EXHIBIT 10.2
GUARANTY
(Corporate)
New York, New York February __, 1997
FOR VALUE RECEIVED, and in consideration of loans made or to
be made or credit otherwise extended or to be extended by IBJ
Xxxxxxxx Bank & Trust Company ("IBJS") and each other financial
institution named in or which hereafter becomes a party to the Loan
Agreement (as hereinafter defined) (IBJS and such other financial
institutions, collectively, the "Lenders") to or for the account of
MPD Technologies, Inc., a New York corporation ("Borrower") from
time to time and at any time and for other good and valuable
consideration and to induce Agent and Lenders, in their discretion,
to make such loans or extensions of credit and to make or grant
such renewals, extensions, releases of collateral or
relinquishments of legal rights as Agent and Lenders may deem
advisable, the undersigned unconditionally guaranties to Agent (as
hereinafter defined) for its own benefit and for the ratable
benefit of Xxxxxxx, their respective successors, endorsees and
assigns the prompt payment when due (whether by acceleration or
otherwise) of all present and future obligations and liabilities of
any and all kinds of Borrower to Agent and Lenders and of all
instruments of any nature evidencing or relating to any such
obligations and liabilities upon which Borrower is or may become
liable to Agent and Lenders, whether incurred by Borrower as maker,
endorser, drawer, acceptor, guarantor, accommodation party or
otherwise, and whether due or to become due, secured or unsecured,
absolute or contingent, joint or several, and however or whenever
acquired by Agent or Lenders, whether arising under, out of, or in
connection with that certain Loan and Security Agreement by and
among Lenders, Borrower and IBJS, as agent for the Lenders (in such
capacity "Agent") (as amended, supplemented, modified or restated
from time to time, the "Loan Agreement") or any documents,
instruments or agreements relating to or executed in connection
with the Loan Agreement or any documents, instruments or agreements
referred to therein (together with the Loan Agreement, the "Loan
Documents"), or otherwise (all of which are herein collectively
referred to as the "Obligations"), and irrespective of the
genuineness, validity, regularity or enforceability of such
Obligations, or of any instrument evidencing any of the Obligations
or of any collateral therefor or of the existence or extent of such
collateral. Terms defined in the Loan Agreement shall have the
same meanings herein, unless otherwise herein expressly provided.
In furtherance of the foregoing, the undersigned xxxxxx agrees as
follows:
1. No Impairment. Agent and Lenders may at any time and from
time to time, either before or after the maturity thereof, without
notice to or further consent of the undersigned, extend the time of
payment of, exchange or surrender any collateral for, renew or
extend any of the Obligations or increase or decrease the interest
rate thereon, and may also make any agreement with Borrower or with
any other party to or person liable on any of the Obligations, or
interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or
for any modification of the terms thereof or of any agreement
between or among Agent, any Lender and Borrower or any such other
party or person, or make any election of rights Agent and Lenders
may deem desirable under the United States Bankruptcy Code, as
amended, or any other federal or state bankruptcy, reorganization,
moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally (any of the foregoing,
an "Insolvency Law") without in any way impairing or affecting this
Guaranty. This instrument shall be effective regardless of the
subsequent incorporation, merger or consolidation of Borrower, or
any change in the composition, nature, personnel or location of
Borrower and shall extend to any successor entity to Borrower,
including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty Absolute. The undersigned guarantees that the
Obligations will be paid strictly in accordance with the terms of
the Loan Agreement and/or any other document, instrument or
agreement creating or evidencing the Obligations, regardless of any
law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Borrower
with respect thereto. The undersigned hereby knowingly accepts the
full range of risk encompassed within a contract of "continuing
guaranty" which risk includes the possibility that Borrower will
contract additional indebtedness for which the undersigned may be
liable hereunder after Xxxxxxxx's financial condition or ability to
pay its lawful debts when they fall due has deteriorated, whether
or not Borrower has properly authorized incurring such additional
indebtedness. The undersigned acknowledges that (i) no oral
representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made
by Agent or any Lender to induce the undersigned to enter into this
Guaranty and (ii) any extension of credit to the Borrower shall be
governed solely by the provisions of the Loan Agreement. The
liability of the undersigned under this Guaranty shall be absolute
and unconditional, in accordance with its terms, and shall remain
in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without
limitation: (a) any waiver, indulgence, renewal, extension,
amendment or modification of or addition, consent or supplement to
or deletion from or any other action or inaction under or in
respect of the Loan Documents or any other instruments or
agreements relating to the Obligations or any assignment or
transfer of any thereof; (b) any lack of validity or enforceability
of any Loan Document or other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any
thereof; (c) any furnishing of any additional security to Agent for
the ratable benefit of the Lenders or its assignees or any
acceptance thereof or any release of any security by Agent or its
assignees; (d) any limitation on any party's liability or
obligation under the Loan Documents or any other documents,
instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof or any invalidity or
unenforceability, in whole or in part, of any such document,
instrument or agreement or any term thereof; (e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Borrower, or any
action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding, whether or not
the undersigned shall have notice or knowledge of any of the
foregoing; (f) any exchange, release or nonperfection of any
collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the
Obligations; or (g) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
undersigned. Any amounts due from the undersigned to Agent or any
Lender shall bear interest until such amounts are paid in full at
the highest rate then applicable to the Obligations of Borrower to
Lenders under the Loan Agreement. Obligations include post-
petition interest whether or not allowed or allowable.
