EXHIBIT 10.4

  
	
   

  	
   

  	
   

  
	
  

  	
   

  	
   

  



 


CONTINUING
GUARANTY


(Business
Organization)


New York


 


	
  GUARANTOR:

  	
   

  	
  Hardinge Technology Systems, Inc.

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  One Hardinge Drive, Elmira, New York 14902

  
	
   

  	
   

  	
  Address of Chief Executive Office

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a x
  corporation

  	
  o general partnership

  	
  o limited partnership

  	
  o limited liability company

  	
  o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  organized under the laws of the State of
  New York

  
	
   

  	
   

  	
   

  
	
  BORROWER:

  	
   

  	
  Hardinge Inc.

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  One Hardinge Drive, Elmira, New York 14902

  
	
   

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
  BANK:

  	
   

  	
  Manufacturers and Traders Trust Company,
  One M&T Plaza, Buffalo, New York 14240 Attention: Office of General
  Counsel.

  



 


1.    Guaranty.


 


(a)   Guarantor, intending to be legally bound, hereby unconditionally
guarantees the full and prompt payment and performance of any and all of Borrower’s
Obligations (as defined below) to the Bank when due, whether at stated
maturity, by acceleration or otherwise. 
As used in this Guaranty, the term “Obligations” shall mean any and all
obligations, indebtedness and other liabilities of Borrower to the Bank now or
hereafter existing, of every kind and nature and all accrued and unpaid
interest thereon and all Expenses (as defined below) including without
limitation, whether such obligations, indebtedness and other liabilities (i) are
direct, contingent, liquidated, unliquidated, secured, unsecured, matured or
unmatured; (ii) are pursuant to a guaranty or surety in favor of the Bank;
(iii) were originally contracted with the Bank or with another party
(including obligations under a guaranty or surety originally in favor of such
other party); (iv) are contracted by Borrower alone or jointly with one or
more other parties; (v) are or are not evidenced by a writing; (vi) are
renewed, replaced, modified or extended; and (vii) are periodically
extinguished and subsequently reincurred or reduced and thereafter
increased.  Guarantor will pay or perform
its obligations under this Guaranty upon demand.  This Guaranty is and is intended to be a
continuing guaranty of payment (not collection) of the Obligations (irrespective
of the aggregate amount thereof and whether or not the Obligations from time to
time exceeds the amount of this Guaranty, if limited), independent of, in
addition and without modification to, and does not impair or in any way affect,
any other guaranty, indorsement, or other agreement in connection with the
Obligations, or in connection with any other indebtedness or liability to the
Bank or collateral held by the Bank therefor or with respect thereto, whether
or not furnished by Guarantor.  Guarantor
understands that the Bank can bring an action under this Guaranty without being
required to exhaust other remedies or demand payment first from other parties.


 


(b)   Guarantor acknowledges the receipt of valuable consideration for
this Guaranty and acknowledges that the Bank is relying on this Guaranty in
making a financial accommodation to Borrower, whether a commitment to lend,
extension, modification or replacement of, or forbearance with respect to, any
Obligation, cancellation of another guaranty, purchase of Borrower’s assets, or
other valuable consideration.


 


2.    Continuing, Absolute,
Unconditional.  This Guaranty is irrevocable, absolute, continuing, unconditional and
general without any limitation.  This
Guaranty is limited in amount equal to the amount due under that certain LIBOR
Term Note dated of even date herewith by Borrower in favor Bank (the “Note”),
reasonable Expenses (as defined below) incurred with respect to the Note and
all of the Expenses incurred with respect to this Guaranty (collectively, the “Guaranteed
Amount”).


 


3.    Guarantor’s Waivers &
Authorizations.


 


(a)   Guarantor’s obligations shall not be released, impaired or
affected in any way including by any of the following, all of which Guarantor
hereby waives (i) any bankruptcy, reorganization or insolvency under any
law of Borrower or that of any other party, or by any action of a trustee in
any such proceeding; (ii) any new agreements or obligations of Borrower or
any other party with the Bank; (iii) any adjustment, compromise or release
of any Obligations of Borrower, by the Bank or any other party; the existence
or nonexistence or order of any filings, exchanges, releases, impairment or
sale of, or failure to perfect or continue the perfection of a security
interest in any collateral for the Obligations; (iv) any failure of
Guarantor to receive notice of any intended disposition of such collateral; (v) any
fictitiousness, incorrectness, invalidity or unenforceability, for any reason,
of any instrument or other agreement which may evidence any Obligation; (vi) any
composition, extension, stay or other statutory relief granted to Borrower
including, without limitation, the expiration of the period of any statute of
limitations with respect to any lawsuit or other legal proceeding against
Borrower or any person in any way related to the Obligations or a part thereof
or any collateral therefor; (vii) any change in form of organization,
name, membership or ownership of Borrower or Guarantor; (viii) any refusal
or failure of the Bank or any other person prior to the date hereof or
hereafter to grant any additional loan or other credit accommodation to
Borrower or the Bank’s or any other party’s receipt of notice of such refusal
or failure; (ix) any setoff, defense or counterclaim of Borrower with
respect to the obligations or otherwise arising, either directly or indirectly,
in regard to the Obligations; or (x) any other circumstance that might
otherwise constitute a legal or equitable defense to Guarantor’s obligations
under this Guaranty.


