its validity or enforceability shall be con-
4
tested by the relevant Third Party or such Third Party shall deny it has any
further liability or obligation under any Facility Document or shall fail to
perform its obligations under any Facility Document; (h) any security agreement
or other agreement whether by the undersigned or any Third Party) granting a
security interest, lien, mortgage or other encumbrance securing obligations
under any Facility Document shall at any time and for any reason cease to
create a valid and perfected first priority security interest, lien, mortgage
or other encumbrance in or on the property purported to be subject to such
agreement or shall cease to be in full force and effect or shall be declared
null and void, or the validity or enforceability of any such agreement shall
be contested by any party to such agreement, or such party shall deny it has
any further liability or obligation under such agreement or any such party
shall fail to perform any of its obligations under such agreement: THEN, in
any such case, if the Bank shall elect by notice to the undersigned, the
unpaid principal amount of this Note, together with accrued interest shall
become forthwith due and payable; provided that in the case of an event of
default under (e) above, the unpaid principal amount of this Note, together
with accrued interest, shall immediately become due and payable without any
notice or other action by the Bank.
The undersigned waive(s) presentment, notice of dishonor, protest and any
other notice or formality with respect to this Note.
The undersigned agree(s) to reimburse the Bank on demand for all costs,
expenses and charges (including, without limitation, fees and charges of
external legal counsel for the Bank and costs allocated by its internal legal
department) in connection with the interpretation, performance or enforcement
of this Note.
This Note shall be binding on (each of) the undersigned and its successors and
assigns and shall inure to the benefit of the Bank and its successors and
assigns, except that the undersigned may not delegate any obligations
hereunder without the prior written consent of the Bank. Without limiting any
provision of this Note, the obligations under this Note shall continue in full
force and effect and shall be binding on: (a) the estate of the undersigned if
(any of) the undersigned is an individual; and (b) any successor partnership
and on previous partners and their respective estates if (any of) the
undersigned is a partnership, regardless of any change in the partnership as a
result of death, retirement or otherwise.
The undersigned consent(s) to the nonexclusive jurisdiction and venue of the
state or federal courts located in the City of New York. Service of process by
the Bank in connection with any dispute shall be binding on the undersigned if
sent to the undersigned by registered mail at the address(es) specified below.
The undersigned waive(s) any right the undersigned may have to jury trial.
This Note shall be governed by, and interpreted and construed in accordance
with, the law of the State of New York; provided that the foregoing is not
intended to limit the maximum rate of interest which may be charged or
collected by the Bank on this Note if, under the law applicable to it, the Bank
may charge or collect such interest at a higher rate than is permissible under
the law of said State. In no case shall the interest on this Note exceed the
maximum amount which the Bank may charge or collect under such law applicable
to it.
Address for notices:
00 Xxxx 00xx Xxxxxx Linographics Corporation
----------------------------------- -----------------------------------
Xxx Xxxx, XX 00000 By /s/ Xxxxxxx X. Xxx
----------------------------------- --------------------------------
Title: President
----------------------------------- By --------------------------------
Title:
Address for notices:
----------------------------------- -----------------------------------
----------------------------------- By --------------------------------
Title:
----------------------------------- By --------------------------------
Title:
5
[LETTERHEAD] CHASE MANHATTAN
December 19, 1995
BY HAND
Xx. Xxxxxxx X. Xxx, President
Linographics Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxx:
The Chase Manhattan Bank, N.A. (the "Bank") is pleased to make available to
Linographics Corporation (Linographics) and T/X Corporation (T/X), its
wholly-owned subsidiary, Credit Facilities in the aggregate amount of
$1,300,000, including $300,000 in Term Loans to provide for the purchase of
equipment and leasehold improvements, and Lines of Credit to be extended at the
Bank's sole discretion, of up to $1,000,000 for working capital, subject but not
limited to, the following terms and conditions:
LINOGRAPHICS CORPORATION:
TERM LOAN/LEASING FACILITY
FACILITY:
A $150,000 five (5) year term loan shall be extended to Linographics for
leasehold improvements.
AMORTIZATION:
Sixty (60) monthly principal payments of $2,500, plus interest, and a final
principal payment, now estimated to be $2,500, due at maturity plus interest
thereon.
