EX-10.9 11 d51026_ex10-9.txt GUARANTY Exhibit 10.9 GUARANTY Date: June 27, 2002 THE CIT GROUP/BUSINESS CREDIT, INC. 1211 Avenue of the Americas New York, New York 10036 Re: Boundless Technologies, Inc.(the "Company") Ladies & Gentlemen: Reference is made to that certain Financing Agreement dated June 27, 2002 as amended (herein the "Agreement") between you, the above-named Company, and the undersigned (the "Guarantor"). The undersigned hereby unconditionally guarantees and agrees to be liable for the full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations or liabilities of the Company to you, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under the Agreement as now written or as amended or supplemented hereafter, or by operation of law or otherwise, including, without limitation, all Obligations (as defined in the Agreement) of the Company to you. Further the Guarantor agrees to pay to you on demand the amount of all expenses (including reasonable attorney's fees) incurred by you in collecting or attempting to collect any of the Company obligations to you, whether from the Company, or from any other obligor, or from the Guarantor, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you hereunder, even if such amount cannot be collected from the Company. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Obligations"). To the extent you receive payment on account of Obligations guaranteed hereby, which payment is thereafter set aside or required to be repaid by you in whole or in part, then, to the extent of any sum not finally retained by you (regardless of whether such sum is recovered from you by the Company, its trustee, or any other party acting for, on behalf of or through the Company or its representative), the Guarantor's obligation to you under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect (or be reinstated) until the Guarantor has made payment to you therefor, which payment shall be due upon demand. This Guaranty is executed as an inducement to you to make loans or advances to the Company or otherwise to extend credit or financial accommodations to the Company, or to enter into or continue a financing arrangement with the Company, and is executed in consideration of your doing or having done any of the foregoing. The Guarantor agrees that any of the foregoing shall be done or extended by you in your 1 sole discretion, and shall be deemed to have been done or extended by you in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate you to do any of the foregoing. Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit under the Agreement, the amendment, execution or termination of the Agreement or any other agreements in connection therewith, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Guarantor may be entitled (whether under this Guaranty or the Agreement), and your reliance on this Guaranty are hereby waived. The Guarantor also waives notice of: changes in terms or extensions of the time of payment, the taking and releasing of collateral or guarantees (including the release of any other guarantors) and the settlement, compromise or release of any Obligations, and agrees that the amount of the Obligations shall not be diminished by any of the foregoing. The Guarantor also agrees that you need not attempt to collect any Obligations from any other guarantors or any other obligor or to realize upon any collateral, but may require the Guarantor to make immediate payment of Obligations to you when due or at any time thereafter. You shall not be liable for failure to collect Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you be under any obligation to take any action whatsoever with regard thereto. This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, including any action, or failure to act, on your part. The liability of the Guarantor under this Guaranty shall be unaffected by the death of any other guarantor. Payment by the Guarantor shall be made to you at your office from time to time on demand as Obligations become due, and one or more successive or concurrent actions may be brought hereon against the Guarantor either in the same action or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the Guarantor, the Guarantor agrees not to assert against you any set-off or counterclaim which the Company may have, and, further, the Guarantor agrees not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you to the Guarantor, or for any loss of contribution from any other guarantor. Furthermore, in any litigation based on the Guaranty in which you and the Guarantor or any other guarantor shall be adverse parties, the Guarantor hereby waives trial by jury and waives the right to interpose any defense based upon any Statute of Limitations or any claim of laches and waives the performance of each and every condition precedent to which the Guarantor might otherwise be entitled by law. The Guarantor hereby consents to the in personal jurisdiction of the courts of the State of New York. In the event that you bring any action or suit in any court of record of New York State or the Federal Government to enforce any or all liabilities of the Guarantor hereunder, service of process may be made on the Guarantor by mailing a copy of the summons to the Guarantor at the address below set forth. 