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[THE CHASE MANHATTAN BANK LETTERHEAD]
November 11, 1996
Mr. William E. Dye, President
Linographics Corporation
Linographics (Delaware) Corporation
20 West 20th Street
New York, New York 10011
Dear Bill:
The Chase Manhattan Bank (the "Bank") is pleased to make available to
Linographics Corporation and Linographics (Delaware) Corporation, credit
facilities in the aggregate amount of $1,150,000. The Lines of Credit to be
extended at the Bank's sole discretion of up to $1,150,000 for working capital,
are subject but not limited to, the following terms and conditions:
LINOGRAPHICS CORPORATION:
LINE OF CREDIT
FACILITY:
Up to a maximum of $700,000 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 fifteen (15)
days after the end of each month so long as there are loans outstanding under
the Line of Credit.
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.
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FACILITY FEE:
A facility fee of one half (1/2%) percent ($3,500) 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 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 January 31, 1998.
LINOGRAPHICS (DELAWARE) CORPORATION:
LINE OF CREDIT
FACILITY:
Up to a maximum of $450,000 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. The borrowing base
will be the aggregate of the Accounts Receivable of Linographics Corporation
and Linographics (Delaware) Corporation. Linographics (Delaware) Corporation
will provide a monthly borrowing base certificate to the Bank within fifteen
(15) days after the end of each month so long as there are loans outstanding
under the Line of Credit.
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 ($2,250) 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.
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The Bank will continue to offer the Credit Facility as outlined herein in its
sole discretion subject to Linographics (Delaware) Corporation's economic and
financial condition remaining acceptable to the Bank and the company's
maintenance of a satisfactory relationship with the Bank. In any event, this
Credit Facility is available until January 31, 1998.
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
Linographics (Delaware) Corporation.
2. Monthly borrowing base certificate(s) when line is outstanding for
Linographics Corporation or Linographics (Delaware) Corporation , with advances
up to 80% of eligible A/R's 90 days and less. The certificate will be provided
to the bank within 15 days of the end of the prior month.
3. Monthly account receivable agings for both entities provided within 15 days
of the end of the prior month.
4. The credit facility of Linographics (Delaware) Corporation will be supported
by the guaranty of Linographics Corporation.
5. Unidigital Inc.'s Corporate Guaranty remains in place for both facilities.
REPORTING:
1. Within 120 days after the close of each Fiscal Year, audited consolidated
statements for Unidigital Inc., prepared by an accounting firm acceptable to
the bank along with consolidating statements for each subsidiary.
2. Within 90 days after the date of the each semi-annual date, consolidated
statements for Unidigital Inc., prepared by an accounting firm acceptable to
the bank along with consolidating statements for each subsidiary.
3. Quarterly statements internally prepared by management for Unidigital Inc,
and its subsidiaries.
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.
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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 November 30, 1996. If not accepted by you, the offer
contained herein shall at the Bank's option expire.
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
BY: /s/ DONALD FURRER
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Donald Furrer
Vice President
AGREED AND ACCEPTED
ON THIS DAY 21 DAY OF NOVEMBER 1996
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LINOGRAPHICS CORPORATION
BY: /s/ WILLIAM E. DYE
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Title: President
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LINOGRAPHICS (DELAWARE) CORPORATION
BY: /s/ WILLIAM E. DYE
-------------------------
Title: President
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CHASE LETTERHEAD
GRID TIME PROMISSORY NOTE
New York, New York
November 21, 1996
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 ("Chase"), at its office located at 270 Park Avenue, New
York, New York, or to such other address as Chase may notify the
undersigned, the sum of Four hundred and fifty thousand DOLLARS
($450,000.00) or such unpaid principal amount of each loan made to
the undersigned by Chase and outstanding under this Note, on the maturity
date(s) as shown on the attached schedule or any continuation of the
schedule.
This Note includes any Schedule or Rider attached hereto.
