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EXHIBIT 10.8(c)
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GUARANTY AGREEMENT
DATED AS OF DECEMBER 1, 1994
BETWEEN
XXXXXXXX MICRO SCIENCE, INC.
AND
XXXXXX TRUST AND SAVINGS BANK,
AS TRUSTEE
$5,300,000
COUNTIES OF XXXXXX AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1994
(XXXXXXXX MICRO SCIENCE, INC. PROJECT)
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THIS IS A GUARANTY AGREEMENT dated as of December 1, 1994, between
Xxxxxxxx Micro Science, Inc., a Delaware corporation (the "Guarantor"), and
Xxxxxx Trust and Savings Bank (the "Trustee"), as Trustee under that certain
Indenture of Trust dated as of December 1, 1994 (the "Indenture") from the
Counties of Xxxxxx and Washington Industrial Development Agency, a corporate
governmental agency constituting a body corporate and politic and a public
benefit corporation of the State of New York (the "Issuer").
All initially capitalized terms used herein which are not otherwise
defined shall have the meaning set forth in the Indenture.
RECITALS
The Issuer concurrently herewith is issuing its Industrial Development
Revenue Bonds, Series 1994 (Xxxxxxxx Micro Science, Inc. Project) in the
aggregate principal amount of $5,300,000 (the "Bonds") under and pursuant to
the Indenture.
The proceeds derived from the issuance of the Bonds are to be used to
finance a portion of the costs of acquiring, constructing, rehabilitating and
equipping certain land, building and equipment for use in the sterilization of
medical equipment, and related property, located in the Town of Xxxxxxxxx,
Washington County, New York (the "Project"). Pursuant to a Lease Agreement
dated as of December 1, 1994 (the "Agreement"), between the Issuer and the
Guarantor, the Issuer will lease the Project to the Guarantor and the Guarantor
will agree to make lease payments sufficient to provide revenues to pay the
principal of, premium, if any, and interest on the Bonds when due.
In order to enhance the marketability of the Bonds and thereby achieve
cost and other savings to the Guarantor and as an inducement to the purchase of
the Bonds by all who shall at any time become owners of the Bonds, the
Guarantor does hereby covenant and agree with the Trustee as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Section 1.1. The representations, warranties and agreements of the
Guarantor set forth in Section 4 of the Purchase Agreement are incorporated by
reference herein and are true and correct as of the date hereof.
ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1. The Guarantor hereby irrevocably and unconditionally
guarantees to the Trustee for the benefit of the owners from time to time of
the Bonds (a) the full and prompt payment of the principal of and premium, if
any, on the Bonds from time to time outstanding
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when and as the same shall become due, whether at the stated maturity thereof,
by acceleration, by call for redemption or otherwise, (b) the full and prompt
payment of the interest on the Bonds when and as the same shall become due (c)
the full and prompt payment of the purchase price of Bonds tendered or deemed
tendered pursuant to the Indenture when and as the same shall become due and
(d) all other amounts due and owing under the Indenture, including, without
limitation, all amounts due to the Trustee under Section 7.06 thereof. All
payments by the Guarantor shall be paid in lawful money of the United States of
America. Each and every default in payment of the principal or purchase price
of, premium, if any, or interest on any Bond shall give rise to a separate
cause of action hereunder, and separate suits may be brought hereunder as each
cause of action arises.
Section 2.2. The obligations of the Guarantor under this Guaranty shall be
absolute and unconditional and shall remain in full force and effect until the
entire principal of, premium, if any, and interest on the Bonds shall have been
paid or funds sufficient for such payment shall have been deposited with the
Trustee in trust for such purpose as provided in Article X of the Indenture and
such obligations shall not be affected, modified or impaired upon the happening
from time to time of any event other than such payment, including, without
limitation, any of the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) any default, failure or delay, willful or otherwise, in the
performance by the Issuer or the Guarantor of any obligations of any kind
or character whatsoever of the Issuer under the Indenture or of the
Guarantor under the Agreement; or
(b) the compromise, settlement, release or termination, whether by
operation of law or otherwise, of any or all of the obligations,
covenants or agreements of the Issuer under the Bonds or the Indenture or
of the Guarantor under the Agreement; or
(c) the failure to give notice to the Guarantor of the occurrence of
an event of default under the terms and provisions of this Guaranty, the
Indenture or the Agreement; or
(d) the waiver of the payment, performance or observance by the
Issuer or the Guarantor of any of the obligations, covenants or
agreements of either of them contained in the Indenture, the Agreement or
this Guaranty; or
(e) the extension of the time for payment of any principal or
purchase price of, premium, if any, or interest on any Bond or under this
Guaranty or the extension or renewal of the time for performance of any
other obligations, covenants or agreements under or arising out of the
Indenture, the Agreement or this Guaranty, whether or not with notice to