 


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(b)   The Guarantor waives acceptance, assent and all rights of notice
or demand including without limitation (i) notice of acceptance of this
Guaranty, of Borrower’s default or nonpayment of any Obligation, and of changes
in Borrower’s financial condition; (ii) presentment, protest, notice of
protest and demand for payment; (iii) notice that any Obligations has been
incurred or of the reliance by the Bank upon this Guaranty; and (iv) any
other notice, demand or condition to which Guarantor might otherwise be
entitled prior to the Bank’s reliance on or enforcement of this Guaranty.  Guarantor further authorizes the Bank,
without notice, demand or additional reservation of rights against Guarantor
and without affecting Guarantor’s obligations hereunder, from time to
time:  (i) to renew, refinance,
modify, subordinate, extend, increase, accelerate, or otherwise change the time
for payment of, the terms of or the interest on the Obligations or any part
thereof;(ii) to accept and hold collateral from any party for the payment
of any or all of the Obligations, and to exchange, enforce or refrain from
enforcing, or release any or all of such collateral; (iii) to accept any
indorsement or guaranty of any or all of the Obligations or any negotiable
instrument or other writing intended to create an accord and satisfaction with
respect to any or all of the Obligations; (iv) to release, replace or
modify the obligation of any indorser or guarantor, or any party who has given any
collateral for any of all of the Obligations, or any other party in any way
obligated to pay any or all of the Obligations, and to enforce or refrain from
enforcing, or compromise or modify, the terms of any obligation of any such
indorser, guarantor or party; (v) to dispose of any and all collateral
securing the Obligations in any manner as the Bank, in its sole discretion, may
deem appropriate, and to direct the order and the enforcement of any and all
indorsements and guaranties relating to the Obligations in the Bank’s sole
discretion; and (vi) to determine the manner, amount and time of
application of payments and credits, if any, to be made on all or any part of
the Obligations including, without limitation, if this Guaranty is limited in
amount, to make any such application to Obligations, if any, in excess of the
amount of this Guaranty.


 


(c)   Notwithstanding any other provision in this Guaranty, Guarantor
irrevocably waives, without notice, any right he or she may have at law or in
equity (including without limitation any law subrogating Guarantor to the
rights of the Bank) to seek contribution, indemnification or any other form of
reimbursement from Borrower or any other obligor or guarantor of the
Obligations for any disbursement made under this Guaranty or otherwise.


 


4.    Termination.  This Guaranty shall remain in full force and
effect as to each Guarantor until actual receipt by the Bank officer
responsible for Borrower’s relationship with the Bank as last
identified by Bank to Guarantor of written notice of Guarantor’s
intent to terminate (or Guarantor’s death or incapacity) plus the lapse of a
reasonable time for the Bank to act on such notice (the “Receipt of Notice”);  provided, however, this Guaranty shall remain
in full force and effect thereafter until all Obligations outstanding, or
contracted or committed for (whether or not outstanding), before such Receipt
of Notice by the Bank, and any extensions, renewals or replacements thereof
(whether made before or after such Receipt of Notice), together with interest
accruing thereon after such Receipt of Notice, shall be finally and irrevocably
paid in full.  Discontinuance of this
Guaranty as to one Guarantor shall not operate as a discontinuance hereof as to
any other guarantor.  Payment of all of
the Obligations from time to time shall not operate as a discontinuance of this
Guaranty, unless a Receipt of Notice as provided above has been received by the
Bank.  Guarantor agrees that, to the
extent that Borrower makes a payment or payments to the Bank on the
Obligations, or the Bank receives any proceeds of collateral to be applied to
the Obligations, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or otherwise
are required to be repaid to Borrower, its estate, trustee, receiver or any
other party, including, without limitation, under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such
repayment, the obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred,
notwithstanding any contrary action which may have been taken by the Bank in
reliance upon such payment or payments. 
As of the date any payment or proceeds of collateral are returned, the
statute of limitations shall start anew with respect to any action or
proceeding by the Bank against Guarantor under this Guaranty.  Likewise, any acknowledgment, reaffirmation
or payment, by Borrower or any third party, of any portion of the Obligations,
shall be deemed to be made as agent for the Guarantor, strictly for the
purposes of tolling the running of (and/or preventing the operation of) the
applicable statute of limitations with respect to any action or proceeding by
the Bank against Guarantor under this Guaranty.