MATURITY DATE(S). Each loan shall mature on the last day of the
Interest Period therefor, as noted on the Interest Period column on the
attached schedule. As to a Variable Rate loan, if no Interest Period is
noted, then such loan is payable ON DEMAND.
INTEREST. 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 date such loan shall be paid in
full at the following applicable rates (check Other Rate box if
applicable):
Variable Rate: A rate of interest per year which shall
automatically increase or decrease from time to
time so that at all times such rate shall remain
equal to that rate of interest from time to time
announced by Chase at its head office as its
prime commercial lending rate (the "Prime Rate")
PLUS 1/2%. Changes in the rate of interest
hereunder shall be effective as of and for the
entire day on which such change in the Prime
Rate becomes effective.
and
Other Rate: see Rider(s) attached hereto.
Interest shall be payable, as to a Variable Rate loan, on THE
FIRST DAY of each month and as to an Other Rate loan, on the last day of
each Interest Period, or if such Interest Period is more than 90 days, then
on the 90th day after the date of such loan and on the last day of such
Interest Period, unless otherwise specified on a Rider attached hereto, in
respect of the corresponding principal. Interest shall be calculated on the
basis of a year of 360 days and payable for the actual number of days
elapsed.
After the occurrence of an Event of Default set forth below,
Chase, at its option, by written notice to the undersigned may increase the
interest rate on this Note by an additional four percent (4%) per year
effective on the date of such notice.
PAYMENTS. All payments under this Note shall be made in lawful
money of the United States of America and in immediately available funds at
Chase's office specified above. Chase may (but shall not be obligated to)
debit the amount of any payment (principal or interest) under this Note
when due to any deposit account of (any of) the undersigned with Chase. 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 premium unless otherwise specified on a Rider attached
hereto. Chase may apply any money received or collected for payment of this
Note to the principal of, interest on or any other amount payable under,
this Note in any order that Chase may elect.
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Whenever any payment to be made hereunder (including principal and
interest) shall be stated to be due on a day on which Chase's head office
is not open for business, that payment will be due on the next following
banking day, and any extension of time shall in each case be included in
the computation of interest payable on this Note.
If any payment (principal or interest) shall not be paid when due
other than a payment of the entire principal balance of the Note due upon
acceleration after default, the undersigned shall pay a late payment charge
equal to five percent (5%) of the amount of such delinquent payment,
provided that the amount of such late payment charge shall be not less than
$25 nor more than $500.
AUTHORIZATIONS. The undersigned hereby authorizes Chase to make
loans and disburse the proceeds thereof to the account listed below and to
make repayments of such loans by debiting such account upon oral,
telephonic or telecopied instructions made by any person purporting to be
an officer or agent of the undersigned who is empowered to make such
requests and give such instructions. The undersigned may amend these
instructions, from time to time, effective upon actual receipt of the
amendment by Chase. Chase shall not be responsible for the authority, or
lack of authority, of any person giving such telephonic instructions to
Chase pursuant to these provisions. By executing this Note, the undersigned
agrees to be bound to repay any loan obtained hereunder as reflected on
Chase's books and records and made in accordance with these authorizations,
regardless of the actual receipt of the proceeds thereof.
RECORDS. 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 Chase) and the outstanding
principal balance of loans, shall be recorded by Chase on its books and
prior to any transfer of this Note (or, at the discretion of Chase at any
other time) endorsed by Chase on the schedule attached or any continuation
of the schedule. Any such endorsement shall be conclusive absent manifest
error.
