Unlimited Guaranty and Indemnity Agreement
This Agreement is made between the Guarantor and FLEET
NATIONAL BANK (the "Bank"), and in consideration of the extension, modification,
or renewal of credit or forbearance by Bank to Food Technology Service, Inc.
whose address is 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 (the "Debtor").
1. GUARANTY. The Guarantor hereby unconditionally guarantees to Bank the payment
when due, by acceleration or otherwise, of all indebtedness, liabilities and
obligations of Debtor to Bank of every kind and nature whether absolute or
contingent (including liability pursuant to any guarantee or endorsement by
Debtor), direct or indirect, primary or secondary, joint or several), and
whether heretofore or hereafter created, arising or existing or at any time due
and owing from Debtor to Bank including without limitation the payment of all
bills, notes, checks, drafts, trade acceptances and other evidences of debt upon
or by reason of which Debtor may or shall be liable or obligated to Bank as
maker, drawer, endorser, acceptor or otherwise in any manner whatsoever
(collectively the "Indebtedness"). The obligations under this Agreement are
without limitation as to amount, unless specifically restricted or limited in
the Special Provisions section of this Agreement. Further, the obligations under
this Agreement are cumulative and in addition to obligations under any other
guaranty or indemnity previously given by the Guarantor to Bank and not
terminated in writing by Bank.
2. UNCONDITIONAL ABSOLUTE GUARANTY. The Guarantor's liability hereunder shall be
direct, immediate and absolute and shall not be conditioned or contingent upon
the pursuit, exercise or prosecution by the Bank of any remedies, and the Bank
shall have and may exercise against the Guarantor any and all of the rights and
remedies that it might exercise against a principal debtor upon a past due and
liquidated obligation. This instrument shall constitute an unconditional,
continuing guarantee independent of and in addition to any other security,
collateral, endorsement or guarantee held by the Bank for the Indebtedness or
any part thereof. The liability of the Guarantor hereunder shall not be
impaired, altered or otherwise affected by (i) the taking of or release of any
other or additional security for or guarantee of the Indebtedness or any part
thereof, (ii) any neglect, failure or omission to hold, perfect, protect or rely
on or realize upon any such other or additional security or guarantee, (iii) any
extension of credit in excess of the limit, if any, of this guarantee, (iv) any
renewal, extension, modification, compounding, compromise, payment, replacement
or discharge of the Indebtedness or any part thereof or (v) any other act,
failure to act, or thing whatsoever, which but for this Section 2 would
constitute a release of any obligations of the Guarantor, and all of which the
Guarantor hereby consents to without notice to the Guarantor.
Any payment of principal or interest, acknowledgment, promise or other
act by or on behalf of the Debtor, the effect of which would take any right
which the Bank may have against Debtor out of the operation of any statute of
limitations shall have a like effect with respect to the right which the Bank
may have hereunder against the Guarantor notwithstanding the Guarantor's lack of
notice thereof or consent thereto.
The Guarantor waives notice of acceptance of this guarantee; notice
that any Indebtedness has been incurred; presentment, demand, protest, notice of
dishonor of any note or Indebtedness; or notice to the Guarantor, Debtor, or any
other person, of Debtor's default. The Guarantor authorizes the Bank in its sole
discretion to direct the order or manner of the disposition of the collateral
and the enforcement of any and all endorsements and guaranties relating to the
Indebtedness. Any payments or credits received from Debtor, Guarantor, or any
other source may be applied to the Indebtedness in whatever order or manner Bank
elects.
3. INDEMNITY. The Guarantor hereby agrees to indemnify the Bank and hold it
harmless from and against any and all losses, expenses and damages incurred by
the Bank in connection with or as a result of the assertion of any and all
claims for the return of moneys (including the proceeds of any collateral)
received or applied by the Bank in partial or full payment of the Indebtedness,
including without limitation all other applicable laws, or that the payment of
such moneys or the giving of such collateral to the Bank constituted a
preference or fraudulent transfer under the Bankruptcy Code or any other
applicable statute. This indemnity shall extend to and include all moneys
recovered from or paid over by the Bank as a result of such claims, regardless
of the basis thereof, and all costs and expenses including reasonable attorneys
fees incurred by the Bank in investigation, evaluating and contesting such
claims, regardless of the outcome. The Guarantor's liability pursuant to this
Section 3 shall survive any termination of this Agreement to the extent of all
moneys (including proceeds of any collateral) received by the Bank on account of
that portion of the Indebtedness (and any renewals, modifications or extensions
thereof, or replacements therefor, whether made before or after such
termination) for which the Guarantor under the terms of this agreement remains
liable notwithstanding such termination, whether such moneys are recovered from,
or paid over by, the Bank before or after such termination. The indemnity
provided by this paragraph is in addition to the guarantee set forth elsewhere
in this Agreement, and shall be limited only to the extent that the Guarantor's
liability hereunder is limited in the Special Provisions section of this
Agreement.
