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Exhibit 4(g)
GUARANTY AGREEMENT
This GUARANTY AGREEMENT made and entered into as of
November 1, 1995, by and between MRL, INC., a corporation organized
and existing under the laws of the State of Missouri (the
"Guarantor"), and the Department of Industrial Development of the
State of Arkansas, an agency of the State of Arkansas (the
"Department"), together with any successor thereof or any assignee
of the City of Xxxxxxx, Arkansas Industrial Development Refunding
Revenue Bond - MRL, Inc. Project, Series 0000 (xxx "Xxxx").
WITNESSETH:
WHEREAS, the City of Xxxxxxx, Arkansas (the "City") is
authorized and empowered under the provisions of Title 14, Chapter
164, Subchapter 2 of the Arkansas Code of 1987 Annotated (the
"Act"), to issue revenue bonds and to expend the proceeds thereof
to finance and refinance land, buildings and facilities which can
be used in securing or developing industry; and
WHEREAS, the City has heretofore authorized and issued
its Industrial Development Revenue Bonds - Missouri Research
Laboratories, Inc. Project, Series A, dated May 1, 1984 (the "Prior
Bonds"), in the original principal amount of $1,000,000, for the
purpose of financing the costs of acquiring and installing
equipment (the "Project") at a manufacturing plant located at 0000
Xxxx Xxxx Xxxxxx in the City (the "Plant"); and
WHEREAS, the Project is being leased by the City to the
Guarantor (formerly Missouri Research Laboratories, Inc.), pursuant
to a Lease and Agreement dated as of May 1, 1984 (the "Original
Lease Agreement"); and
WHEREAS, the Prior Bonds are guaranteed by the
Department, pursuant to a Guaranty of Payment of Industrial
Development Revenue Bonds dated as of May l, 1984 (the "1984
Guaranty"), among the City, the Department and Boatmen's Trust
Company (as successor to Centerre Trust Company of St. Louis), as
Trustee (the "Trustee"); and
WHEREAS, the Prior Bonds were issued under and are
secured by a Trust Indenture between the City and the Trustee,
dated as of May 1, 1984 (the "1984 Indenture"), pursuant to which
the City granted a security interest in the Project in favor of the
Trustee to secure the Prior Bonds; and
WHEREAS, the City has assigned its rights to payments due
under the Original Lease Agreement to pay the principal of and
interest on the Prior Bonds when due; and
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WHEREAS, the Department is subrogated to the rights of
the City and the Trustee to the extent of payments made under the
1984 Guaranty; and
WHEREAS, the Department made the principal and interest
payment due on the Prior Bonds on May 1, 1995, because the
Guarantor failed to make its rental payment due under the Original
Lease Agreement on that date; and
WHEREAS, the Guarantor remains in default under the
Original Lease Agreement; and
WHEREAS, the Department proposes to redeem the Prior
Bonds on November 1, 1995, by paying the outstanding principal
amount of the Prior Bonds, plus accrued interest; and
WHEREAS, the Department has the option to foreclose on
the Project and accelerate payments due from the Guarantor under
the Original Lease Agreement; and
WHEREAS, in lieu of exercising its right to foreclose on
the Project, the Department has offered, and the City and the
Guarantor have agreed, to restructure the debt represented by the
Prior Bonds by the City issuing its Industrial Development
Refunding Bond - MRL, Inc. Project, series 0000 (xxx "Xxxx") to the
Department under the Act, and by continuing to lease the Project to
the Guarantor through an extension of the term of the Original
Lease Agreement and a restructuring of the payments due as rent
thereunder pursuant to a First Supplemental Lease and Agreement,
dated as of November 1, 1995 (the "First Supplemental Lease"); and
WHEREAS, the Bond is being issued in an amount equal to
the principal amount of the Prior Bonds outstanding on October 31,
1995, the interest on the Prior Bonds due November 1, 1995, the
amounts that have been heretofore advanced by the Department to pay
principal and interest on the Prior Bonds, and the expenses of
issuing the Bond; and
WHEREAS, the Original Lease Agreement, as amended and
supplemented by the First Supplemental Lease, is hereinafter
collectively referred to as the "Lease Agreement;" and
WHEREAS, the Bond will be issued under and pursuant to an
Indenture, dated as of November 1, 1995 between the City and the
Department (the "Indenture"); and
WHEREAS, Guarantor is desirous that the City issue the
Bond and is willing to enter into this Guaranty in order to induce
the Department to purchase the Bond;
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NOW, THEREFORE, in consideration of the premises and as
an inducement to the purchase of the Bond by the Department and all
who shall thereafter at any time become a registered owner of the
Bond, Guarantor does hereby, subject to the terms hereof, covenant
and agree with the Department as follows:
ARTICLE I
Representations and Warranties of Guarantor
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Section 1.1. Guarantor does hereby represent and
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warrant that:
(a) it is a corporation duly incorporated and in
good standing under the laws of the State of Missouri, is duly
authorized to do business in the State of Arkansas, is not in
violation of any provision of its Articles of Incorporation or its
bylaws, has power to enter into this Guaranty Agreement, has duly
authorized the execution and delivery of this Guaranty Agreement by
proper corporate action and neither this Guaranty Agreement, the
execution and delivery hereof nor the agreements herein contained
are prevented, limited by or contravene or constitute a default
under any agreement, instrument or indenture to which Guarantor is
a party or by which it is bound or any provisions of its Articles
of Incorporation; and
(b) the assumption by Guarantor of its
obligations hereunder will result in a financial benefit to
Guarantor.