REPRESENTATIONS AND WARRANTIES. If the undersigned is other than
an individual, the undersigned represents and warrants upon the execution
and delivery of this Note and upon each loan request hereunder, that: (a)
it is duly organized and validly existing under the laws of the
jurisdiction of its organization or incorporation and, if relevant under
such laws, in good standing; (b) it has the power to execute and deliver
this Note and to perform its obligations hereunder and has taken all
necessary action to authorize such execution, delivery and performance; (c)
such execution, delivery and performance do not violate or conflict with
any law applicable to it, any provision of its organizational documents,
any order or judgment of any court or other agency of government applicable
to it or any of its assets or any material contractual restriction binding
on or materially affecting it or any of its assets; (d) to the best of
undersigned's knowledge, all governmental and other consents that are
required to have been obtained by it with respect to this Note have been
obtained and are in full force and effect and all conditions of any such
consents have been complied with; (e) its obligations under this Note
constitute its legal, valid and binding obligations, enforceable in
accordance with its terms except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency or other similar laws
affecting creditors' rights generally; (f) all financial statements and
related information furnished and to be furnished to Chase from time to
time by the undersigned are true and complete and fairly present the
financial or other information stated therein as at such dates or for the
periods covered thereby; (g) there are no actions, suits, proceedings or
investigations pending or, to the knowledge of the undersigned, threatened
against or affecting the undersigned before any court, governmental agency
or arbitrator, which involve forfeiture of any assets of the undersigned or
which may materially adversely affect the financial condition, operations,
properties or business of the undersigned or the ability of the undersigned
to perform its obligation under this Note; and (h) there has been no
material adverse change in the financial condition of the undersigned since
the last such financial statements or information. If the undersigned is an
individual, the undersigned represents and warrants at the times set forth
at the beginning of this section, the correctness of clauses (c), (d), (e),
(f), (g) and (h) above to the extent applicable to an individual.
NO COMMITMENT. This Note does not create and shall not be deemed
or construed to create any contractual commitment to lend by Chase. Any
such commitment in respect of this Note can only be made by and shall only
be effective to the extent set forth in a separate writing expressly
designated for that purpose and subscribed by a duly authorized officer of
Chase.
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SECURITY. As collateral security for the payment of this Note and of any
and all other obligations and liabilities of the undersigned to Chase, now
existing or hereafter arising, the undersigned grants to Chase a security
interest in and a lien upon and right of offset against all moneys, deposit
balances, securities or other property or interest therein of the
undersigned now or at any time hereafter held or received by or for or left
in the possession or control of Chase or any of its affiliates, including
subsidiaries, whether for safekeeping, custody, transmission, collection,
pledge or for any other or different purpose.
DEFAULT. IF ANY OF THE FOLLOWING EVENTS OF DEFAULT SHALL OCCUR
with respect to any of the undersigned (each an "Event of Default"):
(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 and all agreements, instruments or other
documents executed by 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, and
such failure shall continue for 30 consecutive days;
(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) if the undersigned or any Third Party is an individual,
such individual shall die or be declared incompetent;
(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
contested 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;
(i) the undersigned shall make or permit to be made any
material change in the character, management or direction of the
undersigned's business or operations (including, but not limited
to, a change in its executive management or in the ownership of
its capital stock which effects a change in the control of any
such business or operations), which is not satisfactory to Chase;
(j) the undersigned or any Third Party shall suffer a material
adverse change in its business, financial condition, properties or
prospects;
(k) any action, suit, proceeding or investigation against or
affecting the undersigned or a Third Party before any court or
governmental agency which involves forfeiture of any assets of the
undersigned or a Third Party shall have been commenced; or
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(l) one or more judgments, decrees or orders for the payment
of money in excess of $50,000 in the aggregate shall be rendered
against the undersigned and shall continue unsatisfied and in
effect for a period of 30 consecutive days without being vacated,
discharged, satisfied or stayed or bonded pending appeal.
THEN, IN ANY SUCH CASE, if Chase 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 Chase.
THE EVENTS OF DEFAULT AND REMEDIES SET FORTH ABOVE ARE IN ADDITION
TO AND WITHOUT IN ANY WAY DIMINISHING ANY RIGHT BY CHASE TO MAKE DEMAND FOR
PAYMENT AT ANY TIME.
CERTAIN WAIVERS. The undersigned waive(s) presentment, notice of
dishonor, protest and any other notice or formality with respect to this
Note.