 


5.    Expenses.  Guarantor agrees to reimburse the Bank on
demand for all the Bank’s expenses, damages and losses of any kind or nature,
including without limitation costs of collection and actual attorneys’ fees and
disbursements whether for internal or external counsel incurred by the Bank in
attempting to enforce this Guaranty, collect any of the Obligations including
any workout or bankruptcy proceedings or other legal proceedings or appeal,
realize on any collateral, defense of any action under the prior paragraph or
for any other purpose related to the Obligations (collectively, “Expenses”).  Expenses will accrue interest at the highest
default rate in any instrument evidencing the Obligations until payment is
actually received by the Bank.


 


6.    Financial and Other
Information.  Guarantor
authorizes the Bank from time to time to obtain, verify and review all financial
data deemed appropriate by the Bank in connection with this Guaranty and the
Obligations, including without limitation credit reports from agencies.  Guarantor understands this Guaranty and has
satisfied itself as to its meaning and consequences and acknowledges that it
has made its own arrangements for keeping informed of changes or potential
changes affecting the Borrower including the Borrower’s financial condition.


 


7.    Security; Right of Setoff.  As further security for payment of the
Obligations, Expenses and any other obligations of Guarantor to the Bank,
Guarantor hereby grants to the Bank a security interest in all money,
securities and other property of Guarantor in the actual or constructive
possession or control of the Bank or its affiliates including without
limitation all deposits and other accounts owing at any time by the Bank or any
of its affiliates in any capacity to Guarantor in any capacity (collectively, “Property”).  The Bank shall have the right to set off
Guarantor’s Property against any of Guarantor’s obligations to the Bank.  Such set-off shall be deemed to have been
exercised immediately at the time the Bank or such affiliate elect to do
so.  The Bank shall also have all of the
rights and remedies of a secured party under the Uniform Commercial Code, as
the same may be in effect in the State of New York, as amended from time to
time, in addition to those under this Guaranty and other applicable law and
agreements.


 


8.    No Transfer of Assets.  Guarantor shall not transfer, reinvest or
otherwise dispose of its assets in a manner or to an extent that would or might
impair Guarantor’s ability to perform its obligations under this Guaranty.  This limitation shall not
be construed so as to prohibit transactions in the ordinary course of business
between Guarantor and Borrower or between Guarantor and its subsidiaries or
other subsidiaries of Borrower.


 


9.    Nonwaiver by the Bank;
Miscellaneous.  This Guaranty
is intended by Guarantor to be the final, complete and exclusive expression of
the agreement between Guarantor and the Bank. This Guaranty may be assigned by
the Bank, shall inure to the benefit of the Bank and its successors and
assigns, and shall be binding upon Guarantor and his or her legal
representative, successors and assigns and any participation may be granted by
the Bank herein in connection with the assignment or granting of a
participation by the Bank in the Obligations or any part thereof.  All rights and remedies of the Bank are cumulative,
and no such right or remedy shall be exclusive of any other right or
remedy.  This Guaranty does not supersede
any other guaranty or 


 


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security granted to the Bank by Guarantor or
others (except as to Guarantor’s Waiver of Subrogation rights above).  No single, partial or delayed exercise by the
Bank of any right or remedy shall preclude exercise by the Bank at any time at
its sole option of the same or any other right or remedy of the Bank without notice.
Guarantor expressly disclaims any reliance on any course of dealing or usage of
trade or oral representation of the Bank including, without limitation,
representations to make loans to Borrower or enter into any other agreement
with Borrower or Guarantor.  No course of
dealing or other conduct, no oral agreement or representation made by the Bank
or usage of trade shall operate as a waiver of any right or remedy of the
Bank.  No waiver or amendment of any
right or remedy of the Bank or release by the Bank shall be effective unless
made specifically in writing by the Bank. 
Each provision of this Guaranty shall be interpreted as consistent with
existing law and shall be deemed amended to the extent necessary to comply with
any conflicting law.  If any provision
nevertheless is held invalid, the other provisions shall remain in effect.  Guarantor agrees that in any legal
proceeding, a copy of this Guaranty kept in the Bank’s ordinary course
of business may be admitted into evidence as an original.  Captions are solely for convenience and not part
of the substance of this Guaranty.  If
this Guaranty is limited pursuant to Paragraph 2 hereof, until the Obligations
are indefeasibly paid in full, the Guaranteed Amount shall not be reduced in
any manner whatsoever by any amounts which the Bank may realize before or after
maturity of the Obligations (by acceleration, demand or otherwise), as a result
of payments made by or on behalf of Borrower or by or on behalf of any other
person or entity other than Guarantor primarily or secondarily liable for the
Obligations or any part thereof, or otherwise credited to Borrower or such
person or entity, or as a result of the exercise of the Bank’s rights with
respect to any collateral for the Obligations or any part thereof.  Payments made to the Bank by Guarantor (other
than, directly or indirectly, from collateral or other persons or entities
liable for any portion of the Obligations) after maturity of the Obligations,
by acceleration or otherwise, shall reduce the Guaranteed Amount.