ARTICLE II
Covenants and Agreements
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Section 2.1. Guarantor hereby unconditionally guarantees
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to the Department (a) the full and prompt payment of the principal
of the bond when and as the same becomes due, whether at the stated
maturity thereof, by acceleration, call for redemption or
otherwise, and (b) the full and prompt payment of interest on the
Bond when and as the same becomes due. All payments by Guarantor
shall be paid in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts. Each and every default in
payment of the principal of or interest on the 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 Guarantor under this
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Guaranty Agreement shall be absolute and unconditional and shall
remain in full force and effect until the entire principal of and
interest on the Bond shall have paid, and such obligations shall
not be affected, modified or impaired upon the happening from time
to time of any event, including, without limitation, any of the
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following whether or not with notice to, or the consent of,
Guarantor:
(a) the compromise, settlement, release or termination
of any or all of the obligations, covenants or agreements
of the City under the Indenture or the Lease Agreement;
(b) the failure to give notice to Guarantor of the
occurrence of an event of default under the terms and
provisions of this Guaranty Agreement, the Indenture or
the Lease Agreement;
(c) the assignment or mortgaging or the purported
assignment or mortgaging of all or any part of the
interest of the City in the Project or any failure of
title with respect to the City's interest in the Project;
(d) the waiver by the Department or the City of the
payment, performance or observance by the City or
Guarantor of any of the obligations, covenants or
agreements of either of them contained in the Indenture
or this Guaranty Agreement;
(e) the extension of the time for payment of any
principal of or interest on the Bond under this Guaranty
Agreement or of the time for performance of any other
obligations, covenants or agreements under or arising out
of the Indenture or this Guaranty Agreement or the
extension or the renewal of either thereof;
(f) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set
forth in the Indenture or the Lease Agreement;
(g) the taking or the omission of any of the actions
referred to in the Indenture, or the taking of any action
under this Guaranty Agreement;
(h) any failure, omission, delay or lack on the part
of the City or the Department to enforce, assert or
exercise any right, power or remedy conferred on the City
or the Department in this Guaranty Agreement or the
Indenture, or any other act or acts on the part of the
City or the Department;
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(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 readjustment
of, or other similar proceeding affecting Guarantor or
the City or any of the assets of either of them, or any
allegation or contest of the validity of this Guaranty
Agreement in any such proceeding;
(j) to the extent permitted by law, the release or
discharge of Guarantor from the performance or observance
of any obligation, covenant or agreement contained in
this Guaranty Agreement by operation of law; or
(k) the default or failure of Guarantor fully to
perform any of its obligations set forth in this Guaranty
Agreement.
Section 2.3. No setoff, counterclaim, reduction or
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diminution of an obligation, or any defense of any kind or nature
which Guarantor has or may have against the City or the Department
shall be available hereunder to Guarantor against the Department.
Section 2.4. In the event of a default in the payment of
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principal of the Bond when and as the same shall become due,
whether at the stated maturity thereof, by acceleration, call for
redemption or otherwise, or in the event of a default in the
payment of any interest on the Bond when and as the same shall
become due, the Department may proceed hereunder and the
Department, in its sole discretion, shall have the right to proceed
first and directly against Guarantor under this Guaranty Agreement
without proceeding against or exhausting any other remedies which
it may have and without resorting to any other security held by the
City or the Department.