INTEREST RATE:
Floating Rate Option:
Bank's Prime Rate, plus one-half (1/2%) percent in effect from time to time,
360 day basis.
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Fixed Rate Option:
Bank's fixed rate money market option (herein called "Fixed Rate"). The Fixed
Rate shall be quoted to Linographics from time to time as of the date hereof and
fixed at the funding under the terms herein set forth. Interest shall be
calculated on the basis of a 360 day year. the fixed rate is subject to
availability as determined by the Bank. An indicative rate if the Term loan
closed today would be 8.25%.
PREPAYMENT:
FLOATING RATE:
Full or partial prepayment shall be permitted at any time without penalty on the
floating rate option.
FIXED RATE:
Full prepayment shall only be permitted provided that Linographics, in
consideration of its privilege to prepay the term loan, shall make an additional
payment to the Bank, which shall be equal to (a) the outstanding balance of the
Term Loan times (b) the years and/or fraction thereof remaining until the
maturity of the Term Loan times (c) the difference between (i) the Fixed Rate
and (ii) the yield on United States Government treasury obligations with a
maturity approximately equal to the remaining Term Loan term, if such yield is
less than the Fixed Rate. No partial prepayment shall be permitted.
COMMITMENT FEE:
Linographics shall pay the Bank a non-refundable fee of 1/2% ($750) of the Term
Loan, which is due upon signing of the Commitment Letter. If for any reason
whatsoever the Term Loan does not close, other than the willful default of the
Bank in making the Term Loan, the Bank may retain the entire Commitment Fee as
liquidated damages in view of the difficulty of establishing the actual damage
incurred by the Bank as a result of failure to close.
LINE OF CREDIT
FACILITY:
Up to a maximum of $850,000 will be available for working capital purposes.
INTEREST RATE:
Borrowings will be priced at the Bank's Prime Rate, plus one-half (1/2%)
percent.
BORROWING BASE:
All drawdowns will be subject to a maximum borrowing base not to exceed 80% of
eligible accounts receivable aged ninety (90) days and less. Linographics will
provide a monthly borrowing base certificate to the Bank within thirty (30) days
after the end of each month so long as there are loans outstanding under the
Line of Credit.
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Any credit which the Bank may extend will be on terms and conditions as we may
require at the time Linographics requests an advance and must be evidenced by
documents in form and substance satisfactory to the Bank.
FACILITY FEE:
A facility fee of one half (1/2%) percent ($4,250) payable upon signing of this
Commitment Letter. Thereafter, one half (1/2%) percent of the entire Line of
Credit will be collected on an annual basis on the anniversary date of the Line
of Credit.
The Bank will continue to offer the Credit Facility as outlined herein in its
sole discretion subject to the Linographics economic and financial condition
remaining acceptable to the Bank and Linographics maintenance of a satisfactory
relationship with the Bank. In any event, this Credit Facility is available
until December 31, 1996.
T/X CORPORATION:
TERM LOAN/LEASING FACILITY
FACILITY:
A $150,000 five (5) year term loan shall be extended to T/X for equipment
acquisition.
AMORTIZATION:
Sixty (60) monthly principal payments of $2,500, plus interest, and a final
principal payment, now estimated to be $2,500, due at maturity plus interest
thereon.
INTEREST RATE:
Floating Rate Option:
Bank's Prime Rate, plus one-half (1/2%) percent in effect from time to time, 360
day basis.
Fixed Rate Option:
Bank's fixed rate money market option (herein called "Fixed Rate"). The Fixed
Rate shall be quoted to T/X from time to time as of the date hereof and fixed at
the funding under the terms herein set forth. Interest shall be calculated on
the basis of a 360 day year. the fixed rate is subject to availability as
determined by the Bank. An indicative rate if the Term loan closed today would
be 8.25%.
PREPAYMENT:
FLOATING RATE:
Full or partial prepayment shall be permitted at any time without penalty on the
floating rate option.
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FIXED RATE:
Full prepayment shall only be permitted provided that T/X, in consideration of
its privilege to prepay the term loan, shall make an additional payment to the
Bank, which shall be equal to (a) the outstanding balance of the Term Loan times
(b) the years and/or fraction thereof remaining until the maturity of the Term
Loan times (c) the difference between (i) the Fixed Rate and (ii) the yield on
United States Government treasury obligations with a maturity approximately
equal to the remaining Term Loan term, if such yield is less than the Fixed
Rate. No partial prepayment shall be permitted.
