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EXHIBIT 10.3(d)
GUARANTY
THIS GUARANTY AGREEMENT (herein sometimes called this "Guaranty"), dated
as of November 1, 1995, is executed by MICROPUMP, INC. (f/k/a MC Acquisition
Corp.), a Delaware corporation (herein called "Guarantor"), in favor of BANK OF
AMERICA ILLINOIS (f/k/a CONTINENTAL BANK N.A.), as agent (herein called
"Agent") for the benefit of all commercial banking institutions (herein called
"Banks") as are, or may from time to time become, parties to the Credit
Agreement (such and all other capitalized terms being used herein with the
meanings set forth in Article I).
W I T N E S S E T H:
WHEREAS, the Guarantor is a wholly-owned subsidiary of IDEX Corporation, a
Delaware corporation (herein called "Borrower"), and shall receive substantial
and direct benefit from the consummation of the transactions contemplated under
the Credit Agreement (defined below);
WHEREAS, Borrower has entered into that certain Second Amended and
Restated Credit Agreement, dated as of January 29, 1993 (herein, as amended by
the First Amendment dated as of May 23, 1994 to Second Amended and Restated
Credit Agreement, the Second Amendment dated as of October 24, 1994 to Second
Amended and Restated Credit Agreement, the Third Amendment dated as of February
28, 1995 to Second Amended and Restated Credit Agreement, and the Fourth
Amendment to Second Amended and Restated Credit Agreement dated the date
hereof, and as such agreement may hereinafter be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement"),
among Borrower, Agent and the Banks, pursuant to which Borrower has a Total
Commitment Amount of $150,000,000 as of the date hereof, the proceeds of which
may be advanced from time to time to the Borrower for the general corporate
purposes of the Borrower and its Subsidiaries and Borrower has used such
proceeds for the benefit of the Guarantor;
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
April 26, 1995 (the "Asset Purchase Agreement") among Micropump Corporation, a
California corporation ("Seller"), Borrower and Xxxxx Xxxx purchased all right,
title and interest of Seller in and to all of the assets of Seller, subject to
the terms and conditions set forth therein;
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
dated as of April 28, 1995 between Borrower and MC Acquisition Corp.
("Acquisition Corp."), Borrower granted, bargained, sold, conveyed,
transferred, assigned, set over and delivered to Acquisition Corp. all of
Borrower's rights, title and interest in and to, the Asset Purchase Agreement
(subject to the limitations set forth therein);
WHEREAS, Acquisition Corp. subsequently changed its name to "Micropump,
Inc.";
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WHEREAS, Borrower borrowed $22,000,000 pursuant to the Credit Agreement
and lent such funds and/or contributed such funds to Guarantor;
WHEREAS, Guarantor used such funds to consummate the purchase of the
assets of Seller described above;
WHEREAS, as a condition to the Banks' consent to the acquisition of the
assets of Seller and Borrower's obtaining the Loans for such purpose under the
Credit Agreement, Guarantor is required to execute and deliver this Guaranty;
and
WHEREAS, Guarantor has, in consideration of, among other things, receiving
such present and future advances, duly authorized the execution, delivery and
performance of this Guaranty;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, Guarantor hereby agrees as follows:
ARTICLE I
DEFINITIONS
SECTION Certain Terms. The following terms (whether or not underscored)
when used in this Guaranty shall, except where the context otherwise requires,
have the following meanings (such definitions to be equally applicable to the
singular and plural forms thereof):
"Acquisition Corp." shall have the meaning provided in the fourth recital
hereto.
"Asset Purchase Agreement" shall have the meaning provided in the third
recital hereto.
"Agent" shall have the meaning provided in the preamble hereto.
"Banks" shall have the meaning provided in the preamble hereto.
"Borrower" shall have the meaning provided in the first recital hereto.
"Credit Agreement" shall have the meaning provided in the second recital
hereto.
"Default" shall mean any Event of Default or event or conditions which,
with notice or lapse of time or both, would constitute an Event of Default.
"Event of Default" shall mean any of the events described in Section 8.1
of the Credit Agreement.
"Guarantor" shall have the meaning provided in the preamble hereto.
