Exhibit 10.9
SURETY AGREEMENT
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To: CoreStates Bank, N.A., Date:__________________
in its capacity as agent ("Agent")
for the Lenders (as defined below)
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
To induce Lenders (as defined below) to establish and/or continue financing
arrangements with and consider making or continuing certain loans and extending
or continuing to extend credit from time to time to Phoenix Color Corp. and
Alpha Systems, Inc. (collectively, "Borrowers") the Undersigned, intending to be
legally bound, hereby guarantees and becomes surety for the unconditional and
prompt payment and performance of all the Obligations of Borrowers to Lenders.
The Undersigned shall also pay or reimburse Agent, or Lenders, on demand for all
reasonable costs and expenses, including without limitation reasonable
attorneys' fees, incurred by Agent, or Lenders at any time to enforce, protect,
preserve, or defend Agent's rights hereunder and with respect to any property
securing now or hereafter this Surety Agreement. All payments hereunder shall
be made in lawful money of the United States, in immediately available funds.
Unless otherwise defined herein, all capitalized terms shall have the respective
meanings given to such terms in that certain Loan and Security Agreement dated
the date hereof among Borrowers, Agent, Fleet Bank of Massachusetts, N.A., as
Co-Agent and the financial institutions parties thereto from time to time
(collectively, "Lenders") (as it may hereafter be supplemented, restated,
superseded, amended, or replaced from time to time, the "Loan Agreement").
The Undersigned further undertakes and agrees as follows:
1. The Undersigned represents and warrants that:
(a) The Undersigned's execution and performance of this Surety
Agreement 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 Undersigned is a party, or by which the Undersigned is bound, (ii) violate
or result in a default or breach under any order, decree, award, injunction,
judgment, law, regulation or rule or (iii) cause or result in the imposition or
creation of any lien upon any property of the Undersigned.
(b) The Undersigned has the full power and capacity to enter into
and perform under this Surety Agreement.
(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 Undersigned.
(d) This Surety Agreement constitutes the valid and binding
obligation of the Undersigned enforceable in accordance
with its terms.
(e) This Surety Agreement promotes and furthers the business and
interests of the Undersigned, and the incurrence of the Obligations by Borrowers
and creation of the obligations hereunder will result in direct financial
benefit to the Undersigned.
2. The Undersigned hereby waives notice of (a) acceptance of this Surety
Agreement, (b) the existence or incurring from
time to time of any Obligations guaranteed hereunder, (c) the
existence of any Event of Default, the making of demand, or the taking of any
action by Agent, under the Loan Agreement, and (d) demand and default hereunder.
3. The Undersigned hereby consents and agrees that Agent may at any time
or from time to time in its discretion (a) extend or change the time of payment,
and/or the manner, place or terms of payment of any or all Obligations, (b)
amend, supplement or replace the Loan Agreement or any other Loan Document, (c)
renew, extend, modify, increase (without limit of any kind and whether related
or unrelated) or decrease Loans and extensions of credit to Borrowers, (d)
modify the terms and conditions under which Loans and extensions of credit may
be made to Borrowers, (e) settle, compromise or grant releases for liabilities
of Borrowers, and/or any other person or persons liable with Undersigned for,
any Obligations, (f) exchange, release, surrender, sell, subordinate, or
compromise any Collateral of any party now or hereafter securing any of the
Obligations, and (g) apply any and all payments received by Agent at any time
against the Obligations in any order as Agent may determine; all of the
foregoing in such manner and upon such terms as Agent may see fit, and without
notice to or further consent from the Undersigned, who hereby agrees to be and
shall remain bound upon this Surety Agreement notwithstanding any such action on
Agent's part.
4. The liability of the Undersigned hereunder is absolute and
unconditional and shall not be reduced, impaired or affected in any way by
reason of (a) any failure to obtain, retain or preserve, or the lack of prior
enforcement of, any rights against any person or persons (including Borrowers
and Undersigned) or in any property, (b) the invalidity or unenforceability of
any Obligations or rights in any Collateral, (c) any delay in making demand upon
Borrowers or any delay in enforcing, or any failure to enforce, any rights
against Borrowers or in any Collateral even if such rights
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are thereby lost, (d) any failure, neglect or omission on Agent's part to obtain
or perfect any lien upon, protect, exercise rights against, or realize on, any
property of Borrowers (including, without limitation, the Collateral), the
Undersigned or any other party securing the Obligations, (e) the existence or
nonexistence of any defenses which may be available to Borrowers with respect to
the Obligations, (f) any failure to proceed against Borrowers or any Collateral
in a commercially reasonable manner, or (g) the commencement of any bankruptcy,
reorganization, liquidation, dissolution or receivership proceeding or case
filed by or against Borrowers.
5. If any or all payments made from time to time to Agent (or any
Lender) with respect to any obligation hereby guaranteed are recovered from, or
repaid by, Agent (or any Lender) in whole or in part in any bankruptcy,
reorganization, insolvency or similar proceeding instituted by or against any
Borrower, this Surety Agreement shall continue to be fully applicable to such
obligation to the same extent as if the recovered or repaid payment(s) had never
been originally made on such obligation.
6. All rights and remedies hereunder and under the Loan Agreement and
other Loan Documents are cumulative and not alternative, and Agent may proceed
in any order from time to time against Borrowers, the Undersigned and/or any
other obligor of Borrowers' Obligations and their respective assets. Agent
shall not have any obligation to proceed against, or exhaust any or all of
Agent's rights against, any Borrower prior to proceeding against the Undersigned
hereunder. Agent may proceed against the Collateral in any order as Agent
determines in its sole discretion and the Undersigned hereby waives any right to
compel or cause Agent (or any Lender) to marshal any assets in favor of the
Undersigned, or against, or in payment or performance of, any or all of the
Obligations.