COMMITMENT FEE:
T/X shall pay the Bank a non-refundable fee of 1/2% ($750) of the Term Loan
which is due upon signing of the Commitment Letter. If for any reason whatsoever
the Term Loan does not close, other than the willful default of the Bank in
making the Term Loan, the Bank may retain the entire Commitment Fee as
liquidated damages in view of the difficulty of establishing the actual damage
incurred by the Bank as a result of failure to close.
LINE OF CREDIT
FACILITY:
Up to a maximum of $150,000 will be available for working capital purposes.
INTEREST RATE:
Borrowings will be priced at the Bank's Prime Rate, plus one-half (1/2%)
percent.
CLEAN-UP:
No amounts may be outstanding under this facility during a 30 consecutive day
period during the year.
Any credit which the Bank may extend will be on terms and conditions as we may
require at the time the T/X requests an advance and must be evidenced by
documents in form and substance satisfactory to the Bank.
FACILITY FEE:
A facility fee of one half (1/2%) percent ($750) payable upon signing of this
Commitment Letter. Thereafter, one half (1/2%) percent of the entire Line of
Credit will be collected on an annual basis on the anniversary date of the Line
of Credit.
The Bank will continue to offer the Credit Facility as outlined herein in its
sole discretion subject to T/X's economic and financial condition remaining
acceptable to the Bank and the T/X's maintenance of a satisfactory relationship
with the Bank. In any event, this Credit Facility is available until December
31, 1996.
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GENERAL CONDITIONS OF THE CREDIT FACILITY:
All extensions of credit which the Bank may grant will be evidenced by documents
in form and substance satisfactory to the Bank. The Bank will require the
Companies to furnish the following support, which must remain in place as long
as the Credit Facilities as outlined herein are outstanding:
COLLATERAL/CONDITIONS:
1) Priority UCC-1 Filing + GSA on all assets of Linographics Corp and T/X
Corp.
2) Management will subordinate $376,000 of loans due officers that will arise
out of payments to stockholders of $750,000, of which $500,000 will then be
lent back to the company by Linographics stockholders/officers. As it is
intended for these notes to be repaid at the time of, and with proceeds from
the Initial Public Offering (IPO), the bank will release its above
subordination at the time of the IPO, for it to be replaced by a loan of
$376,000 from Unidigital Corp to Linographics Corp, which is to be
subordinated to the Bank.
3) Require a no material adverse change letter from Management for Draft FYE
8/31/95.
4) Monthly borrowing base certificate when line is outstanding for Linographics
New York operation, with advances up to 80% of eligible A/R's 90 days and
less.
5) The Bank will release the subordination of the $376,000 loan from Unidigital
Corp to Linographics Corp. upon Linographics compliance with the Tangible Net
Worth Covenant exclusive of this subordinated debt.
6) Upon completion of Initial Public Offering (IPO), Chase will acquire
Corporate Guarantee of Unidigital Corp, the new parent holding company for
all facilities. The personal guaranties of Xxxx Xxx and Xxxxx XxXxxxxx will
be released upon successful completion of the IPO, and compliance with all
covenants and conditions as stated in this Commitment Letter.
COVENANTS: ALL COVENANTS ARE TO BE MEASURED FOR LINOGRAPHICS AND U.S. AFFILIATES
ON A COMBINED BASIS.
Pre-Distribution of S-Corp. Earnings
1. Minimum Tangible Net Worth (TNW) of $1.5 million, with TNW defined as Net
Worth plus subordinated debt less all intangibles including due from affiliates.
2. Minimum Debt Service Coverage (DSC) of 1.5 times, with DSC defined as
Earnings before interest, taxes, depreciation, and amortization (EBITDA) divided
by total fixed principal and lease payments plus interest expense.
Post-Distribution of S-Corp. Earnings
1) Minimum Tangible Net Worth of $800M.(Same definition as above)
2) Minimum Debt Service Coverage of 1.5 times (Same definition as above)
REPORTING:
1) Annual Fiscal consolidated statements prepared on an audited basis delivered
to the bank within 120 days for Unidigital Corp, along with consolidating
statements for each subsidiary.