"Guaranty" shall have the meaning provided in the preamble hereto.
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"Liabilities" shall have the meaning provided in clause (a) of Section
2.1.
"Note" shall mean each Note executed and delivered pursuant to the Credit
Agreement to evidence Loans made thereunder and each other promissory note of
Borrower accepted by any Bank in substitution or replacement therefor.
"Obligor" means any person obligated in any way on any Liability.
"Reimbursement Obligation" shall have the meaning provided in Section 4.6
of the Credit Agreement.
"Seller" shall have the meaning provided in the third recital hereto.
SECTION Credit Agreement Terms. Terms for which meanings are provided in
the Credit Agreement shall, except as otherwise provided herein or as the
context may otherwise require, have the same meanings when used in this
Guaranty.
ARTICLE II
GUARANTY
SECTION 2.1. Guaranty of Payment. The Guarantor, hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and prompt payment and performance when
due, whether by required payment, voluntary prepayment, declaration,
acceleration or otherwise, and at all times thereafter of all of the
monetary obligations of Borrower under the Credit Agreement (including,
without limitation, all Reimbursement Obligations), the Notes and each
other Instrument executed and delivered pursuant thereto (herein called
the "Liabilities"); and
(b) agrees to reimburse Agent and each Bank for all costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which Agent or any Bank expends or incurs in collecting
or compromising any obligation referred to in clause (a) and in
enforcing this Guaranty, whether or not suit is filed, expressly
including, without limitation, all costs, expenses, reasonable
attorneys' fees and other charges incurred by such Person in
connection with any insolvency, bankruptcy, reorganization,
liquidation, dissolution, arrangement or other similar proceedings
involving the Guarantor which in any way affect the exercise by such
Person of its rights, powers, remedies and privileges with respect to
this Guaranty or the outstanding principal amount of the Notes.
SECTION 2.2. Obligations Absolute, Unconditional, etc. The Guarantor
agrees that its obligations hereunder shall be absolute, unconditional
and irrevocable, irrespective of the genuineness, validity, legality or
enforceability of the Liabilities, the Notes, the Credit Agreement or any
other Instrument executed or to be executed pursuant to the Credit
Agreement,
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or any other Instrument or collateral relating to or securing the payment,
performance or observance thereof or any other circumstance which could
otherwise constitute a legal or equitable discharge of a surety or guarantor,
and Agent may, at the direction of a Majority of Banks, proceed to enforce this
Guaranty without pursuing or collecting a judgment against any other Person
(including, without limitation, the Guarantor), without resorting to or
enforcing any other collateral or security and without any other action
whatsoever. Neither the Agent nor any Bank shall have any obligation to
protect, secure, perfect or insure any collateral security document or property
subject thereto at any time held as security for the Liabilities or this
Guaranty. The Guarantor hereby absolutely, unconditionally and irrevocably
waives and agrees not to assert or take advantage of:
(a) any right to require Agent or any Bank to proceed against
Borrower or any other Obligor or any other Person, or to proceed against
or exhaust any other security or collateral for the payment, performance
or observance of the Liabilities, or to pursue any other remedy whatsoever
before proceeding against the Guarantor hereunder;
(b) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any Person, or the failure of Agent
or any Bank to file or enforce a claim against any estate (in
administration, bankruptcy or any other proceedings) of any Person;
(c) any defense based upon an election of remedies by Agent or any
Bank, including, without limitation, an election to proceed by
non-judicial rather than judicial foreclosure, which destroys or
impairs any right of subrogation of the Guarantor or the right of the
Guarantor to proceed against Borrower or any other Person for reimbursement
or both;
(d) any other defense of Borrower, or the cessation of the
liability of Borrower for any cause whatsoever, with respect to any
Liability;
(e) any other defense of any kind, whether now existing or arising
hereafter, of the Guarantor to any action, suit or judicial or legal
proceeding that may be instituted with respect to this Guaranty;
(f) presentment, demand, protest and notice of any kind, including,
without limitation, notice of the creation or non-payment or
non-performance of all or any of the Liabilities, notice of dishonor or
protest, notice of acceptance by Agent and Banks of this Agreement,
notice of the existence, creation or incurrence of any new or additional
indebtedness, obligation or other liability, and notice of action or
non-action on the part of Agent, any Bank, Borrower or the Guarantor or
any other Obligor or other Person in connection with the Liabilities or
otherwise; and
(g) any duty on the part of Agent, any Bank or other Person to
disclose to the Guarantor any facts or information any such Person may
now or hereafter know or possess regarding Borrower, the Liabilities or any
other matter whatsoever, regardless of whether such Person has reason to
believe that such facts or other information may
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materially increase the risk which the Guarantor intends to assume or
has reason to believe that such facts or other information are unknown to
the Guarantor or has a reasonable opportunity to communicate such facts or
other information, it being understood and agreed that the Guarantor is
fully and solely responsible for being and keeping informed of the
financial condition of Borrower and of all other circumstances bearing on
the risk of non-payment, non-performance or non-observance of any
Liability.
