EXHIBIT 10.3
Guaranty and Suretyship
Agreement
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and
entered into as of this 23rd day of January, 2006, by Cadapult Graphic Systems,
Inc., a New Jersey corporation (the "Guarantor"), with an address at 0 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000-0000, in consideration of the extension
of credit by PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address at Xxx
Xxxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000, to Media Sciences,
Inc., a New Jersey corporation (the "Borrower"), and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby unconditionally
guarantees, and becomes surety for, the prompt payment and performance of all
loans, advances, debts, liabilities, obligations, covenants and duties owing by
the Borrower to the Bank or to any other direct or indirect subsidiary of The
PNC Financial Services Group, Inc., of any kind or nature, present or future
(including any interest accruing thereon after maturity, or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect (including those acquired by assignment or
participation), absolute or contingent, joint or several, due or to become due,
now existing or hereafter arising, whether or not (i) evidenced by any note,
guaranty or other instrument, (ii) arising under any agreement, instrument or
document, (iii) for the payment of money, (iv) arising by reason of an extension
of credit, opening of a letter of credit, loan, equipment lease or guarantee,
(v) under any interest or currency swap, future, option or other interest rate
protection or similar agreement, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any
other manner, or (vii) arising out of overdrafts on deposit or other accounts or
out of electronic funds transfers (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or other failure
of the Bank to receive final payment for, any check, item, instrument, payment
order or other deposit or credit to a deposit or other account, or out of the
Bank's non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository or other similar arrangements; and any
amendments, extensions, renewals and increases of or to any of the foregoing,
and all costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection and otherwise in connection
with any of the foregoing, including reasonable attorneys' fees and expenses
(hereinafter referred to collectively as the "Obligations"). If the Borrower
defaults under any such Obligations, the Guarantor will pay the amount due to
the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of
collection and the Bank shall not be required or obligated, as a condition of
the Guarantor's liability, to make any demand upon or to pursue any of its
rights against the Borrower, or to pursue any rights which may be available to
it with respect to any other person who may be liable for the payment of the
Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty and
will remain in full force and effect until all of the Obligations have been
indefeasibly paid in full, and the Bank has terminated this Guaranty. This
Guaranty will remain in full force and effect even if there is no principal
balance outstanding under the Obligations at a particular time or from time to
time. This Guaranty will not be affected by any surrender, exchange, acceptance,
compromise or release by the Bank of any other party, or any other guaranty or
any security held by it for any of the Obligations, by any failure of the Bank
to take any steps to perfect or maintain its lien or security interest in or to
preserve its rights to any security or other collateral for any of the
Obligations or any guaranty, or by any irregularity, unenforceability or
invalidity of any of the Obligations or any part thereof or
any security or other guaranty thereof. The Guarantor's obligations hereunder
shall not be affected, modified or impaired by any counterclaim, set-off
recoupment, deduction or defense based upon any claim the Guarantor may have
(directly or indirectly) against the Borrower or the Bank, except payment or
performance of the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit to
the Borrower from time to time, notice of default, diligence, presentment,
notice of dishonor, protest, demand for payment, and any defense based upon the
Bank's failure to comply with the notice requirements under Sections 9-611 and
9-612 of the Uniform Commercial Code as in effect from time to time are hereby
waived. The Guarantor waives all defenses based on suretyship or impairment of
collateral.
The Bank at any time and from time to time, without notice to or the
consent of the Guarantor, and without impairing or releasing, discharging or
modifying the Guarantor's liabilities hereunder, may (a) change the manner,
place, time or terms of payment or performance of or interest rates on, or other
terms relating to, any of the Obligations; (b) renew, substitute, modify, amend
or alter, or grant consents or waivers relating to any of the Obligations, any
other guaranties, or any security for any Obligations or guaranties; (c) apply
any and all payments by whomever paid or however realized including any proceeds
of any collateral, to any Obligations of the Borrower in such order, manner and
amount as the Bank may determine in its sole discretion; (d) settle, compromise
or deal with any other person, including the Borrower or the Guarantor, with
respect to any Obligations in such manner as the Bank deems appropriate in its
sole discretion; (e) substitute, exchange or release any security or guaranty;
or (f) take such actions and exercise such remedies hereunder as provided
herein.
