Attached files
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
____________________________________________________________________
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BRANCH
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:
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ATHLONE
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ACCOUNT
OF
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:
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UTAH
MEDICAL PRODUCTS LIMITED
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EXECUTED
BY
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:
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UTAH
MEDICAL PRODUCTS INC
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AMOUNT
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:
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€2,621,000
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CURRENCY
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:
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EURO
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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:-
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(i)
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all
unpaid interest accrued and payable in respect of the Customer's
liabilities;
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(ii)
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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;
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(iii)
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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
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(iv)
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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.
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The
principal amount referred to above is:
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Amount
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Currency
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2,621,000
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Euro
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say Two
Million, Six Hundred and Twenty One Thousand Euro
B. This
guarantee is subject to the following terms and conditions:
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1.
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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”.
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2.
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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.
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3.
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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.
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4.
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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.
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5.
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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.
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6.
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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.
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7.
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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.
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8.
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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:
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(a)
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whether
any demands, steps or proceedings are being or have
been
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taken
against the Customer, the Guarantor and/or any third party;
or
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(b)
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whether
or in what order any security to which the Bank may be entitled in respect
of the ultimate balance is
enforced.
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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).
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9.
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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.
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10.
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In
the event of this guarantee ceasing from any cause whatsoever to be
binding as a continuing security on the
Guarantor:-
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(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 this guarantee be
appropriated towards or have the effect of payment of any part of the monies due
from or unpaid by the Customer or of the interest thereon at the time of this
guarantee ceasing to be so binding as a continuing security unless the party
paying in the money shall at the time of payment in writing direct the Bank
specially to appropriate it to that purpose.
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11.(i)
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The
Bank shall be at liberty without any further consent from the Guarantor
and without in any way affecting its rights against the Guarantor, and
notwithstanding that it may increase or otherwise affect the liability of
the Guarantor at any time to
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(a) renew,
determine, enlarge or vary any credit to the Customer, to renew, vary, exchange,
release or abstain from perfecting or enforcing any other securities held or to
be held by the Bank for or on account of the monies intended to be hereby
secured or any part thereof, to renew bills and promissory notes in any manner
and to compound with, give time for payment to, accept compositions from and
make any other arrangements with the Customer or any other party in respect of
the liabilities hereby secured;
(b) vote
for or against any composition offered or made by the Customer or any person or
company in any winding up, bankruptcy, examination or arrangement matter whether
outside or under the control of the Court or value or give up therein any
security.
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11.(ii)
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The
liabilities and obligations of the Guarantor under this guarantee shall
remain in force notwithstanding any act, omission, neglect, event or
matter whatsoever except the proper and valid payment of the ultimate
balance and subject as hereinafter provided in this guarantee an absolute
discharge or release of the Guarantor signed by the Bank and without
prejudice to its generality the foregoing shall apply in relation to
anything which would have discharged the Guarantor (wholly or in part) or
which would have afforded the Guarantor any legal or equitable
defence.
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11.(iii)
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The
Bank may release or discharge any one or more of the persons a party to
this guarantee from the obligations of this guarantee or compound with or
otherwise vary or agree to vary the liability of or to grant time or
indulgence or to make other arrangements with any one or more of them or
any other person without prejudicing or affecting its rights against the
other or others of such persons. Without prejudice to the generality of
the foregoing none of the liabilities or obligations of any of the
Guarantor under this guarantee shall be impaired by any provision of this
guarantee being or becoming void, unenforceable or otherwise invalid under
any applicable law as regards any other Guarantor for any reason
whatsoever.
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12.
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A
certificate in writing signed by any duly authorised officer of the Bank
stating the amount at any particular time due and payable by the Guarantor
to the Bank shall (save for manifest error) be conclusive evidence as
against the Guarantor.
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13.
