GUARANTY (Corporate)
EXHIBIT
10.9
(Corporate)
FOR VALUE
RECEIVED, and in consideration of loans made or to be made or credit otherwise
extended or to be extended by Agent and Lenders (as those terms are defined
below) to or for the account of Presstek, Inc. (“PI” and together with each
other Person which becomes a Borrower under the Loan Agreement (as defined
below), each a “Borrower” and collectively, “Borrowers”) from time to time and
at any time and for other good and valuable consideration, and to induce Agent
and Lenders to make such loans or extensions of credit and to make or grant such
renewals, extensions, releases of collateral or relinquishments of legal rights
as Agent and Lenders may deem advisable, the undersigned (and each of them if
more than one, the liability under this Guaranty being joint and several)
(jointly and severally referred to as “Guarantor” or “the undersigned”)
unconditionally guaranties to Agent, Lenders, their successors, endorsees and
assigns, the prompt payment when due (whether by acceleration or otherwise) of
all present and future obligations and liabilities of any and all kinds of
Borrowers to Agent and Lenders and of all instruments of any nature evidencing
or relating to any such obligations and liabilities upon which any Borrower or
one or more parties and any Borrower is or may become liable to Agent and
Lenders, whether incurred by any Borrower as maker, endorser, drawer, acceptor,
guarantor, accommodation party or otherwise, and whether due or to become due,
secured or unsecured, absolute or contingent, joint or several, and however or
whenever acquired by Agent and Lenders, arising under, out of, or in connection
with that certain Revolving Credit and Security Agreement dated as of the date
hereof among Borrowers, the financial institutions named therein or which
hereafter become a party thereto (each a “Lender” and collectively, “Lenders”)
and PNC Bank, National Association, as agent for Lenders (in such capacity,
“Agent”) (as amended, modified, restated or supplemented from time to time, the
“Loan Agreement”) or any documents, instruments or agreements relating to or
executed in connection with the Loan Agreement or any documents, instruments or
agreements referred to therein (together with the Loan Agreement, as each may be
amended, modified, restated or supplemented from time to time, the “Loan
Documents”) (all of which are herein collectively referred to as the
“Obligations”), and irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing any of the
Obligations or of any collateral therefor or of the existence or extent of such
collateral, and irrespective of the allowability, allowance or disallowance of
any or all of the Obligations in any case commenced by or against any Borrower
under Title 11, United States Code, including, without limitation, obligations
or indebtedness of Borrowers for post-petition interest, fees, costs and charges
that would have accrued or been added to the Obligations but for the
commencement of such case. Capitalized terms used herein which are
not otherwise defined herein shall have the meanings given to them in the Loan
Agreement.
In
furtherance of the foregoing, the undersigned xxxxxx agrees as
follows:
1. No
Impairment. Agent and Lenders may at any time and from time to
time, either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or surrender
any collateral for, renew or extend any of the Obligations or increase or
decrease the interest rate thereon, and may also make any agreement with any
Borrower or with any other party to or person liable on any of the Obligations,
or interested therein, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement among Agent and/or Lenders and any
Borrower or any such other party or person, or make any election of rights Agent
and/or Lenders may deem desirable under the United States Bankruptcy Code, as
amended, or any other federal or state bankruptcy, reorganization, moratorium or
insolvency law relating to or affecting the enforcement of creditors’ rights
generally (any of the foregoing, an “Insolvency Law”) without in any way
impairing or affecting this Guaranty. This instrument shall be
effective regardless of the subsequent incorporation, merger or consolidation of
any Borrower, or any change in the composition, nature, personnel or location of
any Borrower and shall extend to any successor entity to such Borrower,
including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty
Absolute. The undersigned guarantees that the Obligations will
be paid strictly in accordance with the terms of the Loan Agreement and/or any
other document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Borrowers with respect
thereto. Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of “continuing guaranty” which risk includes the
possibility that Borrowers will contract additional indebtedness for which
Guarantor may be liable hereunder after Borrowers’ financial condition or
ability to pay their lawful debts when they fall due has deteriorated, whether
or not Borrowers have properly authorized incurring such additional
indebtedness. The undersigned acknowledges that (i) no oral
representations, including any representations to extend credit or provide other
financial accommodations to Borrowers, have been made by Agent or Lenders to
induce the undersigned to enter into this Guaranty and (ii) any extension of
credit to the Borrowers shall be governed solely by the provisions of the Loan
Agreement. The liability of the undersigned under this Guaranty shall
be absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Loan
Documents or any other instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Loan Document or other documents, instruments or
agreements relating to the Obligations or any assignment or transfer of any
thereof, (c) any furnishing of any additional security to Agent or Lenders or
their assignees or any acceptance thereof or any release of any security by
Agent or Lenders or their assignees, (d) any limitation on any party’s liability
or obligation under the Loan Documents or any other documents, instruments or
agreements relating to the Obligations or any assignment or transfer of any
thereof or any invalidity or unenforceability, in whole or in part, of any such
document, instrument or agreement or any term thereof, (e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding relating to any Borrower, or any action taken with respect
to this Guaranty by any trustee or receiver, or by any court, in any such
proceeding, whether or not the undersigned shall have notice or knowledge of any
of the foregoing, (f) any exchange, release or nonperfection of any collateral,
or any release, or amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Obligations or (g) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the undersigned. Any amounts due from the undersigned
to Agent or Lenders shall bear interest until such amounts are paid in full at
the Default Rate then applicable to the Obligations. Obligations
include post-petition interest whether or not allowed or allowable.
