FOREIGN GUARANTY
May 12, 1999
Fleet Bank, N.A.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Unidigital Inc. ("Borrower")
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Gentlemen:
Fleet Bank, N.A., as Administrative Agent for itself and ratably for the
benefit of the Lender Parties and Hedge Banks (as defined in the Credit
Agreement, and hereafter referred to as the "Lenders") (the "Administrative
Agent"), and Borrower have entered into certain financing arrangements, pursuant
to which the Lenders may make loans and advances and provide other financial
accommodations to Borrower as set forth in the Credit Agreement, of even date
hereof, by and among Borrower, the Administrative Agent and the Lenders (as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, the "Credit Agreement"), and the other Loan
Documents (as defined in the Credit Agreement).
Due to the close business and financial relationships between Borrower and
each and all of the undersigned (individually and collectively, "Guarantors"),
in consideration of the benefits which will accrue to Guarantors and as an
inducement for and in consideration of the Lenders making loans and advances and
providing other financial accommodations to Borrower pursuant to the Credit
Agreement and the other Loan Documents, each of the Guarantors hereby jointly
and severally agrees in favor of the Administrative Agent and the Lenders as
follows:
1. GUARANTY.
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a. Each of the Guarantors absolutely and unconditionally, jointly and
severally, guarantees and agrees to be liable for the full and indefeasible
payment and performance when due of the following (all of which are collectively
referred to herein as the "Guaranteed Obligations"): (i) all obligations,
liabilities and indebtedness of any kind, nature and description of Borrower to
the Administrative Agent, and/or the Lenders and/or their respective affiliates
to whom the Lenders have transferred any of the Guaranteed Obligations,
including principal, interest, charges, fees, costs and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
whether arising under the Credit Agreement, the other Loan Documents, including
all obligations under any Hedge Agreements (as defined in the Credit Agreement)
or other hedging agreements, or otherwise, whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal term
of the Credit Agreement or after the commencement of any case with respect to
Borrower under the United States Bankruptcy Code or any similar statute
(including, without limitation, the payment of interest and other amounts, which
would accrue and become due but for the commencement of such case, whether or
not such amounts are allowed
or allowable in whole or in part in any such case and including loans, interest,
fees, charges and expenses related thereto and all other obligations of Borrower
or its successors to the Administrative Agent and the Lenders arising after the
commencement of such case), whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or
unliquidated, secured or unsecured, and however acquired by the Administrative
Agent and the Lenders and (ii) all expenses (including, without limitation,
reasonable attorneys' fees and legal expenses) incurred by the Administrative
Agent and the Lenders in connection with the preparation, execution, delivery,
recording, administration, collection, liquidation, enforcement and defense of
Borrower's obligations, liabilities and indebtedness as aforesaid to the
Administrative Agent and the Lenders, the rights of the Administrative Agent in
any security or under this Guaranty and all other Loan Documents or in any way
involving claims by or against the Administrative Agent and/or any of the
Lenders directly or indirectly arising out of or related to the relationships
between Borrower, any of the Guarantors or any other Obligor (as hereinafter
defined) and the Administrative Agent and/or any of the Lenders, whether such
expenses are incurred before, during or after the initial or any renewal term of
the Credit Agreement and the other Loan Documents or after the commencement of
any case with respect to Borrower under the United States Bankruptcy Code or any
similar statute.
(b) This Guaranty is a guaranty of payment and not of collection. Each of
the Guarantors agrees that the Administrative Agent and the Lenders need not
attempt to collect any Guaranteed Obligations from Borrower, any one of the
Guarantors or any other Obligor or to realize upon any collateral, and/or to
enforce any security, but may require any one of the Guarantors to make
immediate payment of all of the Guaranteed Obligations to the Administrative
Agent when due, whether by maturity, acceleration or otherwise, or at any time
thereafter. The Administrative Agent may apply any amounts received in respect
of the Guaranteed Obligations to any of the Guaranteed Obligations, in whole or
in part (including reasonable attorneys' fees and legal expenses incurred by the
Administrative Agent with respect thereto or otherwise chargeable to Borrower or
Guarantors) and in such order as the Administrative Agent may elect.