2) Quarterly 10 K and 10 Q report for Unidigital Corp.
3) Internally prepared statements on Linographics and T/X on a semi-annual
basis.
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This letter is for your information only and is not to be shown to or relied
upon by third parties. This letter constitutes the entire understanding between
the Bank and the Company and supersedes all prior discussions.
The Credit Facility described herein will not be made available to the Companies
until they acknowledge its understanding and agreement to the above terms and
conditions. If this letter correctly sets forth your understanding of the terms
and conditions regarding the Credit Facility, please indicate your acceptance by
signing in the space indicated and returning the original to the Bank no later
than December 30, 1995. If not accepted by you, the offer contained herein shall
at the Bank's option expire. The Commitment Fee of $1,500 and Facility Fee of
$5,000 shall be payable upon your acceptance of this letter.
We appreciate this opportunity to work with you and look forward to the
continued development of our mutually beneficial relationship.
Very truly yours,
THE CHASE MANHATTAN BANK, N.A.
BY: /s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx
Vice President
AGREED AND ACCEPTED
ON THIS DAY 21st DAY OF DECEMBER 1995
LINOGRAPHICS CORPORATION
BY: /s/ Xxxxxxx X. Xxx
-------------------------
Title: President
T/X CORPORATION
BY:
-------------------------
Title:
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11
GUARANTY BY CORPORATION
WHEREAS, Linographics Corporation (hereinafter referred to as the
"Borrower"), a corporation organized under the laws of NEW YORK, (has obtained
or desires or may desire at some time and/or from time to time to obtain
financial accommodation from THE CHASE MANHATTAN BANK, N.A. and/or any of its
subsidiaries and/or affiliates (hereinafter, with their respective successors
and assigns, collectively or individually, as the context may require, referred
to as the "Bank"); and
WHEREAS, the undersigned (hereinafter referred to as the "Guarantor"),
a corporation organized under the laws of Delaware, represents that it owns
directly or indirectly a substantial amount of the stock of the Borrower and/or
is financially interested in its affairs and expects to derive advantage from
each and every such accommodation;
1. NOW, THEREFORE, for valuable consideration, the receipt whereof by
the Guarantor is hereby acknowledged, and to induce the Bank, at its option, at
any time or from time to time, to extend financial accommodation, with or
without security, to or for the account of the Borrower, or in respect of which
the Borrower may be liable in any capacity (the term "financial accommodation"
including, without limitation, extension of loans, credit or accommodation,
issuance or confirmation of letters of credit or creation of acceptances, or
discount or purchase of, or loans on, accounts, leases, instruments, securities,
documents, chattel paper and other security arrangements, or other property, or
entering into any foreign exchange, precious metals or other contract or
agreement between Borrower and the Bank), the Guarantor hereby unconditionally
guarantees to the Bank, irrespective of the validity, regularity or
enforceability of any instrument, writing or arrangement relating to or the
subject of any such financial accommodation (each such instrument, writing or
arrangement being hereinafter referred to as, and included in the term, "Credit
Arrangement") or of the obligations thereunder and irrespective of any present
or future law or order of any government (whether of right or in fact and
whether the Bank shall have consented thereto) or of any agency thereof
purporting to reduce, amend, restructure or otherwise affect any obligation of
the Borrower or other obligor or to vary the terms of payment, that the Borrower
will promptly perform and observe every agreement and condition in any Credit
Arrangement to be performed or observed by the Borrower, that all sums stated to
be payable in, or which become payable under, any Credit Arrangement, and all
other sums which may be owing by the Borrower to the Bank now or hereafter, will
be promptly paid in full when due, whether at maturity or earlier by reason of
acceleration or otherwise, or, if now due, when payment thereof shall be
demanded by the Bank, together with interest and any and all legal and other
costs and expenses paid or incurred in connection therewith by the Bank, and, in
case of one or more extensions of time of payment or renewals, in whole or in
part, of any Credit Arrangement or obligation, that the same will be promptly
paid or performed when due, according to each such extension or renewal, whether
at maturity or earlier by reason of acceleration or otherwise. The Guarantor
agrees that, as between the Guarantor and the Bank, the obligations of the
Borrower guaranteed hereunder may be declared to be due and payable for purposes
of this guaranty notwithstanding any stay, injunction or other prohibition which
may prevent, delay or vitiate any such declaration as against the Borrower and
that, in the event of any such declaration (or attempted declaration), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Guarantor for purposes of this guaranty. The
Guarantor further guarantees that all payments made by the Borrower to the Bank
on any obligation hereby guaranteed will, when made, be final and agrees that if
any such payment is recovered from, or repaid by, the Bank in whole or in part
in any bankruptcy, insolvency or similar proceeding instituted by or against
the Borrower, this guaranty shall continue to be fully applicable to such
obligation to the same extent as though the payment so recovered or repaid had
never been originally made on such obligation.
