EXHIBIT 10.17
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty"), made this
21st day of January, 2000, by Steridyne Corporation, a Florida corporation
(the "Guarantor"), in favor of International Investment Partners, Ltd., a
Delaware corporation (the "Lender"), recites and provides as follows:
RECITALS:
A. By Note of even date herewith made by Steridyne Corporation, a Florida
corporation (the "Borrower"), and payable to the order of the Lender (as the
same may be amended, modified or supplemented from time to time, the "Note"),
the Lender has agreed to make a Loan of $1,000,000 to the Borrower (capitalized
terms which are not defined herein shall have the meanings assigned to them in
the Note and the other Loan Documents).
B. The Guarantor has received and reviewed copies of the Note and the other
Loan Documents.
C. The execution and delivery by the Guarantor of this Guaranty is a
condition to the Lender's obligation to make the Loan to Borrower pursuant to
the Note.
D. The Guarantor expects to derive financial benefit from the making of the
Loan by the Lender to the Borrower.
GUARANTY AND SURETYSHIP:
NOW, THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the Guarantor, and intending to be legally bound, the Guarantor hereby agrees as
follows:
1. The Guaranty.
(a) Guaranteed Obligations. The Guarantor hereby unconditionally and
irrevocably guarantees to the Lender and becomes surety to the Lender for
the due, punctual and full payment and performance of, and covenants with
the Lender to duly, punctually and fully pay and perform, the following
(collectively, the "Guaranteed Obligations"):
(1) All indebtedness of the Borrower to the Lender evidenced by
the Note, both principal and interest, and all other amounts due or to
become due under the Note and the other Loan Documents, and any
refinancing or refunding thereof, whether now existing or hereafter
arising, contracted or incurred; and
(2) All covenants, agreements, obligations and liabilities of the
Borrower under the Note and the other Loan Documents, whether now
existing or hereafter arising, contracted or incurred,
as and when such payment or performance shall become due (whether by
acceleration or otherwise) in accordance with the terms of the Loan
Documents.
(b) Unconditional Guaranty. The obligations of the Guarantor hereunder
are continuing, absolute and unconditional, irrespective of any
circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety. Without limiting
the generality of the foregoing, the obligations of the Guarantor hereunder
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by:
(1) Any amendment, modification or supplement to the Note or any
other Loan Document;
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(2) Any exercise or nonexercise of or delay in exercising any
right, remedy, power or privilege under or in respect of this
Guaranty, the Note or any other Loan Document (even if any such right,
remedy, power or privilege shall be lost thereby), or any waiver,
consent, indulgence or other action or inaction in respect thereof;
(3) Any bankruptcy, insolvency, arrangement, composition,
assignment for the benefit of creditors or similar proceeding
commenced by or against the Borrower;
(4) Any failure to perfect or continue perfection of, or any
release or waiver of, any rights given to the Lender in any property
as security for the performance of any of the Guaranteed Obligations;
(5) Any extension of time for payment or performance of any of
the Guaranteed Obligations;
(6) The genuineness, validity or enforceability of the Loan
Documents;
(7) Any limitation of liability of the Borrower or any other
Guarantor contained in any Loan Document;
(8) Any defense that may arise by reason of the failure of the
Lender to file or enforce a claim against the estate of the Borrower
in any bankruptcy or other proceeding;
(9) Any voluntary or involuntary liquidation, dissolution, sale
of all or substantially all of the property of the Borrower, or any
marshalling of assets and liabilities, or other similar proceeding
affecting, Borrower or any of its assets;
(10) The release of the Borrower or any other Guarantor from
performance or observance of any of the agreements, covenants, terms
or conditions contained in the Loan Documents by operation of law; or
(11) The failure of the Lender to keep the Guarantor advised of
Borrower's financial condition, regardless of the existence of any
duty to do so.
No set-off, claim, reduction or diminution of any obligation, or any
defense of any kind or nature which the Borrower or the Guarantor now
has or hereafter may have against the Lender, shall be available
hereunder to the Guarantor against the Lender.
C. No Notice or Duty to Exhaust Remedies. The Guarantor hereby waives
diligence, presentment, demand, protest, the benefits of the homestead and
all other exemptions provided to the Guarantor and all notices of any kind,
and waives any requirement that the Lender exhaust any right or remedy, or
proceed first or at any time, against the Borrower or any other guarantor
of, or any security for, any of the Guaranteed Obligations. This Guaranty
constitutes an agreement of suretyship as well as of guaranty, and the
Lender may pursue its rights and remedies under this Guaranty and under the
other Loan Documents in whatever order, or collectively, and shall be
entitled to payment and performance hereunder notwithstanding such other
Loan Documents and notwithstanding any action taken by the Lender or
inaction by the Lender to enforce any of its rights or remedies against any
other guarantor or any other person or property whatsoever.