This Guaranty shall in all respects be a continuing, absolute, unconditional
and irrevocable Guaranty of payment, and shall remain in full force and effect
until all Liabilities have been fully paid, and may not be amended, modified or
supplemented except in accordance with Section 11.1 of the Credit Agreement.
This Guaranty shall continue to be effective, or to be reinstated, as the case
may be, if at any time any payment, in whole or in part, of any Liability is
rescinded or must otherwise be restored or returned by Agent or any Bank upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Guarantor or Borrower, or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to the Guarantor or Borrower or any part of either of its property, or
otherwise, all as though such payments had never been made. If any Default
shall at any time have occurred and be continuing and acceleration of the Notes
shall at any time be prevented by reason of the pendency against Borrower of a
case or proceeding under a bankruptcy or insolvency law, the Guarantor agrees
that, for purposes of this Guaranty and its obligations hereunder, the maturity
of such principal amount shall be deemed to have been accelerated with the same
effect as if the holders of the Notes had accelerated the same in accordance
with the terms of the Credit Agreement, and the Guarantor shall, to the extent
it constitutes Liabilities, forthwith pay such principal amount and interest
(if any) thereon and other Liabilities without further notice of demand.
SECTION 2.3. Waiver of All Defenses. Agent may, from time to time, in
its sole discretion and without notice to the Guarantor, take any or all of the
following actions, all without in any way diminishing, impairing, releasing or
affecting the liability or obligations of the Guarantor under or with respect
to this Guaranty, and the Guarantor hereby irrevocably consents to any or all
of the following actions by Agent, any Bank or any holder of any Note:
(a) retain or obtain a Security Interest in any property to
secure any of the Liabilities or any obligation hereunder;
(b) retain or obtain the primary or secondary obligations of
any obligor or obligors, in addition to the Guarantor and the other
Obligors, with respect to any of the Liabilities;
(c) extend or renew for one or more periods (whether or not
longer than the original period), or alter or exchange, any of the
Liabilities, or release or compromise any obligation of the Guarantor
hereunder or any obligation of any nature of any other Obligor or any
other Person with respect to any of the Liabilities or amend or modify in
any respect the Credit Agreement or any Instrument executed pursuant
thereto;
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(d) waive, modify, subordinate, compromise or release its
Security Interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or extend or renew for one or more
periods (whether or not longer than the original period) or waive, release,
subordinate, compromise, modify, alter or exchange any guaranty or other
obligations of any nature of any obligor with respect to any such property;
and
(e) resort to the Guarantor for payment of any of the
Liabilities, whether or not Agent or any Bank shall have resorted to or
exhausted any other remedy or any other security or collateral for any
obligation hereunder or shall have proceeded against Borrower or any other
Obligor or other Person primarily or secondarily obligated with respect to
any of the Liabilities.
The Guarantor absolutely, unconditionally and irrevocably agrees that, as
long as any Liabilities have not been paid in full, the Guarantor shall not
have and shall not enforce any right of subrogation, and the Guarantor waives
any right to enforce any remedy which Agent, any Bank or the holder of any Note
now has or may hereafter have against Borrower or any other Person hereunder or
pursuant hereto or under or pursuant to the Credit Agreement, the Notes or any
other Instrument executed or to be executed pursuant hereto or thereto, and any
benefit of, and any right to participate in, any security for the Liabilities
now or hereafter held by Agent, any Bank or the holder of any Note.