2. The Guarantor hereby consents that from time to time, without notice
to or further consent of the Guarantor, the performance or observance by the
Borrower of any Credit Arrangement or obligation may be waived or the time of
performance thereof extended by the Bank, and payment of any obligation hereby
guaranteed may be accelerated in accordance with any agreement between the Bank
and any party liable with respect thereto, or may be extended, or any Credit
Arrangement may be renewed in whole or in part, or the terms of any Credit
Arrangement or any part thereof may be changed, including increase or decrease
in the rate of interest thereon, or any collateral therefor may be exchanged,
surrendered or otherwise dealt with as the Bank may determine, and any of the
acts mentioned in any Credit Arrangement may be done, all without affecting the
liability of the Guarantor hereunder. The Guarantor hereby waives presentment of
any instrument, demand of payment, protest and notice of non-payment or protest
thereof or of any exchange, sale, surrender or other handling or disposition of
any such collateral, and any requirement that the Bank exhaust any right, power
or remedy or proceed against the Borrower under any Credit Arrangement or
against any other person under any other guaranty of, or security for, any of
the obligations guaranteed hereunder. No payment by the Guarantor pursuant to
any provision hereunder shall entitle the Guarantor, by subrogation to the
rights of the Bank or otherwise, to any payment by the Borrower (or out of the
property of the Borrower) except after payment in full of all sums (including
interest, costs and expenses) which may be or become payable by the Borrower to
the Bank at any time or from time to time.
3. This guaranty shall be a continuing guaranty, and the co-guarantor
or co-guarantors, if any, or any other party liable upon or in respect of any
obligation hereby guaranteed may be released without affecting the liability of
the Guarantor, and the Bank may continue to act in reliance hereon until the
receipt by the Bank, at its principal office at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and by the departments and offices of the Bank extending
financial accommodation to the Borrower, of written notice from the Guarantor
not to give further financial accommodation in reliance hereon, provided that
such notice shall not affect the obligations of the Guarantor hereunder with
respect to any such accommodation given prior to such notice.
12
4. The Bank may assign this guaranty or any of its rights and powers
hereunder, with all or any of the obligations hereby guaranteed, and may assign
and/or deliver to any such assignee any of the Security herefor and, in the
event of such assignment, the assignee hereof or of such rights and powers and
of such Security, if any such Security be so assigned and/or delivered, shall
have the same rights and remedies as if originally named herein in place of the
Bank, and the Bank shall be thereafter fully discharged from all responsibility
with respect to any such Security so assigned and/or delivered.
5. Notice of acceptance of this guaranty and of the incurring of any
and all of the obligations of the Borrower hereinbefore mentioned is hereby
waived. This guaranty and all rights, obligations and liabilities arising
hereunder shall be governed by and construed according to the laws of the State
of New York. Unless the context otherwise requires, all terms used herein which
are defined in the Uniform Commercial Code shall have the meanings therein
stated.