3. Waivers. (a) This Guaranty is a guaranty of payment and
not of collection. Agent on behalf of each Lender shall be under
no obligation to institute suit, exercise rights or remedies or
take any other action against Borrower or any other person liable
with respect to any of the Obligations or resort to any collateral
security held by it to secure any of the Obligations as a condition
precedent to the undersigned being obligated to perform as agreed
herein and Guarantor hereby waives any and all rights which it may
have by statute or otherwise which would require Agent or any
Lender to do any of the foregoing. The undersigned further
consents and agrees that neither Agent nor Xxxxxxx shall be under
any obligation to marshal any assets in favor of the undersigned,
or against or in payment of any or all of the Obligations. The
undersigned hereby waives any rights to interpose any defense,
counterclaim or offset of any nature and description which it may
have or which may exist between and among Agent, Lenders, Borrower
and/or the undersigned with respect to the undersigned's
obligations under this Guaranty, or which Borrower may assert on
the underlying debt, including but not limited to failure of
consideration, breach of warranty, fraud, payment (other than cash
payment in full of the Obligations), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and
usury.
(b) The undersigned further waives (i) notice of the
acceptance of this Guaranty, of the making of any such loans or
extensions of credit, and of all notices and demands of any kind to
which the undersigned may be entitled, including, without
limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the
risk of the undersigned; and (ii) presentment to or demand of
payment from anyone whomsoever liable upon any of the Obligations,
protest, notices of presentment, non-payment or protest and notice
of any sale of collateral security or any default of any sort.
(c) Notwithstanding any payment or payments made by the
undersigned hereunder, or any setoff or application of funds of the
undersigned by Agent or any Lender, the undersigned shall not be
entitled to be subrogated to any of the rights of Agent or any
Lender against Borrower or against any collateral or guarantee or
right of offset held by Agent or any Lender for the payment of the
Obligations, nor shall the undersigned seek or be entitled to seek
any contribution or reimbursement from Borrower in respect of
payments made by the undersigned hereunder, until all amounts owing
to Agent and each Lender by Borrower on account of the Obligations
are paid in full and the Loan Agreement has been terminated. If,
notwithstanding the foregoing, any amount shall be paid to the
undersigned on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full and the
Loan Agreement shall not have been terminated, such amount shall be
held by the undersigned in trust for Agent and Lenders, segregated
from other funds of the undersigned, and shall forthwith upon, and
in any event within two (2) business days of, receipt by the
undersigned, be turned over to Agent for the ratable benefit of the
Lenders in the exact form received by the undersigned (duly
endorsed by the undersigned to Agent, if required), to be applied
against the Obligations, whether matured or unmatured, in such
order as Agent and Lenders may determine, subject to the provisions
of the Loan Agreement. Any and all present and future debts and
obligations of Borrower to any of the undersigned are hereby waived
and postponed in favor of, and subordinated to the full payment and
performance of, all present and future debts and obligations of
Borrower to Agent and Lenders; provided, however, Borrower may make
Distributions to the undersigned in accordance with Section 9.2(I)
of the Loan Agreement.
4. Security. All sums at any time to the credit of the
undersigned and any property of the undersigned in Agent's or any
Lender's possession or in the possession of any bank, financial
institution or other entity that directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is
under common control with, Agent or any Lender (each such entity,
an "Affiliate") shall be deemed held by Agent, such Lender or such
Affiliate, as the case may be, as security for any and all of the
undersigned's obligations to Agent and Lenders and to any Affiliate
of Agent or any Lender, no matter how or when arising and whether
under this or any other instrument, agreement or otherwise.
5. Representations and Warranties. The undersigned hereby
represents and warrants (all of which representations and
warranties shall survive until all Obligations are indefeasibly
satisfied in full and there remain no outstanding commitments under
the Loan Agreement), that:
(a) Corporate Status. The undersigned is a corporation
duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full power,
authority and legal right to own its property and assets and
to transact the business in which it is engaged.
