EX-10.76 8 micr-20171231xex10_76.htm EX-10.76 GENERAL CONTINUING GUARANTY
Exhibit 10.76
This GENERAL CONTINUING GUARANTY (this "Guaranty"), dated as of December 29, 2017, is executed and delivered by Micron Solutions, Inc., a Delaware corporation (the "Guarantor"), in favor of Rockland Trust Company, a Massachusetts trust company (together with its successors and assigns, "Lender"), in light of the following:
WHEREAS, Micron Products Inc., a Massachusetts corporation ("Borrower") and Lender, contemporaneously herewith, have entered into that certain Credit and Security Agreement of even date herewith (as amended, modified, supplemented or restated, the "Credit Agreement");
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees as follows:
1. Definitions and Construction.
"Borrower" has the meaning set forth in the recitals to this Guaranty.
"Credit Agreement" has the meaning set forth in the recitals to this Guaranty.
"Guarantied Obligations" means all now or hereafter existing or arising Obligations owing by Borrower to Lender under the Credit Agreement or any of the other Loan Documents, whether for principal, interest (including all interest that accrues after the commencement of any Insolvency Proceeding irrespective of whether a claim therefor is allowed in such case or proceeding), discount, charges, fees, expenses or otherwise, and also includes any and all expenses (including reasonable counsel fees and expenses) incurred by Lender in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, Guarantied Obligations shall include all amounts that constitute part of the Guarantied Obligations and would be owed by Borrower to Lender under the Credit Agreement or any of the other Loan Documents but for the fact that they are unenforceable or not allowable, including due to the existence of a bankruptcy, reorganization or similar proceeding involving Borrower or any other guarantor.
"Guarantor" has the meaning set forth in the preamble to this Guaranty.
"Guaranty" has the meaning set forth in the preamble to this Guaranty.
"Lender" has the meaning set forth in the preamble to this Guaranty.
"Record" means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.
"Voidable Transfer" has the meaning set forth in Section 9 of this Guaranty.
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To the maximum extent permitted by law, Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that, to the fullest extent permitted by applicable law, (a) no such revocation shall be effective until written notice thereof has been received by Lender, (b) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Lender of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (c) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of Lender in existence on the date of such revocation, (d) no payment by Guarantor, Borrower, or from any other source, prior to the date of Lender’s receipt of written notice of such revocation shall reduce the maximum obligation of Guarantor hereunder, and (e) any payment by Borrower or from any source other than Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of Guarantor hereunder.
(a) To the fullest extent permitted by applicable law, Guarantor hereby waives (i) notice of acceptance hereof, (ii) notice of financial accommodations made or extended under the Credit Agreement, or the creation or existence of any Guarantied Obligations, (iii) notice of the amount of the Guarantied Obligations, subject, however, to Guarantor’s right to make inquiry of Lender to ascertain the amount of the Guarantied Obligations at any reasonable time, (iv) notice of any adverse change in the financial condition of Borrower, (v) notice of presentment for
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payment, demand, protest, and notice thereof as to any instrument among the Credit Agreement and any of the other Loan Documents, (vi) notice of any Default or Event of Default under the Credit Agreement and any of the other Loan Documents, (vii) notice of intent to accelerate and notice of acceleration, (viii) notice of any of the events or circumstances enumerated in Section 7, and (ix) all other notices (except if such notice is specifically required to be given to Guarantor under this Guaranty, any of the Loan Documents to which Guarantor is a party or applicable law) and demands to which Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, Guarantor hereby waives the right by statute or otherwise to require Lender to institute suit against Borrower or any other guarantor or to exhaust any rights and remedies which Lender has or may have against Borrower or any other guarantor. In this regard, Guarantor agrees that it is bound to the payment of each and all Guarantied Obligations, whether now existing or hereafter arising, as fully as if the Guarantied Obligations were directly owing to Lender by Guarantor. To the fullest extent permitted by applicable law, Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guarantied Obligations shall have been paid in full, to the extent of any such payment) of Borrower or by reason of the cessation from any cause whatsoever of the liability of Borrower in respect thereof.
(c) To the fullest extent permitted by applicable law, Guarantor hereby waives (i) any right to assert against Lender, any defense (legal or equitable), set-off, counterclaim, or claim which Guarantor may now or at any time hereafter have against Borrower or any other party liable to Lender, (ii) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guarantied Obligations or any security therefor, (iii) any right or defense arising by reason of any claim or defense based upon an election of remedies by Lender, including any defense based upon an impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of Guarantor against Borrower or other guarantors or sureties, and (iv) the benefit of any statute of limitations affecting Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Guarantied Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to Guarantor’s liability hereunder.