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The
Guarantor hereby warrants and undertakes to the Bank that in respect of
its liability under this guarantee it has not taken and will not take from
the Customer, either directly or indirectly, without the consent of the
Bank, any promissory notes, bills of exchange, mortgage, charge or other
security whether merely personal or involving a charge on any property
whatsoever of the Customer whereby the Guarantor or any person claiming
through them by endorsement, assignment, or otherwise would or might on
the bankruptcy, insolvency, winding-up of or examination by an examiner of
or any analogous proceedings in relation to the Customer and to the
prejudice of the Bank increase the proofs in such bankruptcy, insolvency;
winding-up of or examination by an examiner of or any analogous
proceedings in relation to the Customer or diminish the property
distributable among the creditors of the Customer; and that as regards any
such security as aforesaid which the Guarantor may have taken or may take
with such consent as aforesaid the security shall be a security to the
Bank for the fulfilment of the obligations of the Guarantor hereunder and
shall forthwith be deposited by the Guarantor with the Bank for that
purpose.
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14.
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In
respect of the Guarantor's liability hereunder the Bank shall have a lien
on all securities or other property of the Guarantor held by the Bank
whether for safe custody or otherwise. The Guarantor
hereby authorise the Bank entirely at the discretion of the Bank (as well
before as after demand hereunder) and without any notice to the Guarantor
at any time to set-off and apply any credit balance on any account of the
Guarantor with the Bank (whether current or otherwise or subject to notice
or not) or any monies held by or to be held by the Bank to the order of
the Guarantor, in satisfaction of any sum due and payable by the Guarantor
to the Bank hereunder and for this purpose the Bank is authorised to
purchase with the monies standing to the credit of any such account or any
monies held or to be held as aforesaid such other currencies as may be
necessary to effect such application. The Bank shall not
be obliged to exercise any right given to it by this clause
14.
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15.
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No
assurance, security or payment which may be avoided or proves to have been
for any reason invalid under any enactments relating to bankruptcy or
under the provisions of any other law governing the Customer or the
Guarantor or any other person from whom the Bank receives any assurance,
security or payment and no release, settlement, discharge, composition or
arrangement which may have been given or made on the faith of any such
assurance, security or payment shall prejudice or affect the Bank's right
to recover from the Guarantor to the full extent of this guarantee as if
such assurance, security, payment, release, settlement,
discharge, composition or arrangement (as the case may be) had never been
granted, given or made. The Bank shall be at liberty to retain
any security held for the Guarantor's liability hereunder for a period of
seven months after the repayment of all sums that are or may become due to
the Bank from the Customer notwithstanding any release, settlement,
discharge or arrangement given or made by the Bank provided that if at any
time within the period of six months after such repayment either a
bankruptcy petition shall be presented against the Customer or a petition
shall be presented to a competent Court for an Order for the winding up of
the Customer or the Customer shall commence to be wound up voluntarily or
if a petition is presented before any competent Court or an Order is made
or notice published or issued by any competent Court or any analogous
proceedings or action is taken in connection with the appointment of an
examiner, administrator, administrative receiver, trustee or any similar
officer to the Customer or to a Related Company of the
Customer. The Bank shall be at liberty to continue to retain
such security or any part thereof for and during such further period as
the Bank may determine in which event such security shall be deemed to
have continued to have been held by the Bank as security for the payment
to the Bank of all or any sums which shall or may become due and owing to
the Bank from and by the Guarantor either by virtue of the provisions of
this guarantee or as a consequence of any Order made by a competent Court
under any provisions of bankruptcy or company
law.
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For
the purposes of this clause 15 Related Company has the meaning ascribed to
it in Section 4 (5) of the Companies (Amendment) Act,
1990.
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16.
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The
non-execution or invalid execution of this guarantee by any one or more of
those who have agreed to join in this guarantee will not affect the
liability of those who have joined in and signed this
guarantee.
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17.
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This
guarantee shall not be discharged nor shall the Guarantor's liability be
affected by reason of any failure or irregularity defect or informality in
any security given by or on behalf of the Customer in respect of the
monies or liabilities hereby secured nor by any legal limitation,
disability, incapacity or want of any borrowing powers of or by the
Customer or want of authority of any director, manager, official or other
person appearing to be acting for the Customer in any matter in respect of
the monies or liabilities hereby secured or any other circumstance which
renders the liability of the Customer void or unenforceable and such
monies or liabilities will be recoverable by the Bank from the Guarantor
as sole, original and independent obligor upon first written demand by way
of a full indemnity together with all losses, claims, costs, charges and
expenses to which the Bank may be subject or which it may incur in
connection with the Customer's liabilities or this
guarantee.