the Guarantor; or
(f) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Indenture or the
Agreement; or
(g) the taking or the omission of any of the actions referred to in
the Indenture, the Agreement or this Guaranty; or
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(h) any failure, omission, delay or lack on the part of the Issuer
or the Trustee to enforce, assert or exercise any right, power or remedy
conferred on the Issuer or the Trustee in this Guaranty or the Indenture
or the Agreement, or any other act or acts on the part of the Issuer, the
Trustee or any of the owners from time to time of the Bonds; or
(i) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
with creditors or re-adjustment of, or other similar proceedings
affecting the Guarantor or the Issuer or any of the assets of either of
them or any allegation or contest of the validity of this Guaranty, the
Indenture or the Agreement in any such proceeding; or
(j) to the extent permitted by law, the release or discharge of the
Guarantor from the performance or observance of any obligation, covenant
or agreement contained in this Guaranty by operation of law; or
(k) the default or failure of the Guarantor fully to perform any of
its obligations set forth in this Guaranty or in the Agreement; or
(l) the invalidity of the Agreement, the Indenture or the Bonds; or
(m) the impossibility or illegality of performance on the part of
the Issuer of its obligations under the Bonds or the Indenture or of the
Guarantor under the Agreement; or
(n) the invalidity or unenforceability against any party of the
Agreement, the Indenture, the Bonds or any other instruments or
documents; or
(o) any attachment, claim, demand, charge, lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, indebtedness,
obligations or liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against any person, or any claims,
demands, charges or liens of any nature, foreseen or unforeseen, incurred
by any person, or against any sums payable under this Guaranty, so that
such sums would be rendered inadequate or would be unavailable to make
the payments herein provided; or
(p) any order, judgment, decree, ruling or regulation (whether or
not valid) of any court of any nation or of any political subdivision
thereof or any body, agency, department, official or administrative or
regulatory agency of any thereof or any other action, happening, event or
reason whatsoever which shall delay, interfere with, hinder or prevent,
or in any way adversely affect, the performance by any party of its
respective obligations under any instruments; or
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(q) any other circumstance which might otherwise constitute a
defense (other than final, indefeasible payment of all obligations
guaranteed hereunder) available to, or a discharge of, the Guarantor in
respect of the obligations of the Guarantor under this Guaranty.
Section 2.3. No set-off, counterclaim, reduction or diminution of an
obligation, or any defense of any kind or nature which the Guarantor has or may
have against the Issuer or the Trustee or which the Issuer may have against the
Trustee, shall be available hereunder to the Guarantor against the Trustee.
Section 2.4. The liability of the Guarantor under this Guaranty shall be
an absolute, direct, immediate and unconditional guaranty of payment and not of
collectibility and said liability shall not terminate until all amounts payable
with respect to the Bonds and the Indenture shall have been paid in full (and
said liability shall immediately be reinstated in the event that any such
amounts shall, for any reason whatsoever, be required to be returned to the
Issuer or to the Guarantor by the recipient thereof).
Section 2.5. The Guarantor hereby waives any right to require that any
action on or in respect of the Bonds be brought against the Issuer or that
resort be had to any direct or indirect security for the Bonds or for this
guaranty or any other remedy. Except only as provided in the Indenture, the
Trustee or, under the conditions set forth in the Indenture, any holder of the
Bonds may, at its option, proceed hereunder against the Guarantor in the first
instance to collect monies when due, the payment of which is guaranteed hereby,
without first proceeding against any other person and without first resorting
to any direct or indirect security therefor, or for this guaranty or any other
remedy. The liability of the Guarantor hereunder shall in no way be affected
or impaired by any acceptance by the Trustee or any holder of the Bonds of any
direct or indirect security for, or other guaranties of, any indebtedness,
liability or obligation of the Issuer or any other person to the Trustee or any
holder of the Bonds or by any failure, delay, neglect or omission by the
Trustee or any holder of the Bonds to realize upon or protect any such
indebtedness, liability or obligation or any notes or other instruments
evidencing the same or any direct or indirect security therefor or by any
approval, consent, waiver, or other action taken, or omitted to be taken, by
the Trustee or any holder of the Bonds.
Section 2.6. Upon the occurrence of any Event of Default, the Trustee, in
its sole discretion, but subject to the provisions of the Indenture, shall have
the right to proceed first directly against the Guarantor under this Guaranty
without proceeding against or exhausting any other remedies which it may have
against the Issuer, the Guarantor or any other person, firm or corporation and
without resorting to any other security held by the Issuer or the Trustee.
