Exhibit 1.9
FORM OF
UNLIMITED GUARANTY AND SECURITY AGREEMENT
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This UNLIMITED GUARANTY AND SECURITY AGREEMENT
("Guaranty") is made as of the 22nd day of August, 1997, by
____________, a ______________ corporation, having its chief
executive office at ____________________________________ (the
"Guarantor"), in favor of the "Secured Parties" and Union Bank of
California, N.A., as "Agent" for itself and for the other Secured
Parties as defined in the "Credit Agreement" (as defined below).
W I T N E S S E T H:
WHEREAS, American Eco Corporation, a corporation
organized under the laws of the Province of Ontario (the "Parent
Guarantor"), has entered into that certain Credit and Guaranty
Agreement dated as of August 22, 1997 among American Eco Funding
Corp., a wholly owned subsidiary of the Parent Guarantor (the
"Borrower"), the Parent Guarantor, as guarantor of the Borrower's
obligations thereunder, the institutions from time to time party
thereto as lenders (the "Lenders"), the institutions from time to
time party thereto as issuing banks (the "Issuing Banks"), and
Union Bank of California, N.A., as agent (in such capacity, the
"Agent") for the Lenders and the Issuing Banks and the other
Secured Parties (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to them in the
Credit Agreement), pursuant to which the Agent and the Lenders
have agreed, subject to certain conditions precedent, to make
Loans to the Borrower for the benefit of the Borrower and/or
other Subsidiaries of the Parent Guarantor from time to time and
the Issuing Banks have agreed, subject to certain conditions
precedent, to issue Letters of Credit for the account of the
Borrower and/or other Subsidiaries of the Parent Guarantor;
WHEREAS, the Guarantor is a wholly-owned Subsidiary of
the Parent Guarantor and will derive direct and indirect economic
benefit from the Loans and Letters of Credit and other financial
accommodations made to or for the benefit of the Borrower and its
Subsidiaries under the Credit Agreement and other Loan Documents
(which benefit will include the repayment of certain debt
obligations of the Guarantor with proceeds of the Loans); and
WHEREAS, in order to secure the prompt and complete
payment, observance and performance of (i) all of the Obligations
and (ii) all of the Guarantor's obligations and liabilities
hereunder and in connection herewith, including, without
limitation, the Guarantor's liability for the "Expenses" (as
defined below) and interest on the Obligations and the Expenses
(collectively, the "Secured Obligations"), the Agent and the
Lenders have required as a condition, among others, to entering
into the Credit Agreement and the other Loan Documents, that the
Guarantor execute and deliver this Guaranty;
NOW, THEREFORE, for and in consideration of the
foregoing, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows:
SECTION 1. Guaranty.
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(a) For value received and in consideration of each
extension of credit now or hereafter made, given or granted to or
for the direct or indirect benefit of the Borrower or other
Subsidiaries of the Parent Guarantor by the Agent, Lenders and
the Issuing Banks, or any of them (including, without limitation
each loan or advance by renewal, refinancing or extension of the
agreements described hereinabove or otherwise), or by any such
party's assignee, the Guarantor unconditionally guarantees for
the benefit of the Agent and each Secured Party the full and
prompt payment when due, whether at maturity or earlier, by
reason of acceleration or otherwise, and at all times thereafter,
of all of the Obligations (including, without limitation,
interest accruing following the filing of a bankruptcy petition
by or against the Borrower, at the then applicable rate specified
in the Credit Agreement, whether or not such interest is allowed
as a claim in bankruptcy).
(b) At any time after the occurrence of an Event of
Default, the Guarantor shall pay to the Agent for its benefit and
the benefit of the Secured Parties, on the Agent's demand and in
immediately available funds, the full amount of the Obligations.