6. As security for its obligations hereunder, the Guarantor hereby
grants to the Bank a security interest in, a general lien upon and/or right of
set-off of, the following (herein referred to as the Security): All personal
property and fixtures of the Guarantor, whether now or hereafter existing or now
owned or hereafter acquired and wherever located, of every kind and description,
tangible or intangible, including, but not limited to, the balance of every
deposit account, now or hereafter existing, of the Guarantor with the Bank and
any other claim of the Guarantor against the Bank, now or hereafter existing,
and all money, goods (including equipment, farm products and inventory),
instruments, securities, documents, chattel paper, accounts, contract rights,
general intangibles, credits, claims, demands, precious metals and any other
property, rights and interests of the Guarantor, and shall include the proceeds,
products and accessions of and to any thereof. With respect to the Security, or
any part thereof, which at any time shall come into the possession or custody or
under the control of the Bank or any of its agents, associates or
correspondents, for any purpose, the right is expressly granted to the Bank,
at its discretion, to transfer to or register in the name of itself or its
nominee any of the Security; to exchange any of the Security for other property
upon any reorganization, recapitalization or other readjustment and in
connection therewith to deposit any of the Security with any committee or
depositary upon such terms as it may determine; to notify any account debtor or
obligor on an instrument to make payment to the Bank; and to exercise or cause
its nominee to exercise all or any powers with respect to the Security with the
same force and effect as an absolute owner thereof; all without notice (except
such notice as may be required by applicable law and cannot be waived) and
without liability except to account for property actually received by it.
Without limiting the generality of the foregoing, payments, distributions and/or
dividends, in securities, property or cash, including without limitation
dividends representing stock or liquidating dividends or a distribution or
return of capital upon or in respect of the Security or any part thereof or
resulting from any split-up, revision or reclassification of the Security or any
part thereof or received in exchange for the Security or any part thereof as a
result of a merger, consolidation or otherwise, shall be paid directly to and
retained by the Bank and held by it until applied as herein provided, as
additional collateral security pledged under and subject to the terms hereof. To
the extent permitted by applicable law, the Bank shall have the right, with or
without legal process and with or without prior notice or demand, to take
possession of the Security or any thereof and to enter any premises for the
purpose of taking possession thereof. The Bank shall be deemed to have
possession of any of the Security in transit to or set apart for it or any of
its agents, associates or correspondents. The right is expressly granted to the
Bank, at its discretion, to file one or more financing statements under the
Uniform Commercial Code naming the Guarantor as debtor and the Bank as secured
party and indicating therein the types or describing the items of Security
herein specified. Without prior written consent of the Bank the Guarantor will
not file or authorize or permit to be filed in any jurisdiction any such
financing or like statement in which the Bank is not named as the sole secured
party. The Bank shall not be required to take any steps necessary to preserve
any rights against prior parties to any of the Security. The Bank may use or
operate any of the Security for the purpose of preserving the Security or its
value in the manner and to the extent the Bank deems appropriate, but the Bank
shall be under no obligation to do so.
7. In the event of default under this guaranty, the Guarantor shall, at
the request of the Bank, assemble the Security at such place or places as the
Bank designates in its request. The Bank shall have the rights and remedies with
respect to the Security of a secured party under the Uniform Commercial Code
(whether or not the Code is in effect in the jurisdiction where the rights and
remedies are asserted). In addition, with respect to the Security, or any part
thereof, which shall then be or shall thereafter come into the possession or
custody of the Bank or any of its agents, associates or correspondents, the Bank
may sell or cause to be sold in the Borough of Manhattan, New York City, or
elsewhere, for cash or on credit or for future delivery, without assumption of
any credit risk, all or any of the Security at any broker's board or at public
or private sale, in any reasonable manner permissible under the Uniform
Commercial Code (except that, to the extent permitted thereunder, the Guarantor
hereby waives the requirements of said Code), free from any claim or right of
whatsoever kind, including any equity of redemption, of the Guarantor, any such
demand, notice or right and equity being hereby expressly waived and released.
The Guarantor will pay to the Bank all expenses (including reasonable attorneys'
fees and legal expenses incurred by the Bank) of, or incidental to, any actual
or attempted sale or any exchange, enforcement, collection, compromise or
settlement of any of the Security or receipt of the proceeds thereof, and for
the care of the Security and defending or asserting the claims of the Bank in
respect thereof, by litigation or otherwise; and all such expenses shall be
obligations of the Guarantor hereunder.