The Guarantor absolutely, unconditionally and irrevocably agrees that the
liability of the Guarantor hereunder, and the remedies for the enforcement of
such liability, shall in no way be diminished or affected by:
(f) the release or discharge of Borrower or any other Obligor or
any other Person responsible for the payment, performance or observance of
any Liability in any creditors' receivership, bankruptcy, reorganization,
insolvency or other proceeding;
(g) the rejection or disaffirmance in any such proceeding of any
Instrument evidencing, securing, or executed in connection with, the
Liabilities; or
(h) the impairment, limitation or modification of the
Liabilities resulting from the operation of any present or future
provision of the federal bankruptcy code or any other statute or law of
any kind or from the decision or order of any court.
The Guarantor absolutely, unconditionally and irrevocably further agrees
that:
(i) the creation from time to time of Liabilities, including,
without limitation, the making of Loans to Borrower, and the application
or allocation of amounts received by Agent or any Bank or any other Person
to the payment of such Liabilities, and the creation, existence or
enforcement from time to time of any security for the Liabilities, and the
application and allocation of the proceeds of such security, shall in no
way affect or impair the rights, remedies, powers and privileges of Agent
or any Bank or the holder of any Note or the obligation of the Guarantor
under this Guaranty; and
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(j) any amounts received by Agent or any Bank from whatsoever
source on account of the Liabilities may be applied by it toward the
payment of such of the Liabilities and in such order of application as
Agent or such Bank may in its sole discretion determine.
The Guarantor hereby expressly waives notice of the creation of the
Liabilities and all diligence in collection or protection of or realization
upon the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
SECTION 2.4. Payment, etc. by the Guarantor. The Guarantor hereby
unconditionally covenants and agrees that:
(a) in the event Borrower shall fail to duly and punctually
pay any Liability on the date on which such payment is due (whether at
scheduled maturity, by acceleration or otherwise); or
(b) upon the occurrence of any other Event of Default;
the Guarantor will, within five (5) Business Days after the receipt of written
notice from Agent demanding payment of either the amount of the Liability which
Borrower has failed to pay (in the case of a demand arising out of an event
described in clause (a)) or up to the entire unpaid amount of the Liabilities
(in the case of an event described in clause (b)), pay the entire amount of
Liabilities demanded to Agent at its office at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, in immediately available funds. If the Guarantor
fails to pay any such amount, Agent or any Bank may institute any action or
proceeding, and make, obtain and enforce a judgment or final decree, against
the Guarantor and collect in the manner provided by law or in equity out of
such Guarantor's property, wherever situated, all amounts adjudged or decreed
to be payable.
The Guarantor making any payment hereunder shall also be entitled to a
right of subrogation in respect of such payment from Borrower; provided,
however, that so long as the Liabilities remain outstanding, all rights of the
Guarantor against Borrower, by way of right of subrogation or otherwise, shall
in all respects, as provided in the second paragraph of Section 2.3, be
subordinate and junior in right of payment to the prior satisfaction in full of
the Liabilities and no payment in satisfaction of such right of subrogation
shall be made by Borrower, or demanded or claimed by the Guarantor, until such
prior satisfaction in full of the Liabilities.
SECTION 2.5. Limitation of Guaranty. The Guarantor, and by its
acceptance hereof each Bank, hereby confirms that it is the intention of all
such parties that the obligations guaranteed under this Guaranty not constitute
a fraudulent transfer or obligation (a "Fraudulent Conveyance") for the
purposes of the Bankruptcy Law or any similar provisions of Federal or state
law. To effectuate the foregoing intention, the Banks hereby irrevocably agree
that the obligations guaranteed under this Guarantee shall, with respect to the
Guarantor, be automatically reduced by the amount, if any, as is necessary to
result in the obligations guaranteed under this Guarantee not constituting a
Fraudulent Conveyance.
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ARTICLE III
CREDIT AGREEMENT UNDERTAKINGS
SECTION 3.1. Representations and Warranties. The Guarantor hereby
represents and warrants to Agent and each Bank as to all matters contained in
Article VI of the Credit Agreement insofar as the representations and
warranties contained therein are applicable to the Guarantor and its
properties, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit
Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Section.