 


10.  Joint and Several.  If there is more than one
Guarantor, each Guarantor jointly and severally guarantees the payment and
performance in full of all obligations under this Guaranty and the term “Guarantor”
means each as well as all of them. 
Guarantor also agrees that the Bank need not seek payment from any
source other than the undersigned Guarantor. 
This Guaranty is a primary obligation. 
Guarantor’s obligations hereunder are separate and independent of
Borrower’s, and a separate action may be brought against Guarantor whether or
not action is brought or joined against or with Borrower or any other party.


 


11.  Authorization.  Guarantor certifies that it is an entity in
the form described above duly organized and in good standing under the laws of
the State of its organization and duly authorized to do business in each State
material to the conduct of its business. 
Guarantor has determined that the execution of this Guaranty will be in
its best interests, to its direct benefit, incidental to its powers, and in
furtherance of its duly acknowledged purposes and objectives.  Execution of this Guaranty by the persons
signing below has been authorized by all necessary corporate action, including
directors’ and shareholder consent or (as appropriate) is authorized by its
partnership agreement or governing instrument. 
Guarantor’s chief executive office is located at the above address.


 


12.  Notices.  Any demand or notice hereunder or under any
applicable law pertaining hereto shall be in writing and duly given if
delivered to Guarantor (at its address on the Bank’s records) or to the Bank
(at the address on page one and separately to the Bank officer responsible
for Borrower’s relationship with the Bank). 
Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed
effective when delivered, or (ii) by mail or courier and shall be deemed
effective three (3) business days after deposit in an official depository
maintained by the United States Post Office for the collection of mail or one (1) business
day after delivery to a nationally recognized overnight courier service (e.g., Federal Express). 
Notice by e-mail is not valid notice under this or any other agreement
between Guarantor and the Bank.


 


13.  Governing Law and
Jurisdiction. This Guaranty has been delivered to and accepted by
the Bank and will be deemed to be made in the State of New York.  Unless provided otherwise under federal law,
this Guaranty will be interpreted in accordance with the laws of the State of
New York excluding its conflict of laws rules. 
GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN ANY JUDICIAL DISTRICT
OR COUNTY IN THE STATE OF NEW YORK WHERE THE BANK MAINTAINS A BRANCH AND
CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND
AT GUARANTOR’S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED
THAT NOTHING CONTAINED IN THIS GUARANTY WILL PREVENT THE BANK FROM BRINGING ANY
ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST
GUARANTOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF
GUARANTOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION.  Guarantor
acknowledges and agrees that the venue provided above is the most convenient
forum for both the Bank and Guarantor. 
Guarantor hereby waives any objection to venue and any objection based
on a more convenient forum in any action instituted under this Guaranty.


 


14.  Waiver of Jury Trial.  GUARANTOR AND THE BANK HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY GUARANTOR AND
THE BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN
CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO.  GUARANTOR REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER.  GUARANTOR ACKNOWLEDGES
THAT THE BANK HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER
THINGS, THE PROVISIONS OF THIS SECTION.


 


Acknowledgment.  Guarantor acknowledges that it has read and
understands all the provisions of this Guaranty, including the Governing Law, Jurisdiction and Waiver of
Jury Trial, and has been advised by counsel as necessary or
appropriate.


 


	
   

  	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
  DATE

  	
  March  16 , 2009

  	
   

  	
  HARDINGE TECHNOLOGY SYSTEMS, INC.

  
	
   

  	
   

  	
   

  
	
  TIN # 16-132-6427

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: /S/ RICHARD L. SIMONS

  
	
   

  	
   

  	
  Name:

  	
  Richard L. Simons

  
	
   

  	
   

  	
  Title:

  	
  President

  
					



 


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ACKNOWLEDGMENT


 


	
  STATE OF NEW YORK

  	
   

  	
  )

  
	
   

  	
   

  	
  : SS.

  
	
  COUNTY OF CHEMUNG)

  



 


On the  16th day
of March, in the year 2009, before me, the undersigned, a Notary Public in and
for said State, personally appeared RICHARD L. SIMONS,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.


 


	
   

  	
  /S/ NANCY L. CURREN

  
	
   

  	
  Notary
  Public

  



 


 


FOR BANK USE ONLY


 


	
  Authorization Confirmed:

  	
   

  
	
  Signature

  



 


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