(c) Payment by Guarantors shall be made to the Administrative Agent at the
office of the Administrative Agent from time to time on demand as Guaranteed
Obligations become due. Guarantors shall make all payments to the Administrative
Agent on the Guaranteed Obligations free and clear of, and without deduction or
withholding for or on account of, any setoff, counterclaim, defense, duties,
taxes, levies, imposts, fees, deductions, withholding, restrictions or
conditions of any kind, save as may be required by applicable law. One or more
successive or concurrent actions may be brought hereon against any of the
Guarantors either in the same action in which Borrower or any of the other
Guarantors or any other Obligor is sued or in separate actions. In the event any
claim or action, or action on any judgment, based on this Guaranty is brought
against any of the Guarantors, each of the Guarantors agrees not to deduct,
set-off, or seek any counterclaim for or recoup any amounts which are or may be
owed by the Administrative Agent or any of the Lenders to any of the Guarantors.
2. WAIVERS AND CONSENTS.
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(a) Notice of acceptance of this Guaranty, the making of loans and
advances and providing other financial accommodations to Borrower and
presentment, demand, notice of obligation or nonpayment or default and all other
notices to which Borrower or any of the Guarantors are entitled are hereby
waived by each of the Guarantors. Each of the Guarantors also waives notice of
and hereby consents to, (i) any
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amendment, modification, supplement, extension, renewal, or restatement of the
Credit Agreement and any of the other Loan Documents, including, without
limitation, extensions of time of payment of, or increase or decrease in the
amount of, any of the Guaranteed Obligations, the interest rate, fees, other
charges, or any security, and the guarantee made herein shall apply to the
Credit Agreement and the other Loan Documents and the Guaranteed Obligations as
so amended, modified, supplemented, renewed, restated or extended, increased or
decreased, (ii) the taking, exchange, surrender and releasing of security or
guarantees now or at any time held by or available to the Administrative Agent
and the Lenders for the obligations of Borrower or any other party at any time
liable on or in respect of the Guaranteed Obligations or who is the owner of any
property which is security for the Guaranteed Obligations (individually, an
"Obligor" and collectively, the "Obligors"), including, without limitation, the
surrender or release by the Administrative Agent of any one of the Guarantors
hereunder, (iii) the exercise of, or refraining from the exercise of any rights
against Borrower, any of the Guarantors or any other Obligor or any security,
(iv) the settlement, compromise or release of, or the waiver of any default with
respect to, any of the Guaranteed Obligations and (v) any financing by the
Administrative Agent and/or any of the Lenders of Borrower under Section 364 of
the United States Bankruptcy Code or consent to the use of cash collateral by
the Administrative Agent and/or Lenders under Section 363 of the United States
Bankruptcy Code. Each of the Guarantors agrees that the amount of the Guaranteed
Obligations shall not be diminished and the liability of the Guarantors
hereunder shall not be otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part of
the Guaranteed Obligations shall affect, impair or be a defense to this
Guaranty, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of Borrower in respect of
any of the Guaranteed Obligations, or any one of the Guarantors in respect of
this Guaranty, affect, impair or be a defense to this Guaranty. Without
limitation of the foregoing, the liability of Guarantors hereunder shall not be
discharged or impaired in any respect by reason of any failure by the
Administrative Agent or any of the Lenders to perfect or continue perfection of
any lien or security interest in any collateral or any delay by the
Administrative Agent or any of the Lenders in perfecting any such lien or
security interest. As to interest, fees and expenses, whether arising before or
after the commencement of any case with respect to Borrower under the United
States Bankruptcy Code or any similar statute, Guarantors shall be liable
therefor, even if Borrower's liability for such amounts does not, or ceases to,
exist by operation of law. Each of the Guarantors acknowledges that neither the
Administrative Agent nor any of the Lenders have made any representations to any
of the Guarantors with respect to Borrower, any other Obligor or otherwise in
connection with the execution and delivery by Guarantors of this Guaranty and
the Guarantors are not in any respect relying upon the Administrative Agent or
any of the Lenders or any statements by the Administrative Agent or any of the
Lenders in connection with this Guaranty.
(c) Until such time as the Guarantors have fulfilled all their obligations
to make payment to the Administrative Agent and the Lenders under this Guaranty,
each of the Guarantors hereby irrevocably and unconditionally waives and
relinquishes all statutory, security, common law, equitable and all other claims
against Borrower, any collateral for the Guaranteed Obligations or other assets
of Borrower or any other Obligor, for subrogation, reimbursement, exoneration,
contribution, indemnification, setoff or other recourse in respect to sums paid
or payable to the Administrative Agent or any of the Lenders by each of the
Guarantors hereunder and each of the Guarantors hereby further irrevocably and
unconditionally waives and relinquishes any and all other benefits which
Guarantors might otherwise directly or indirectly receive or be entitled to
receive by reason of any amounts paid by or collected or due from Guarantors,
Borrower or any other Obligor upon the Guaranteed Obligations or realized from
their property.