Section 2.5. Guarantor hereby expressly waives notice
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from the Department of its acceptance and reliance on this Guaranty
Agreement. Guarantor agrees to pay all costs, expenses and fees,
including all reasonable attorneys' fees, which may be incurred by
the Department in enforcing or attempting to enforce this Guaranty
Agreement following any default on the part of Guarantor hereunder,
whether the same shall be enforced by suit or otherwise.
Section 2.6. Guarantor will maintain its corporate
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existence and will not dissolve or otherwise dispose of all or
substantially all of its assets and will not consolidate with or
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merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided,
however, Guarantor may, without violating such agreement,
consolidate with or merge into another domestic corporation (that
is, a corporation organized and existing under the laws of one of
the states of the United States of America), or permit one or more
other domestic corporations to consolidate with or merge into it,
or sell or otherwise transfer to another domestic corporation all
or substantially all of its assets as an entirety and thereafter
dissolve on the condition that such successor corporation shall
expressly assume in writing all of the obligations of Guarantor
contained in this Guaranty Agreement, that the net tangible assets
of the successor corporation after the consolidation, merger or
sale be at least equal to the net tangible assets of Guarantor
immediately prior to such consolidation, merger or sale, and that
such successor corporation qualifies to do business in the State of
Arkansas. In the event of such consolidation, merger or sale, as
permitted by this Section, and the assumption by the surviving,
resulting or transferee corporation of the obligations hereof,
Guarantor shall be relieved of all further obligations hereunder.
As used herein, "net tangible assets" means all assets of the
corporation (except there shall not be included goodwill) less all
liabilities of Guarantor or the other corporation, as the case may
be.
Section 2.7. This Guaranty Agreement is entered into by
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Guarantor for the benefit of the Department and the subsequent
owners from time to time of the Bond, all of whom shall be entitled
to enforce performance and observance of this Guaranty Agreement to
the same extent provided for enforcement of remedies under the
Indenture.
ARTICLE III
Notice and Service of Process, Pleadings and Other Papers
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Section 3.1. Guarantor covenants that it is and will
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remain subject to service of process in the State of Arkansas so
long as the Bond is outstanding. If for any reason Guarantor
should not remain so subject, Guarantor hereby designates and
appoints, without power of revocation, the Secretary of State of
the State of Arkansas, as the agent of Guarantor upon whom may be
served all process, pleadings, notices or other papers which may be
served upon Guarantor as a result of any of its obligations under
this Guaranty Agreement.
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ARTICLE IV
Miscellaneous
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Section 4.1. The obligations of Guarantor hereunder
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shall arise absolutely and unconditionally when the Bond shall have
been issued, sold and delivered by the City to the Department.
Section 4.2. No remedy herein conferred upon or reserved
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to the Department is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given
under this Guaranty Agreement or now or hereafter existing at law
or in equity. No delay or omission to exercise any right or power
accruing upon any default, omission or failure of performance
hereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may
be exercised from time to time as often as may be deemed expedient.
In order to entitle the Department to exercise any remedy reserved
to it in this Guaranty Agreement, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required. In the event any provision contained in this Guaranty
Agreement should be breached by Guarantor and thereafter duly
waived by the Department, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. No waiver, amendment, release or
modification of this Guaranty Agreement shall be established by
conduct, custom or course of dealing, but solely by an instrument
in writing duly executed by the Department.
Section 4.3. This Guaranty Agreement constitutes the
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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 in several
counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
Section 4.4. The invalidity or unenforceability of any
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one or more phrases, sentences, clauses or sections in this
Guaranty Agreement shall not affect the validity or enforceability
of the remaining portions of this Guaranty Agreement, or any part
thereof.
Section 4.5. This Guaranty Agreement shall be construed
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and enforced in accordance with the laws of the State of Arkansas.
Section 4.6. All the covenants, stipulations,
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provisions, agreements, rights, remedies and claims of the parties
hereto in this Guaranty Agreement contained shall bind and inure to
the benefit of their successors and assigns.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty
Agreement to be executed in its name and behalf and attested by its
duly authorized officers, and in order to note its acceptance of,
and reliance on, this Guaranty Agreement, the Department has caused
this Guaranty Agreement to be executed in its name and behalf and
attested by its duly authorized officers, all as of the date first
above written.
MRL, INC.
ATTEST:
By: /s/ Xxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxx --------------------------------
------------------------------ President
Assistant Secretary --------------------------------
------------------------------ (Title)
(Title)
(SEAL) DEPARTMENT OF INDUSTRIAL
DEVELOPMENT OF THE STATE OF
ARKANSAS
ATTEST:
By: --------------------------------
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(Title)
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(Title)
(SEAL)
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