(d) WAIVER OF SUBROGATION. GUARANTOR HEREBY WAIVES AND RELEASES ANY
AND ALL RIGHTS OF SUBROGATION AND WAIVES ANY RIGHT TO ENFORCE ANY REMEDY
WHICH LENDER NOW HAS OR MAY HEREAFTER HAVE AGAINST BORROWER AND ANY BENEFIT
OF, ANY RIGHT TO PARTICIPATE IN, ANY SECURITY NOW OR HEREAFTER HELD BY
LENDER.
E. No Waivers Generally. The Lender shall not be deemed to have waived
any of its rights or remedies hereunder unless such waiver is express and
in writing. No delay or failure by the Lender on any one or more occasions
to exercise its rights hereunder or at law or in equity (including, without
limitation, the right of acceleration) shall be construed as a novation of
this Guaranty or shall waive or prevent
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the subsequent exercise of such rights. An express waiver of any right
shall not be construed as a waiver of the Lender's right to insist
thereafter upon strict compliance with the terms hereof. No exercise of any
right by the Lender shall constitute or be deemed to constitute an election
of remedies by the Lender precluding the subsequent exercise by the Lender
of any or all of the rights, powers and remedies available to it hereunder
or at law or in equity. No course of dealing of the Lender in exercising
any right, power or privilege under this Guaranty, the Note or under any
other Loan Document shall affect any other exercise thereof or exercise of
any other right, power or privilege.
2. Representations and Warranties.
(a) Contained in the Loan Documents. The Guarantor represents,
warrants and certifies to the Lender that the representations and
warranties made by the Borrower with respect to such Guarantor under the
Note and the other Loan Documents are true and correct on the date hereof.
(b) Corporate Existence. The Guarantor is a corporation duly created,
validly existing and in good standing under the laws of the State of Iowa.
(c) Power, Authority and Binding Effect. The Guarantor has the
corporate power to execute and deliver this Guaranty and the persons
executing this Guaranty on behalf of the Guarantor have been duly
authorized so to do. This Guaranty constitutes the valid, legal and binding
obligations of the Guarantor, enforceable in accordance with its terms.
3. Covenants. The Guarantor hereby covenants to the Lender that:
(a) Promptly upon becoming aware thereof, the Guarantor shall give the
Lender notice of (i) the commencement, existence or threat of any
proceeding by or before any Governmental Authority against or affecting
Guarantor which, if adversely decided, would have a material adverse effect
on the business, operations, condition (financial or otherwise) or
prospects of the Guarantor or on its ability to perform obligations
hereunder or (ii) any material adverse change in the business, opera tions,
condition (financial or otherwise) or prospects of the Guarantor.
(b) The Guarantor shall permit such persons as the Lender may
designate to examine Guarantor's books and records relating to the
Guarantor's financial condition and take copies and extracts therefrom and
to discuss the affairs of Guarantor with its officers, employees and
independent accountants at such times and as often as the Lender may
reasonably request. The Guarantor hereby authorizes such officers,
employees and independent accountants to discuss with the Lender the
affairs of the Guarantor.
(c) The Guarantor shall not dissolve, merge or consolidate with any
other person or entity or sell, transfer or otherwise dispose of all or a
substantial part of its assets, and shall continue to engage in its
business substantially as currently conducted and operated and shall not
engage in any other business.
(d) There shall be no change in the ownership of the Guarantor from
the date hereof.
4. Effect of Bankruptcy Proceedings. This Guaranty shall continue to be
effective, or be automatically reinstated, as the case may be, if at any
time payment, in whole or in part, of any of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned by the Lender as a
preference, fraudulent conveyance or otherwise under any bankruptcy,
insolvency or similar law, all as though such payment had not been made. If
a default or an Event of Default at any time shall have occurred and be
continuing and declaration of default or acceleration under or with respect
to any of the Loan Documents shall at such time be prevented by reason of
the pendency against the Borrower of a case or proceeding under any
bankruptcy or insolvency law, the Guarantor agrees that, for purposes of
this Guaranty and the Guarantor's obligations hereunder, such Loan
Documents shall be deemed to have been declared in default or accelerated
with the same effect as if such Loan Documents had been declared in default
and accelerated in accordance with the terms thereof, and the Guarantor
shall forthwith pay the Guaranteed Obligations in full without further
notice or demand.