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3. SUBORDINATION. Payment of all amounts now or hereafter owed to
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Guarantors by Borrower or any other Obligor is hereby subordinated in right of
payment to the indefeasible payment in full to the Administrative Agent and the
Lenders of the Guaranteed Obligations and all such amounts and any security and
guarantees therefor are hereby assigned to the Administrative Agent as security
for the Guaranteed Obligations.
4. ACCELERATION. Notwithstanding anything to the contrary contained herein
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or any of the terms of any of the other Loan Documents, the liability of
Guarantors for the entire Guaranteed Obligations shall mature and become
immediately due and payable, even if the liability of Borrower or any other
Obligor therefor does not, upon the occurrence of any act, condition or event
which constitutes an Event of Default as such term is defined in the Credit
Agreement.
5. ACCOUNT STATED. The books and records of the Administrative Agent
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showing the account among the Administrative Agent, the Lenders and Borrower
shall be admissible in evidence in any action or proceeding against or involving
Guarantors as prima facie proof of the items therein set forth, and the monthly
statements of the Administrative Agent rendered to Borrower, to the extent to
which no written objection is made within thirty (30) days from the date of
sending thereof to Borrower, shall be deemed conclusively correct and constitute
an account stated among the Administrative Agent, the Lenders and Borrower and
be binding on Guarantors.
6. TERMINATION. This Guaranty is continuing, unlimited, absolute and
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unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guaranty. Each of the Guarantors shall continue
to be liable hereunder until one of the Administrative Agent's officers actually
receives a written termination notice from a Guarantor sent to the
Administrative Agent at its address set forth above by certified mail, return
receipt requested and thereafter as set forth below. Such notice received by the
Administrative Agent from any one of the Guarantors shall not constitute a
revocation or termination of this Guaranty as to any of the other Guarantors.
Revocation or termination hereof by any of the Guarantors shall not affect, in
any manner, the rights of the Administrative Agent or any obligations or duties
of any of the Guarantors (including the Guarantor which may have sent such
notice) under this Guaranty with respect to (a) Guaranteed Obligations which
have been created, contracted, assumed or incurred prior to the receipt by the
Administrative Agent of such written notice of revocation or termination as
provided herein, including, without limitation, all amendments, extensions,
renewals and modifications of such Guaranteed Obligations (whether or not
evidenced by new or additional agreements, documents or instruments executed on
or after such notice of revocation or termination), (ii) all interest, fees and
similar charges accruing or due on and after revocation or termination, and
(iii) all reasonable attorneys' fees and legal expenses, costs and other
expenses paid or incurred on or after such notice of revocation or termination
in attempting to collect or enforce any of the Guaranteed Obligations against
Borrower, Guarantors or any other Obligor (whether or not suit be brought), or
(b) Guaranteed Obligations which have been created, contracted, assumed or
incurred after the receipt by the Administrative Agent of such written notice of
revocation or termination as provided herein pursuant to any contract entered
into by the Administrative Agent or any of the Lenders prior to receipt of such
notice. The sole effect of such revocation or termination by any of the
Guarantors shall be to exclude from this Guaranty the liability of such
Guarantor for those Guaranteed Obligations arising after the date of receipt by
the Administrative Agent of such written notice which are unrelated to
Guaranteed Obligations arising or transactions entered into prior to such date.
Without limiting the foregoing, this Guaranty may not be terminated and shall
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continue so long as the Credit Agreement shall be in effect (whether during its
original term or any renewal, substitution or extension thereof).
7. REINSTATEMENT. If after receipt of any payment of, or proceeds of
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collateral applied to the payment of, any of the Guaranteed Obligations, the
Administrative Agent or any of the Lenders is required to surrender or return
such payment or proceeds to any Person (as defined in the Credit Agreement) for
any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this Guaranty shall
continue in full force and effect as if such payment or proceeds had not been
received by the Administrative Agent or any of the Lenders. Each of the
Guarantors shall be liable to pay to the Administrative Agent and the Lenders,
and does indemnify and hold the Administrative Agent and the Lenders harmless
for the amount of any payments or proceeds surrendered or returned. This Section
7 shall remain effective notwithstanding any contrary action which may be taken
by the Administrative Agent or any of the Lenders in reliance upon such payment
or proceeds. This Section 7 shall survive the termination or revocation of this
Guaranty.
