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EXHIBIT 10
GUARANTEE AGREEMENT
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IN CONSIDERATION of credit heretofore or hereafter extended by Citizens
Bank New Hampshire, a guaranty savings bank organized under the laws of the
State of New Hampshire, with a mailing address of Xxx Xxxxxxx Xxxxx, Xxxxxxx,
Xxx Xxxxxxxxx 00000 (herein called the "Bank") to White Mountain Cable
Construction Corp., a New Hampshire corporation (herein called the "Borrower"),
and to enable such credit to be obtained or maintained by Borrower, the
undersigned guarantor, Conceptronics, Inc., a Delaware corporation, with an
address of ______________________________, _______________, _______________
(herein called the "Guarantor") does hereby guarantee to Bank the prompt payment
at maturity, expressed or declared, of all liabilities, primary, secondary,
direct, contingent, sole, joint, several or joint and several, and interest
thereon, including, without limitation, the obligations contemplated by a Line
of Credit Demand Note to Bank, by Borrower in the principal amount of One
Million Five Hundred Thousand Dollars ($1,500,000.00), an Equipment Term Note to
Bank by Borrower in the principal amount of One Million Seven Hundred Eighty
Nine Thousand Five Hundred Eighty Nine Dollars and Thirty Cents ($1,789,589.30)
and a Term Note to Bank by Borrower in the principal amount of One Million Three
Hundred Ten Thousand Four Hundred Ten Dollars and Seventy Cents ($1,310,410.70)
plus interest, and all dated October 4, 1996, and any other loan agreement,
mortgage or other loan document executed on behalf of Borrower (hereinafter
"Instruments"), whether present or future, matured or contingent, along with all
other present or future liabilities of Borrower, and/or Borrower and others to
Bank (herein collectively called "Liabilities" and singly called "Liability"),
as and when due in accordance with their original tenor, without regard to
subsequent modification or suspension of Borrower's liability thereon, however
arising. If any Liability is not paid by Borrower to Bank promptly when due,
Guarantor agrees to pay the same, or, at Bank's option, all Liabilities of
Borrower forthwith to Bank upon demand. Guarantor further guarantees to Bank
that Borrower will fully, promptly and punctually perform and observe each and
every agreement, covenant or condition of any loan agreement, note or mortgage
on the part of Borrower to be performed and observed. Guarantor further agrees
to pay to Bank upon demand all costs and expenses, including counsel fees, which
may be incurred in collection of the Liabilities and/or of Guarantor's
Liabilities under this Guarantee.
1. Guarantor hereby: (a) assents to all terms made or to be made with
Bank by Borrower; (b) consents that Bank may: (1) exchange or surrender any
collateral now or hereafter held as security for any Liability; (2) waive,
release or delay the exercise of any of Bank's rights or remedies with respect
to the Liabilities or this Guarantee; (3) renew, extend or modify the terms of
any Liability or any instrument evidencing the same; or, (4) advance or
readvance to Borrower without prior notice to Guarantor, such advances or
readvances to enjoy the full protection of this Guarantee; (c) waives all
suretyship defenses and defenses in the nature thereof; and, (d) waives all
notices whatsoever in respect to this Guarantee and all liabilities, including,
but not limited to, notice of Bank's acceptance hereof or of its intention to
act, or of its action in reliance hereon, or of the present existence or future
incurring of any Liability or any terms or amounts thereof or any default
thereon.
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2. Guarantor's liability under this Guarantee is absolute and
unconditional, and shall not be affected or released by reason of any action
taken or not taken by Bank which is herein consented or agreed to, or of any
lack of prior enforcement or retention of any rights, against Borrower,
Guarantor or any other person or any property. Bank may release all or any part
of any liability of any of Guarantor, if more than one, and any such release
shall not affect or release any liability hereunder of any of Guarantor not so
released. No delay in making demand on Guarantor for payment of the liabilities
of Guarantor hereunder shall prejudice Bank's right to enforce such payment. All
of Bank's rights and remedies shall be cumulative.
3. If any Liability of Borrowers shall not be paid to Bank when due, or
if any agreement, covenant or condition of any security agreement, note or any
of the Instruments shall not be promptly and punctually performed by Borrower,
all Liabilities shall be deemed, for the purposes of this Guarantee, to be
immediately due, and the obligations of Guarantor hereunder shall be forthwith
due, and Bank may forthwith recover from Guarantor the whole amount due
hereunder. Bank shall not be bound to exhaust its recourse against Borrower or
other persons or upon any collateral or liens it may hold before being entitled
to payment from Guarantor of the Liabilities. This is a guarantee of payment,
when due, and not merely of collectibility. It is the intention of the parties
that this Guarantee may be resorted to in full, and that all Liabilities will
become immediately due and owing, notwithstanding that Bank is unable to pursue
or exhaust its remedies against Borrower, whether as a consequence of
intervening bankruptcy of Borrower, or for any other reasons whatsoever.
