GUARANTY AGREEMENT
EXHIBIT 10.29
THIS GUARANTY AGREEMENT executed as of this 1st day of September, 2002, by and among Xxxxxxx
X. Xxxxx, Xxxxx X. Xxxxxxxx and Xxxx X. Xxxxx, Xx., each an individual residing in the State of
Missouri (the “Individual Guarantors” and Synergetics, Inc., a Missouri corporation (the “Corporate
Guarantor” and, together with the Individual Guarantors, the “Guarantors”) and The Industrial
Development Authority of St. Xxxxxxx County, Missouri, a public corporation of the State of
Missouri (the “Issuer”).
FOR VALUE RECEIVED, and in consideration of any loans, advances, payments, extensions of
credit and financial accommodations heretofore or hereafter made, granted or extended by Issuer or
which the Issuer has or will become obligated to make, grant or extend, to or for the account of
Synergetics Development Company, L.L.C., a Missouri limited liability company (the “Obligor”), and
in consideration of any obligations heretofore or hereafter incurred by Obligor to the Issuer, the
Guarantors hereby absolutely and unconditionally, jointly and severally, guarantee to the Issuer
the prompt and complete payment when due in accordance with its terms (whether by reason of demand,
acceleration or otherwise) of any and all indebtedness (principal, interest, fees and other
amounts) and other obligations for the payment of money, evidenced by notes, bonds or other
negotiable or non-negotiable instruments, or in any manner whatsoever, now or hereafter existing,
of the Obligor to the Issuer (collectively, the “Indebtedness”). In addition, the Guarantors shall
and agree to be jointly and severally liable to the Issuer for all costs and expenses incurred by
the Issuer in attempting or effecting collection hereunder (whether or not litigation shall be
commenced in aid thereof) and in connection with representation of the Issuer in connection with
bankruptcy or insolvency proceedings, including without limitation reasonable attorneys’ fees and
expenses.
TO SECURE THE ISSUER HEREUNDER, the Guarantors each give to the Issuer a general lien and
right of set-off upon and to every present and future deposit account with UMB Bank, N.A., as
trustee (the “Trustee”) under that certain Indenture of Trust dated as of September 1, 2002 by and
between the Issuer and the Trustee for the holders of any bonds issued by the Issuer pursuant to
said Indenture of Trust and pledges to the Issuer all moneys, notes, bonds, stocks and other
securities of every kind, as well as any other property, now or hereafter delivered to or in the
possession of the Trustee, with full power in the Trustee in the event of default hereunder to
credit and apply on said Indebtedness any such moneys on deposit and to sell such securities and
other property at public or private sale or through any exchange or broker’s board and to credit
and apply the net proceeds thereof on said Indebtedness.
Notice of the acceptance of this Guaranty, and of the incurring of any Indebtedness hereby
guaranteed, and presentment, demand for payment, notice of dishonor, protest and notice of protest,
and of default by Obligor, are waived by the Guarantors who agree: (i) that the obligation of the
Guarantors hereunder is primary and may be enforced directly against any Guarantor independently of
and without proceeding against the Obligor or any other Guarantor or Guarantors or foreclosing any
collateral pledged to the Issuer; (ii) that the Issuer in its sole and absolute discretion may
extend the time of payment, and renew or change the manner, place, time and terms of payment of and
make any other changes with respect to any or all of said Indebtedness; (iii) that the Issuer may
in its sole and absolute discretion sell, exchange, release, surrender and otherwise deal with all
or any of the collateral pledged to the Issuer by the Obligor or any other person to secure any or
all of said Indebtedness; (iv) that the Issuer may in its sole and absolute discretion release and
otherwise deal with any other Guarantor or Guarantors; and (v) that the Issuer may exercise or
refrain from exercising any rights against the Obligor or any Guarantor or Guarantors or otherwise
act or refrain from acting, and may settle or compromise any or all of said Indebtedness with the
Obligor; all without releasing the Guarantors.
The Guarantors hereby waive any and all rights of subrogation, reimbursement, contribution and
indemnity whatsoever with respect to the Obligor and shall have no right of recourse to or with
respect to any assets or property of the Obligor or to any collateral owned by the Obligor for the
Indebtedness of the Obligor guaranteed hereby regardless of whether said Indebtedness shall have
been paid in full. The
Guarantors shall have no right of subrogation, reimbursement, contribution or indemnity whatsoever
and no right of recourse to or with respect to any assets or property of any guarantor or
guarantors or to any collateral not owned by the Obligor for the Indebtedness of the Obligor
guaranteed hereby unless and until all of said Indebtedness shall have been paid in full. Except
as otherwise provided herein with respect to the Individual Guarantors, nothing shall discharge or
satisfy the liability of the Guarantors hereunder except the full performance and payment of all of
said Indebtedness and all obligations of the Guarantors hereunder.
The Issuer’s books and records showing the account between the Issuer and the Obligor shall be
admissible in evidence in any action or proceeding and shall constitute prima facie proof of the
items therein set forth.
