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EXHIBIT 4.3
GUARANTEE
This Guarantee, dated as of
September 10, 2007, is made by Delphax Technologies Inc., a
Minnesota corporation (the “ Guarantor ”), for
the benefit of Wells Fargo Financial Corporation Canada (with its
participants, successors and assigns, the “ Lender
”).
The Lender and Delphax
Technologies Canada Limited, a corporation organized under the laws
of the Province of Ontario (the “ Borrower ”),
are parties to a Credit and Security Agreement of even date
herewith (as the same may be amended, supplemented or restated from
time to time, the “ Credit Agreement ”) pursuant
to which the Lender may make advances and extend other financial
accommodations to the Borrower.
As a condition to extending
such credit to the Borrower, the Lender has required the execution
and delivery of this Guarantee.
ACCORDINGLY, the Guarantor,
in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agrees as follows:
1. Definitions . All terms
defined in the Credit Agreement that are not otherwise defined
herein shall have the meanings given them in the Credit
Agreement.
2. Indebtedness Guaranteed . The
Guarantor hereby absolutely and unconditionally guarantees to the
Lender the full and prompt payment when due, whether at maturity or
earlier by reason of acceleration or otherwise, of (i) the
Indebtedness (as defined in the Credit Agreement) and
(ii) each and every other sum now or hereafter owing to the
Lender by the Borrower in connection with the Credit Agreement or
any Loan Document, including but not limited to, debts, liabilities
and obligations arising out of loans, credit transactions,
financial accommodations, discounts, purchases of property or other
transactions with the Borrower or for the Borrower’s account
or out of any other transaction or event, owed to the Lender or
owed to others by reason of participations granted to or interests
acquired or created for or sold to them by the Lender, in each case
whether now existing or hereafter arising, whether arising directly
in a transaction or event involving the Lender or acquired by the
Lender from another by purchase or assignment or as collateral
security, whether owed by the Borrower as drawer, maker, endorser,
accommodation party, guarantor, principal, surety or as a member of
any partnership, syndicate, association or group or in any other
capacity, whether absolute or contingent, direct or indirect,
primary or secondary, sole, joint, several or joint and several,
secured or unsecured, due or not due, contractual, tortious or
statutory, liquidated or unliquidated, arising by agreement or
imposed by law or otherwise (all of said sums being hereinafter
called the “ Guaranteed Indebtedness
”).
3. Indemnity . As an original and
independent obligation under this Guarantee, the Guarantor shall:
(a) indemnify the Lender and keep the Lender indemnified
against any cost, loss, expense or liability of whatever kind
resulting from the failure by the Borrower to make due and punctual
payment of any of the Guaranteed Indebtedness or resulting from any
of the Guaranteed Indebtedness being or becoming void, voidable,
unenforceable or ineffective against the
Borrower (including, but without
limitation, all legal and other costs, charges and expenses
incurred by the Lender, or any of them, in connection with
preserving or enforcing, or attempting to preserve or enforce, its
rights under this Guarantee); and (b) pay on demand the amount
of such cost, loss, expense or liability whether or not the Lender
has attempted to enforce any rights against the Borrower or any
other person or otherwise.
4. Guarantor’ Representations
and Warranties . The Guarantor represents and warrants to the
Lender that (i) the Guarantor is a corporation, duly organized
and existing in good standing under the laws of Minnesota and has
full power and authority to make and deliver this Guarantee;
(ii) the execution, delivery and performance of this Guarantee
by the Guarantor has been duly authorized by all necessary action
of its directors and shareholders and does not and will not violate
the provisions of, or constitute a default under, any currently
applicable law or its Constituent Documents or any agreement
currently binding on it, except where its violation or default
would not have a Material Adverse Effect on its ability to fulfill
its obligations hereunder; (iii) this Guarantee has been duly
executed and delivered by an authorized Officer of the Guarantor
and constitutes its lawful, binding and legally enforceable
obligation; and (iv) the authorization, execution, delivery
and performance of this Guarantee does not require notification to,
registration with, or consent or approval by, any federal,
provincial, state or local regulatory body or administrative
agency. The Guarantor represents and warrants to the Lender that
the Guarantor has a direct and substantial economic interest in the
Borrower and expects to derive substantial benefits therefrom and
from any loans, credit transactions, financial accommodations,
discounts, purchases of property and other transactions and events
resulting in the creation of the Guaranteed Indebtedness guarantied
hereby, and that this Guarantee is given for a corporate
purpose.
