Exhibit 10.2
UNLIMITED GUARANTY
UNLIMITED GUARANTY, dated as of March 15, 1994, made by each of the
undersigned (individually a "Guarantor" and collectively the "Guarantors"),
in favor of (a) The First National Bank of Boston, a national banking
association, as agent (hereinafter, in such capacity, the "Agent") for itself
and the other banking institutions (hereinafter, collectively, the "Banks")
which are parties to a Revolving Credit Agreement dated as of March 15, 1994
(as amended and in effect from time to time, the "Credit Agreement"), among
M/A-COM, INC. (the "Company"), the Banks and the Agent and (b) each of the
Banks.
WHEREAS, the Company and the Guarantors are members of a group of
related corporations, the success of any one of which is dependent in part on
the success of other members of such group; and
WHEREAS, each of the Guarantors is expected to receive substantial
direct and indirect benefits from the extensions of credit to the Company by
the Banks pursuant to the Credit Agreement (which benefits are hereby
acknowledged); and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement that the Companies execute and deliver to the Agent for the benefit
of the Banks and the Agent an unlimited guaranty substantially in the form
hereof.
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Guarantors hereby agree for the benefit of
the Banks and the Agent as follows:
1. Definitions. All capitalized terms used herein without definition
shall have the respective meanings provided in the Credit Agreement.
2. Guaranty of Payment and Performance of Obligations. Each of the
Guarantors hereby jointly and severally unconditionally guarantees to the
Banks and the Agent that the Company will duly and punctually pay or perform
any and all of the Obligations. This Guaranty is an absolute, unconditional
and continuing guaranty of the full and punctual payment and performance by
the Company of the Obligations and not of their collectibility only and is in
no way conditioned upon any requirement that any of the Banks or the Agent
first attempt to collect any of the Obligations from the Company or resort to
any collateral security or other means of obtaining payment of any of the
Obligations which any of the Banks or the Agent now have or may acquire after
the date hereof, or upon any other contingency whatsoever. Upon any default
by the Company in the full and punctual payment or performance of any of the
Obligations, the joint and several liabilities and obligations of the
Guarantors hereunder with respect to such Obligations shall, upon demand by
the Agent, forthwith become due and payable to the Banks and the Agent
without further demand or notice of any nature, all of which are expressly
waived by the Guarantors. Payments by the Guarantors or any of them
hereunder may be required by the Agent on any number of occasions. All
payments by any Guarantor hereunder shall be made to the Agent, at the place
of payment specified therefor in the Credit Agreement, for the account of the
Banks and the Agent.
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3. Guarantors' Further Agreements to Pay. Subject to the provisions of
Section 13 hereof, the Guarantors further jointly and severally agree, as the
principal obligors and not as the guarantors only, to pay to the Agent upon
demand by the Agent in funds immediately available to the Agent and the
Banks, all reasonable costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any of the Banks in connection
with this Guaranty and the enforcement hereof, together with interest on
amounts recoverable under this Guaranty from the time such amounts become due
until payment at the rate of interest set forth in Section 4.11 of the Credit
Agreement for overdue principal (but without duplication for interest charged
as part of the Obligations and interest charged hereunder).
4. Extent of Guarantors' Liabilities. The joint and several liability
of the Guarantors hereunder shall be unlimited.
5. Termination of Guaranty. The obligations of each Guarantor under
this Guaranty shall continue in full force and effect until the Obligations
have been paid or satisfied in full; provided, however, that this Guaranty
shall continue to be effective or shall be reinstated, as the case may be, if
at any time payment or other satisfaction of any of the Obligations is
rescinded or must otherwise be restored or returned upon the bankruptcy,
insolvency, or reorganization of the Company or any Guarantor, or otherwise,
as though such payment had not been made or other satisfaction occurred. No
invalidity, irregularity or unenforceability by reason of the federal
Bankruptcy Code or any insolvency or other similar law, or any law or order
of any government or agency thereof purporting to reduce, amend or otherwise
affect any of the Obligations, shall impair, affect, be a defense to or claim
against the obligations of any of the Guarantors under this Guaranty.