The Guarantor further agrees to pay to the Agent and reimburse
the Agent for, on the Agent's demand and in immediately available
funds, (i) all losses (including, without limitation, lost
profits), fees, costs and expenses (including, without
limitation, all court costs and attorneys' and paralegals' fees,
costs and expenses) paid or incurred by the Agent or any Secured
Party in: (A) endeavoring to collect all or any part of the
Secured Obligations from, or in prosecuting any action against,
the Borrower, any Subsidiary of the Borrower, or the Guarantor
relating to the Credit Agreement, this Guaranty or the
transactions contemplated thereby; (B) taking any action with
respect to any security or Collateral securing the Obligations or
the Guarantor's obligations hereunder; and (C) preserving,
protecting or defending the enforceability of, or enforcing, this
Guaranty or their respective rights hereunder (all such costs and
expenses are hereinafter referred to as the "Expenses"), and (ii)
interest on (A) the Obligations which do not constitute interest,
(B) to the extent permitted by applicable law, the Obligations
which do constitute interest, and (C) the Expenses, from the date
of demand under this Guaranty until paid in full at the per annum
rate of interest applicable to Reference Rate Loans under Section
5.1(d) of the Credit Agreement. The Guarantor hereby agrees that
this Guaranty is an absolute guaranty of payment and is not a
guaranty of collection.
(c) The Guarantor agrees that, notwithstanding
anything set forth in this Guaranty to the contrary, if, after
the occurrence of an Event of Default, any Secured Party is
prevented by applicable law from exercising its right to
accelerate the maturity of all or any part of the Obligations, to
collect interest on all or any part of the Obligations or to
enforce or exercise any other right or remedy with respect to all
or any part of the Obligations, the Guarantor shall pay to the
Agent, for the benefit of such Secured Party, upon the Agent's
demand therefor and in immediately available funds, the amount
that would otherwise have been due and payable had such Secured
Party been permitted to exercise such rights and remedies.
SECTION 2. Grant of Security. To secure the prompt
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and complete payment, observance and performance of the Secured
Obligations, the Guarantor hereby grants to the Agent for its
benefit and the ratable benefit of the Secured Parties, a
security interest in all of the Guarantor's right, title and
interest in and to the following, in each case whether now owned
or existing or hereafter acquired or arising and however and
wherever arising or located (the "Guaranty Collateral"):
(a) Equipment;
(b) Inventory;
(c) Receivables;
(d) General Intangibles;
(e) chattel paper, instruments and documents: all
chattel paper, all instruments, including, without limitation,
all notes evidencing intercompany loans, and all bills of lading,
warehouse receipts and other documents of title;
(f) other Property: all Property and interests in
property of the Guarantor which may now be in or may hereafter
come into the possession, custody or control of the Agent or any
Secured Party, or any agent or affiliate of the Agent or any
Secured Party, in any way or for any purpose (whether for
safekeeping, deposit, custody, pledge, transmission, collection
or otherwise); and all rights and interests of the Guarantor in
respect of any and all (i) notes, drafts, letters of credit,
stocks, bonds, and debt and equity securities, whether or not
certificated, and warrants, options, puts and calls and other
rights to acquire or otherwise relating to the same, and all
securities accounts, financial assets and security entitlements,
(ii) interest rate and currency exchange agreements, including,
without limitation, cap, collar, floor, forward and similar
agreements and interest rate protection agreements, (iii) cash
and Cash Equivalents, and (iv) proceeds of loans, advances and
other financial accommodations; and all other personal Property
and interests in personal property of the Guarantor not
specifically included in Sections 2(a) through 2(e) above; and
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(g) all accessions and additions to, substitutions and
documents for, and replacements, proceeds and products of any of
the foregoing Guaranty Collateral, and all payments under
insurance (whether or not the Agent is the loss payee thereof),
and any indemnity, warranty or guaranty, payable by reason of
loss or damage to or otherwise with respect to any of the
foregoing Guaranty Collateral, to the extent not otherwise
included.
SECTION 3. Obligations Unconditional. The Guarantor
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hereby agrees that its obligations under this Guaranty shall be
unconditional, irrespective of:
(a) the lack of validity, unenforceability, avoidance
or subordination of any of the Secured Obligations or any of the
Loan Documents;
(b) the absence of any attempt by, or on behalf of,
any Secured Party or the Agent to collect, or to take any other
action to enforce, all or any part of the Secured Obligations
whether from or against the Borrower, any other guarantor of the
Secured Obligations or any other Person;
(c) the election of any remedy by, or on behalf of,
any Secured Party or the Agent with respect to all or any part of
the Secured Obligations;
(d) the waiver, consent, extension, forbearance or
granting of any indulgence by, or on behalf of, any Secured Party
or the Agent with respect to any provision of any of the Loan
Documents;
(e) the failure of the Agent to take any steps to
perfect and maintain its security interest in, or to preserve its
rights to, any security or Collateral for the Secured Obligations
(including, without limitation, the Guaranty Collateral);
(f) the election by, or on behalf of, any one or more
of the Secured Parties, in any proceeding instituted under
Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101
et seq.) (the "Bankruptcy Code"), of the application of
Section 1111(b)(2) of the Bankruptcy Code;
(g) any borrowing or grant of a security interest by
the Borrower, as debtor-in-possession, under Section 364 of the
Bankruptcy Code;
(h) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of any of
the Secured Parties or the Agent for repayment of all or any part
of the Secured Obligations; or
(i) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the
Borrower or the Guarantor.