No invalidity, irregularity or unenforceability of all or any part of the Indebtedness hereby
guaranteed or of any collateral or any other guarantees therefor shall affect, impair or be a
defense to this Guaranty. The liability of the Guarantors hereunder shall in no way be affected or
impaired by any acceptance by the Issuer of any collateral for or other guarantees of any of said
Indebtedness guaranteed hereby, or by any failure, neglect or omission on the part of the Issuer to
realize upon or protect any of said Indebtedness or any collateral therefor or guarantees thereof.
No act of commission or omission of any kind by the Issuer (including without limitation any act or
omission which impairs, reduces the value of, releases or fails to perfect a lien upon, any
collateral for or guarantee of any Indebtedness guaranteed hereby) shall affect or impair the
obligations of the Guarantors hereunder in any manner.
If claim is ever made on the Issuer for repayment or recovery of any amount or amounts
received by the Issuer in payment or on account of any of the Indebtedness of the Obligor
guaranteed hereby and the Issuer repays all or part of said amount by reason of (a) any judgment,
decree or order of any court or administrative body having jurisdiction over the Issuer or any of
its property or (b) any settlement or compromise of any such claim effected by the Issuer with any
such claimant (including without limitation the Obligor), then and in such event the Guarantors
agree that any such judgment, decree, order, settlement or compromise shall be binding on the
Guarantors, notwithstanding any cancellation of any note or other instrument or agreement
evidencing such Indebtedness of the Obligor, and the Guarantors shall be and remain jointly and
severally liable to the Issuer hereunder for the amount so repaid or recovered to the same extent
as if such amount had never originally been received by the Issuer. This Guaranty shall continue
to be effective or be reinstated, as the case may be, if at any time any payment of any of the
Indebtedness is rescinded or must otherwise be returned by the Issuer upon the insolvency,
bankruptcy or reorganization of the Obligor or otherwise, all as though such payment had not been
made.
No delay by the Issuer in exercising any of its options, powers or rights or partial or single
exercise thereof shall constitute a waiver thereof. No waiver of any of rights of the Issuer
hereunder and no modification or amendment of this Guaranty shall be deemed to be made by the
Issuer unless the same shall be in writing, duly signed on behalf of the Issuer, and each such
waiver (if any) shall apply only with respect to the specific instance involved and shall in no way
impair the rights of the Issuer or the obligations of the Guarantors to the Issuer in any other
respect at any other time. In case any one or more of the provisions hereof should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions hereof shall not be affected or impaired thereby.
The Guarantors covenant and agree to deliver to the Trustee such financial statements and
other financial information regarding the Guarantors as Trustee may from time to time reasonably
request.
This Guaranty is a continuing guaranty which shall remain in full force and effect and shall
terminate, with respect to the Individual Guarantors, upon the earlier of (a) the issuance of an
occupancy permit for the Project (as defined in the Indenture) and the date on which Synergetics,
Inc. takes possession of the Project, or (b) all Indebtedness shall have been paid in full and the
termination of the Issuer’s obligation to lend funds or grant other financial accommodations to the
Obligor. The death of an Individual
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Guarantor shall not effect a termination of this Guaranty. With respect to the Corporate
Guarantor, this Guaranty is a continuing guaranty which shall remain in full force and effect and
shall not be terminable so long as either (i) any Indebtedness shall remain in force and effect or
(ii) the Issuer shall have any commitment to lend funds or grant other financial accommodations to
Obligor.
This Guaranty shall be understood to be for the benefit of the Issuer and for such other
person or persons as may from time to time become or be the holder or owner of any of the
Indebtedness or any interest therein and this Guaranty shall be transferable to the same extent and
with the same force and effect as any such Indebtedness may be transferable. This Guaranty cannot
be changed or terminated orally, shall be governed by and construed in accordance with the laws of
the State of Missouri, shall be binding on the heirs, executors, administrators, personal
representatives, successors and assigns of the Guarantors and shall inure to the benefit of the
successors and assigns of the Issuer. The Guarantors irrevocably agree that, subject to the
Issuer’s sole and absolute election, all actions or proceedings in any way, manner or respect
arising out of or from or related to this Guaranty shall be litigated only in courts having situs
within St. Xxxxxxx County, State of Missouri. The Guarantor hereby consent and submit to the
jurisdiction of any local, state or federal court within said county and state. THE GUARANTORS
HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH THIS SECTION.
Dated in St. Xxxxxxx, Missouri as of this first day of September, 2002.
| /s/ Xxxxxxx X. Xxxxx | ||||
| Name: | Printed Xxxxxxx X. Xxxxx | |||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Name: | Printed Xxxxx X. Xxxxxxxx | |||
| /s/ Xxxx X. Xxxxx, Xx. | ||||
| Name: | Printed Xxxx X. Xxxxx, Xx. | |||
Attest: [SEAL] /s/ |
SYNERGETICS, INC. By /s/ Xxxx X. Xxxxx |
|
Its (Assistant) Secretary
|
Title: (Vice) President |
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