6. Set-off. Each of the Guarantors grants to the Agent and the Banks,
as security for the full and punctual payment and performance of the
Guarantors' joint and several obligations hereunder, a continuing lien on and
security interest in all deposits and other sums credited by or due from any
of the Banks to such Guarantor or subject to withdrawal by such Guarantor;
and regardless of any other means of obtaining repayment of the Obligations,
the Agent or any of the Banks may at any time and without notice to such
Guarantor set off the whole or any portion or portions of any or all such
deposits and other sums against amounts payable by such Guarantor under this
Guaranty, whether or not any other person or persons could also withdraw
money therefrom. Each Bank agrees to be bound by the provisions of Section
12 of the Credit Agreement with respect to any such set-off or other recovery
from any Guarantor (as if the second and third sentences of such Section 12
applicable to the Company applied to such Guarantor).
7. Agent's and Banks' Freedom to Deal with the Company and Other
Parties. The Agent and the Banks shall be at liberty, without giving notice
to or obtaining the assent of any Guarantor and without relieving any
Guarantor of any liability hereunder, to deal with the Company, with any of
the Guarantors and with each other party who now is or after the date hereof
becomes liable in any manner for any of the Obligations, in such manner as
any Bank or the Agent in its sole discretion deems fit, and to this end each
of the Guarantors gives to the Agent and each Bank full authority in their
sole discretion to do any or all of the following things: (a) extend credit,
make loans and afford other financial accommodations to the Company or any of
the other Guarantors at such times, in such amounts and on such terms as the
Agent or such Bank may approve, (b) vary the terms and grant extensions of
any present or future indebtedness or obligation to any of the Banks or the
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Agent of the Company, any of the other Guarantors or any such other party,
(c) grant time, waivers and other indulgences in respect thereof, (d) vary,
exchange, release or discharge, wholly or partially, or delay in or abstain
from perfecting and enforcing any collateral security or guaranty or other
means of obtaining payment of any of the Obligations which the Agent or the
Banks now have or acquire after the date hereof, (e) accept partial payments
from the Company, any of the other Guarantors or any such other party, (f)
release or discharge, wholly or partially, any of the other Guarantors or any
other endorsers or guarantors, and (g) compromise or make any settlement or
other arrangement with the Company, any of the other Guarantors or any such
other party.
8. Unenforceability of Obligations Against the Company; Invalidity of
Security or Other Guaranties. If for any reason the Company or any Guarantor
has no legal existence or is under no legal obligation to discharge any of
the Obligations undertaken or purported to be undertaken by it or on its
behalf, or if any of the moneys included in the Obligations have become
irrecoverable from the Company or any Guarantor by operation of law or for
any other reason, this Guaranty shall nevertheless be binding on each of the
Guarantors or (as the case may be) each of the other Guarantors to the same
extent as if the Guarantors at all times had been the joint and several
principal debtors on all such Obligations. This Guaranty shall be in
addition to any other guaranty or other collateral security for any of the
Obligations, and it shall not be prejudiced or rendered unenforceable by the
invalidity of any such other guaranty or collateral security.
9. Waivers by Guarantors. Each of the Guarantors waives: notice of
acceptance hereof, notice of any action taken or omitted by the Agent or any
of the Banks in reliance hereon, and any requirement that the Agent or any of
the Banks be diligent or prompt in making demands hereunder, giving notice
of any default by the Company, or any of the other Guarantors or asserting
any other rights of the Agent or any of the Banks hereunder. Each of the
Guarantors also irrevocably waives, to the fullest extent permitted by law,
all defenses that at any time may be available in respect of such Guarantor's
obligations hereunder by virtue of any statute of limitations, valuation,
stay, moratorium law or other similar law now or hereafter in effect.
10. Subrogation; Subordination.
(a) Until the final payment and performance in full of all of the
Obligations, none of the Guarantors shall exercise and each of the Guarantors
hereby waives any rights against the Company or any other Guarantor arising
as a result of payment by such Guarantor hereunder, by way of subrogation or
otherwise, and will not prove any claim in competition with the Agent or any
Bank in respect of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceedings of any nature; no Guarantor will claim any
setoff, recoupment or counterclaim against the Company or any other Guarantor
in respect of any liability of such Guarantor to the Company or any other
Guarantors; and each Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by the Agent or any
Bank.