3. Waivers.
(a) This
Guaranty is a guaranty of payment and not of collection. Neither
Agent nor Lenders shall be under any obligation to institute suit, exercise
rights or remedies or take any other action against any Borrower or any other
person liable with respect to any of the Obligations or resort to any collateral
security held by it to secure any of the Obligations as a condition precedent to
the undersigned being obligated to perform as agreed herein and Guarantor hereby
waives any and all rights which the undersigned may have by statute or otherwise
which would require Agent or Lenders to do any of the
foregoing. Guarantor further consents and agrees that Agent and
Xxxxxxx shall be under no obligation to marshal any assets in favor of
Guarantor, or against or in payment of any or all of the
Obligations. The undersigned hereby waives all suretyship defenses
and any rights to interpose any defense, counterclaim or offset of any nature
and description which it may have or which may exist between and among Agent,
Lenders, any Borrower and/or the undersigned with respect to the undersigned’s
obligations under this Guaranty, or which any Borrower may assert on the
underlying debt, including but not limited to failure of consideration, breach
of warranty, fraud, payment (other than cash payment in full of the
Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
(b) The
undersigned further waives (i) notice of the acceptance of this Guaranty, of the
making of any such loans or extensions of credit, and of all notices and demands
of any kind to which the undersigned may be entitled, including, without
limitation, notice of adverse change in any Borrower’s financial condition or of
any other fact which might materially increase the risk of the undersigned and
(ii) presentment to or demand of payment from anyone whomsoever liable upon any
of the Obligations, protest, notices of presentment, non-payment or protest and
notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or any setoff or
application of funds of the undersigned by Agent or any Lender, the undersigned
shall not be entitled to be subrogated to any of the rights of Lenders against
any Borrower or against any collateral or guarantee or right of offset held by
Lenders for the payment of the Obligations, nor shall the undersigned seek or be
entitled to seek any contribution or reimbursement from any Borrower in respect
of payments made by the undersigned hereunder, until all amounts owing to Agent
and Lenders by Borrowers on account of the Obligations are paid in full and the
Loan Agreement has been terminated. If, notwithstanding the
foregoing, any amount shall be paid to the undersigned on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full and the Loan Agreement shall not have been terminated, such amount
shall be held by the undersigned in trust for Agent and Lenders, segregated from
other funds of the undersigned, and shall forthwith upon, and in any event
within two (2) business days of, receipt by the undersigned, be turned over to
Agent in the exact form received by the undersigned (duly endorsed by the
undersigned to Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Agent and Lenders may determine,
subject to the provisions of the Loan Agreement. Any and all present
and future debts and obligations of any Borrower to any of the undersigned are
hereby waived and postponed in favor of, and subordinated to the full payment
and performance of, all present and future debts and obligations of Borrowers to
Agent and Lenders.
4. Security. All
sums at any time to the credit of the undersigned and any property of the
undersigned in Agent’s or any Lender’s possession or in the possession of any
bank, financial institution or other entity that directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under common
control with, Agent or any Lender (each such entity, an “Affiliate”) shall be
deemed held by Agent, such Lender or such Affiliate, as the case may be, as
security for any and all of the undersigned’s obligations to Agent and Lenders
and to any Affiliate of Agent and Lenders, no matter how or when arising and
whether under this or any other instrument, agreement or otherwise.
