Exhibit 10.42

 

GUARANTY AGREEMENT

 

This Guaranty Agreement (the “Guaranty”) is made and given as of the 30th day of August, 2001, by ASTROTECH SPACE OPERATIONS, INC., a Delaware corporation whose address is 300 D Street SW, Suite 814, Washington, DC 20024 (hereafter referred to as the “Guarantor”) to SOUTHTRUST BANK, an Alabama banking corporation (the “Bank”).

 

A. Astrotech Florida Holdings, Inc. (“Borrower”) and the Bank are parties to a Credit Agreement (the “Credit Agreement”) of even date herewith relating to an Acquisition and Construction Loan (the “Construction Loan”) in the amount of up to $20,000,000.00 that is subject to renewal and conversion as a Term Loan (the “Term Loan”) of up to $20,000,000.00 (collectively, the “Loan”) pursuant to the Credit Agreement. The Construction Loan is evidenced by Borrower’s Acquisition and Construction Loan Note of even date herewith in the principal amount of up to $20,000,000.00 and the Term Loan shall be evidenced by Borrower’s Term Loan Note in the amount of up to $20,000,000.00 (collectively, the “Note”). Capitalized terms not expressly defined herein shall have the meanings ascribed thereto in the Credit Agreement (the Credit Agreement, the Note and all documents executed in connection with the transactions contemplated thereby being referred to collectively as the “Loan Documents”).

 

B. The Bank has required this Guaranty from Guarantor as a condition of and as consideration for Bank’s entering into the Credit Agreement and Bank would not enter into the Credit Agreement or make the Loan to Borrower without being given this Guaranty.

 

In consideration of and as an inducement to Bank’s entering into the Credit Agreement, the undersigned Guarantor hereby absolutely and unconditionally guarantees to the Bank payment and collection in full of all sums due to Bank under and pursuant to the Note and the Loan Documents including, without limitation, all interest and expenses payable to Bank thereunder, whether at maturity or otherwise and the full performance of all obligations of the Borrower under the Notes and the Loan Documents all within the applicable grace or curative periods provided in the Loan Documents (all of the foregoing guarantied obligations of the Borrower being referred to collectively as the “Obligations”). Guarantor’s obligations hereunder shall be unconditional irrespective of, among other things, the lack of genuiness, validity, regularity or enforceability of the Loan Documents or of the obligations of the Borrower evidenced thereby, any and all suretyship defenses otherwise available to Guarantor which are hereby expressly waived and any other bar to the enforceability of this Guaranty or of the Loan Documents against either the Guarantor or the Borrower, as the case may be. Guarantor shall, in an Event of Default under the Loan Documents, pay all amounts due to the Bank under the Loan Documents on demand by the Bank without defense or set off, and Bank shall not be required, as a condition of such payment, to first proceed to preserve, utilize or exhaust any other right or remedy against the Borrower, any other guarantor or any collateral or security.

 

The Guarantor expressly waives acceptance of this Guaranty by the Bank, presentment and demand for payment, protest, notice of protest and notice of dishonor or non payment of any obligation of the Borrower other than as set forth above; any right to require suit against the Borrower or any other party before enforcing this Guaranty; any right to have security applied before enforcing this Guaranty; and any right of subrogation to the Bank’s rights against the Borrower until Borrower’s obligations to the Bank are paid in full.

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The Guarantor hereby consents and agrees that renewals and extensions of time of payment, surrender, release, exchange, substitution, dealing with or taking of additional collateral security, taking or release of other guaranties, abstaining from taking advantage of or realizing upon any collateral security or other guaranties and any and all other forebearances or indulgences granted by the Bank to the Borrower or any other party may be made, granted and effected by the Bank without notice to the Guarantor and without in any manner affecting its liability hereunder.

 

Subject to any applicable curative period provided in the Credit Agreement, in the event that a petition in bankruptcy or for an arrangement or reorganization of the Borrower under the bankruptcy laws or for the appointment of a receiver for the Borrower or any of its property is filed by or against the Borrower, or if the Borrower shall make an assignment for the benefit of creditors or shall become insolvent, all indebtedness of the Borrower shall, for the purposes of this Guaranty, be deemed to have become immediately due and payable.

 

Any notice to Guarantor by the Bank at any time shall not imply that such notice or any further or similar notice was required.

 

The Guarantor further agrees to pay to the Bank any and all costs, expenses and reasonable attorneys’ fees paid or incurred by the Bank in collecting or endeavoring to collect the indebtedness of the Borrower or in enforcing or endeavoring to enforce this Guaranty whether out of court, in trial, on appeal, in bankruptcy or otherwise.