(b) The payment of any amounts due with respect to any indebtedness of
the Company for money borrowed or credit received now or hereafter owed to
any Guarantor is hereby subordinated to the prior payment in full of all of
the Obligations. Each Guarantor agrees that, after the occurrence of any
default in the payment or performance of any of the Obligations, such
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Guarantor will not demand, sue for or otherwise attempt to collect any such
indebtedness of the Company to such Guarantor until all of the Obligations
shall have been paid in full. If, notwithstanding the foregoing sentence,
any Guarantor shall collect, enforce or receive any amounts in respect of
such indebtedness while any Obligations are still outstanding, such amounts
shall be collected, enforced and received by such Guarantor as trustee for
the Banks and the Agent and be paid over to the Agent, for the benefit of the
Banks and the Agent, on account of the Obligations without affecting in any
manner the liability of such Guarantor under the other provisions of this
Guaranty.
(c) The provisions of this Section 10 shall be supplemental to and not
in derogation of any rights and remedies of the Banks and the Agent under any
separate subordination agreement which the Agent may at any time and from
time to time enter into with any Guarantor for the benefit of the Banks and
the Agent.
11. Demands and Notices. Any demand on or notice to any of the
Guarantors shall be in writing and shall be effective when handed to such
Guarantor or left at or mailed or sent by telegraph, telex, facsimile or
courier to such Guarantor's address set forth on the signature pages hereof
or any other address or addresses of which such Guarantor may hereafter
designate in writing to the Agent and the Banks.
12. Amendments, Waivers, Etc. No provision of this Guaranty may be
changed, waived, discharged or terminated except by an instrument in writing
signed by the Agent and the Guarantor so affected, expressly referring to the
provision of this Guaranty to which such instrument relates; and no such
waiver shall extend to, affect or impair any right with respect to any
Obligation which is not expressly dealt with therein. No course of dealing
or delay or omission on the part of the Agent or any of the Banks in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto.
13. Interest Limitation. Notwithstanding any other term of this
Guaranty or the Credit Agreement, the maximum amount of interest which may be
charged to or collected from any Guarantor by the Agent or any Bank under
this Guaranty shall be absolutely limited to, and shall in no event exceed,
the maximum amount of interest which could lawfully be charged or collected
under applicable law, so that the maximum of all amounts constituting
interest under applicable law, howsoever computed, shall never exceed as to
such Guarantor such lawful maximum, and any term of this Guaranty or the
Credit Agreement which could be construed as providing for interest in excess
of such lawful maximum shall be, and hereby is, made expressly subject to and
modified by the provisions of this paragraph. Any part of the Obligations
consisting of sums paid or agreed to be paid to the Agent or any Bank for the
use, forebearance or detention of the Obligations shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full of the
principal (including the period of any renewal or extension thereof) so that
interest on account of the Obligations shall not exceed the maximum amount
permitted by applicable law.
14. Miscellaneous Provisions. The provisions of this Guaranty are
severable and if any clause or provision shall be held invalid and
unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part
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thereof, in such jurisdiction, and shall not in any manner affect such clause
or provision in any other jurisdiction, or any other clause or provision of
this Guaranty in any jurisdiction. This Guaranty shall survive the
insolvency of any of the Guarantors or the commencement of any case or
proceeding by or against any of the Guarantors under the Bankruptcy Code or
other federal or state bankruptcy, insolvency or reorganization statutes.
THIS GUARANTY IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL INURE TO THE BENEFIT OF THE AGENT AND
THE BANKS AND THEIR RESPECTIVE SUCCESSORS IN TITLE AND ASSIGNS, AND SHALL BE
BINDING ON THE GUARANTORS AND THE GUARANTORS' RESPECTIVE SUCCESSORS IN TITLE
AND ASSIGNS.
IN WITNESS WHEREOF, intending to be legally bound, each of the
Guarantors has caused this Guaranty to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
M/A-COM Government Products, Inc.
By: /s/Stephen P. Zezima
Its Assistant Treasurer
M/A-COM Light Control Systems, Inc.
By: /s/John F. Fairbanks
Its Treasurer
M/A-COM Omni Spectra, Inc.
By: /s/John F. Fairbanks
Its Treasurer
M/A-COM PHI, Inc.
By: /s/John F. Fairbanks
Its Treasurer
M/A-COM Puerto Rico, Inc.
By: /s/John F. Faibanks
Its Treasurer
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