(d) Until the Guarantied Obligations have been paid in full, (i) Guarantor hereby postpones and agrees not to exercise any right of subrogation Guarantor has or may have as against Borrower with respect to the Guarantied Obligations, (ii) Guarantor hereby postpones and agrees not to exercise any right to proceed against Borrower or any other Person now or hereafter liable on account of the Obligations for contribution, indemnity, reimbursement, or any other similar rights (irrespective of whether direct or indirect, liquidated or contingent) arising from this Guaranty, and (iii) Guarantor hereby postpones and agrees not to exercise any right it may have to proceed or to seek recourse against any property or asset of Borrower or any other Person now or hereafter liable on account of the Obligations.
(e) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS GUARANTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY LENDER, EVEN THOUGH SUCH ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED OBLIGATIONS, HAS
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DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST BORROWER BY THE OPERATION OF APPLICABLE LAW.
(f) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor hereby also agrees, to the extent permitted by applicable law, to the following waivers:
(i) Lender’s right to enforce this Guaranty is absolute and is not contingent upon the genuineness, validity or enforceability of the Guarantied Obligations, the Credit Agreement or any of the other Loan Documents. Guarantor agrees that Lender’s rights under this Guaranty shall be enforceable even if Borrower had no liability at the time of execution of the Loan Documents or the Guarantied Obligations are unenforceable in whole or in part, or Borrower ceases to be liable with respect to all or any portion of the Guarantied Obligations;
(ii) Guarantor agrees that Lender’s rights under the Credit Agreement and the Loan Documents will remain enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome than that for which Borrower is responsible. The enforceability of this Guaranty against Guarantor shall continue until all Guarantied Obligations have been paid in full and shall not be limited or affected in any way by any impairment or any diminution or loss of value of any security or collateral for Borrower’s obligations under the Credit Agreement or the Loan Documents, from whatever cause, the failure of any security interest in any such security or collateral or any disability or other defense of Borrower, any other guarantor of Borrower's obligations under any of the Loan Documents, any pledgor of collateral for any Person’s obligations to Lender or any other Person in connection with the Credit Agreement or the Loan Documents;
(iii) Guarantor waives the right to require Lender to (A) proceed against Borrower, any guarantor of Borrower's obligations under the Credit Agreement or any of the other Loan Documents, any other pledgor of collateral for any Person’s obligations to Lender or any other Person in connection with the Guarantied Obligations, (B) proceed against or exhaust any other security or collateral Lender may hold, or (C) pursue any other right or remedy for Guarantor’s benefit, and agrees that Lender may exercise its right under this Guaranty without taking any action against Borrower, any other guarantor of Borrower's obligations under the Credit Agreement or the other Loan Documents, any pledgor of collateral for any Person’s obligations to Lender or any other Person in connection with the Guarantied Obligations, and without proceeding against or exhausting any security or collateral Lender holds; and
(iv) Guarantor waives, and agrees that its liability hereunder shall not be affected by, any neglect, delay, omission, failure, or refusal of Lender to (A) exercise or properly or diligently exercise any right or remedy with respect to any or all of the Guarantied Obligations or the collection thereof or any security interests or liens or other security for or guaranty of the Guarantied Obligations, or any portion thereof, (B) take or prosecute, or properly or diligently take or prosecute, any action for the collection of any or all of the Guarantied Obligations against Borrower, Guarantor or any other Person in respect of any or all of the Guarantied Obligations, (C) foreclose or prosecute, or properly or diligently foreclose or prosecute, any action in connection with any agreement, document or instrument or arrangement evidencing, securing, or otherwise affecting all or any part of the Guarantied Obligations, or (D) mitigate damages or take any other action to reduce, collect, or enforce the Guarantied Obligations.
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7. Releases. Guarantor consents and agrees that, without notice to or by Guarantor and without affecting or impairing the obligations of Guarantor hereunder, Lender may, by action or inaction, compromise or settle, shorten or extend any period of duration or the time for the payment of the Obligations, or discharge the performance of the Obligations, or may refuse to enforce the Obligations, or otherwise elect not to enforce the Obligations, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Credit Agreement or any of the other Loan Documents or may grant other indulgences to Borrower or any other guarantor in respect thereof, or may amend or modify in any manner and at any time (or from time to time) any one or more of the Obligations, the Credit Agreement or any of the other Loan Documents (including any increase or decrease in the principal amount of any Obligations or the interest, fees or other amounts that may accrue from time to time in respect thereof), or may, by action or inaction, release or substitute Borrower or any guarantor, if any, of the Guarantied Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guarantied Obligations or any other guaranty of the Guarantied Obligations, or any portion thereof. Guarantor agrees that, to the fullest extent permitted as applicable law, its obligations under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any one or more of the following events: (a) lack of organizational authority of Borrower, (b) any receivership, insolvency, bankruptcy, or other proceedings affecting Borrower or its property, (c) partial or total release or discharge of Borrower or any other Person from the performance of any obligation contained in any instrument or agreement evidencing, governing, or securing all or any part of the Guarantied Obligations, whether occurring pursuant to any applicable law or otherwise, (d) any change in the time, manner, or place of payment of, or in any other term of, or any increase or decrease in the amount of, all the Guarantied Obligations, or any portion