COSTS. The undersigned agree(s) to reimburse Chase on demand for
all costs, expenses and charges (including, without limitation, fees and
charges of external legal counsel for Chase and costs allocated by its
internal legal department) in connection with the preparation,
interpretation, performance or enforcement of this Note and the Facility
Documents.
NOTICES. All notices, requests, demands or other communications to
or upon the undersigned or Chase shall be in writing and shall be deemed to
be delivered upon receipt if delivered by hand or overnight courier or five
days after mailing to the address (a) of the undersigned as set forth next
to the undersigned's execution of this Note, (b) of Chase as first set
forth above, or (c) of the undersigned or Chase at such other address as
the undersigned or Chase shall specify to the other in writing.
ASSIGNMENT. This Note shall be binding upon the undersigned and
its or their successors and shall inure to the benefit of Chase and its
successors and assigns.
AMENDMENT AND WAIVER. This Note may be amended only by a writing
signed on behalf of each party and shall be effective only to the extent
set forth in that writing. No delay by Chase in exercising any power or
right hereunder shall operate as a waiver thereof or of any other power or
right; nor shall any single or partial exercise of any power or right
preclude other or future exercise thereof, or the exercise of any other
power or right hereunder.
GOVERNING LAW; JURISDICTION. This Note shall be governed by and
construed in accordance with the laws of the State of New York, Connecticut
or New Jersey, depending on the location of the Chase office set forth in
this Note. The undersigned consent(s) to the nonexclusive jurisdiction and
venue of the state or federal courts located in such state. In the event of
a dispute hereunder, suit may be brought against the undersigned is such
courts or in any jurisdiction where the undersigned or any of its assets
may be located. Service of process by Chase 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 or to such further
address(es) as the undersigned may specify to Chase in writing.
MAXIMUM INTEREST. Notwithstanding any other provision of this
Note, the undersigned shall not be required to pay any amount pursuant to
this Note which is in excess of the maximum amount permitted to be charged
by national banks under applicable law and any such excess interest paid
shall be refunded to the undersigned or applied to principal owing
hereunder.
COMMERCIAL TRANSACTION. IF THE UNDERSIGNED IS A CONNECTICUT
DOMICILED ENTITY OR RESIDENT, EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES
THAT THIS NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY CONSTITUTE
COMMERCIAL TRANSACTIONS WITHIN THE MEANING OF SECTION 52L-278a OF THE
CONNECTICUT GENERAL STATUTES. EACH OF THE UNDERSIGNED EXPRESSLY WAIVES ANY
AND ALL RIGHTS, CONSTITUTIONAL OR OTHERWISE, WITH RESPECT TO NOTICE AND
HEARING AND ANY RIGHTS UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL
STATUTES IN CONNECTION WITH ANY PREJUDGMENT REMEDY AVAILABLE TO CHASE.
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BORROWER WAIVERS. THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE(S) (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY
RIGHT TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS NOTE
OR ANY FACILITY DOCUMENT, AND AGREES THAT ANY SUCH DISPUTE SHALL, AT CHASE'S
OPTION, BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
IN ADDITION, THE UNDERSIGNED WAIVES THE RIGHT TO INTERPOSE ANY DEFENSE
BASED UPON ANY STATUTE OF LIMITATIONS OR ANY CLAIM OF DELAY BY CHASE AND ANY
SET-OFF OR COUNTERCLAIM OF ANY NATURE OR DESCRIPTION.
Chase Account No. to be charged for
Disbursements and Payments:
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Address for notices: Linographics (Delaware) Corporation
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20 West 20th Street By: /s/ William Dye
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New York, New York 10011 Print Name: William Dye
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Title: CEO
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By:
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Telecopier No. ( ) - Print Name:
--- ---- ---- ------------------------------
Title:
-----------------------------------
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SCHEDULE TO GRID
PROMISSORY NOTE OF
_______________________ DATED _______________, 199_.
AGGREGATE
PRINCIPAL
DATE BALANCE NOTATION
OF INTEREST AMOUNT OF INTEREST AMOUNT OF REMAINING MADE
LOAN PERIOD LOAN RATE PAYMENT UNPAID BY
11
GUARANTY
(UNLIMITED AMOUNT)
This Guaranty is granted by the Guarantor to THE CHASE MANHATTAN BANK
(Chase), having an office located at 270 Park Avenue, New York, New York
-----------------------------------------
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("Business Office"), and/or any of its subsidiaries and/or affiliates and
wherever located (hereinafter with their respective successors and assigns,
collectively or individually, as the context may require, referred to as
"Chase").
