Exhibit 10.23
CONTINUING GUARANTY
(Business Organization)
Pennsylvania
GUARANTOR:
National Patent Development Corporation
777 Westchester Avenue, 4th Floor, White Plains, NY 10604,
a
Delaware corporation
BORROWER:
MXL Industries, Inc.
1764 Rohrerstown Road, Lancaster, PA 17601
BANK:
Manufacturers and Traders Trust Company, a New York banking
corporation, with
banking offices located at One M&T
Plaza, Buffalo, New York 14240 Attention: Office of
the
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 in the maximum amount provided
in
Section 2 below. As used in
this Guaranty, the term "Obligations" shall mean
obligations, indebtedness and
other liabilities of Borrower to the Bank arising
from a Standard LIBOR Grid
Note in the face amount of $1,000,000.00 dated and
all related loan documents
(the "Loan Documents") and all accrued and unpaid
interest thereon and all
Expenses (as defined below). Guarantor will pay or
perform its obligations under
this Guaranty upon demand after an Event of
Default under the Loan
Documents. This Guaranty is and is intended to be a
continuing guaranty of
payment (not collection) of the Obligations. 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. This Guaranty is limited in amount to (1)
$
1,000,000.00 of the principal
amount of the Obligations plus (2) a proportionate
share (i.e., in the same
proportion as the amount in (1) above bears to the
total principal amount of the
obligations) of all accrued and unpaid interest,
and Expenses (as defined
below) incurred with respect to the Obligations and (3)
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) 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;
(iii) any failure of
Guarantor to receive notice of any intended disposition
of
such collateral; (iv) any
fictitiousness, incorrectness, invalidity or
unenforceability, for any
reason, of any instrument or other agreement which may
evidence any Obligation; (v)
any composition, extension, stay or other statutory
relief granted to Borrower
including, without limitation, the expiration of the
<PAGE>
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; (vi) any change in form of
organization, name,
membership or ownership of Borrower or Guarantor; (vii)
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;
(viii) any setoff, defense or
counterclaim of Borrower with respect to the
obligations or otherwise
arising, either directly or indirectly, in regard to
the Obligations.
(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 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; (ii) 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; (iii) 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;
(iv) 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 (v) 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, provided that such applications
are made in a
commercially