4. TERMINATION. The liability of the Guarantor under this agreement may be
terminated to the extent hereinafter permitted only (i) if the Debtor has no
outstanding obligations to Bank, Bank has no continuing commitments to lend to
Debtor, and Bank receives written notice of the Guarantor's intent to terminate
this agreement signed by the Guarantor, (ii) upon the written agreement of the
Bank, or (iii) upon the Bank's receiving written notice of the death of the
Guarantor if the Guarantor is an individual. Any termination of the Guarantor's
liability under this Agreement shall be effective only as to the portion of the
Indebtedness not committed by the Bank prior to or created or arising subsequent
to such termination and provided further that this Agreement and the Guarantor's
liability hereunder shall remain in full force and effect with respect to the
portion of the Indebtedness committed, created, arising or existing prior to
such termination and to all renewals, extensions and modifications thereof,
whether made before or after such termination.
If there are more than one Guarantor, including guarantors of the
Indebtedness under separate agreements, the liability hereunder of any of them
may be terminated in the manner and to the extent provided above, but the
liability of those of the Guarantor whose liability hereunder is not terminated
shall continue in full force and effect as though executed only by those of the
Guarantor remaining.
The payment in full of all Indebtedness outstanding at any time shall
not discharge or otherwise affect the Guarantor's liability hereunder with
respect to Indebtedness thereafter created or arising prior to the termination
of such liability as herein provided, unless this Agreement is otherwise
terminated as provided herein.
5. SECURITY. The Bank shall have a security interest in and right of setoff with
respect to all deposits or other sums credited by and due from the Bank to the
Guarantor and a security interest in all securities or other property of the
Guarantor in the Bank's possession for safekeeping or otherwise. The Bank's
security interests shall secure payment of all obligations under this Agreement
and the payment and performance of all other obligations of the Guarantor to the
Bank, whether direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising. In the event any obligation becomes due under
this Agreement, regardless of the adequacy of collateral and without any demand
or notice, except a required by applicable law, the Bank may apply or setoff
such deposits or other sums and may sell or dispose of any or all of such
securities or other property and may exercise any and all rights it may have
under the New York Uniform Commercial Code, as in effect form time to time. The
rights of the Bank under this Agreement are in addition to, and not exclusive
of, any other rights it may have with respect to such deposits, sums,
securities, or other property under other agreements or applicable principles of
law. The Bank shall have no duty to take steps to preserve rights against prior
parties as to such securities or other property. Borrower and any Guarantor
hereby grant to Bank, a lien, security interest and right of setoff as security
for all liabilities and obligations to Bank, whether now or existing or
hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
Bank or any entity under control of Fleet Financial Group, Inc., or in transit
to any of them. At any time, without demand or notice, Bank may set off the same
or any part thereof and apply the same to any liability or obligation of
Borrower and any Guarantor even though unmatured and regardless of the adequacy
of any other collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE BANK TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
6. GUARANTY OBLIGATIONS DUE. In case of (i) the death, legal incapacity,
insolvency, liquidation, dissolution, merger, consolidation, or other change of
organizational structure of the Guarantor, (ii) suspension of the usual business
of the Guarantor, (iii) institution of bankruptcy proceedings or other
proceedings of any kind for the relief or collection of debt by or against the
Guarantor (including, without limitation, assignments for the benefit of
creditors, appointment of trustees, receivers, or custodians for a material part
of the Guarantor's assets, levies upon or attachments of assets, the filing of
judgments not fully insured or bonded or removed within thirty days, or the
filing of tax liens), (iv) transfer of a material portion of the assets of the
Guarantor, (v) any financial statement or information furnished by the Guarantor
to Bank having been false or misleading in any material respect as of the date
furnished, (vi) default (after applicable grace and cure periods) by the
Guarantor under any other agreement between the Guarantor and the Bank, (vii)
any default or other reason by which the Indebtedness shall have become due and
payable, the Indebtedness at the option of the Bank shall become immediately due
and payable by the Guarantor irrespective of any other contract or agreement
fixing the date of maturity.