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5. Further Assurances. From time to time upon the request of the Lender, the
Guarantor shall promptly and duly execute, acknowledge and deliver any and
all such further instruments and documents as the Lender may deem necessary
or desirable to confirm this Guaranty, to carry out the purpose and intent
hereof or to enable the Lender to enforce any of its rights hereunder.
6. Notices. All notices, requests, demands, directions and other
communications (collectively, "notices") under the provisions of this
Guaranty shall be in writing and shall be sent (i) by first- class or
first-class express mail, certified with return receipt requested, or (ii)
by fax with confirmation in writing mailed first-class, or (iii) by
guaranteed overnight delivery service with receipt therefor, or (iv) by
hand, in all cases with charges prepaid, and any such properly given notice
shall be effective when received or when such delivery is refused. All
notices shall be sent,
If to the Lender: International Investment Partners, Ltd.
80 Abbeyville Road
Lancaster, Pennsylvania 17603
Att'n: Brian Auchey
FAX: (717) 892-6788
If to the Guarantor: Steridyne Corporation
3725 Investment Lane
Riviera Beach, Florida 33404
Att'n: _________________________________
FAX: (___) ___-____
or in accordance with the last unrevoked written direction from such party
to the other party hereto. The Lender may rely on any notice (including
telephoned communication) purportedly made by or on behalf of the
Guarantor, and shall have no duty to verify the identity or authority of
the person giving such notice.
7. Miscellaneous.
(a). Amendments. This Guaranty cannot be amended, modified or
terminated except by an instrument in writing signed by both parties.
(b) Expenses; Taxes; Attorneys' Fees. The Guarantor agrees to pay or
cause to be paid and to save the Lender harmless against liability for the
payment of all reasonable out-of-pocket expenses, including reasonable fees
and expenses of counsel for the Lender, incurred by the Lender from time to
time, (i) in connection with the preparation, execution, delivery and
performance of this Guaranty or any other Loan Document, (ii) relating to
any requested amendments, waivers or consents to this Guaranty or any other
Loan Document and (iii) in connection with the Lender's enforcement or
preservation of rights under this Guaranty or any other Loan Document, (iv)
in defense of any claim relating to or affecting any Loan Document, (v) the
perfection of any liens on or security interests in any collateral for the
Note or this Guaranty, and (vi) the preservation, care and custody of any
collateral for the Note or this Guaranty and the collection of insurance
proceeds or condemnation awards related thereto. The Guarantor agrees to
pay all stamp, document, transfer, recording or filing taxes or fees and
similar impositions now or hereafter determined by the Lender to be payable
in connection with this Guaranty or any other Loan Documents, and the
Guarantor hereby indemnifies and saves the Lender harmless from and against
any and all present or future claims, liabilities or losses with respect to
or resulting from any omission to pay or delay in paying any such taxes,
fees or impositions. All amounts payable by the Guarantor under this
paragraph shall be paid within five (5) days after demand by the Lender
with interest, until paid, at the Default Rate, if any, specified in the
Note or, otherwise, at the rate of interest provided in the Note.
(c) Severability. If any term or provision of this Guaranty or the
application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Guaranty, or the
application of such term or provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Guaranty shall be
valid and enforceable to the fullest extent permitted by law.
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(d) Governing Law. This Guaranty shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Pennsylvania.
(e) Time of Essence; Duration; Survival. Time is of the essence with
respect to all of the Guarantor's obligations under this Guaranty. All
representations and warranties of the Guarantor contained herein or in any
other Loan Document or made in connection herewith or therewith shall
survive the making, execution and delivery of this Guaranty or the other
Loan Documents, any investigation by the Lender or the making of any loan
advance under the Loan Documents. All covenants and agreements of the
Guarantor contained herein or in any other Loan Document shall continue in
full force and effect from and after the date hereof until payment in full
of all the Guaranteed Obligations.
(f) WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY WAIVES ITS
RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT BY OR AGAINST THE GUARANTOR
RELATED TO OR ARISING OUT OF THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS.
(g) Successors and Assigns. This Guaranty shall apply to, inure to the
benefit of and bind each of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by its duly authorized representative.
ATTEST: STERIDGYNE CORPORATION
By /s/ Annalisa B. Pegg By /s/ Joseph R. DelVecchio
------------------------ ------------------------------
Name: Joseph R. DelVecchio
Title: Ex V.P. / COO