 

The Guarantor further covenants and agrees with the Bank that during such time as this Guaranty is in effect, the Guarantor will make no material adverse change in its financial status as determined by the Bank in the exercise of its reasonable discretion. In the event of any breach of said covenant and agreement, all obligations of the Borrower under the Notes and the Loan Documents, regardless of their terms shall, at the Bank’s discretion, be deemed for the purposes of this Guaranty to have become matured, and at the Bank’s election, the Guarantor shall promptly pay and perform all of obligations of Borrower to the Bank, and the Bank may take any action deemed necessary or advisable to enforce this Guaranty.

 

In the event of any breach of the covenants and agreements of Guarantor under this Guaranty which (except for a payment default for which no curative period is applicable) are not cured within thirty (30) days after the earlier to occur of actual notice by Guarantor or receipt of written notice by Guarantor of such breach from Bank, all obligations of the Borrower under the Notes and the Loan Documents, regardless of their terms shall, at the Bank’s discretion, be deemed for the purposes of this Guaranty to have become matured, and at the Bank’s election, the Guarantor shall promptly pay and perform all of the obligations of Borrower to the Bank, and the Bank may take any action deemed necessary or advisable to enforce this Guaranty.

 

The provisions of this Guaranty are for the benefit of Bank and its respective successors and assigns, and nothing herein contained shall impair as between any obligor and Bank the obligations of any obligor under the Loan Documents.

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This Guaranty contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements relating to such subject matter and cannot be amended or supplemented, except by a written agreement signed by such Guarantor and Bank.

 

In the event that any one or more of the provisions contained in this Guaranty shall be determined to be invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision or provisions in every other respect and of the remaining provisions of this Guaranty shall not be in any way impaired.

 

The failure of Bank to enforce any right or remedy hereunder, or promptly to enforce any such right or remedy, shall not constitute a waiver thereof, nor give rise to any estoppel against Bank, nor excuse Guarantor from Guarantor’s obligations hereunder. Any waiver of any such right or remedy must be in writing and signed by Bank.

 

A.	REPRESENTATIONS AND WARRANTIES:

 

In order to induce the Bank to accept this Guaranty, the Guarantor represents, warrants covenants and agrees that:

 

1. Incorporation, Good Standing, and Due Qualification. Guarantor is a corporation duly organized, validly existing, and having an active status under the laws of the State of Delaware; has the corporate power and authority to own its assets and to transact the business in which it is now engaged or proposed to be engaged; and is duly qualified and in good standing under the laws of each jurisdiction in which such qualification is required, if any.

 

2. Corporate Power and Authority. The execution, delivery, and performance by the Guarantor of this Guaranty has been duly authorized by all necessary corporate action and do not and will not (1) require any consent or approval of the stockholders or of any other corporation or business entity; (2) contravene either Guarantor’s Certificate of Incorporation or By-Laws; (3) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award presently in effect having applicability to Guarantor; (4) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease, or instrument to which Guarantor is a party or by which it or its properties may be bound or affected; (5) result in or require the creation or imposition of any Lien upon or with respect to any of the properties now owned or hereafter acquired by the Guarantor other than those created by the Loan Documents in favor of the Bank; or (6) cause the Guarantor to be in default under any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award or any such indenture, agreement, lease, or instrument.

 

3. Legally Enforceable Agreement. This Guaranty and each of the other Loan Documents to which Guarantor is a party are legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their respective terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, and other similar laws affecting creditors’ rights generally, and principles of equity. Guarantor represents and warrants that it is not insolvent or contemplating filing a voluntary petition for bankruptcy nor is Guarantor aware of any possibility or threat of being subject to any petition for involuntary bankruptcy.

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4. Financial Statements. All financial statements of Guarantor which have been furnished to the Bank by the Guarantor are complete and correct and fairly present, in all material respects, the financial condition of the Guarantor and the results of the operations of the Guarantor for the periods covered by such statements, all in accordance with GAAP and there has been no material adverse change in the condition (financial or otherwise), business, or operations of the Guarantor. There are no liabilities of the Guarantor fixed or contingent, which are material but are not reflected in financial statements provided to the Bank or in the notes thereto, other than liabilities arising in the ordinary course of business. No information, exhibit, or report relating to the Guarantor furnished by the Guarantor to the Bank in connection with the negotiation of or pursuant to the Loan Documents or this Guaranty contained any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statement contained therein not materially misleading. Any financial projections in respect of Guarantor provided to the Bank have been prepared based upon present facts and using assumptions which Guarantor believes to be fair and reasonable.

 

5. Labor Disputes and Acts of God. Neither the business nor the properties of the Guarantor or any Affiliate are now affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy, or other casualty, nor does the Borrower have any reason to believe that either of them will be affected in the future, by any strike, lockout or other labor dispute or embargo (whether or not any of the foregoing are covered by insurance) materially and adversely affecting such business or properties or the operation of the Guarantor or any Affiliate.