3. Repayments or Recovery from the Bank. If any demand is made at any time
upon the Bank for the repayment or recovery of any amount received by it in
payment or on account of any of the Obligations and if the Bank repays all or
any part of such amount by reason of any judgment, decree or order of any court
or administrative body or by reason of any settlement or compromise of any such
demand, the Guarantor will be and remain liable hereunder for the amount so
repaid or recovered to the same extent as if such amount had never been received
originally by the Bank. The provisions of this section will be and remain
effective notwithstanding any contrary action which may have been taken by the
Guarantor in reliance upon such payment, and any such contrary action so taken
will be without prejudice to the Bank's rights hereunder and will be deemed to
have been conditioned upon such payment having become final and irrevocable.
4. Financial Statements. Unless compliance is waived in writing by the Bank
or until all of the Obligations have been paid in full, the Guarantor will
promptly submit to the Bank such information relating to the Guarantor's affairs
(including but not limited to annual financial statements and tax returns for
the Guarantor) or any security for the Guaranty as the Bank may reasonably
request.
In the event that any such information submitted to the Bank has been
prepared by an outside accountant, the same shall be accompanied by a statement
in writing signed by the accountant disclosing that the accountant is aware that
the information prepared by the accountant would be submitted to and relied upon
by the Bank in connection with the Bank's determination to grant or continue
credit.
5. Enforceability of Obligations. No modification, limitation or discharge
of the Obligations arising out of or by virtue of any bankruptcy, reorganization
or similar proceeding for relief of debtors under federal or state law will
affect, modify, limit or discharge the Guarantor's liability in any manner
whatsoever and this Guaranty will remain and continue in full force and effect
and will be enforceable against the Guarantor to the same extent and with the
same force and effect as if any such proceeding had not been instituted. The
Guarantor waives all rights and benefits which might accrue to it by reason of
any such proceeding and will be liable to the full extent hereunder,
irrespective of any modification, limitation or discharge of the liability of
the Borrower that may result from any such proceeding.
THE GUARANTOR EXPRESSLY WAIVES THE EFFECT OF ANY STATUTE OF LIMITATIONS OR
OTHER LIMITATIONS ON ANY ACTIONS UNDER THIS GUARANTY.
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6. Events of Default. The occurrence of any of the following shall be an
"Event of Default": (i) any Event of Default (as defined in any of the
Obligations); (ii) any default under any of the Obligations that does not have a
defined set of "Events of Default" and the lapse of any notice or cure period
provided in such Obligations with respect to such default; (iii) demand by the
Bank under any of the Obligations that have a demand feature; (iv) the
Guarantor's failure to perform any of its obligations hereunder which calls for
the payment of money when such money is due or the Guarantor's failure to keep,
observe or perform any of the other undertakings, conditions, stipulations,
agreements, covenants or obligations of the Borrower as set forth in this
Agreement, and such failure continues for twenty (20) days after the receipt of
written notice from the Bank; (v) the falsity, inaccuracy or material breach by
the Guarantor of any written warranty, representation or statement made or
furnished to the Bank by or on behalf of the Guarantor; or (vi) the termination
or attempted termination of this Guaranty. Upon the occurrence of any Event of
Default, (a) the Guarantor shall pay to the Bank the amount of the Obligations;
or (b) on demand of the Bank, the Guarantor shall immediately deposit with the
Bank, in U.S. dollars, all amounts due or to become due under the Obligations,
and the Bank may at any time use such funds to repay the Obligations; or (c) the
Bank in its discretion may exercise with respect to any collateral any one or
more of the rights and remedies provided a secured party under the applicable
version of the Uniform Commercial Code; or (d) the Bank in its discretion may
exercise from time to time any other rights and remedies available to it at law,
in equity or otherwise.