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18.
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This
guarantee shall not be discharged nor shall the Guarantor's liability be
affected by any reduction occurring in, or other arrangement being made
relating to the Customer's liabilities or any of them to the Bank as a
result of any arrangement or composition, made pursuant to any of the
provisions of the Companies (Amendment) Act, 1990 or any analogous
provisions or made pursuant to any proceedings or actions whatsoever and
whether or not following the appointment of an administrator,
administrative receiver, trustee, liquidator, receiver or examiner or any
similar officer to the Customer or over all or a substantial part of the
assets (as the case may be) of the Customer and the Guarantor hereby agree
with and to the Bank that the amount recoverable by the Bank from the
Guarantor hereunder will be and will continue to be the full amount which
would have been recoverable by the Bank from the Customer in respect of
the Customer's liabilities and any of them had no such arrangement or
composition as aforesaid been entered
into.
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19.
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Should
the Customer be an unincorporated body, committee, partnership, trustees
or debtors on a joint account, this guarantee shall remain effective
notwithstanding any retirement, change, accession or addition as fully as
if the person or persons constituting such body, committee, partnership,
trustees or debtors on joint account at the date of the Customer's default
or at any time previously was or were the same as at the date
hereof.
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20.
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Any
notice or demand hereunder shall be in writing and shall be expressed to
be a notice given hereunder and shall be deemed to be given upon being
left at or transmitted by telex to the correct telex number of the party
to whom it is being transmitted or by telefax to the party to whom it is
being sent or forty-eight hours after having being posted by prepaid
ordinary post to the party to which it is to be given at its address
hereinbefore set out or such other address as such party shall have
previously communicated by notice to the party giving such first mentioned
notice or demand.
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21.
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If
the Bank wishes to assign and/or transfer its rights in respect of any
facility or accommodation made available by the Bank to the Customer, or
any part thereof the Bank shall be free to assign and/or transfer to the
relevant assignee or transferee the benefit of this guarantee to the
extent that it relates to such facility or accommodation or such part
thereof and no such assignment or transfer shall affect this guarantee as
far as concerns the right of the Bank in respect of the facilities or part
thereof not so assigned or transferred. This guarantee shall
not be assigned by the Guarantor except with the prior consent in writing
of the Bank and shall inure to the benefit of the successors, assigns and
transferees of the Bank. The Guarantor hereby irrevocably
authorise the Bank for the purposes of or in connection with any proposed
transfer or assignment to disclose to the proposed assignee or transferee
all and any information and documentation in the Bank's possession in
relation to the Guarantor or any of them as may be reasonably required by
any such person in connection with such assignment or transfer and so far
as such information constitutes personal data within the meaning of the
Data Protection Act, 1988 this authority shall be a consent for the
purposes of the said Act.
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Without
prejudice to the generality of the foregoing where the Bank holds the
debt(s) in respect of which the security in the form of this guarantee is
given on trust for a third party and/or where the Bank holds the debt(s)
following an equitable assignment thereof to a third party the Guarantor
hereby acknowledge and agree that the Bank may hold this guarantee on the
same terms and with like effect as it holds the debt in respect of which
the security in the form of this guarantee is being given and this
guarantee will be in full force and effect in respect of all such debt(s)
and the benefit of the security created by this guarantee is intended by
the Guarantor and the Bank to be transferable in like manner and with the
same effect as the debt in respect of which the security is
given.
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22.
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A
waiver by any of the parties hereto of any breach by any other party of
any of the terms, provisions or conditions of this guarantee or the
acquiescence of any party hereto to any act (whether of commission or
omission) which but for such acquiescence would be a breach as aforesaid
shall not constitute a general waiver of such term, provision or condition
or of any subsequent act contrary
thereto.
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23.
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This
guarantee is and will remain the property of the
Bank.
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24.