RECITALS. Linographics (Delaware) Corporation (the
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"Borrower") has obtained or desires or may desire at some time and/or from time
to time to obtain financial accommodation from Chase; and each of the
undersigned (hereinafter collectively and individually referred to as the
"Guarantor") represents that it owns directly or indirectly a substantial amount
of the stock of or other ownership interest in the Borrower and/or is
financially interested in its affairs and expects to derive advantage from each
and every such accommodation;
CONSIDERATION. To induce Chase, 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 Chase), the Guarantor hereby agrees as follows:
GUARANTY. The Guarantor (and if there is more than one Guarantor,
jointly and severally) absolutely and unconditionally guarantees to Chase that
the Borrower will promptly perform and observe every agreement and condition
contained in any instrument, writing or arrangement relating to or the subject
of any such financial accommodation (a "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 Chase 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 Chase, together with interest
and any and all legal and other costs and expenses paid or incurred in
connection therewith by Chase (collectively, the "Guaranteed Obligations"), 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 Chase, the Guaranteed Obligations may
be declared to be due and payable for purposes of this Guaranty notwithstanding
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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), the Guaranteed 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 Chase of any Guaranteed Obligation
will, when made, be final and agrees that if any such payment is recovered from,
or repaid by, Chase in whole or in part by reason of 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.
This is a guaranty of payment and performance and not a guaranty of
collection only.
This Guaranty is enforceable irrespective of the validity, regularity
or enforceability of any instrument, writing or arrangement relating to or the
subject of a Credit Arrangement or the obligations thereunder and irrespective
of any present or future law or order of any government (whether of right or in
fact and whether Chase 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.
CONSENTS AND WAIVERS. 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 Guaranteed Obligation
may be waived or the time of performance thereof extended by Chase, and payment
of any Guaranteed Obligation may be accelerated in accordance with any agreement
governing the same, 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 Chase may determine, or any co-guarantor or any other party liable upon or in
respect of any obligation may be released, and any of the acts mentioned in any
Credit Arrangement may be done, all without notice to or affecting the liability
of the Guarantor hereunder. The Guarantor waives notice of acceptance of this
Guaranty and of the creation of any Guaranteed Obligations. The Guarantor hereby
waives presentment of any instrument, demand for 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 Chase
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 Guaranteed Obligations. The Guarantor hereby further
waives any defense whatsoever which might constitute a defense available to, or
discharge of, the Borrower or a guarantor. No payment by the Guarantor pursuant
to any provision hereunder shall entitle the Guarantor, by subrogation to the
rights of Chase 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
Chase at any time or from time to time, unless the Guaranteed Obligations shall
be paid in full.
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CONTINUING GUARANTY; TERMINATION. This Guaranty shall be a continuing
guaranty, and Chase may continue to act in reliance hereon until the receipt by
Chase of written notice from the Guarantor not to give further financial
accommodation in reliance hereon, provided that such notice shall not affect the
obligations, absolute or contingent, of the Guarantor hereunder with respect to
any such accommodation given prior to such notice. Such notice shall be
effective only after receipt by Chase at its Business Office, and Chase shall
have had a reasonable time to act upon such notice at each of its offices
extending financial accommodation to Borrower.
FINANCIAL STATEMENTS. The Guarantor shall furnish to Chase, after the
end of the Guarantor's fiscal year or at such other times or intervals as Chase
may request, financial statements certified by the Guarantor showing the
Guarantor's financial condition at the end of and for the entire fiscal year.