SECTION 3.2. Covenants. The Guarantor agrees with Agent and each Bank
that, until all Commitments shall have terminated and all Liabilities shall
have been paid in full, the Guarantor will perform, comply with and be bound by
all of the agreements, covenants and obligations contained in Article VII of
the Credit Agreement which are applicable to the Guarantor or its properties,
each such agreement, covenant and obligation contained in such Article and all
other terms of the Agreement to which reference is made herein, together with
all related definitions and ancillary provisions, being hereby incorporated
into this Guaranty by reference as though specifically set forth in this
Section.
SECTION 3.3. Right of Offset. In addition to, and without limitation of,
any other rights of any Bank under any applicable law or otherwise, each Bank or
other holder of a Note may, without demand or prior notice of any kind, at any
time and from time to time when any amount shall be due and payable by the
Guarantor hereunder, appropriate and apply toward the payment of any Liability
or any other amount owing to it hereunder any amounts, property, balances,
credits, deposit accounts or moneys of the Guarantor in the possession or
control of such Bank or holder for any purpose. Each Bank making any such
application shall promptly advise Borrower thereof, but failure to do so shall
not impair the effect of such application.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Instrument Pursuant to Credit Agreement. This Guaranty is an
Instrument executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof, including, without
limitation, Article XI thereof.
SECTION 4.2. Successors and Assigns; Assignment. This Agreement shall be
binding upon the Guarantor and its successors and assigns and shall inure to
the benefit of and be enforceable by Agent and each Bank and their respective
successors and assigns, including, without limitation, any assignee of any
Liability; provided, however, that the Guarantor may not assign any of its
obligations hereunder without the prior written consent of all Banks. Agent
and each Bank may, subject to the provisions of Section 11.12 of the Credit
Agreement, from time to
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time, without notice to the Guarantor assign or transfer any Liability or any
interest therein, and, notwithstanding any such transfer or assignment or any
subsequent transfer or assignment thereof, such Liabilities shall be and remain
Liabilities for purposes of this Agreement, and each and every immediate and
successive transferee or assignee of any Liability or any interest therein
shall, to the extent of the interest of such transferee or assignee in the
Liabilities, be entitled to the benefits of this Guaranty.
SECTION 4.3. Independent Obligations. The obligations of the Guarantor
hereunder are independent of the obligations of Borrower, and in the event of
any default hereunder, a separate action or actions may be brought, maintained
and prosecuted against the Guarantor whether or not Borrower is a party thereto
or joined therein or a separate action or actions are brought against Borrower.
Agent and any Bank may maintain successive actions upon any default hereunder.
The rights of Agent and each Bank shall not be exhausted by its exercise of
any of its rights, powers, remedies and privileges hereunder or by any such
action or by any number of successive actions until and unless all Liabilities
and all obligations of the Guarantor hereunder have been fully paid and
performed.
SECTION 4.4. Governing Law. This Guaranty shall be deemed to be a
contract made under and governed by the internal laws of the State of
Illinois. For purposes of any action or proceeding involving this Guaranty,
the Guarantor hereby expressly submits to the jurisdiction of all Federal and
State Courts located in the State of Illinois and consents that it may be
served with any process or paper by registered mail or by personal service
within or without the State of Illinois, provided a reasonable time for
appearance is allowed.
SECTION 4.5. Notices. All notices and other communications hereunder to
the Guarantor shall be delivered or transmitted to the Guarantor at the address
set forth below its signature hereto.
SECTION 4.6. Termination. Subject to the last three sentences of
Section 2.2 and to clause (c) of Section 2.3, this Guaranty shall be of no
further force or effect upon the termination in full of the Commitments and the
full payment and performance in full of the Liabilities.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered by its authorized officer as of the date first above written.
MICROPUMP, INC.
(f/k/a MC Acquisition Corp.)
By: Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------
Title: Vice President & Chief Financial
Officer
--------------------------
Address: 000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
BANK OF AMERICA ILLINOIS
(f/k/a CONTINENTAL BANK N.A.),
as Agent
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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