EXHIBIT 10.14
SUBSIDIARY
GUARANTY
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New York, New York
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July 31, 2008
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FOR VALUE RECEIVED, and in
consideration of note purchases from, loans made or to be made or
credit otherwise extended or to be extended by the Purchasers (as
defined below) to or for the account of MICRO COMPONENT TECHNOLOGY,
INC., a Minnesota corporation (the “ Company ”),
from time to time and at any time and for other good and valuable
consideration and to induce the Purchasers, in their discretion, to
purchase such notes, make such loans or other extensions of credit
and to make or grant such renewals, extensions, releases of
collateral or relinquishments of legal rights as the Creditor
Parties (as defined below) may deem advisable, each of the
undersigned (and each of them if more than one, the liability under
this Guaranty being joint and several) (jointly and severally
referred to as “ Guarantors ” or “ the
undersigned ”) unconditionally guaranties to the Creditor
Parties, their 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 the
Company to the Creditor Parties and of all instruments of any
nature evidencing or relating to any such obligations and
liabilities upon which the Company or one or more parties and the
Company is or may become liable to the Creditor Parties, whether
incurred by the Company as maker, endorser, drawer, acceptor,
guarantors, 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 the Creditor Parties,
whether arising under, out of, or in connection with (i) that
certain Securities Purchase Agreement dated as of the date hereof
(as amended, restated, modified and/or supplemented from time to
time, the “ Securities Purchase Agreement ”) by
and between the Company, the purchasers named therein or which
thereafter become a party thereto (each a “ Purchaser
” and collectively, the “ Purchasers ”)
and LV Administrative Services, Inc., as administrative and
collateral agent for the Purchasers (in such capacity, the “
Agent ”) (the Purchasers and the Agent, each a “
Creditor Party ” and collectively, the “
Creditor Parties ”) and (ii) each Related
Agreement referred to in the Securities Purchase Agreement (the
Securities Purchase Agreement and each Related Agreement, as each
may be amended, modified, restated or supplemented from time to
time, are collectively referred to herein as the “
Documents ”), or any documents, instruments or
agreements relating to or executed in connection with the Documents
or any documents, instruments or agreements referred to therein or
otherwise, or any other indebtedness, obligations or liabilities of
the Company to the Creditor Parties, whether now existing or
hereafter arising, direct or indirect, liquidated or unliquidated,
absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument 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, and irrespective of the allowability, allowance or
disallowance of any or all of the Obligations in any case commenced
by or against the Company under Title 11, United States Code,
including, without limitation, obligations or indebtedness of the
Company for post-petition interest, fees, costs and charges that
would have accrued or been added to the Obligations but for the
commencement of such case. Terms not otherwise defined herein
shall
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have the meaning assigned such terms in the
Securities Purchase Agreement. In furtherance of the
foregoing, the undersigned hereby agrees as follows:
No
Impairment . The Creditor Parties
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, or any other
agreement with the Company 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 any Creditor Party and the
Company or any such other party or person, or make any election of
rights the Creditor Parties 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 Guaranty shall be effective regardless of the subsequent
incorporation, merger or consolidation of the Company, or any
change in the composition, nature, personnel or location of the
Company and shall extend to any successor entity to the Company,
including a debtor in possession or the like under any Insolvency
Law.
Guaranty
Absolute . Subject to
Section 5(c) hereof, each of the undersigned jointly and
severally guarantees that the Obligations will be paid strictly in
accordance with the terms of the Documents 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 the Company with respect thereto. Guarantors
hereby knowingly accept the full range of risk encompassed within a
contract of “continuing guaranty” which risk includes
the possibility that the Company will contract additional
indebtedness, obligations and liabilities for which Guarantors may
be liable hereunder after the Company’s financial condition
or ability to pay its lawful debts when they fall due has
deteriorated, whether or not the Company has properly authorized
incurring such additional indebtedness, obligations and
liabilities. The undersigned acknowledge that (i) no
oral representations, including any representations to extend
credit or provide other financial accommodations to the Company,
have been made by any Creditor Party to induce the undersigned to
enter into this Guaranty and (ii) any extension of credit to
the Company shall be governed solely by the provisions of the
Documents. The liability of each 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 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 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 the Creditor Parties or their assignees
or any acceptance thereof or any release of any security by the
Creditor Parties or their assignees, (d) any limitation on any
party’s liability or obligation under the 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,
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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 the Company, 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 the Creditor Parties shall bear
interest until such amounts are paid in full at the highest rate
then applicable to the Obligations. Obligations include
post-petition interest whether or not allowed or
allowable.
Waivers
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This Guaranty is
a guaranty of payment and not of collection. The Creditor
Parties shall be under no obligation to institute suit, exercise
rights or remedies or take any other action against the Company or
any other person or entity 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 each of
the Guarantors hereby waives any and all rights which it may have
by statute or otherwise which would require the Creditor Parties to
do any of the foregoing. Each of the Guarantors further
consents and agrees that the Creditor Parties shall be under no
obligation to marshal any assets in favor of Guarantors, or against
or in payment of any or all of the Obligations. The
undersigned hereby waives all suretyship defenses and any rights to
interpose any defense, counterclaim or offset of any nature and
description which the undersigned may have or which may exist
between and among any Creditor Party, the Company and/or the
undersigned with respect to the undersigned’s obligations
under this Guaranty, or which the Company 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.
Each of 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 the Company’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.
Notwithstanding
any payment or payments made by the undersigned hereunder, or any
setoff or application of funds of the undersigned by any Creditor
Party, the undersigned shall not be entitled to be subrogated to
any of the rights of such Creditor Party against the Company or
against any collateral or guarantee or right of offset held by such
Creditor Party for the payment of the Obligations, nor shall the
undersigned seek or be entitled to seek any contribution or
reimbursement from the Company in respect of payments made by the
undersigned hereunder, until all amounts owing to the Creditor
Parties by the Company on account of the Obligations are
indefeasibly paid in full and the Purchasers’ obligation to
extend credit pursuant to the Documents has been irrevocably
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
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Obligations shall
not have been paid in full and the Purchasers’ obligation to
extend credit pursuant to the Documents shall not have been
terminated, such amount shall be held by the undersigned in trust
for the Creditor Parties, 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 the Agent in the exact form received by the undersigned
(duly endorsed by the undersigned to the Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in
such order as the Agent may determine, subject to the
provision
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