7. Right of Setoff. In addition to all liens upon and rights of setoff
against the Guarantor's money, securities or other property given to the Bank by
law, the Bank shall have, with respect to the Guarantor's obligations to the
Bank under this Guaranty and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of setoff against, and
the Guarantor hereby grants Bank a security interest in, and hereby assigns,
conveys, delivers, pledges and transfers to the Bank all of the Guarantor's
right, title and interest in and to, all of the Guarantor's deposits, moneys,
securities and other property now or hereafter in the possession of or on
deposit with, or in transit to, the Bank or any other direct or indirect
subsidiary of The PNC Financial Services Group, Inc., whether held in a general
or special account or deposit, whether held jointly with someone else, or
whether held for safekeeping or otherwise, excluding, however, all XXX, Xxxxx,
and trust accounts. Every such security interest and right of setoff may be
exercised without demand upon or notice to the Guarantor. Every such right of
setoff shall be deemed to have been exercised immediately upon the occurrence of
an Event of Default hereunder without any action of the Bank, although the Bank
may enter such setoff on its books and records at a later time.
8. Collateral. This Guaranty is secured by the property described in any
collateral security documents which the Guarantor executes and delivers to the
Bank and by such other collateral as previously may have been or may in the
future be granted to the Bank to secure any Obligations of the Guarantor to the
Bank.
9. Costs. To the extent that the Bank incurs any costs or expenses in
protecting or enforcing its rights under the Obligations or this Guaranty,
including reasonable attorneys' fees and the costs and expenses of litigation,
such reasonable costs and expenses will be due on demand, will be included in
the Obligations and will bear interest from the incurring or payment thereof at
the Default Rate (as defined in any of the Obligations).
10. Postponement of Subrogation. Until the Obligations are indefeasibly
paid in full, expire, are terminated and are not subject to any right of
revocation or rescission, the Guarantor postpones and subordinates in favor of
the Bank or its designee (and any assignee or potential assignee) any and all
rights which the Guarantor may have to (a) assert any claim whatsoever against
the Borrower based on subrogation, exoneration, reimbursement, or indemnity or
any right of recourse to security for the Obligations with respect to payments
made hereunder, and (b) any realization on any property of the Borrower,
including participation in any marshalling of the Borrower's assets.
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11. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder ("Notices") must be in writing
and will be effective upon receipt. Notices may be given in any manner to which
the Bank and the Guarantor may separately agree, including electronic mail.
Without limiting the foregoing, first-class mail, facsimile transmission and
commercial courier service are hereby agreed to as acceptable methods for giving
Notices. Regardless of the manner in which provided, Notices may be sent to
addresses for the Bank and the Guarantor as set forth above or to such other
address as either may give to the other for such purpose in accordance with this
section.
12. Preservation of Rights. No delay or omission on the Bank's part to
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the Bank's
action or inaction impair any such right or power. The Bank's rights and
remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in equity.
The Bank may proceed in any order against the Borrower, the Guarantor or any
other obligor of, or collateral securing, the Obligations.
13. Illegality. If any provision contained in this Guaranty should be
invalid, illegal or unenforceable in any respect, it shall not affect or impair
the validity, legality and enforceability of the remaining provisions of this
Guaranty.
14. Changes in Writing. No modification, amendment or waiver of, or consent
to any departure by the Guarantor from, any provision of this Guaranty will be
effective unless made in a writing signed by the Bank, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Guarantor will entitle the Guarantor
to any other or further notice or demand in the same, similar or other
circumstance.
15. Entire Agreement. This Guaranty (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the Guarantor and the Bank with respect to the subject matter hereof; provided,
however, that this Guaranty is in addition to, and not in substitution for, any
other guarantees from the Guarantor to the Bank.