2 All sums at any time to the credit of the Guarantor and any property of the Guarantor on which you at any time have a lien or security interest, or of which you at any time have possession, shall secure payment and performance of all Obligations and any and all other obligations of the Guarantor to you however arising. The Guarantor shall have no right of subrogation, indemnification or recourse to any Obligations or collateral or guarantees therefor, or to any assets of the Company. Upon the occurrence of any of the following events: (1) any Event of Default under, or termination of, the Agreement; (2) failure of the Guarantor to observe or perform any agreements, warranties or covenants contained herein; or (3) (a) death of the Guarantor, or dissolution or cessation of the Guarantor's business; (b) calling of a meeting of the creditors of the Guarantor for the purposes of compromising the debts of the Guarantor; (c) failure of the Guarantor to meet its debts as they mature; (d) commencement by the Guarantor of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeds under federal or state law (herein collectively "Insolvency Proceeding"); (e) commencement of any Insolvency Proceeding against the Guarantor, then, in the case of event (1) above the liability of the Guarantor for the entire Obligations shall mature, and in the case of events (2) and (3)(a) through (e) above the liability of the Guarantor with respect to which such event relates for the entire Obligations shall mature even if the liability of the Company therefor does not. This Guaranty may be terminated as to the Guarantor only as of any Anniversary Date (as defined in the Agreement) and then only upon actual receipt by one of your officers of at least ninety (90) days prior written notice of termination sent by registered or certified mail; provided however, that the Guaranty shall remain bound hereunder, and this Guaranty shall continue in full force and effect, with respect to any and all Obligations created or arising prior to the effective date of such termination and with respect to any and all extensions, renewals or modifications of said pre-existing Obligations. Termination as to any one of the guarantors shall not affect the obligations of the Guarantor, nor relieve the one giving such notice from liability for any post termination collection expenses or interest. This is a continuing agreement and written notice as above provided shall be the only means of termination, notwithstanding the fact that for certain periods of time there may be no Obligations owing to you by the Company. 3 Your books and records showing the account between you and the Company shall be admissible in evidence in any action or proceeding as prima facie proof of the items therein set forth. Your monthly statements rendered to the Company shall be binding upon the Guarantor (whether or not the Guarantor received copies thereof) and shall constitute an account stated between you and the Company unless you shall have received a written statement of the Company exceptions within thirty (30) days after the statement was mailed to the Company. The Guarantor expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which it may now or hereafter have against the Company or any other person directly or contingently liable for the Obligations guaranteed hereunder, or against or with respect to the Company property (including, without limitation, property collateralizing its Obligations to you) arising from the existence or performance of this Guaranty. This Guaranty embodies the whole agreement of the parties and may not be modified except in writing, and no course of dealing between you and the Guarantor shall be effective to change or modify this Guaranty. Your failure to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any other time and from time to time thereafter, and such rights shall be considered as cumulative rather than alternative. No knowledge of any breach or other nonobservance by the Guarantor of the terms and provisions of this Guaranty shall constitute a waiver thereof, nor a waiver of any obligations to be performed by the Guarantor hereunder. This Guaranty may be assigned by you and shall be for your benefit and for the benefit of any of your assignees or transferees, and shall cover any Obligations owed to you at the time of assignment or transfer as well as any and all future Obligations, loans, advances or extensions of credit made to the Company by, or otherwise owed by the Company to, such assignee or transferee. This instrument is executed and given in addition to, and not in substitution, reduction, replacement, or satisfaction of, any other endorsements or guarantees of the Obligations, now existing or hereafter executed by the Guarantor or others in your favor. When used in this agreement, all pronouns shall, wherever applicable, be deemed to include the singular and plural as well as the masculine, feminine, and neuter genders. This agreement shall inure to the benefit of you, your successors and assigns and any parent, subsidiary or affiliate of yours; shall be binding jointly and severally upon all guarantors, including the Guarantor, and upon the respective heirs, executors, administrators, successors and assigns of any of the guarantors including the Guarantor; and shall pertain to the Company and its successors and assigns. This Guaranty may be executed in any number of counterparts, each of which when so executed shall be deemed an original and such counterparts shall together constitute but one and the same document. 4 This Guaranty shall be governed by and construed in accordance with the laws of the State of New York. IN WITNESS WHEREOF the Guarantor has executed and delivered this Guaranty effective as of the date above set forth. BOUNDLESS MANUFACTURING SERVICES, INC. By: /s/ Joseph Gardner ----------------------------------- Name: Joseph Gardner Title: CFO Address: 100 Marcus Boulevard Hauppauge, New York 11788 5 STATE OF NEW YORK COUNTY OF_________________ CORPORATE ACKNOWLEDGMENT The undersigned, a Notary Public in and for the above State and County, does hereby certify that on June 27, 2002, before me personally appeared ___________________________, to me known to be the identical individual(s) described in and who executed the foregoing instrument of Guaranty as the officer indicated of the BOUNDLESS MANUFACTURING SERVICES, INC., to whomz I first made known the contents thereof, and who being by me duly sworn, did depose and say that same was signed and delivered as a free and voluntary act and deed, for the uses and purposes therein set forth, and that same was signed by due authority of the Board of Directors of said Corporation. IN WITNESS WHEREOF, I have hereunto set my hand. ___________________________ Notary Public Commission Expires: 6