Such statements shall fairly present the financial condition of the Guarantor as
at the end of such fiscal year or periods in accordance with generally accepted
accounting principles consistently applied. Upon demand by Chase, the Guarantor
shall retain an independent certified public accountant acceptable to Chase to
prepare such financial statements, on an audited, review or compilation basis,
as selected by Chase, and as to audited statements, accompanied by a
satisfactory report of such accountants which shall not contain any
qualification of opinion or disclaimer by reason of audit limitations imposed by
the Guarantor. Further, Guarantor agrees to furnish to Chase copies of its tax
returns, as soon as available and in any event not later than 15 days after such
tax returns are required to be filed.
FOREIGN CURRENCIES. 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 to Chase 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 Chase at its principal office in New
York City the equivalent of such unpaid amount in United States currency
computed at Chase'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 Chase harmless from any loss
incurred by Chase 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 Chase 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.
RIGHTS CUMULATIVE. The rights, powers and remedies granted to Chase
herein shall be cumulative and in addition to any rights, powers and remedies to
which Chase may be entitled
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either by operation of law or pursuant to any other document or instrument
delivered or from time to time to be delivered to Chase in connection with any
Credit Arrangement.
SECURITY. As collateral security for the payment of any and all
obligations and liabilities of the Guarantor to Chase, now existing or hereafter
arising, the Guarantor grants to Chase a security interest in and a lien upon
and right of offset against all moneys, deposit balances, securities or other
property or interest therein of the Guarantor now or at any time hereafter held
or received by or for or left in the possession or control of Chase or any of
its affiliates, whether for safekeeping, custody, transmission, collection,
pledge or for any other or different purpose.
REPRESENTATIONS AND WARRANTIES. Each Guarantor which is other than an
individual represents and warrants that: (a) it is duly organized and validly
existing under the laws of the jurisdiction of its organization or incorporation
and, if relevant under such laws, in good standing; (b) it has the power to
execute and deliver this Guaranty and to perform its obligations hereunder and
has taken all necessary action to authorize such execution, delivery and
performance; (c) such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its organizational
documents, any order or judgment of any court or other agency of government
applicable to it or any of its assets or any material contractual restriction
binding on or materially affecting it or any of its assets; (d) to the best of
Guarantor's knowledge, all governmental and other consents that are required to
have been obtained by it with respect to this Guaranty have been obtained and
are in full force and effect and all conditions of any such consents have been
complied with; (e) its obligations under this Guaranty constitute its legal,
valid and binding obligations, enforceable in accordance with its terms except
to the extent that such enforcement may be limited by applicable bankruptcy,
insolvency or other similar laws affecting creditors' rights generally; (f) all
financial statements and related information furnished and to be furnished to
Chase from time to time by the Guarantor are true and complete and fairly
present the financial or other information stated therein as at such dates or
for the periods covered thereby; (g) there are no actions, suits, proceedings or
investigations pending or, to the knowledge of the Guarantor, threatened against
or affecting the Guarantor before any court, governmental agency or arbitrator,
which involve forfeiture of any assets of the Guarantor or which may materially
adversely affect the financial condition, operations, properties or business of
the Guarantor or the ability of the Guarantor to perform its obligation under
this Guaranty; and (h) there has been no material adverse change in the
financial condition of the Guarantor since the last such financial statements or
information. If the Guarantor is an individual, the Guarantor represents and
warrants the correctness of clauses (c), (d), (e), (f), (g) and (h) above to the
extent applicable to an individual.
COSTS. The Guarantor agrees to reimburse Chase on demand for all costs,
expenses and charges (including, without limitation, fees and charges of
external legal counsel for Chase and costs allocated by its internal legal
department) in connection with the enforcement of this Guaranty.