16. Successors and Assigns. This Guaranty will be binding upon and inure to
the benefit of the Guarantor and the Bank and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Guarantor
may not assign this Guaranty in whole or in part without the Bank's prior
written consent and the Bank at any time may assign this Guaranty in whole or in
part.
17. Interpretation. In this Guaranty, unless the Bank and the Guarantor
otherwise agree in writing, the singular includes the plural and the plural the
singular; references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute referred to; the
word "or" shall be deemed to include "and/or", the words "including", "includes"
and "include" shall be deemed to be followed by the words "without limitation";
and references to sections or exhibits are to those of this Guaranty. Section
headings in this Guaranty are included for convenience of reference only and
shall not constitute a part of this Guaranty for any other purpose. If this
Guaranty is executed by more than one party as Guarantor, the obligations of
such persons or entities will be joint and several.
18. Indemnity. The Guarantor agrees to indemnify each of the Bank, each
legal entity, if any, who controls the Bank and each of their respective
directors, officers and employees (the "Indemnified Parties"), and to hold each
Indemnified Party harmless from and against, any and all claims, damages,
losses, liabilities and expenses (including all fees and charges of internal or
external counsel with whom any Indemnified Party may consult and all expenses of
litigation and preparation therefor) which any Indemnified Party may incur or
which may be asserted against any Indemnified Party by any person, entity or
governmental authority (including any person or entity claiming derivatively on
behalf of the Guarantor), in connection with or arising out of or relating
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to the matters referred to in this Guaranty, whether (a) arising from or
incurred in connection with any breach of a representation, warranty or covenant
by the Guarantor, or (b) arising out of or resulting from any suit, action,
claim, proceeding or governmental investigation, pending or threatened, whether
based on statute, regulation or order, or tort, or contract or otherwise, before
any court or governmental authority; provided, however, that the foregoing
indemnity agreement shall not apply to any claims, damages, losses, liabilities
and expenses solely attributable to an Indemnified Party's gross negligence or
willful misconduct. The indemnity agreement contained in this Section shall
survive the termination of this Guaranty and assignment of any rights hereunder.
The Guarantor may participate at its expense in the defense of any such claim.
19. Governing Law and Jurisdiction. This Guaranty has been delivered to and
accepted by the Bank and will be deemed to be made in the State where the Bank's
office indicated above is located. THIS GUARANTY WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE BANK AND THE GUARANTOR DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED,
EXCLUDING ITS CONFLICT OF LAWS RULES. The Guarantor hereby irrevocably consents
to the exclusive jurisdiction of any state or federal court in the county or
judicial district where the Bank's office indicated above is located; provided
that nothing contained in this Guaranty will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the
Guarantor individually, against any security or against any property of the
Guarantor within any other county, state or other foreign or domestic
jurisdiction. The Guarantor acknowledges and agrees that the venue provided
above is the most convenient forum for both the Bank and the Guarantor. The
Guarantor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Guaranty.
20. Equal Credit Opportunity Act. If the Guarantor is not an "applicant for
credit" under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974
("ECOA"), the Guarantor acknowledges that (i) this Guaranty has been executed to
provide credit support for the Obligations, and (ii) the Guarantor was not
required to execute this Guaranty in violation of Section 202.7(d) of the ECOA.
21. Authorization to Obtain Credit Reports. By signing below, each
Guarantor who is an individual provides written authorization to the Bank or its
designee (and any assignee or potential assignee) to obtain the Guarantor's
personal credit profile from one or more national credit bureaus. Such
authorization shall extend to obtaining a credit profile in considering this
Guaranty and subsequently for the purposes of update, renewal or extension of
such credit or additional credit and for reviewing or collecting the resulting
account.
22. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL
RIGHT THE GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
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The Guarantor acknowledges that it has read and understood all the
provisions of this Guaranty, including the waiver of jury trial, and has been
advised by counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
WITNESS / ATTEST: Cadapult Graphic Systems, Inc.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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(SEAL)
Print Name: Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
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