8. AMENDMENTS AND WAIVERS. Neither this Guaranty nor any provision hereof
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shall be amended, modified, waived or discharged orally or by course of conduct,
but only by a written agreement signed by an authorized officer of the
Administrative Agent. The Administrative Agent shall not by any act, delay,
omission or otherwise be deemed to have expressly or impliedly waived any of its
rights, powers and/or remedies unless such waiver shall be in writing and signed
by an authorized officer of the Administrative Agent. Any such waiver shall be
enforceable only to the extent specifically set forth therein. A waiver by the
Administrative Agent of any right, power and/or remedy on any one occasion shall
not be construed as a bar to or waiver of any such right, power and/or remedy
which the Administrative Agent would otherwise have on any future occasion,
whether similar in kind or otherwise.
9. CORPORATE EXISTENCE, POWER AND AUTHORITY. Each of the Guarantors is a
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corporation duly organized under the laws of England and Wales and is duly
qualified as a foreign corporation in other jurisdictions where the nature and
extent of the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the financial condition,
results of operation or businesses of such Guarantor or the rights of the
Administrative Agent hereunder or under any of the other Loan Documents. The
execution, delivery and performance of this Guaranty is within the corporate
powers of each of the Guarantors, have been duly authorized and are not in
contravention of law or the terms of the certificates of incorporation, by-laws,
or other organizational documentation of each of the Guarantors, or any
indenture, agreement or undertaking to which any of Guarantors is a party or by
which any of the Guarantors or its property are bound. This Guaranty constitutes
the legal, valid and binding obligation of each of the Guarantors enforceable in
accordance with its terms. Any one of the Guarantors signing this Guaranty shall
be bound hereby whether or not any of the other Guarantors or any other person
signs this Guaranty at any time.
10. GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY TRIAL WAIVER.
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(a) The validity, interpretation and enforcement of this Guaranty and any
dispute arising out of the relationship among any of the Guarantors and the
Administrative Agent, or any of the Lenders, whether in contract, tort, equity
or otherwise, shall be governed by laws of England.
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(b) Each of the Guarantors hereby irrevocably consents and submits to the
non-exclusive jurisdiction of the English Courts and the Courts of New York
State and the United States District Court for the Southern District of New York
and waives any objection based on venue or forum non conveniens with respect to
any action instituted in either jurisdiction arising under this Guaranty or any
of the other Loan Documents or in any way connected with or related or
incidental to the dealings of any of Guarantors and the Administrative Agent in
respect of this Guaranty or any of the other Loan Documents or the transactions
related hereto or thereto, in each case whether now existing or hereafter
arising and whether in contract, tort, equity or otherwise, and agrees that any
dispute arising out of the relationship among any of Guarantors or Borrower and
the Administrative Agent or the conduct of any such persons in connection with
this Guaranty, the other Loan Documents or otherwise shall be heard only in the
courts described above (except that the Administrative Agent shall have the
right to bring any action or proceeding against any of the Guarantors or its
property in the courts of any other jurisdiction which the Administrative Agent
deems necessary or appropriate in order to realize on collateral or in order to
enforce any security at any time granted by Borrower or any of the Guarantors to
the Administrative Agent or to otherwise enforce its rights against any of the
Guarantors or its property).
(c) Each of the Guarantors hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth on
the signature pages hereof and service so made shall be deemed to be completed
five (5) days after the same shall have been so deposited in the U.S. mails, or,
at the Administrative Agent's option, by service upon any of the Guarantors in
any other manner provided under the rules of any such courts.
(d) EACH GUARANTOR AND THE ADMINISTRATIVE AGENT MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF OR, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS TO ACCEPT THE TERMS OF
THIS GUARANTY AND MAKE LOANS PURSUANT TO THE TERMS OF THE CREDIT AGREEMENT.
(e) Neither the Administrative Agent nor any of the Lenders shall have any
liability to Guarantors (whether in tort, contract, equity or otherwise) for
losses suffered by Guarantors in connection with, arising out of, or in any way
related to the transactions or relationships contemplated by this Guaranty, or
any act, omission or event occurring in connection herewith, unless it is
determined by a final and non-appealable judgment or court order binding on the
Administrative Agent and the Lenders that the losses were the result of acts or
omissions constituting gross negligence or willful misconduct. In any such
litigation, the Administrative Agent and the Lenders shall be entitled to the
benefit of the rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of the Credit
Agreement and the other Loan Documents.