7. FINANCIAL INFORMATION. From time to time, but no less often than annually,
the Guarantor shall provide the Bank with such financial statements, copies of
tax returns, and other information as, and in the form, the Bank may request.
8. COSTS OF COLLECTION. The Guarantor on demand shall pay all expenses of the
Bank, including without limitation reasonable attorney's fees, in connection
with enforcement and collection of the Indebtedness and obligations under this
Agreement.
9. SUBROGATION. Until such time as the Guarantor's obligation under this
agreement are fully and irrevocably paid in full, the Guarantor hereby
irrevocably waives any claims or rights, including, without limitation, any
right of subrogation, which the Guarantor may now possess or subsequently
acquire against the Debtor or its bankruptcy estate, arising from the
Guarantor's execution of, or payment under, this Agreement, and the Guarantor
agrees that in such instances it shall have no recourse, at law or in equity
against Debtor or its bankruptcy estate arising from any liability imposed upon,
or incurred by, the Guarantor as a result of the Guarantor's execution of this
Agreement.
10. AUTHORIZATION. If the Guarantor is a corporation, partnership or other
organization or association, this agreement is made and entered into by it in
furtherance of its purposes. The execution of this agreement is not contrary to,
or in violation of, its certificate of incorporation, charter or by-laws or any
other agreement or indenture to which it or any of its members is a party or by
which it or its property or its members are bound. The Guarantor and the party
executing this Agreement on its behalf represent to the Bank that the Guarantor
is duly authorized to guarantee the Indebtedness and undertake the within
indemnity.
11. JURISDICTION/WAIVER OF TRIAL BY JURY. The Guarantor agrees that any action
or proceeding to enforce the provisions of the Agreement may be commenced by the
Bank in the New York State Supreme Court in any county, or in the District Court
of the United States in any district in which Bank has an office, and the
Guarantor waives personal service of process and agrees that a summons and
complaint commencing an action or proceeding in any such court shall be properly
served and shall confer personal jurisdiction if served by registered mail to
the Guarantor, or as otherwise provided by the laws of the State of New York or
the United States. BORROWER AND BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THE NOTE OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO ACCEPT
THE NOTE AND MAKE THE LOAN.
12. MISCELLANEOUS. If there are more than one Guarantor, the representations,
agreements, obligations and liabilities hereunder of the Guarantor shall be
joint and several. This Agreement shall be binding upon the Guarantor, each of
them and their respective heirs, executors, administrators, legal
representatives, successors and assigns, and shall inure to the benefit of the
Bank, and its successors and assigns, including specifically any assignee of all
or any portion of the Indebtedness.
13. SPECIAL PROVISIONS. Obligations under this agreement are limited to
$500,000.00. All requests for borrowings shall be submitted to the Bank by Food
Technology Service, Inc. (Borrower) and must be accompanied by the written
consent of MDS Nordion, Inc.
There are no oral representations, understandings or warranties with respect to
this Agreement. It may not be changed except by written agreement signed by the
Guarantor and the Bank. The Bank's rights and remedies shall not be modified,
limited or waived by any representation, promise or agreement made, or any
course of conduct, by the Bank after the date of this agreement, unless
evidenced by a written document signed by the Bank. If any provision of this
Agreement is declared unenforceable or invalid in whole or in part for any
reason, the remaining provisions shall continue to be effective.
This Agreement shall be governed by the laws of the State of New York.
Date: December 17, 1999
By: MDS Nordion Inc.
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Title:
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State of New York )
ss.:
County of _______________ )
Individual Acknowledgement
On this ______ day of ________________________, before me, the
subscriber, personally came ___________________________________, to me known to
be the person(s) described in and who executed the foregoing Guaranty, and
acknowledged to me that (s)he/they executed the same.
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Notary Public
Partnership Acknowledgement
On this ______ day of ________________________, before me personally
came ___________________________________, to me known to be the person(s) who
executed the foregoing Guaranty and who, being duly sworn by me, did depose and
say that (s)he is a General Partner in the partnership described in the
foregoing Guaranty, that (s)he acknowledged to me that (s) he executed the same
as the act and deed of such Partnership.
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Notary Public
Corporate Acknowledgement
On this ______ day of ________________________, before me, the
subscriber, personally came ___________________________________, to me known,
who, being by me duly sworn, did depose and say that (s) he resides at
___________________________ and that (s)he is the __________________ of
______________________, the Corporation described in and which executed the
above instrument; and that (s)he executed said instrument by order of the Board
of Directors of said Corporation.
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Notary Public