5. Unconditional Nature . No act
or thing need occur to establish the Guarantor’ liability
hereunder, and no act or thing, except full payment and discharge
of all of the Guaranteed Indebtedness, shall in any way exonerate
the Guarantor hereunder or modify, reduce, limit or release the
Guarantor’ liability hereunder. This is an absolute,
unconditional and continuing guaranty of payment of the Guaranteed
Indebtedness and shall continue to be in force and be binding upon
the Guarantor, whether or not all of the Guaranteed Indebtedness is
paid in full.
6. Dissolution or Insolvency of
Guarantor . The dissolution or adjudication of bankruptcy of
the Guarantor shall not revoke this Guarantee. If the Guarantor
shall be dissolved or shall be or become insolvent (however
defined), then the Lender shall have the right to declare
immediately due and payable, and the Guarantor will forthwith pay
to the Lender, the full amount of all of the Guaranteed
Indebtedness whether due and payable or unmatured. If the Guarantor
voluntarily commences or there is commenced involuntarily against
the Guarantor a case under the United States Bankruptcy Code, the
full amount of all Guaranteed Indebtedness, whether due and payable
or unmatured, shall be immediately due and payable without demand
or notice thereof.
7. Subrogation, Etc. The
Guarantor hereby waives all rights that the Guarantor may now have
or hereafter acquire, whether by subrogation, contribution,
reimbursement, recourse, exoneration, contract or otherwise, to
recover from the Borrower or from any property of the Borrower any
sums paid under this Guarantee. The Guarantor will not exercise or
enforce any right of contribution to recover any such sums from any
person who is a co-obligor with the Borrower or a guarantor or
surety of the Guaranteed Indebtedness or from any property of any
such person until all of the Guaranteed Indebtedness shall have
been fully paid and discharged.
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8. Enforcement Expenses . The
Guarantor will pay or reimburse the Lender for all costs, expenses
and reasonable attorneys’ fees paid or incurred by the Lender
in endeavoring to collect and enforce the Guaranteed Indebtedness
and in enforcing this Guarantee.
9. Lender’s Rights . The
Lender shall not be obligated by reason of its acceptance of this
Guarantee to engage in any transactions with or for the Borrower.
Whether or not any existing relationship between the Guarantor and
the Borrower has been changed or ended and whether or not this
Guarantee has been revoked, the Lender may enter into transactions
resulting in the creation or continuance of the Guaranteed
Indebtedness and may otherwise agree, consent to or suffer the
creation or continuance of any of the Guaranteed Indebtedness,
without any consent or approval by the Guarantor and without any
prior or subsequent notice to the Guarantor. The Guarantor’
liability shall not be affected or impaired by any of the following
acts or things (which the Lender is expressly authorized to do,
omit or suffer from time to time, both before and after revocation
of this Guarantee, without consent or approval by or notice to the
Guarantor): (i) any acceptance of collateral security,
guarantor, accommodation parties or sureties for any or all of the
Guaranteed Indebtedness; (ii) one or more extensions or
renewals of the Guaranteed Indebtedness (whether or not for longer
than the original period) or any modification of the interest
rates, maturities, if any, or other contractual terms applicable to
any of the Guaranteed Indebtedness or any amendment or modification
of any of the terms or provisions of any loan agreement or other
agreement under which the Guaranteed Indebtedness or any part
thereof arose; (iii) any waiver or indulgence granted to the
Borrower, any delay or lack of diligence in the enforcement of the
Guaranteed Indebtedness or any failure to institute proceedings,
file a claim, give any required notices or otherwise protect any of
the Guaranteed Indebtedness; (iv) any full or partial release
of, compromise or settlement with, or agreement not to sue, the
Borrower or any Guarantor or other person liable in respect of any
of the Guaranteed Indebtedness; (v) any release, surrender,
cancellation or other discharge of any evidence of the Guaranteed
Indebtedness or the acceptance of any instrument in renewal or
substitution therefor; (vi) any failure to obtain collateral
security (including rights of setoff) for the Guaranteed
Indebtedness, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to
preserve, protect, insure, care for, exercise or enforce any
collateral security;
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