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11. MISCELLANEOUS
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(a) All notices, requests and demands hereunder shall be in writing and
(a) made to the Administrative Agent as follows: Fleet Bank, N.A., as
Administrative Agent, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention Xx. Xxxx Xxxxxxx, and to each of the Guarantors at its registered
office set forth below, or to such other address as either party may designate
by written notice to the other in accordance with this provision, and (b) deemed
to have been given or made: if delivered in person, immediately upon delivery;
if by telex, telegram or facsimile transmission, immediately upon sending and
upon confirmation of receipt; if by nationally recognized overnight courier
service with instructions to deliver the next business day, one (1) business day
after sending; and if by certified mail, return receipt requested, five (5) days
after mailing.
(b) Each Guarantor under this Guaranty or any of the Loan Documents, in
addition to the subrogation rights it shall have against a Borrower, under
applicable law as a result of any payment it makes under its Guaranty, shall
also have a right of contribution against all of the other Guarantors under the
Loan Documents, in respect of any such payment, provided any such right of
contribution shall be subject and subordinate to the prior payment in full of
the "Obligations" of such Guarantor under its Guaranty. It is the desire and
intent of each Guarantor and the Administrative Agent and the Lenders that the
Guaranties shall be enforced against each Guarantor to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought.
(c) If, however, and to the extent, that the "Obligations" of any
Guarantor under its Guaranty would, in the absence of this sentence, be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the "Obligations" of
such Guarantor (but not the "Obligations" of any other Guarantor unless such
other Guarantor or Guarantors are individually subject to the circumstances
covered by Sections 11(b) and 11(c) shall be deemed to be reduced ab initio to
that maximum amount which would be permissible under applicable law without
causing such Guarantor's "Obligations" under its Guaranty to be so invalidated.
(d) If any provision of this Guaranty is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Guaranty as a whole, but this Guaranty shall be construed as though it did not
contain the particular provision held to be invalid or unenforceable and the
rights and obligations of the parties shall be construed and enforced only to
such extent as shall be permitted by applicable law.
(e) This Guaranty represents the entire agreement and understanding of
this parties concerning the subject matter hereof, and supersedes all other
prior agreements, understandings, negotiations and discussions, representations,
warranties, commitments, proposals, offers and contracts concerning the subject
matter hereof, whether oral or written.
(f) This Guaranty shall be binding upon Guarantors and their respective
successors and assigns and shall inure to the benefit of the Administrative
Agent and the Lenders and their successors, endorsees, transferees and assigns.
The liquidation, dissolution or termination of any of Guarantors shall not
terminate this Guaranty as to such entity or as to any of the other Guarantors.
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(g) All references to the term "Guarantors" wherever used herein shall
mean each and all of Guarantors and their respective successors and assigns,
individually and collectively, jointly and severally (including, without
limitation, any receiver, administrator or liquidator for any of Guarantors or
any of their respective assets). All references to the terms the "Administrative
Agent" and "Lenders", wherever used herein, shall mean the Administrative Agent
and the Lenders and their respective successors and assigns and all references
to the term "Borrower" wherever used herein shall mean Borrower and its
successors and assigns (including, without limitation, any receiver, trustee or
custodian for Borrower or any of its assets or Borrower in its capacity as
debtor or debtor-in-possession under the United States Bankruptcy Code). All
references to the plural shall also mean the singular and to the singular shall
also mean the plural.
(h) Any provision contained in this Guaranty or in any of the other Loan
Documents that is prohibited or unenforceable in any respect in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions of the
appropriate document or documents, as the case may be, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(i) This Guaranty may be executed in any number of counterparts, but all
of such counterparts shall together constitute but one and the same agreement.
In making proof of this Guaranty, it shall not be necessary to produce or
account for more than one counterpart thereof signed by each of the parties
hereto.
IN WITNESS WHEREOF, each of Guarantors has executed and delivered this
Guaranty as a Deed as of the day and year first above written.
EXECUTED AS A DEED BY
ELEMENTS (U.K.) LIMITED
Acting By: /s/ Xxxx Xxxxxx
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Duly Authorized
Acting By: /s/ Xxxx Xxxxxx
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Duly Authorized
Registered Office
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00 Xxxxxxxx Xxxxxx
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Xxxxxx X0X 0XX
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EXECUTED AS A DEED BY
REGENT GROUP LIMITED
Acting By: /s/ Xxxx Xxxxxx
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Duly Authorized
Acting By: /s/ Xxxx Xxxxxx
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Duly Authorized
Registered Office
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00 Xxxxxxxx Xxxxxx
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Xxxxxx X0X 0XX
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