8. FOREIGN CURRENCY 0BLIGATIONS. With respect to each obligation (or
portion thereof)hereby guaranteed that is payable in a foreign currency, the
following provisions shall apply: the Guarantor shall be obligated to pay the
Bank the unpaid amount of such guaranteed obligation in the same foreign
currency and place in which such guaranteed obligation is payable by its terms;
provided, however, that the Guarantor may, at its option (or, if for any reason
whatsoever the Guarantor is unable to effect payment of such unpaid amount as
aforesaid, the Guarantor shall be obligated to) pay to the Bank at its principal
office in New York City the
13
equivalent of such unpaid amount in United States currency computed at the
Bank's selling-rate, most recently in effect on or prior to the date such
guaranteed obligation becomes due, for cable transfers of such foreign currency
to the place where such guaranteed obligation is payable. In any case in which
the Guarantor shall make or shall be obligated to make such payment in United
States currency, the Guarantor shall hold the Bank harmless from any loss
incurred by the Bank arising from any change in the value of United States
currency in relation to such foreign currency between the date such guaranteed
obligation becomes due and the date the Bank is actually able, following the
conversion of the United States currency paid by the Guarantor into such foreign
currency and remittance of such foreign currency to the place where such
guaranteed obligation is payable, to apply such foreign currency to such
obligation. The term "foreign currency" as used herein shall be deemed to refer
to that type of such currency which under applicable laws and regulations may be
used to pay and discharge such guaranteed obligation.
9. No provision of this guaranty may be modified or waived without the
prior written consent of the Bank.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed by its proper officers this 8th day of March, 1996.
Unidigital, Inc.
Attest By: /s/ Xxxxxxx X. Xxx
------------------------
Title: President
/s/ Xxxxxxx XxXxxxxx
--------------------------------
Secretary
[Seal]
14
STATE OF __________________
ss.:
COUNTY OF _________________
8th March 96
On the ___________________ day of _______________, 19 ____, before me
Xxxxxxx Xxx
came _____________________________________________________ , to me known, who,
305 Second
being by me duly sworn, did depose and say that he resides at ________________
Avenue, New York, N.Y. President
_______________________________________ ; that he is _________________________
Unidigital, Inc.
of ________________________________, the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
/s/ Xxxxxxx X. Xxx
-----------------------------------
Xxxxxxx XxXxxxxx
I, ___________________________________________________________________
Unidigital, Inc.
as Secretary of ________________________________________________ , a corporation
Delaware
duly organized and existing under the laws of ________________________________ ,
hereby certify that a meeting of the Board of Directors of said Corporation was
8th March 96
duly called and held on the _______________ day of _____________________, 19___
and that at said meeting, at which a quorum was present and voting throughout,
the following preambles and resolution, upon motion duly made and seconded,
were duly and unanimously adopted:
Linographics Corporation
"WHEREAS, _______________________________________________ (hereinafter
referred to as the 'Borrower'), a corporation organized and existing
New York
under the laws of __________________________________ has obtained or
desires or may desire at some time and/or from time to time obtain
loans or other financial accommodation from or conduct transactions with
The Chase Manhattan Bank, N.A. and/or any of its subsidiaries and/or
affiliates (hereinafter referred to as the 'Bank'); and
WHEREAS, this Corporation owns directly or indirectly a substantial
amount of the stock of the Borrower and/or is financially interested in
its affairs and expects to derive advantage from each and every such
loan, accommodation and/or transaction,
NOW, THEREFORE, BE IT
RESOLVED, that this Corporation guarantee the liabilities and
obligations of the Borrower and of others to the Bank in the manner set
forth in the agreement of guaranty presented to this meeting, which said
agreement of guaranty and all of the terms and provisions thereof are in
all respects approved and adopted, and that any of the officers of this
Corporation be and hereby are, and each of them hereby is, authorized
and directed to execute in the name and on behalf of this Corporation
and to deliver to the Bank an agreement of guaranty in said form with
such changes, if any, as the officer or officers of this Corporation
executing the same may approve, and to do such other acts and things as
may be necessary or advisable in order to carry out and perform on the
part of this Corporation the covenants, conditions and agreements on its
part to be carried out and performed as provided in said agreement of
guaranty and in order to carry out and effect the full intent and
purposes of this resolution."
As said Secretary, I further certify that the foregoing preambles and
resolution have not been repealed, annulled, altered or amended in any respect
but remain in full force and effect and that the annexed instrument is the form
of the agreement of guaranty presented to said meeting and referred to in and
approved by the aforesaid resolution.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
8th March 96
the said Corporation this ____ day of ___________________, 19 _____
/s/ Xxxxxxx XxXxxxxx
---------------------------------------
As Secretary of Said Corporation