(b) Authority and Execution. The undersigned has full
power, authority and legal right to execute and deliver, and
to perform its obligations under, this Guaranty and has taken
all necessary corporate and legal action to authorize the
execution, delivery and performance of this Guaranty.
(c) Legal, Xxxxx and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of the
undersigned enforceable in accordance with its terms, except
as enforceability may be limited by applicable Insolvency Law.
(d) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law
applicable to the undersigned or any material contract,
agreement or instrument to which the undersigned is a party or
by which the undersigned or its property is bound or result in
the creation or imposition of any mortgage, lien or other
encumbrance other than to Agent on any of the property or
assets of the undersigned pursuant to the provisions of any of
the foregoing.
(e) Consents or Approvals. No consent of any other
Person (including, without limitation, any creditor of the
undersigned) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental
authority is required in connection with the execution,
delivery, performance, validity or enforceability of this
Guaranty.
(f) Litigation. No litigation, arbitration,
investigation or administrative proceeding of or before any
court, arbitrator or governmental authority, bureau or agency
is currently pending or, to the best knowledge of the
undersigned, threatened (i) with respect to this Guaranty or
any of the transactions contemplated by this Guaranty or (ii)
against or affecting the undersigned, or any of its property
or assets, which, if adversely determined, would have a
material adverse effect on the business, operations, assets or
condition, financial or otherwise, of the undersigned.
(g) Material Adverse Change. Since September 30, 1996
there has been no material adverse change in the assets or
condition, financial or otherwise, of the undersigned.
(h) Financial Benefit. The undersigned has derived or
expects to derive a financial or other advantage from each and
every loan, advance or extension of credit made under the Loan
Agreement or other Obligation incurred by Borrower to Agent
and Lenders.
The foregoing representations and warranties (other than that
set forth in paragraph (g) above) shall be deemed to have been made
by the undersigned on the date of each borrowing by Borrower under
the Loan Agreement on and as of such date of such borrowing as
though made hereunder on and as of such date.
6. Acceleration. (a) If any breach of any covenant or
condition or other event of default shall occur and be continuing
under any agreement made by Borrower or the undersigned to Agent
and Lenders, or either Borrower or the undersigned should at any
time become insolvent, or make a general assignment, or if a
proceeding in or under any Insolvency Law shall be filed or
commenced by, or in respect of, the undersigned, or if a notice of
any lien, levy, or assessment is filed of record with respect to
any assets of the undersigned by the United States or any
department, agency, or instrumentality thereof, or if any taxes or
debts owing at any time or times hereafter to any one of them
becomes a lien or encumbrance upon any assets of the undersigned in
Agent's or any Lender's possession, or otherwise, any and all
Obligations shall for purposes hereof, at Agent's or any Lender's
option, be deemed due and payable without notice notwithstanding
that any such Obligation is not then due and payable by Borrower.
(b) The undersigned will promptly notify Agent of any default
by the undersigned in the performance or observance of any term or
condition of any agreement to which the undersigned is a party if
the effect of such default is to cause, or permit the holder of any
obligation under such agreement to cause, such obligation to become
due prior to its stated maturity and, if such an event occurs,
Agent shall have the right to accelerate the undersigned's
obligations hereunder.
7. Payments from Guarantor. Agent, on behalf of Lenders, in
its sole and absolute discretion, with or without notice to the
undersigned, may apply on account of the Obligations any payment
from the undersigned or any other guarantor, or amounts realized
from any security for the Obligations, or may deposit any and all
such amounts realized in a non-interest bearing cash collateral
deposit account to be maintained as security for the Obligations.
8. Costs. The undersigned shall pay on demand, all fees and
expenses (including reasonable expenses for legal services of every
kind) relating or incidental to the enforcement or protection of
the rights of Agent or any Lender hereunder or under any of the
Obligations.
9. No Termination. This is a continuing irrevocable
guaranty and shall remain in full force and effect and be binding
upon the undersigned, and the undersigned's successors and assigns,
until all of Xxxxxxxx's Obligations have been paid in full and the
Loan Agreement has been terminated. If any of the present or
future Obligations are guarantied by persons, partnerships or
corporations in addition to the undersigned, the death, release or
discharge in whole or in part or the bankruptcy, merger,
consolidation, incorporation, liquidation or dissolution of one or
more of them shall not discharge or affect the liabilities of the
undersigned under this Guaranty.
10. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if Agent or any Lender receives any payment or
payments on account of the liabilities guarantied hereby, which
payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other
party under any Insolvency Law, common law or equitable doctrine,
then to the extent of any sum not finally retained by Agent or any
such Lender, the undersigned's obligations to Agent and Lenders
shall be reinstated and this Guaranty shall remain in full force
and effect (or be reinstated) until payment shall have been made to
Lender, which payment shall be due on demand.
