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EXHIBIT 10.3
GUARANTEE
TO: Spar Aerospace Limited
("Spar")
WHEREAS XxxXxxxxx Xxxxxxxxx and Associates Ltd. (the "Purchaser") has entered
into an asset purchase agreement with Spar dated March 18, 1999, as amended,
(the "Agreement") respecting the purchase by the Purchaser of all of the assets,
property and undertaking of the Business for the Purchase Price payable as
provided in the Agreement;
AND WHEREAS the Vendor, the Purchaser, XxxXxxxxx Xxxxxxxxx Space and Advanced
Robotics Ltd. ("MDSAR"), and XxxXxxxxx Xxxxxxxxx Technologies Inc. have entered
into a Consent to Assignment and Assumption Agreement dated May 7 , 1999.
AND WHEREAS the Purchase Price is to be satisfied in part by the delivery of the
promissory note attached as Schedule A hereto (the "Note") guaranteed by Orbital
Sciences Corporation and XxxXxxxxx, Xxxxxxxxx and Associates Ltd. (the
"Guarantors");
AND WHEREAS MDSAR is a wholly owned subsidiary of the Guarantors;
AND WHEREAS unless otherwise defined herein capitalized terms shall have the
meaning set out on the Agreement;
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the Guarantors, the Guarantors hereby agree
and covenant as follows:
1. Each of the Guarantors hereby unconditionally and irrevocably
guarantees to Spar the payment by MDSAR of its obligations,
indebtedness and liabilities under the Note in accordance with its
terms (collectively the "Indebtedness").
2. The obligations of the Guarantors under this guarantee are joint and
several.
3. The Guarantors represent and warrant to Spar that:
(a) Incorporation - Orbital Sciences Corporation is a
corporation duly incorporated and validly existing under
the Laws of Delaware and has all necessary corporate
power, authority and capacity to own its property and to
carry on the Business. The Purchaser is a corporation
duly incorporated and validly existing under the Laws of
Canada and has all necessary corporate power, authority
and capacity to own its property and to carry on the
Business.
(b) Due Authorization - Each of the Guarantors has all
necessary corporate power, authority and capacity to
enter into this Guarantee and to carry out its
obligations under this Guarantee. The execution and
delivery of this Guarantee, the
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consummation of the transactions contemplated under this
Guarantee and the performance of the Guarantors'
obligations hereunder have been duly authorized by all
necessary corporate action on the part of the
Guarantors.
(c) Enforceability of Obligations - This Guarantee
constitutes a valid and binding obligation of the
Guarantors enforceable against them in accordance with
its terms.
(d) Absence of Conflicting Agreements - The Guarantors are
not a party to, bound or affected by or subject to any
contract, indenture, mortgage, lease, agreement,
obligation, instrument, charter or by-law provision,
statute, regulation, order, judgment, decree, licence,
permit or Law which would be violated, contravened or
breached by, or under which any default would occur or a
claim, restriction or Encumbrance would be created as a
result of the execution and delivery by them of this
Guarantee or the performance by them of any of their
obligations provided for under of this Guarantee.
(e) Availability of Funds - Each of the Guarantors has or
will have the funds required to perform its obligations
under this Guarantee.
4. This guarantee shall be a continuing guarantee and shall secure the
Indebtedness. This guarantee shall not be discharged, determined or
affected or Spar's rights under this guarantee prejudiced by loss or
diminution of capacity of, or by the bankruptcy, insolvency or
dissolution of, MDSAR or by the loss or diminution of capacity of,
or by the bankruptcy, insolvency or dissolution of, either or both
of the Guarantors or any person or persons who shall execute this
guarantee or who is or are or shall become responsible in any way
for the Indebtedness or any part thereof.
5. The obligations under this guarantee are independent of the
obligations of MDSAR, and a separate action or actions may be
brought against the either or both of the Guarantors whether or not
action is brought against MDSAR and whether or not MDSAR or the
other Guarantor is joined in any such action or actions.
6. Spar shall not be bound to exhaust its recourse against MDSAR,
either Guarantor or others or any securities (which word as used
herein includes other guarantees) it may at any time hold, nor to
value such securities, before requiring or being entitled to payment
from the Guarantors under this guarantee. Each of the Guarantors
renounce all benefits of discussion and division and waives any
right to require Spar to proceed against MDSAR or the other
Guarantor.
7. The Guarantors hereby authorize Spar, without obtaining the consent
of or giving notice or demand to the Guarantors and without
affecting the liability of the Guarantors under this guarantee, from
time to time, to grant to MDSAR or the Guarantors time, renewals,
extensions, releases, discharges or any other indulgences and to
compound with all or any of such persons as Spar shall see fit, all
without in any way prejudicing or affecting any
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of Spar's rights under this guarantee or in any way limiting or
lessening the liability of the Guarantors under this guarantee.
