GUARANTY OF UNASSIGNED
ISSUER’S RIGHTS
THIS GUARANTY OF
UNASSIGNED ISSUER’S RIGHTS dated as of September 1, 2002
(the “Issuer Guaranty”), by and among William L. Bates,
Gregg D. Scheller and Kurt W. Gampp, Jr., residents of 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. CHARLES COUNTY, MISSOURI, a public corporation organized and
existing under the laws of the State of Missouri (the
“Issuer”).
WHEREAS, the
Issuer intends to issue its Private Activity Revenue Bonds,
Series 2002 (Synergetics Development Company Project), in an
aggregate principal amount of $2,645,000 (the “Bonds”);
and
WHEREAS, the Bonds
are to be issued under and pursuant to an Indenture of Trust dated
as of September 1, 2002 between the Issuer and UMB Bank, N.A.,
as Trustee; and
WHEREAS, the
proceeds derived from the issuance of the Bonds are to be loaned to
Synergetics Development Company, L.L.C., a Missouri limited
liability company (the “Obligor”), pursuant to a Loan
Agreement dated as of September 1, 2002 (the “Loan
Agreement”), to provide financing to finance the project as
described and defined in the Loan Agreement (the
“Project”) for the benefit of the Obligor;
and
WHEREAS, any
financial benefit to the Obligor will result in a direct financial
benefit to the Guarantors; and
WHEREAS, the
Issuer has reserved to itself certain rights defined as Unassigned
Issuer Rights in the Indenture (collectively, the
“Issuer’s Rights”), and the Obligor is obligated
by the Loan Agreement to perform certain duties and to promptly pay
certain moneys in connection with the Issuer’s Rights;
and
WHEREAS, the
Issuer, as a condition to the issuance of the Bonds, has required
that the Guarantors enter into this Issuer Guaranty to secure the
obligations of the Obligor with respect to the Issuer’s
Rights; and
WHEREAS, the
Guarantors desire that the Issuer issue the Bonds and apply the
proceeds as aforesaid and are willing to enter into this Issuer
Guaranty in order to induce the issuance of the Bonds and thereby
achieve interest cost savings to the Obligor and financial benefit
to Guarantors.
NOW, THEREFORE, in
consideration of the premises and as an inducement to the issuance
of the Bonds by the Issuer, the Guarantors do hereby, subject to
the terms hereof, covenant and agree with the Issuer as
follows:
REPRESENTATIONS OF
GUARANTORS
Section 1.1. Each Guarantor does hereby
represent and warrant that the assumption by Guarantor of his, her
or its obligations hereunder will result in a direct financial
benefit to him, her or it.
Section 2.1. The Guarantors, jointly and
severally and each as principal, hereby absolutely and
unconditionally guarantee to the Issuer the full and prompt
performance of the Obligor’s obligations with respect to the
Issuer’s Rights. All payments by the Guarantors shall be paid
in lawful money of the United States of America. Each and every
default in the full and prompt performance by the Obligor of its
obligations with respect to the Issuer’s Rights 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 joint and several obligations
of the Guarantors under this Issuer Guaranty shall be absolute and
unconditional and shall remain in full force and effect until the
entire principal of, premium, if any, and interest on the Bonds and
the full and prompt performance by the Obligor of its obligations
with respect to the Issuer’s Rights shall have been paid or
performed or such payment or performance provided impaired upon the
happening from time to time of any event, including without
limitation any of the following, whether or not with notice to, or
the consent of, the Guarantors:
(a) The
compromise, settlement, release or termination of any or all of the
obligations, covenants or agreements of Issuer under the Indenture
or of the Issuer or the Obligor under the Loan
Agreement;
(b) The
failure to give notice to any one or more of the Guarantors of the
occurrence of an event of default under the terms and provisions of
this Issuer Guaranty, the Loan Agreement or the
Indenture;
(c) The
assignment or mortgaging or the purported assignment or mortgaging
of all or any part of the interest of the Issuer or the Obligor in
the project or the payments, revenues and receipts derived by the
Issuer from the Project;
(d) The
waiver of the payment, performance or observance by the Issuer, the
Obligor or any one or more of the Guarantors of any of the
obligations, covenants or agreements of any of them contained in
the Indenture, the Loan Agreement or this Issuer
Guaranty;
(e) The
extension of the time for payment of any principal of, premium, if
any, or int
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