EXHIBIT 11
GUARANTEE and INDEMNITY
by
UTAH MEDICAL PRODUCTS, INC. to BANK OF IRELAND
Dated the 13th day of June, 2008
__________________________________
UTAH MEDICAL PRODUCTS INC
-
and -
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
____________________________________________________________________
G
U A R A N T E E and I N D E M N I T
Y
____________________________________________________________________
|
|
|
|
|
|
|
UTAH MEDICAL PRODUCTS LIMITED
|
|
|
|
UTAH MEDICAL PRODUCTS INC
|
|
|
|
|
|
|
|
|
Richard Black Solicitors
Beechfield House
Clonee,
Dublin 15
G
U A R A N T E E and I N D E M N I T Y
THIS GUARANTEE AND INDEMNITY dated this
13th day of June Two Thousand and Eight.
BETWEEN : UTAH MEDICAL PRODUCTS,
INC. of 7043 South 300 West Midvale, UT 84087 (hereinafter
called “the Guarantor” which expression shall include
its, successors or assigns) and THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND (hereinafter called “the Bank”
which expression shall include its successors or assigns).
Whereas the Guarantor has requested and the
Bank has agreed to grant and/or continue accommodation to UTAH
MEDICAL PRODUCTS LIMITED of Garrycastle, Athlone, Co. Westmeath
(hereinafter called “the Customer”) upon the Guarantor
executing a Guarantee in favour of the Bank on the terms and
conditions hereinafter appearing.
Now therefore IT IS HEREBY AGREED AND
DECLARED as follows:-
A. In
consideration of the Bank making or continuing advances or
otherwise giving credit or affording banking facilities to the
Customer, for as long as the Bank may think fit, the Guarantor
unconditionally and irrevocably guarantee and agree as a continuing
obligation to pay to the Bank on demand all sums of money
(hereinafter called the “ultimate balance”) which are
now or shall at any time be owing or remain unpaid to the Bank
anywhere from or by the Customer whether as principal or surety and
whether solely or jointly with any other party or from any firm in
which the Customer may be a partner, upon current overdraft
accounts, promissory notes or bills discounted or paid and other
loans, credits, leases, indemnities or advances made to or for the
accommodation or at the request of the Customer solely or jointly
or of any such firm as aforesaid whether for actual or contingent
liability or any liability in connection with foreign exchange
transactions or any liability in connection with interest and
currency hedging and swap agreements, forward rate agreements,
interest and currency futures or options, Interest Rate Caps,
Interest Rate Floors, Interest Rate Collars, Gilt and Cash Options
and any other forms of financial instruments or pursuant to any
guarantees, indemnities or on any other account or in respect of
money which the Customer is or shall become liable to pay to the
Bank in any manner whatsoever together with in all the cases
aforesaid, all interest, as well after as before any demand or
judgment, discount and other bankers' charges including legal
charges occasioned by the preparation, negotiation and execution of
this guarantee or as otherwise may be incident to this or any other
security held by or offered to the Bank for the ultimate balance or
by or to the enforcement of any such security and any liability to
stamp duty or any other duties (all such monies being hereinafter
referred to as “the Customer's liabilities”) on a full
and unqualified indemnity basis save and except any part of the
Customer's liabilities, the securing of which would contravene the
provisions of Section 31 of the Companies Act 1990 as the same be
amended, extended or re-enacted from time to time or any equivalent
or like provision of law PROVIDED ALWAYS that the total
amount ultimately enforceable against the Guarantor under this
guarantee shall not exceed the principal amount set out below and
to the extent they relate to such principal the following
additional amounts:-
|
|
all unpaid interest accrued and payable in
respect of the Customer's liabilities;
|
|
|
all interest on the Customer's liabilities
from the date of demand under or earlier determination of this
guarantee until payment calculated at the rate and in the manner
applicable to the relevant account of the Customer;
|
|
|
all unpaid commission, fees, charges
(including legal charges) and expenses payable in respect of the
Customer's liabilities together with any broken funding costs,
damages, liabilities and any liabilities in connection with
interest and foreign exchange transactions or any liability in
connection with interest and currency hedging and swap agreements,
forward rate agreements, interest and currency futures or options,
interest rate caps, interest rate floors, interest rate collars,
gilt and cash options and any other forms of financial instruments
which may be incurred by the Bank in respect of the Customer's
liabilities; and
|
|
|
all such additional amounts as may be
necessary in order that the net amounts which the Bank receives
from the Guarantor hereunder after any taxes, levies, imposts,
duties, deductions, withholdings or other charges referred to in
Clause 24 hereof shall equal the respective amounts due under this
guarantee.
|
The principal amount referred to above is:
say Two Million, Six Hundred and Twenty One
Thousand Euro
B. This guarantee is
subject to the following terms and conditions:
|
|
Unless the contrary intention appears, words
in the plural shall include the
singular. References herein to the masculine
gender shall include the feminine as the context admits and any
reference in this guarantee to a “guarantee” shall be
deemed to refer to this “Guarantee and Indemnity”.
|
|
|
This guarantee shall be in addition to and not
in substitution for any other guarantee for the Customer given to
the Bank by the Guarantor.