SECTION 4. Representations and Warranties. The
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Guarantor represents and warrants as follows:
(a) All of the Inventory and Equipment is located at
the places specified on Exhibit A attached hereto and made a part
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hereof, except for Inventory in transit, provided that Inventory
and Equipment may be moved to other locations in accordance with
Section 6(a). All of the Inventory which is imported from a
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location outside the United States arrives at one of the ports or
other locations identified on Exhibit A. If any location of
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Inventory or Equipment is subject to a lease, sublease, mortgage
or similar instrument, the name and address of each lessor,
sublessor, lessee, sublessee and/or mortgagee (other than the
Guarantor) is set forth on Exhibit A below the address of such
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location or on a notice delivered to the Agent pursuant to
Section 6(a). The name and address of each bailee, processor,
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warehouseman, consignee or other Person in possession of any of
the Inventory or Equipment (each such Person being a "Bailee") on
the date hereof, other than carriers and shippers of Inventory in
transit, is set forth on Exhibit A, together with the address of
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the location where such Inventory or Equipment is or may be held.
Except as otherwise indicated on Exhibit A, no Person (other than
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a Person identified on Exhibit A as being a consignee) in
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possession of any of the Inventory or Equipment conducts a
business at the location of such Inventory or Equipment other
than a business in the nature of warehousing or transporting
goods for others. In the event that any Inventory is in the
possession of a Bailee, such Inventory shall not be evidenced by
a negotiable instrument or document.
(b) The principal place of business and chief
executive office of the Guarantor are located at the address
first specified above for the Guarantor or at such other address
as the Guarantor may designate in accordance with Section 8, and
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all records concerning the Receivables are located at the
addresses specified on Exhibit B attached hereto and made a part
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hereof or at such other addresses as the Guarantor may designate
in accordance with Section 8. The amount represented by the
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Guarantor from time to time to the Agent as the amount owing by
each account debtor or by all account debtors in respect of any
accounts will, at such time, be the correct amount actually and
unconditionally owing by such account debtor(s) thereunder to the
best of the Guarantor's knowledge (except to the extent, if any,
that such account debtor(s) may be entitled to normal trade
discounts, adjustments, returns and allowances).
(c) The Guarantor has good, indefeasible and
merchantable title to the Guaranty Collateral. The Guarantor is
the legal and beneficial owner of the Guaranty Collateral free
and clear of any Lien, except for the security interest created
by this Guaranty and Liens permitted under Section 10.3 of the
Credit Agreement. Except as identified on Schedule 1.1.4 to the
Credit Agreement, no financing statement or other instrument
similar in effect covering all or any part of the Guaranty
Collateral is on file in any recording office on the date hereof,
except such as may have been filed in favor of the Agent relating
to this Guaranty.
(d) The correct corporate name of the Guarantor on the
date hereof is as set forth on the first page of this Guaranty
and, except as set forth on Exhibit C attached hereto and made a
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part hereof, the Guarantor has no other corporate or fictitious
name and has not, during the immediately preceding five (5)
years, been known by or used any other corporate or fictitious
name. The Guarantor will not change its name, identity or
structure in any manner which might make any financing statement
filed hereunder seriously misleading, unless the Guarantor shall
have given the Agent at least sixty (60) days' prior written
notice thereof.
(e) This Guaranty, together with the filing of the
financing statements listed on Exhibit D attached hereto and made
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a part hereof, upon the giving of value by the Secured Parties,
creates a valid and perfected first priority security interest in
the Guaranty Collateral, securing the payment of the Secured
Obligations, and all such filings and other actions necessary or
desirable to perfect and protect such security interest have been
duly made or taken.