ENTIRE AGREEMENT, AMENDMENT AND WAIVERS. This Guaranty constitutes the
entire agreement between the Guarantor and Chase in respect of the subject
matter hereof and may be amended only by a writing signed on behalf of each
party and shall be effective only to the extent
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set forth in that writing. No delay by Chase in exercising any power or right
hereunder shall operate as a waiver thereof or of any other power or right; nor
shall any single or partial exercise of any power or right preclude other or
future exercise thereof, or the exercise of any other power or right hereunder.
No waiver shall be deemed to be made by Chase of any of its rights hereunder
unless the same shall be in writing signed on behalf of Chase, and each waiver,
if any, shall be a waiver only with respect to the specific instance involved
and shall in no way impair the rights of Chase or the obligations of the
Guarantor to Chase in any other respect at any other time.
As to each Guarantor who is an individual, this Guaranty is being
signed by such Guarantor in an individual capacity and any descriptive terms
placed after the Guarantor's name shall not affect the Guarantor's personal
liability under this Guaranty.
SUCCESSORS. This agreement shall be immediately binding upon the
Guarantor, and the successors of the Guarantor. Chase 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 Chase, and Chase shall be thereafter fully discharged from
all responsibility with respect to any such Security so assigned and/or
delivered.
GOVERNING LAW; JURISDICTION. This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York, Connecticut or
New Jersey, depending on the location of the Chase office set forth in this
Guaranty. The undersigned consent(s) to the nonexclusive jurisdiction and venue
of the state or federal courts located in such state. In the event of a dispute
hereunder, suit may be brought against the undersigned in such courts or in any
jurisdiction where the undersigned or any of its assets may be located. Service
of process by Chase 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 or to such further address(es) as the undersigned may specify to
Chase in writing.
COMMERCIAL TRANSACTION. IF THE UNDERSIGNED IS A CONNECTICUT DOMICILED
ENTITY OR RESIDENT, EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT THIS
GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY CONSTITUTE COMMERCIAL
TRANSACTIONS WITHIN THE MEANING OF SECTION 52-278a OF THE CONNECTICUT GENERAL
STATUTES. EACH OF THE UNDERSIGNED EXPRESSLY WAIVES ANDY AND ALL RIGHTS,
CONSTITUTIONAL OR OTHERWISE, WITH RESPECT TO NOTICE AND HEARING AND ANY RIGHTS
UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES IN CONNECTION WITH ANY
PREJUDGMENT REMEDY AVAILABLE TO CHASE.
GUARANTOR WAIVERS. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY
RIGHT TO A TRIAL BY JURY OF ANY
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DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY, AND AGREES THAT ANY SUCH
DISPUTE SHALL, AT CHASE'S OPTION, BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
IN ADDITION, EACH GUARANTOR WAIVES THE RIGHT TO INTERPOSE ANY DEFENSE
BASED UPON ANY STATUTE OF LIMITATIONS OR ANY CLAIM OF DELAY BY CHASE AND ANY
SET-OFF OR COUNTERCLAIM OF ANY NATURE OR DESCRIPTION.
IN WITNESS WHEREOF, the Guarantor has executed this instrument or has
caused this instrument to be duly executed by its proper officer(s) or
partner(s) this 30th day of November, 1996.
---- -------- -
Address for notices:
Linographics Corporation
-----------------------------------
Linographics Corporation By: /s/ William Dye
- -------------------------------- -------------------------------
20 West 20th Street Print Name William Dye
- -------------------------------- ------------------------
New York, New York 10011 Title: President
- -------------------------------- ----------------------------
Telecopier No. ( ) -
--- ------------ -----------------------------------
By: /s/ [illegible]
-------------------------------
Print Name [illegible]
------------------------
Title: Secretary
----------------------------
17
STATE OF )
) SS.:
COUNTY OF )
On this _____ day of ________________, 199___, before me personally
came ___________________________________, to me known, who, being by me duly
sworn, did depose and say that he/she resides in
____________________________________________; that he/she is
__________________________________ of
______________________________________________________, the corporation
described in and which executed the above instrument; and that he/she signed
his/her name thereto by order of the board of directors of said corporation.
___________________________________
Notary Public