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EXHIBIT 10.13
CONTINUING CORPORATE GUARANTY
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BOSTON SAFE DEPOSIT AND
TRUST COMPANY, WILLIAM E. MITCHELL,
Lender Obligor
NASHUA CORPORATION, JAN SCHREYER MITCHELL,
Guarantor Obligor
In consideration of, and as an inducement for BOSTON SAFE DEPOSIT AND
TRUST COMPANY (hereinafter called the "Lender") to make a mortgage loan to
WILLIAM E. MITCHELL and JAN SCHREYER MITCHELL (hereinafter collectively
referred to as the "Obligor"), in an aggregate principal amount not to exceed
One Million One Hundred Thousand and No/Hundreds Dollars ($1,100,000.00)
(hereinafter individually and collectively called the "Loan(s)"), the
undersigned, NASHUA CORPORATION, a Delaware corporation (hereinafter called
the "Guarantor"), with its principal place of business at 44 Franklin Street,
Nashua, New Hampshire 03061, does hereby unconditionally and irrevocably
guarantee to the Lender and its successors and assigns, without offset or
deduction, the prompt payment when due, whether by acceleration or otherwise,
of all payments of the principal of and interest on the promissory notes from
time to time executed by the Obligor evidencing the Loan(s) (hereinafter
individually and collectively called the "Note"), and all other amounts
whatsoever now or hereafter owing and payable by the Obligor under, arising out
of or in connection with any Note evidencing the Loan(s), the guaranty under
this clause constituting hereby a guaranty of payment and not of collection.
The Guarantor does hereby agree that in the event that the Obligor does not or
is unable to pay or perform in accordance with the terms of the Note for any
reason (including, without limitation and to the extent applicable, the
liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceedings affecting the status, existence,
assets or obligations of, the Obligor) it will pay the installments of
principal and interest (and premium, if any) due on such Note or otherwise
provide for and bring about promptly when due such payment and the performance
of such duties, agreements, covenants and obligations of the Obligor.
Guarantor specifically and unconditionally agrees that if a petition in
bankruptcy or for an arrangement or reorganization of Guarantor under the
bankruptcy laws or for the appointment of a receiver for Obligor or Guarantor,
or any of the property of Obligor or Guarantor is filed by or against Obligor
or Guarantor, or if Obligor or Guarantor shall make an assignment for the
benefit of creditors or shall become insolvent, all Obligations of Obligor to
Lender shall, for purposes of this guaranty, be deemed at Lender's election to
have become immediately due and payable. Guarantor further agrees Lender may
declare all the Obligations due and payable for purposes of the Guaranty if
there is a material change in the financial status of Guarantor. All of the
liabilities and obligations of the Obligor hereby guaranteed are hereinafter
collectively referred to as the "Obligations".
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Without limiting the generality of clause (i) above, the Guarantor
specifically agrees that it shall not be necessary or required, and that the
Guarantor shall not be entitled to require, that the Lender, or any successor
or assignee of Lender, file suit or proceed to obtain or assert a claim for
personal judgment against the Obligor for the Obligations or make any effort at
collection of the Obligations from the Obligor or foreclose against or seek to
realize upon any security now or hereafter existing for the Obligations or file
suit or proceed to obtain or assert a claim for personal judgment against any
other party liable for the Obligations or make any effort at collection of the
Obligations from any such other party or exercise or assert any other right or
remedy to which any of them is or may be entitled in connection with the
Obligations or any security or other guaranty therefor or assert or file any
claim against the assets of the Obligor or other person liable for the
Obligations, or any part thereof, before or as a condition of enforcing the
liability of the Guarantor under this Guaranty or requiring payment of said
Obligations by the Guarantor hereunder, or at any time thereafter. The
Guarantor agrees, upon demand of the Lender to either, at the Lender's option,
pay directly or reimburse the Lender for the payment of, all costs, fees and
expenses, including, without limitation, attorneys' fees, incurred by the
Lender in the enforcement or attempted enforcement of any of its rights
hereunder.
The Guarantor specifically agrees that it shall not be necessary or
required in order to enforce the obligations of the Guarantor hereunder that
there be, and the Guarantor specifically waives: notice of the acceptance of
this Guaranty and of the performance or nonperformance of any of the
Obligations; demand of payment from the Obligor except to the extent required
by the Note; presentment for payment upon the Obligor or the making of any
protest; notice of the amount of the Obligations outstanding at any time; and
notice of nonpayment or failure to perform on the part of the Obligor. The
Guarantor further waives all defenses, offsets and counterclaims which the
Guarantor may at any time have to the payment or performance of the
Obligations. The obligations of the Guarantor under this Guaranty shall be
absolute and unconditional and shall remain in full force and effect until the
Obligor shall have fully and satisfactorily discharged the Obligations and
shall not be released or discharged by reason of: (i) any waiver by the Lender,
or its successors or assigns, of the performance or observance by the Obligor
of any of the agreements, covenants, terms or conditions contained in the Note;
(ii) the extension of the time for payment by the Obligor of any payment of
principal and interest due on the Note or other sums or any part thereof owing
or payable under or pursuant to the Note, or any Loan or of the time for
performance by the Obligor of any other obligations under or pursuant to the
Note; (iii) any failure, omission or delay of the Lender or its successors or
assigns to enforce, assert or exercise any right, power or remedy conferred on
the Lender under or pursuant to the Note or any action on the part of the
Lender or its successors or assigns granting any extension or indulgence in any
form to the Obligor; (iv) any compromise, settlement, release, renewal,
extension, indulgence, change in or waiver or modification of, any of the
Obligations or the release or discharge of the Obligor from the performance or
observance of any of the Obligations by operation of law; (v) any change in,
waiver or modification of, or amendment to, any of the terms or provisions of
the Note; (vi) if applicable, any consolidation or merger of Obligor, whether
permitted under the terms of the Agreements or otherwise, or the sale, transfer
or other disposition by the Obligor or all or substantially all of the assets
and liabilities of the Obligor; (vii) if applicable, the voluntary or
involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of
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creditors, reorganization, arrangement, composition or readjustment of the
Obligor, or any other similar proceeding affecting the status, existence,
assets or obligations of the Obligor; (viii) if applicable, the death or mental
or physical incapacity of the Obligor; (ix) any fictitiousness, incorrectness,
invalidity or unenforceability, for any reason, of the Note or of any provision
thereof, or of any of the Obligations; (x) any transfer or assignment by the
Obligor of any of the Obligor's rights or obligations under the Note, or any
use of the Collateral (as defined in the Note) or any part thereof by any
person or party, or any sale, transfer, assignment, lease, mortgage, pledge,
hypothecation or further encumbering of the Collateral or any part thereof by
Obligor; or (xi) any other circumstance that might otherwise constitute a legal
or equitable discharge of the Obligor (including a discharge in bankruptcy) or
of the Guarantor.