11. Books and Records. The books and records of Agent
showing the account among Agent, Xxxxxxx and Borrower shall be
admissible in evidence in any action or proceeding, shall be
binding upon the undersigned for the purpose of establishing the
items therein set forth and shall constitute prima facie proof
thereof.
12. No Waiver. No failure on the part of Agent or any Lender
to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise by Agent or any Lender of any right, remedy or
power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and
power hereby granted to Agent or any Lender or allowed it by law or
other agreement shall be cumulative and not exclusive of any other,
and may be exercised by Agent or any Lender at any time and from
time to time.
13. Waiver of Jury Trial. THE UNDERSIGNED DOES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO
THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
RELATING OR INCIDENTAL HERETO. THE UNDERSIGNED DOES HEREBY CERTIFY
THAT NO REPRESENTATIVE OR AGENT OF AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF
RIGHT TO JURY TRIAL PROVISION.
14. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT
CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED,
CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL
OTHER RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. THE UNDERSIGNED EXPRESSLY CONSENTS TO THE JURISDICTION AND
VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW
YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY
JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST AGENT AND/OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY
WAY ARISING OUT OF, RELATED TO OR CONNECTED HEREWITH SHALL BE
BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY
OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. THE UNDERSIGNED FURTHER CONSENTS THAT ANY
SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT
LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF
THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR
OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW
YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR
BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS
PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE
RULES OF SAID COURTS. THE UNDERSIGNED WAIVES ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR
BASED UPON FORUM NON CONVENIENS.
15. Severability. To the extent permitted by applicable law,
any provision of this Guaranty which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
16. Amendments, Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the
undersigned therefrom shall in any event be effective unless the
same shall be in writing executed by the undersigned and Agent.
17. Notice. Any notice or request hereunder may be given to
the undersigned or to Agent or any Lender at their respective
addresses set forth below or at such other address as may hereafter
be specified in a notice designated as a notice of change of
address under this Section. Any notice or request hereunder shall
be given by (a) hand delivery, (b) overnight courier, (c)
registered or certified mail, return receipt requested, (d) telex
or telegram, subsequently confirmed by registered or certified
mail, or (e) telecopy to the number set out below (or such other
number as may hereafter be specified in a notice designated as a
notice of change of address) with telephone communication to a duly
authorized officer of the recipient confirming its receipt as
subsequently confirmed by registered or certified mail. Any notice
or other communication required or permitted pursuant to this
Agreement shall be deemed given (a) when personally delivered to
any officer of the party to whom it is addressed, (b) on the
earlier of actual receipt thereof or three (3) days following
posting thereof by certified or registered mail, postage prepaid,
or (c) upon actual receipt thereof when sent by a recognized
overnight delivery service or (d) upon actual receipt thereof when
sent by telecopier to the number set forth below with telephone
communication confirming receipt and subsequently confirmed by
registered, certified or overnight mail to the address set forth
below, in each case addressed to each party at its address set
forth below or at such other address as has been furnished in
writing by a party to the other by like notice:
(A) If to Agent or IBJ Xxxxxxxx Bank & Trust Company
any Lender at: Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) If to Guarantor at: Microwave Power Devices, Inc.
00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Proskauer, Rose, Xxxxx & Xxxxxxxxxx, LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
18. Successors. Agent or any Lender may, from time to time,
without notice to the undersigned, sell, assign, transfer or
otherwise dispose of all or any part of the Obligations and/or
rights under this Guaranty. Without limiting the generality of the
foregoing, Agent or any Lender may assign, or grant participations
to, one or more banks, financial institutions or other entities all
or any part of any of the Obligations. In each such event, Agent,
any Lender, its Affiliates and each and every immediate and
successive purchaser, assignee, transferee or holder of all or any
part of the Obligations shall have the right to enforce this
Guaranty, by legal action or otherwise, for its own benefit as
fully as if such purchaser, assignee, transferee or holder were
herein by name specifically given such right. Agent or any Lender
shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Agent
or any such Lender has not disposed of, sold, assigned, or
otherwise transferred.
19. Release. Nothing except cash payment in full of the
Obligations shall release the undersigned from liability under this
Guaranty.
IN WITNESS WHEREOF, this Guaranty has been executed by the
undersigned this ___ day of February, 1997.
MICROWAVE POWER DEVICES, INC.
___________________________
Name:______________________
Title:_____________________
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On the ____ day of February, 1997, before me personally came
to me known, who being by me duly
sworn, did depose and say that he resides at
, that he is the of Microwave Power Devices,
Inc., the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; and that he
signed his name thereto by order of the board of directors of said
corporation.
____________________________
Notary Public