thereof, or any other amendment or waiver of any term of, or any consent to departure from any requirement of, the Credit Agreement or any of the other Loan Documents, (e) the taking or accepting of any collateral security for all or any part of the Guarantied Obligations, this Guaranty, or any other guaranty, (f) the taking or accepting of any other guaranty for all or any part of the Guarantied Obligations, (g) any failure to acquire, perfect, or continue any security interest or lien on Collateral securing all or any part of the Guarantied Obligations or on any property securing this Guaranty, (h) any exchange, release, or subordination of any security interest or lien on any Collateral, or any release, amendment, waiver, or subordination of any term of any guaranty of the Guarantied Obligations or any other impairment of any collateral security or guaranty now or hereafter securing all or any part of the Guarantied Obligations, (i) any failure to dispose of any collateral security at any time securing all or any part of the Guarantied Obligations or this Guaranty in a commercially reasonable manner or as otherwise may be required by any applicable law, (j) any merger, reorganization, consolidation, or dissolution of Borrower or any other Person at any time liable for any of the Obligations, any sale, lease, or transfer of any or all of the assets of Borrower or any other Person at any time liable for any of the Obligations, or any change in name, business, organization, location, composition, structure, or organization of Borrower or any other Person at any time liable for any of the Obligations, (k) any Change of Control or any other change in the capitalization or equity interest ownership of Borrower or any other Person at any time liable for any of the Obligations, (l) any invalidity or unenforceability of or defect or deficiency in the Credit Agreement or any of the other Loan Documents, (m) avoidance or subordination of the Guarantied Obligations, or any portion thereof, (n) the unenforceability of all or any part of the Guarantied Obligations against Borrower because any interest contracted for, charged, or received in respect of the Guarantied Obligations exceeds the amount permitted by any applicable law, (o) any waiver, consent, extension, forbearance, or granting of any indulgence by Lender with respect to the Guarantied Obligations or any provision of the Credit Agreement or
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any of the other Loan Documents, (p) any delay in or lack of enforcement of any remedies under the Credit Agreement or any of the other Loan Documents, (q) the act of creating all or any part of the Guarantied Obligations is ultra xxxxx, or the officers or other representatives creating all or any part of the Guarantied Obligations acted in excess of their authority, (r) any election of remedies by Lender, (s) the Credit Agreement or any of the other Loan Documents were forged, (t) the election by Lender in any proceeding under the Bankruptcy Code of the application of Section 1111(b)(2) thereof, (u) any borrowing or grant of a security interest by Borrower as debtorin-possession, under Section 364 of the Bankruptcy Code, (v) any use by Borrower (whether with the consent of Lender or otherwise) of cash collateral during the pendency of any bankruptcy proceeding, (w) the making of post-petition loans or any other provision for the extension of postpetition credit to Borrower as debtor-in-possession in any bankruptcy proceedings, (x) the disallowance in bankruptcy of all or any portion of the claims of Lender for payment of any of the Guarantied Obligations, or (y) any other circumstance which might otherwise constitute a legal or equitable discharge or defense available to Borrower or any guarantor (other than that the Guarantied Obligations shall have been paid in full).
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any of its interests, rights or obligations under this Agreement without Lender’s prior written consent.
19. Governing Law. This Guaranty shall be governed by, and construed and interpreted in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of laws.
(a) GUARANTOR AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH GUARANTOR AND LENDER MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS GUARANTY OR (B) THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS GUARANTY. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR AND LENDER, AND GUARANTOR AND LENDER HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. GUARANTOR FURTHER REPRESENTS THAT GUARANTOR HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT GUARANTOR AND LENDER HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
(b) GUARANTOR AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY MAY BE TRIED AND LITIGATED IN THE COMMONWEALTH OF MASSACHUSETTS AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE DISTRICT OF MASSACHUSETTS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE LENDER ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. GUARANTOR WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT GUARANTOR MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 20.
21. Counterparts; Facsimile Execution. This Guaranty may be executed in any number of duplicate originals or counterparts, each of which shall be deemed to be an original and all taken together shall constitute but one and the same instrument. Guarantor agrees that a facsimile or electronic transmission of any signature of Guarantor shall be effective as an original signature thereof. Lender agrees that a facsimile or electronic transmission of this Guaranty executed by
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Lender shall be effective as an original signature thereof. Any party delivering an executed counterpart of this Guaranty by facsimile or electronic transmission also shall deliver an original executed counterpart of this Guaranty but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Guaranty.
[Signature page follows]
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GUARANTOR: | ||
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MICRON SOLUTIONS, INC. | ||
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By: |
/s/ XXXXXXXXX XXXX, JR. | |
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Name: |
XXXXXXXXX XXXX, JR. |
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Title: |
PRESIDENT & CEO |
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AGREED: |
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LENDER: |
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ROCKLAND TRUST COMPANY |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Relationship Manager |
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Signature Page to General Continuing Guaranty