The Guarantor hereby represents and warrants to Lender that: (a) the
Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation set forth above; (b) the
Guarantor has the power and authority to execute and perform this Guaranty, and
has duly authorized the execution, delivery and performance of this Guaranty;
(c) no approval is required from any regulatory body, board, authority or
commission, nor from any other administrative or governmental agency, nor from
any other person, firm or corporation, with respect to the execution of this
Guaranty by the Guarantor and the payment and performance by the Guarantor of
all of the Guarantor's obligations hereunder; (d) this Guaranty constitutes the
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with its terms, and the execution, delivery and performance of the same by the
Guarantor will not violate the Guarantor's Charter, Certificate of
Incorporation, or By-Laws, or any provision of law, any order of any court or
other agency of government, or any indenture, agreement or other instrument to
which the Guarantor is a party, or by or under which the Guarantor or any of
the Guarantor's property is bound, or be in conflict with, result in a breach
of, or constitute (with due notice and/or lapse of time) a default under, any
such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the Guarantor's property or assets; (e) the Guarantor will furnish Lender (
i) as soon as available, and in any event within 120 days after the last day of
each fiscal year of the Guarantor, a copy of the consolidated balance sheet of
the Guarantor and its consolidated subsidiaries as of the end of such fiscal
years, and related consolidated statements of income and retained earnings of
the Guarantor and its consolidated subsidiaries for such fiscal year, certified
by an independent certified public accounting firm of recognized standing, each
on a comparative basis with corresponding statements for the prior fiscal year,
(ii) within 45 days after the last day of each fiscal quarter of the Guarantor
(except the last such fiscal quarter), a copy of the balance sheet as of the
end of such quarter, and statement of income and retained earnings of the
Guarantor and its consolidated subsidiaries covering the fiscal year to date,
each on a comparative basis with the corresponding period of the prior year,
all in reasonable detail and certified by the chief financial officer of the
Guarantor, (iii) contemporaneously with its transmittal to each stockholder of
the Guarantor, such reports as the Guarantor shall send to its stockholders,
and (iv) such additional financial information as Lender may reasonably request
concerning the Guarantor; and (f) the Guarantor and its consolidated
subsidiaries have filed all United States income tax returns which are required
to be filed and have paid, or made provisions for the payment of, all taxes
which have or may become due pursuant to said returns or pursuant to any
assessment received
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by the Guarantor or such consolidated subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have
been provided.
Notwithstanding any payment or payments made by the Guarantor
hereunder, the Guarantor shall not be entitled to be subrogated to any of the
Lender's rights against the Obligor or the Collateral (or any part thereof)
until all amounts owing to the Lender by the Obligor for or on account of the
Obligations shall have been paid in full.
This Guaranty (a) may be assigned by the Lender without the consent of
the Guarantor, but may not be assigned by the Guarantor; (b) may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument; (c) shall inure to
the benefit of the Lender, and its successors and assigns, and be binding upon
the successors and, subject to the restrictions of clause (a) of this
paragraph, assigns of the Guarantor; (d) may be modified only by an instrument
in writing, signed by the duly authorized representative of the party to be
bound; and (e) shall in all respects be governed by, and be construed in
accordance with, the laws of the Commonwealth of Massachusetts.
All capitalized terms used herein which are not otherwise defined
herein shall have the meanings given to such terms in the Note. The Guarantor
hereby acknowledges receipt of a copy of the Note, as executed by the Obligor
and/or the Lender.
IN WITNESS WHEREOF; the Guarantor has caused this Guaranty to be
executed by its duly authorized officer and its corporate seal to be affixed
hereto this 20th day of January 1995.
NASHUA CORPORATION,
Guarantor
By: /s/ William Luke
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(Print Name) William Luke
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Its: Vice President-Finance
Attest: ------------------------------
/s/ Suzanne Ansara [Corporate Seal]
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Asst. Secretary
/s/ William e. Mitchell
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WILLIAM E. MITCHELL, Obligor
/s/ Jan Schreyer Mitchell
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JAN SCHREYER MITCHELL, Obligor
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