5. Representations and
Warranties. The undersigned hereby represents and warrants
(all of which representations and warranties shall survive until all Obligations
are indefeasibly satisfied in full and the Loan Agreement has been irrevocably
terminated), that:
(a) Corporate
Status. The undersigned is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts and has full power, authority and legal right to own its property
and assets and to transact the business in which it is engaged.
(b) Authority and
Execution. The undersigned has full power, authority and legal
right to execute and deliver, and to perform its obligations under, this
Guaranty and has taken all necessary corporate and legal action to authorize the
execution, delivery and performance of this Guaranty.
(c) Legal, Xxxxx and Binding
Character. This Guaranty constitutes the legal, valid and
binding obligation of the undersigned enforceable in accordance with its terms,
except as enforceability may be limited by applicable Insolvency
Law.
(d) Violations. The
execution, delivery and performance of this Guaranty will not violate any
requirement of law applicable to the undersigned or any material contract,
agreement or instrument to which the undersigned is a party or by which the
undersigned or any property of the undersigned is bound or result in the
creation or imposition of any mortgage, lien or other encumbrance other than to
Agent and Lenders on any of the property or assets of the undersigned pursuant
to the provisions of any of the foregoing.
(e) Consents or
Approvals. No consent of any other person or entity
(including, without limitation, any creditor of the undersigned) and no consent,
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty.
(f) Litigation. No
litigation, arbitration, investigation or administrative proceeding of or before
any court, arbitrator or governmental authority, bureau or agency is currently
pending or, to the best knowledge of the undersigned, threatened (i) with
respect to this Guaranty or any of the transactions contemplated by this
Guaranty or (ii) against or affecting the undersigned, or any property or assets
of the undersigned, which, if adversely determined, would have Material Adverse
Effect.
(g) Financial Benefit.
The undersigned has derived or expects to derive a financial or other advantage
from each and every loan, advance or extension of credit made under the Loan
Agreement or other Obligation incurred by Borrowers to Agent and
Lenders.
The
foregoing representations and warranties shall be deemed to have been made by
the undersigned on the date of each borrowing by any Borrower under the Loan
Agreement on and as of such date of such borrowing as though made hereunder on
and as of such date.
6. Acceleration. Upon
the occurrence and continuance of an Event of Default or any breach of any
representation or warranty hereunder, Agent may, at its option, declare the
Obligations due and payable. The undersigned will promptly notify
Agent of any default by the undersigned in the performance or observance of any
term or condition of any agreement to which the undersigned is a party if the
effect of such default is to cause an Event of Default under the Loan
Agreement.
7. Payments from
Guarantor. Agent, in its sole and absolute discretion, with or
without notice to the undersigned, may apply on account of the Obligations any
payment from the undersigned or any other guarantor, or amounts realized from
any security for the Obligations, or may deposit any and all such amounts
realized in a non-interest bearing cash collateral deposit account to be
maintained as security for the Obligations.
8. Costs. The
undersigned shall pay on demand, all costs, fees and expenses (including
expenses for legal services of every kind) relating or incidental to the
enforcement or protection of the rights of Agent and Lenders
hereunder.
9. Termination. This
is a continuing irrevocable guaranty and shall remain in full force and effect
and be binding upon the undersigned, and the undersigned’s successors and
assigns, until all of the Obligations have been paid in full and the Loan
Agreement has been irrevocably terminated. If any of the present or
future Obligations are guarantied by persons, partnerships or corporations in
addition to the undersigned, the death, release or discharge in whole or in part
or the bankruptcy, merger, consolidation, incorporation, liquidation or
dissolution of one or more of them shall not discharge or affect the liabilities
of the undersigned under this Guaranty.
10. Recapture. Anything
in this Guaranty to the contrary notwithstanding, if Agent or any Lender
receives any payment or payments on account of the liabilities guaranteed
hereby, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver, or any other party under any
Insolvency Law, common law or equitable doctrine, then to the extent of any sum
not finally retained by Agent and Lenders, the undersigned’s obligations to
Agent and Lenders shall be reinstated and this Guaranty shall remain in full
force and effect (or be reinstated) until payment shall have been made to Agent
and Lenders, which payment shall be due on demand.
11. Books and
Records. The books and records of Agent and Xxxxxxx showing
the account among Agent, Xxxxxxx and Borrowers shall be admissible in evidence
in any action or proceeding, shall be binding upon the undersigned for the
purpose of establishing the items therein set forth and shall constitute prima
facie proof thereof.