8. The Guarantors hereby waive presentment, demand, protest, notice of
dishonour, notice of protest, notice of non-payment, notice of
acceptance of this guarantee and any other notice required to be
given by law to any guarantor in connection with the delivery,
acceptance, performance, default or enforcement of this guarantee.
9. This guarantee is in addition to and not in substitution for any
other guarantee or any other security, by whomsoever given, at any
time held by Spar.
10. The liability of each of the Guarantors to make payment under this
guarantee shall arise forthwith after demand for payment has been
made in writing on such Guarantor. The liability of each of the
Guarantors shall be as principal debtor in respect of the payment of
the Indebtedness.
11. If, pursuant to the judgment or order of any court or in accordance
with the provisions of applicable law, any amount due or payable
hereunder in Canadian Dollars is paid in U.S. Dollars, such payment
shall discharge or satisfy the obligation of the Guarantors to pay
such amount in Canadian Dollars only to the extent of the amount of
Canadian Dollars that Spar, in accordance with normal baking
procedures of Spar's usual bank, can purchase in the Toronto foreign
exchange market on the date of such payment with the amount of such
payment in U.S. Dollars after payment of any premium or costs of
exchange. The Guarantors shall, as a separate and independent
obligation, which shall not be merged in any such judgment or order
or extinguished by any such payment in U.S. Dollars, pay or cause to
be paid such obligations in Canadian Dollars not so discharged and
satisfied in accordance with the foregoing and indemnify and save
Spar harmless against any losses or damages arising as a result of
any such amount being paid in U.S. Dollars. (For the purposes of
this guarantee "U.S. Dollars" means the lawful money of the United
States of America and "Canadian Dollars" means the lawful money of
Canada.)
12. All payments to be made by the Guarantors are to be made without
set-off, compensation or counterclaim, free and clear of and without
deduction for or on account of any tax, including but not limited to
withholding taxes, except if such deduction is required by law or by
the administration thereof. If any tax is deducted or withheld from
any payments, the Guarantors shall promptly remit to Spar in the
currency in which such payment was made, the equivalent of the
amount of tax so deducted or withheld together with the relevant
receipt issued by the taxing or other receiving authority. If the
Guarantors are prevented by operation of law or otherwise from
paying, causing to be paid or remitting such tax amounts payable
hereunder, such payments will be increased by such amounts as are
necessary to yield and remit to Spar the gross amounts payable
hereunder together with interest at the rates specified in this
guarantee after provision for payment of such tax.
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13. No modification or waiver of or amendment to this guarantee shall be
valid or binding unless set forth in writing and duly executed by
the Guarantors and Spar.
14. Time shall be of the essence of this guarantee and of each and every
part hereof.
15. Every notice, consent, demand and other communication in connection
with this Guarantee and all legal process in regard hereto (a
"notice") shall be validly given, made or served if in writing and
delivered to, or sent via facsimile or other similar form of
recorded communication if to the Guarantors at:
Orbital Sciences Corporation
00000 Xxxxxxxx Xxxx.
Xxxxxx, XX 00000
XXX
Attention: Xxxxx Xxxxxxx
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Fax: (000) 000-0000
XxxXxxxxx, Xxxxxxxxx and Associates Ltd.
00000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, X.X.
X0X 0X0
Attention: Anil Wirasekara
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Fax: (000) 000-0000
and if to Spar at:
Spar Aerospace Limited
Suite 2100
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Vice President, General Counsel and Secretary
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Fax: (000) 000-0000
or to such other address, number or person as the Guarantors or Spar, as
applicable, may from time to time designate by notice.
16. This Guarantee shall be governed by and construed in accordance with
the laws of the Province of Ontario and the Guarantors agree that
any legal suit, action or proceeding arising out of or relating to
this Guarantee may be instituted in the courts of the Province
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of Ontario and the Guarantors hereby accept and irrevocably submit
to the non-exclusive jurisdiction of the said courts and
acknowledges such courts' competence and agrees to be bound by any
judgment thereof.
17. In this Guarantee words importing number shall include the singular
and the plural.
18. This Guarantee shall extend to and enure to the benefit of the
successors and assigns of Spar, and shall be binding upon the
Guarantors and their respective successors and permitted assigns.
19. This Guarantee may be executed by the parties in counterpart, by the
parties in separate counterparts and by means of facsimile
signature. Each counterpart when so executed and delivered as an
original or facsimile thereof shall be an original, but all
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF the undersigned have executed and delivered this Guarantee as
of the 7 day of May, 1999.
ORBITAL SCIENCES CORPORATION
Per: [signed by Xxxxxxx X. Xxxxxx]
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer
XXXXXXXXX, XXXXXXXXX AND ASSOCIATES LTD.
Per: [signed by Anil Wirasekara]
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Name: Anil Wirasekara
Title: CFO