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Every
obligation of the Guarantor arising under this guarantee shall be
discharged in the same currency as that of the corresponding principal
debt of the Customer. All payments to be made hereunder by the
Guarantor shall be made to the Bank without any set-off or counter-claim
and without any deduction for or on account of any present or future
taxes, levies, imposts, duties, deductions or withholdings or other
charges of whatever nature imposed, levied, collected, withheld or
assessed unless the Guarantor is compelled by law so to
do. If so compelled the Guarantor shall pay such
additional amounts as may be necessary in respect of their obligations
hereunder in order that the net amounts after such taxes, levies, imposts,
duties, deductions, withholdings or other charges shall equal
the respective amounts due
hereunder.
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25.
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If
for the purposes of obtaining judgment in any court it is necessary to
convert a sum due hereunder in one currency (in this Clause called “the
first currency”) into another currency (in this Clause called “the second
currency”) the rate of exchange which shall be applied shall be that at
which in accordance with normal banking procedures the Bank could purchase
the first currency with the second currency on the business day preceding
that on which final judgment is given and the obligation of the Guarantor
in respect of any such sum due from them to the Bank hereunder shall,
notwithstanding any judgment in the second currency, be discharged only to
the extent that on the business day following receipt by the Bank of any
sum adjudged to be due hereunder in the second currency the Bank may in
accordance with normal banking procedures purchase the first with the
second currency; if the first currency so purchased falls short of the sum
originally due to the Bank in the first currency, the Guarantor agrees
that it shall, as a separate obligation and notwithstanding any such
judgment, indemnify the Bank against such
shortfall.
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26.
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The
Guarantor confirms that on entering into this guarantee and the
transactions contemplated by this guarantee and the assumption of their
obligations hereunder that the Guarantor has not relied and does not rely
upon any information or advice provided or any appraisal or investigation
affected by the Bank or any of the professional advisers to the
Bank.
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27.
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(i)
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The
Guarantor hereby waives all demands on the Customer for performance of any
of the covenants, terms, conditions and agreements of any facility or
accommodation or for payment of any moneys by the Customer hereby secured
and also hereby waives the necessity for any presentment for payment
notice of dishonour protest and such other notice (if any) which the Bank
might otherwise be required to give in connection with the exercise of its
rights or any of them in respect of any of the obligations contained
herein or otherwise.
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(ii)
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The
Guarantor hereby agrees that in any litigation relating to these presents
the aforesaid obligations or any security therefore it shall waive the
right to interpose any defence based upon any claim of laches or set-off
or counter-claim of any nature or
description.
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28. The
Guarantor HEREBY
IRREVOCABLY:-
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(i)
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for
the benefit of the Bank submits to the jurisdiction of the Courts of
Ireland in relation to any claim or proceeding in connection with this
Guarantee;
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(ii)
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submits
to any other jurisdiction in which the Guarantor has assets and the
Guarantor hereby waives any objection to any claim that any suit, action
or proceedings have been brought in any inconvenient
forum;
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(iii)
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appoints
the Customer as its agent for the service of legal process out of the said
Courts at the Customer's address herein or at the Customer's address last
known to the Bank;
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(iv)
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confirms
that service of legal process out of such Courts on the Customer shall be
deemed due service upon the Guarantor for the purposes of such legal
proceedings;
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(v)
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agrees
where requested by the Bank, and without prejudice to any other method of
service, to appoint an authorised agent for service of proceedings;
and
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(vi)
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agrees
that nothing herein shall affect the right to service of legal process in
any other manner permitted by law.
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29.
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Each
of the provisions of this guarantee is severable from the others and if at
any time one or more of such provisions is or becomes illegal, invalid or
unenforceable the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be effected or impaired
thereby.
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30.
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This
guarantee shall be governed by and construed in accordance with the laws
of Ireland.
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CORPORATE
GUARANTOR
PRESENT when the Common Seal
of
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UTAH
MEDICAL PRODUCTS, INC.
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(Place
Seal here)
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was
affixed hereto:-
__/s/ Kevin L.
Cornwell_____________
Director
__/s/ Paul O.
Richins_______________
Director/Secretary
We
certify that we have this day received a copy of the above
Guarantee.
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Date:
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______12-
June-2008__________
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On
behalf of
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Utah
Medical Products Inc
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__/s/ Kevin L.
Cornwell_________
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