|
|
|
This guarantee shall be in addition to and
shall not be in any way prejudiced or affected by any collateral or
other security now or hereafter held by the Bank for all or any
part of the liabilities hereby guaranteed.
|
|
|
Although the ultimate liability of the
Guarantor under this guarantee is not to exceed the limit
hereinbefore specified, yet this guarantee shall be construed and
take effect as a guarantee for the whole and every part of the
ultimate balance owing by the Customer to the Bank and unless and
until such balance has been paid in full by the Guarantor the
Guarantor shall not be entitled to share in any security held by
the Bank on account of that balance or to stand in the place of the
Bank in respect of any security or money nor until such balance has
been paid in full shall the Guarantor take any steps to enforce any
right or claim against the Customer in respect of any monies paid
by the Guarantor to the Bank hereunder or have or exercise any
rights as surety in competition with the Bank.
|
|
|
For the purpose of enabling the Bank to sue
the Customer or prove against his estate or prove in the
bankruptcy, winding up of, insolvency or examination by an examiner
of or any analogous proceedings in relation to the Customer for the
whole of the ultimate balance or to preserve intact the liability
of any other party, the Bank may at any time place and keep for
such time as it may think prudent any money received, recovered or
realised hereunder on one or more separate or suspense accounts to
the credit either of the Guarantor or of such other party as it
shall think fit without any intermediate obligation on the part of
the Bank to apply the same or any part thereof in or towards the
discharge of the ultimate balance owing as aforesaid and without
any intermediate right on the part of the Guarantor to sue the
Customer or prove against his estate or in the bankruptcy,
insolvency or winding-up of or in the examination by an examiner of
or any analogous proceedings in relation to the Customer in
competition with the Bank or so as to diminish any dividend or
other advantage that would or might come to the Bank or so as to
treat the liability of the Customer as diminished.
|
|
|
All monies received by the Bank from the
Guarantor or the Customer or any other party liable to pay the same
may be applied by the Bank to any account or item of account or to
any transaction to which the same may be applicable.
|
|
|
This guarantee shall not be considered as
satisfied by any intermediate payment or satisfaction of the whole
or any part of any sum or sums of money owing as aforesaid but
shall be a continuing security and shall extend to cover any sum or
sums of money which shall for the time being constitute the balance
due from or unpaid by the Customer to the Bank upon any such
account or accounts as aforesaid and so that where such balance
exceeds the aforesaid limit of the liability of the Guarantor, the
Bank may select the particular account or accounts which is or are
to be regarded as secured by this guarantee.
|
|
|
Demands under this guarantee may be made from
time to time and may be withdrawn and subsequently made again and
the liabilities and obligations of the Guarantor under this
guarantee may be enforced irrespective of:
|
|
|
|
whether any demands, steps or proceedings are
being or have been
|
|
|
taken against the Customer, the Guarantor
and/or any third party; or
|
|
|
|
whether or in what order any security to which
the Bank may be entitled in respect of the ultimate balance is
enforced.
|
In any case where the liability of the
Customer to the Bank is in respect of a liability of the Bank
incurred on behalf of the Customer which is contingent a demand for
payment of any such liability may be made by the Bank at any time
on the Guarantor for an amount not exceeding the likely maximum
amount as determined by the Bank of that liability; notwithstanding
that at the time of such demand the Bank has not been called upon
to make payment on behalf of or in respect of the
Customer. In the case that any amount so paid by the
Guarantor to the Bank hereunder shall exceed the amount of the
liability actually incurred by the Bank upon crystallisation of
such contingent liability the Bank shall refund such excess amount
together with any interest that would have accrued thereon had a
similar amount been placed on deposit with the Bank for a similar
period of time.
In the event of any demand being made under
this guarantee, the Bank may continue its account(s) with the
Customer notwithstanding the calling in of the Guarantor's
liability in respect of the amount due from the Customer at the
date when the calling in takes effect and such amount due shall
remain regardless of any subsequent dealings in any such
account(s).
|
|
This guarantee shall be binding as a
continuing security on the Guarantor until the expiration of one
calendar month after the Guarantor shall have given to the Bank
notice in writing to discontinue and determine it.
|
|
|
In the event of this guarantee ceasing from
any cause whatsoever to be binding as a continuing security on the
Guarantor:-
|
(a) all cheques,
orders for payment, drafts, bills, notes and negotiable instruments
or securities drawn, made, endorsed or accepted by or for the
account of the Customer on the Bank or its agents and purporting to
be dated on or before the date when the guarantee ceases to be a
continuing security (“the discontinuance date”)
although presented to or paid by the Bank or its agents after the
discontinuance date, and
(b) all liabilities
of the Customer to the Bank at the discontinuance date whether
certain or contingent or whether payable forthwith or at some
future time or times and also all credits then established by the
Bank for the Customer shall remain payable by the Guarantor under
this guarantee notwithstanding that the guarantee shall have ceased
to be binding as a continuing security; and
(c) The Bank shall
be at liberty without thereby affecting its rights hereunder to
open a fresh account or accounts or to continue any then existing
account or accounts with the Customer and no money paid from time
to time into any such account or accounts by or on behalf of the
Customer and subsequently drawn out by the Customer shall on
settlement of any claim in respect of