4. Guarantor hereby expressly and irrevocably waives all rights of
subrogation, contribution, reimbursement or any other rights in the nature
thereof as against Borrower arising in any way from payment made to Bank
hereunder and does hereby expressly waive any right, title or interest in or to
any of the Liabilities or any proceeds thereof or to any property securing the
Liabilities, and Guarantor does hereby expressly acknowledge and agree that
Guarantor is not a creditor of Borrower by virtue of this Guarantee. Under no
circumstances shall Bank have the obligation to assign, or be deemed to have
assigned, its rights in instruments or in security documents to Guarantor in
connection with any payments made to Bank by Guarantor pursuant to this
Guarantee.
5. Guarantor hereby irrevocably assigns to Bank, until all Liabilities
are paid in full, and its obligations to Bank have terminated, all rights of
subrogation and rights in the nature thereof which Guarantor may from time to
time have against Borrower by reason of payments made to Bank by Borrower under
this Guarantee, and Borrower further agrees with Bank that it may exercise all
rights attendant to such subrogation claims as it sees fit, without the prior
consent of Guarantor, and may apply all proceeds realized from the subrogation
claims, after payment of expenses, to Guarantor's obligations hereunder. Upon
payment in full of all Liabilities, and termination of the Instruments, Bank
shall reassign any remaining subrogation rights to Guarantor, without recourse.
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6. In the event of a petition by or against Borrower, pursuant to 11
U.S.C.101 ET. SEQ., this Guarantee shall not be referred to or considered by a
bankruptcy court in making determinations of "adequate protection" pursuant to
11 U.S.C.361 or "indubitable equivalency" pursuant to 11
U.S.C.1129(b)(2)(A)(iii).
7. This Guarantee has been delivered by Guarantor for BONA FIDE
business and/or personal reasons, to wit: Guarantor is the sole shareholder of
Borrower, and as such Guarantor will receive direct and financial benefit and
advantage from any extension of credit to Borrower from Bank.
8. For purposes of this Guarantee and notwithstanding contrary
provisions in any document executed by Bank and Borrower, all Liabilities shall
be deemed immediately accelerated, without notice or demand, and shall become
immediately due and owing upon occurrence of any of the following events:
8.1 In the event Borrower or Guarantor makes an assignment for
the benefit of creditors, files a petition in bankruptcy, has an order for
relief entered against him, petitions or applies to any tribunal for a receiver
or any trustee of any substantial part of its property; or commences any
proceeding related to Borrower or Guarantor, under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect, or if there is commenced
against Borrower or Guarantor, any such proceeding, or Borrower or Guarantor,
by any act indicates his consent to, approval of, or acquiescence to, any such
proceeding or the appointment of any receiver of, custodian or trustee for
Borrower, or any substantial part of his property, or upon the issuance of any
attachment or execution against Borrower or Guarantor, or any governmental
agency or instrumentality shall seize, appropriate, condemn, occupy or
interfere in any manner with any of Borrower's or Guarantor's operation of, all
or any substantial portion of his property, or such property or any right of
Borrower therein shall be subject to judicial process or condemnation or
forfeiture proceedings; or,
8.2 The substantial diminution of Guarantor's net worth as the
same exists as of the date hereof, without the prior written consent of Bank;
or,
8.3 Insolvency of Guarantor.
9. Guarantor shall furnish Bank within one hundred twenty (120) days
of its fiscal year-end consolidating audited financial statements for Guarantor
and each subsidiary of Guarantor for such year prepared by an independent
Certified Public Accountant reasonably satisfactory to Bank in accordance with
generally accepted accounting principles consistently applied.
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10. If this Guarantee is executed by more than one party, references to
Guarantor include each and all of them and they shall be jointly and severally
liable hereunder. It is agreed that Guarantor's liability is independent of any
other guaranties at any time in effect with respect to all or any part of the
Liabilities, and Guarantor's liability and obligations hereunder may be enforced
regardless of the existence of any such other guaranties. This Guarantee shall
inure to the benefit of Bank, its successors, assigns, endorsees and any person
to whom Bank may grant any interest in any Liability, and shall be binding upon
Guarantor and the successors, assigns, heirs, executors, administrators and
other legal representatives thereof. This Guarantee shall continue in full force
and effect until released by Bank, even if the Liabilities are $0.00.
IN WITNESS WHEREOF, Guarantor has executed this Guarantee Agreement and
delivered the same to Bank this ___ day of February, 1997.
CONCEPTRONICS, INC.
________________________________ By: ________________________________
Witness Name:
Title:
STATE OF NEW HAMPSHIRE
COUNTY OF _______________
On this the ___ day of February, 1997 before me, the undersigned
officer, personally appeared ______________________, who acknowledged himself to
be the _________________ of Conceptronics, Inc., a corporation, and that he as
such _________________, being authorized so to do, executed the foregoing
instrument for the purposes therein contained on behalf of the corporation.
____________________________________
Notary Public/Justice of the Peace
My Commission Expires:
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