12. No
Waiver. No failure on the part of Agent or Lenders to
exercise, and no delay in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise by Agent
of any right, remedy or power hereunder preclude any other or future exercise of
any other legal right, remedy or power. Each and every right, remedy
and power hereby granted to Agent or Lenders or allowed it by law or other
agreement shall be cumulative and not exclusive of any other, and may be
exercised by Agent or Lenders at any time and from time to time.
13. Waiver of Jury
Trial. THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER
THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE UNDERSIGNED WITH RESPECT TO THIS GUARANTY OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE AND THE UNDERSIGNED HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT AGENT AND/OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE UNDERSIGNED TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
14. Governing Law; Jurisdiction;
Amendments. THIS INSTRUMENT CANNOT BE CHANGED OR TERMINATED
ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLIED TO CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE
STATE OF NEW YORK. ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST THE
UNDERSIGNED WITH RESPECT TO ANY OF THE OBLIGATIONS, THIS GUARANTY, THE OTHER
DOCUMENTS OR ANY RELATED AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, UNITED STATES OF AMERICA, AND, BY
EXECUTION AND DELIVERY OF THIS GUARANTY, THE UNDERSIGNED ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT. THE UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE UNDERSIGNED AT ITS
ADDRESS SET FORTH BENEATH THE SIGNATURE OF THE UNDERSIGNED AND SERVICE SO MADE
SHALL BE DEEMED COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
DEPOSITED IN THE MAILS OF THE UNITED STATES OF AMERICA, OR, AT THE AGENT’S
OPTION, BY SERVICE UPON THE UNDERSIGNED. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE UNDERSIGNED IN THE
COURTS OF ANY OTHER JURISDICTION. THE UNDERSIGNED WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREUNDER AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON
FORUM NON CONVENIENS. THE UNDERSIGNED WAIVES THE RIGHT TO REMOVE ANY
JUDICIAL PROCEEDING BROUGHT AGAINST IT IN ANY STATE COURT TO ANY FEDERAL
COURT. ANY JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST AGENT OR
ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS GUARANTY OR ANY RELATED
AGREEMENT, SHALL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT LOCATED IN THE
COUNTY OF NEW YORK, STATE OF NEW YORK.
15. Severability. To
the extent permitted by applicable law, any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Amendments,
Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the undersigned therefrom shall in any
event be effective unless the same shall be in writing executed by the
undersigned and Agent.
17. Notice. All
notices, requests and demands to or upon the undersigned, shall be in writing
and shall be deemed to have been duly given or made (a) when delivered, if by
hand, (b) four (4) days after being deposited with the United States Postal
Service, with first class postage prepaid, return receipt requested, (c) when
confirmed electronically, if by facsimile, or (d) when delivered, if by a
recognized overnight delivery service in each event, to the numbers and/or
address set forth beneath the signature of the undersigned.
18. Successors. Subject
to Section 16.3 of the Loan Agreement, Agent and Lenders may, from time to time,
without notice to the undersigned, sell, assign, transfer or otherwise dispose
of all or any part of the Obligations. Without limiting the
generality of the foregoing, Agent and Lenders may assign, or grant
participations to, one or more banks, financial institutions or other entities
all or any part of any of the Obligations in accordance with Section 16.3 of the
Loan Agreement. Agent may, from time to time, without notice to the
undersigned, sell, transfer or otherwise dispose of its rights under this
Guaranty. In each such event, Agent, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Obligations shall have the right to enforce this Guaranty, by
legal action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
right.
19. Release. Nothing
except cash payment in full of the Obligations shall release the undersigned
from liability under this Guaranty.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, this Guaranty has been executed by the undersigned this 5th day
of March, 2010.
SDK
REALTY CORP.
By: /S/ Xxxxx Xxx
Xxxx
Name: Xxxxx
Xxx Xxxx
Title:
Secretary
Address:
c/o
Presstek, Inc.
00
Xxxxxxxx Xxxxxx
Greenwich,
CT 06831
Attention: Xxxxx
X. Xxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
STATE OF
CONNECTICUT )
): ss.:
COUNTY OF
FAIRFIELD )
On the
4th day of March, 2010, before me personally came Xxxxx Xxx Xxxx to me known,
who being by me duly sworn, did depose and say s/he is the Secretary of SDK
Realty Corp., the corporation described in and which executed the foregoing
instrument; and that s/he signed her/his name thereto by order of the board of
directors of said corporation.
/S/ Xxxxxxxxxxx X.
Xxxxx
Notary
Public
My
Commission expires 1/31/2015