7. Any and all rights of any nature of the Undersigned to subrogation,
reimbursement or indemnity and any right of the Undersigned to recourse to any
assets or property of Borrowers for any reason shall be unconditionally
subordinated to all of Agent's rights under the Loan Agreement and the
Undersigned shall not
at any time exercise any of such rights unless and until all of the Obligations
have been unconditionally paid in full.
8. Agent's books and records of any and all of Borrowers' Obligations,
absent manifest error, shall be prima facie evidence against the Undersigned of
the indebtedness due to Lenders or to become due to Agent hereunder.
9. This Surety Agreement shall constitute a continuing surety obligation
with respect to all Obligations from time to time incurred or arising and the
liability of the Undersigned under this
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Surety Agreement may not be revoked or terminated.
10. The Undersigned agrees that Agent (and any Lender) shall have a right
of setoff against any and all property of the Undersigned now or at any time in
Agent's (or any Lender's) possession, including without limitation deposit
accounts, and the proceeds thereof, as security for the obligations of the
Undersigned hereunder.
11. If an Event of Default occurs and is continuing under the Loan
Agreement, then all of the Undersigned's obligations of every kind or nature to
Agent hereunder shall, at Agent's option, become immediately due and payable and
Agent may at any time and from time to time take any and/or all actions and
enforce all rights and remedies available hereunder or under applicable law to
collect the Undersigned's liabilities hereunder.
12. Failure or delay in exercising any right or remedy against the
Undersigned hereunder shall not be deemed a waiver thereof or preclude the
exercise of any other right or remedy hereunder. No waiver of any breach of or
provision of this Surety Agreement shall be construed as a waiver of any
subsequent breach or of any other provision. The invalidity or unenforceability
of any provision hereof shall not affect the remaining provisions which shall
remain in full force and effect.
13. This Surety Agreement shall (a) be legally binding upon the
Undersigned, and the Undersigned's heirs, executors, administrators, successors
and assigns, provided that the Undersigned's obligations hereunder may not be
delegated or assigned without Agent's prior written consent and (b) benefit any
and all of Agent's (and Lenders') successors and assigns.
14. This Surety Agreement embodies the whole agreement and understanding
of the parties hereto relative to the subject matter hereof. No modification or
waiver of any provision hereof shall be enforceable unless approved by Agent in
writing.
15. This Surety Agreement shall in all respects be interpreted,
construed and governed by the substantive laws of the Commonwealth of
Pennsylvania. The Undersigned irrevocably submits to the jurisdiction of the
Courts of the Commonwealth of Pennsylvania and the United States District Court
for the Eastern District of Pennsylvania for the purposes of any litigation or
proceeding hereunder or concerning the terms hereof.
16. SURETY (AND AGENT) BY ITS EXECUTION HEREOF WAIVES ANY AND ALL RIGHTS
EITHER MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION ARISING WITH
RESPECT TO THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO.
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17. (a) In any action or proceeding brought by Agent to enforce the
terms hereof, the Undersigned waives personal service of the summons, complaint,
and any motion or other process, and agrees that notice thereof may be served by
registered or certified mail, return receipt requested or by nationally
recognized overnight courier at the address of the Undersigned set forth on the
signature page hereof. Such service shall be deemed made on the date of
delivery at such address.
(b) Any and all notices which may be given to the
Undersigned by Agent hereunder shall be sent to the Undersigned
at the address of the Undersigned set forth on the signature page hereof and
shall be deemed given to and received (on the date delivered) by the Undersigned
if personally delivered or if sent by facsimile transmission or if sent in the
manner provided for service of process in paragraph 17(a) above.
18. The Undersigned acknowledges that the rights and responsibilities of
Agent under this Surety Agreement with respect to any action taken by Agent or
the exercise or non-exercise by Agent of any action, judgment or other right or
remedy provided for herein or resulting or arising out of this Surety Agreement
shall be governed, as between Agent and Lenders, by the Loan Agreement and by
such other agreements with respect thereto as may exist from time to time among
them; but, as between Agent and the Undersigned, Agent shall be conclusively
presumed to be acting as agent for Lenders with full and valid authority so to
act or refrain from acting, and Surety shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority. All references
hereunder to any rights or remedies of Agent, or to any obligations owing to
Agent hereunder, shall be deemed to refer to such rights and remedies as Agent
may exercise on behalf of itself and the Lenders for the ratable benefit of the
Lenders.
DATED the date and year first above written.
Witness:______________________ ________________________[SEAL]
Address: _____________________
_____________________
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STATE OF :
: Ss
:
COUNTY OF :
I HEREBY CERTIFY that, on this _______ day of _____________, 1996, before
me, the undersigned, a Notary Public in and or the State aforesaid, appeared
____________________, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, and acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal on the day and
year first above mentioned.
_____________________________
Notary Public
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Schedule to the Surety Agreement
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The foregoing Surety Agreement was executed by the following
stockholders:
Xxxxx Xx Xxxxx
Xxxxxx Xxxxxxxxx
Xxxxx Xxxx
Xxxxxx Xxxx
Xxxxxxx XxXxxxxxx
Xxxxxx Xxxxxx