 

6. Other Agreements. Guarantor is not a party to any indenture, loan, or credit agreement or, to Guarantor’s knowledge, to any lease or other agreement or instrument, or subject to any charter or corporate restriction which could have a material adverse effect on the business, properties, assets, operations, or conditions, financial or otherwise, of the Guarantor, or the ability of the Guarantor to carry out its obligations under this Guaranty or under any Loan Documents to which Guarantor is a party. Guarantor is not in default in respect of payment or, to its knowledge, in any other respect in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or instrument material to its business to which it is a party except where such default does not have and will not have a material adverse effect on guarantor, its business, assets, properties or financial condition.

 

7. Litigation. There is no pending or, to Guarantor’s knowledge, threatened action or proceedings against or affecting either of the Guarantor before any court, governmental agency or arbitrator which may, in any one case or in the aggregate, materially adversely affect the financial condition, operations, properties, or business of the Guarantor or the ability of the Guarantor to perform its obligation under this Guaranty or under the Loan Documents to which Guarantor is a party.

 

8. No Defaults on Outstanding Judgments or Orders. The Guarantor is not in default with respect to any judgment, writ, injunction, decree, rule, or regulation of any court, arbitrator, or federal, state, municipal, or other governmental authority, commission, board, bureau, agency or instrumentality, domestic or foreign.

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9. Ownership and Liens. The Guarantor has title to, or valid leasehold interests in, all of its properties and assets, real and personal, including the properties and assets and leasehold interest reflected in the financial statements referred to above and all properties and assets pledged as collateral to the Bank to secure Guarantor’s obligations under the Stock Pledge and Security Agreement in support of this Guaranty (the “Guaranty Collateral”), and none of the Guaranty Collateral is subject to any Lien, except the Lien of the Bank.

 

10. ERISA. The Guarantor represents and warrants that it has no Plans that are subject to ERISA.

 

11. Operation of Business. To the best of Guarantor’s knowledge, the Guarantor possesses all licenses, permits, franchises, patents, copyrights, trademarks, and trade names, or rights thereto (except where the failure to obtain same does not have and will not have a material adverse effect on the Guarantor, its business, assets, properties or financial condition), to conduct its business substantially as now conducted and as presently proposed to be conducted, and the Guarantor is not in violation of any valid rights of others with respect to any of the foregoing.

 

12. Taxes. The Guarantor has filed (or has timely filed extensions for) all tax returns (federal, state and local) required to be filed and has paid all taxes, assessments, and governmental charges and levies thereon which are due, including interest and penalties, except for such taxes as may be contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.

 

B.	AFFIRMATIVE COVENANTS

 

So long as the Notes shall remain unpaid the Guarantor shall:

 

1. Maintenance of Existence. Preserve and maintain its corporate existence and good standing in the jurisdiction of its incorporation, and qualify and remain qualified as a foreign corporation in each jurisdiction in which such qualification is required.

 

2. Maintenance of Records. Keep adequate records and books of account, in which complete entries will be made in accordance with GAAP, reflecting all financial transactions of the Guarantor.

 

3. Maintenance of Properties. Maintain, keep, and preserve, all of its properties (corporeal or incorporeal) necessary or useful in the proper conduct of its business, in the aggregate, in reasonable working order and condition, ordinary wear and tear excepted.

 

4. Conduct of Business. Continue to engage in an efficient and economical manner in the business conducted by Guarantor on the date of Closing the Acquisition and Construction Loan.

 

5. Maintenance of Insurance. Maintain insurance with financially sound and reputable insurance companies or associations in such amounts and covering such risks as are usually carried by companies engaged in the same or a similar business and similarly situated, which insurance may provide for reasonable deductibility from coverage thereof, and shall include, without limitation, as applicable to Guarantor’s business activities (i) Builder’s Risk

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Insurance, (ii) fire, theft and casualty insurance in an amount of not less than full insurable value of the covered assets, and (iii) public liability insurance including, without limitation automobile and appropriate liability coverage in not less than the amounts of present coverage in existence on the date of this Agreement, and (iv) business interruption insurance. Guarantor shall immediately notify the Bank upon the occurrence of any business interruption or of any casualty, damage or loss to its assets or seizure of any assets in excess of $1,000,000 for any reason including, without limitation, action of any foreign government.

 

6. Compliance with Laws. Guarantor shall comply in all material respects with all applicable laws, rules, regulations, and orders, such compliance to include, without limitation, paying before the same become delinquent all taxes, assessments, and governmental charges imposed upon it or upon its property provided, however, that Guarantor shall have the right in good faith to contest the imposition of any tax or the levy of any assessment or governmental charge so long as non-payment during such contest does not result in the imposition of a Lien upon the Guaranty Collateral.

 

7. Right of Inspection. Guarantor shall, at any reasonable time and from time to time and upon reasonable notice to Guarantor, permit the Bank or any agent or representative