Section 2.7. The Guarantor hereby expressly waives: (1) notice of
acceptance of this Guaranty by the Trustee or any holder of the Bonds, or of
the reliance of the Trustee or any holder of the Bonds upon this Guaranty (it
being understood that every indebtedness, liability and obligation described in
Section 2.1 hereof shall conclusively be presumed to have been created,
contracted or incurred in reliance upon the execution of this Guaranty); (2)
demand of payment by the Trustee or any holder of the Bonds from the Issuer or
any other person indebted
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in any manner on or for any of the indebtedness, liabilities or obligations
hereby guaranteed; and (3) presentment for payment by the Trustee or any holder
of the Bonds or any other person of the Bonds or any other instrument, protest
thereof and notice of its dishonor to any party thereto and to the Guarantor.
To the extent permitted by applicable law, the Guarantor agrees to pay all
costs, expenses and fees, including all reasonable attorneys' fees, which may
be incurred by the Trustee in enforcing or attempting to enforce this Guaranty
following any default on the part of the Guarantor hereunder, whether the same
shall be enforced by suit or otherwise.
Section 2.8. This Guaranty is entered into by the Guarantor with the
Trustee for the benefit of the owners from time to time of the Bonds, all of
whom shall be entitled to enforce performance and observance of this Guaranty
to the same extent provided for the enforcement of remedies under the
Indenture.
Section 2.9. The Guarantor hereby waives, and agrees that it shall not
exercise, any rights of subrogation to which it may at any time be entitled by
virtue of the performance by the Guarantor of any of the obligations of the
Guarantor under this Guaranty until such time as all amounts payable under the
Bonds and the Indenture shall have been duly paid in full.
Section 2.10. So long as the Bonds or any portion thereof shall be
outstanding, the Guarantor will maintain its corporate existence, will continue
to be a corporation qualified and in good standing under the laws of each state
where such qualification is necessary for it to conduct its business and
perform its obligations under this Guaranty, will not dissolve or otherwise
dispose of all or substantially all of its assets and will not consolidate with
or merge into another legal entity or permit one or more other legal entities
(other than one or more subsidiaries of the Guarantor) to consolidate with or
merge into it, or sell or otherwise transfer to another legal entity all or
substantially all its assets as an entirety and dissolve, unless (a) in the
case of any merger or consolidation, the Guarantor is the surviving
corporation, or (b)(i) the surviving, resulting or transferee legal entity is
organized and existing under the laws of the United States, a state thereof or
the District of Columbia, and (if not the Guarantor) assumes in writing all the
obligations of the Guarantor under this Guaranty, and (ii) no event which
constitutes, or which with the giving of notice or the lapse of time or both
would constitute an Event of Default shall have occurred and be continuing
immediately after such merger, consolidation or transfer.
Section 2.11. So long as a Letter of Credit is in effect, the Guarantor,
shall not, directly or indirectly, purchase any Bonds with any funds that do
not constitute Available Moneys, except as required by Section 2.1 of this
Guaranty.
ARTICLE III
AMENDMENTS; RELEASE
Section 3.1. The Guarantor and the Trustee, at any time and from time to
time, may enter into one or more instruments supplemental hereto, under the
conditions set forth in Article IX of the Indenture. This Guaranty may be
released under the conditions set forth in Section 9.05 of the Indenture.
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ARTICLE IV
THE TRUSTEE
Section 4.1. The Trustee hereby accepts the trusts imposed upon it by this
Guaranty, and agrees to perform said trusts as a corporate trustee ordinarily
would perform said trusts under a corporate indenture, but only upon and
subject to the following terms and conditions set forth in Article VII of the
Indenture.
ARTICLE V
MISCELLANEOUS
Section 5.1. The obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Bonds shall have been issued, sold and
delivered by the Issuer.
Section 5.2. This Guaranty constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and may be
executed simultaneously in several counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same
instrument.
Section 5.3. The invalidity or unenforceability of any one or more
phrases, sentences, clauses or Sections in this Guaranty shall not affect the
validity or enforceability of the remaining portions of this Guaranty, or any
part thereof.
Section 5.4. This Guaranty shall be governed exclusively by the laws of
the State of Illinois.
Section 5.5. With the exception of rights herein expressly conferred,
nothing herein expressed or mentioned in or to be implied from this Guaranty is
intended or shall be construed to give to any person other than the parties
hereto and the owners of the Bonds any legal or equitable right, remedy or
claim under or in respect of this Guaranty. This Guaranty and all of the
covenants, conditions and provisions hereof are intended to be and are for the
sole and exclusive benefit of the parties hereto and the owners of the Bonds as
herein provided and shall inure to the benefit of and bind their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
executed in their respective corporate names by their respective officers,
thereunto duly authorized and their respective corporate seals to be hereto
affixed as of the date first above written.
XXXXXXXX MICRO SCIENCE, INC.
By /s/ Xxxxx X. Xxxxxx
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Treasurer
[SEAL]
ATTEST:
By /s/ Xxxxx X. Xxxx
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Its Secretary
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By: [illegible]
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Vice President
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