(f) No consent of any other Person and no
authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority is required (i) for the
grant by the Guarantor of the security interest granted hereby or
for the execution, delivery or performance of this Guaranty by
the Guarantor, (ii) for the perfection (except for filings
required in order to perfect a security interest in Collateral)
or, except for the filing of the appropriate continuation
statements with respect to the financing statements listed on
Exhibit D, maintenance of the security interest created hereby
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(including the maintenance of the first priority nature of such
security interest) or (iii) for the exercise by the Agent of its
rights and remedies hereunder.
(g) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or
waived in writing.
SECTION 5. Further Assurances.
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(a) The Guarantor agrees that from time to time, at
the expense of the Guarantor, the Guarantor will promptly execute
and deliver all further instruments and documents, and take all
further action, which may be necessary or desirable in the
opinion of the Agent or its counsel, or that the Agent may
reasonably request, in order to perfect and protect any security
interest granted or purported to be granted hereby and to enable
the Agent to exercise and enforce its rights and remedies
hereunder with respect to any Guaranty Collateral, and the
Guarantor shall in any event take such action as may be required
to maintain the truthfulness and accuracy of the representations
and warranties contained in Section 4. Without limiting the
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generality of the foregoing: (i) in the event that the Guarantor
has accounts with respect to which the account debtor is the
United States of America or any department, agency or
instrumentality thereof (all such accounts being hereinafter
referred to as "Government Receivables"), then the Guarantor
shall, at the request of the Agent, with respect to such
Government Receivables, promptly comply with the Assignment of
Claims Act of 1940, as amended (31 U.S.C. Section 3727 et seq.),
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and shall promptly deliver to the Agent evidence of such
compliance, which evidence shall be in form and substance
satisfactory to the Agent in its sole discretion; (ii) the
Guarantor shall execute and file such financing and continuation
statements, and amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Agent may
request, in order to perfect and preserve the security interest
granted or purported to be granted hereby; and (iii) the
Guarantor shall obtain and deliver to the Agent notices,
agreements (including, without limitation, subordination
agreements) and other documents reasonably requested by the Agent
for the purpose of giving advice of and perfecting the Liens
granted to the Agent for its benefit and the ratable benefit of
the Secured Parties and establishing the senior priority of the
Agent's security interest over such other parties' rights and
interests in respect of Equipment, Inventory or other Guaranty
Collateral held in the possession of, Bailees, lessors,
mortgagees or other third parties, and shall use its best efforts
to cause such third parties to acknowledge or consent to such
notices, agreements and other documents.
(b) The Guarantor hereby authorizes the Agent to file
one or more financing and continuation statements, and amendments
thereto, relating to all or any part of the Guaranty Collateral
without the signature of the Guarantor where permitted by law.
The Guarantor hereby agrees that a photocopy or other
reproduction of this Guaranty or any financing statement covering
the Guaranty Collateral or any part thereof shall be sufficient
as a financing statement where permitted by law.
(c) The Guarantor will keep and maintain at its own
cost and expense satisfactory records of the Guaranty Collateral
including, without limitation, a record of all payments received
and all credits granted with respect to the Guaranty Collateral
and all other dealings with the Guaranty Collateral. If an Event
of Default or Potential Event of Default has occurred and is
continuing, for the Agent's further security, upon the Agent's
request therefor, the Guarantor shall deliver and turn over any
such records to the Agent or, at the direction of the Agent, to
its representatives.
(d) In the event that the Guarantor shall at any time
hereafter acquire any interest in real property, whether as
owner, lessee or otherwise, the Guarantor shall execute and
deliver to the Agent, upon the Agent's request, such instruments
and documents as the Agent may request to grant the Agent a Lien
on such real property interest, and shall reimburse the Agent for
the cost of recording the same.
SECTION 6. Covenants Regarding Equipment and
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Inventory.
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(a) The Guarantor shall keep the Equipment and
Inventory, except for Inventory in transit, at the locations
specified on Exhibit A or, upon thirty (30) days' prior written
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notice to the Agent, at such other places in jurisdictions where
all actions required by Section 5 shall have been taken with
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respect to the Equipment and Inventory.
(b) To the extent not paid by the Borrower, the
Guarantor shall pay (i) all taxes, assessments and other
governmental charges imposed upon the Guarantor or on any of its
properties or assets or in respect of any of its franchises,
business, income or Property before any penalty or interest
accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies)
for sums which have become due and payable and which by law have
or may become a Lien (other than a Lien permitted under Section
10.3 of the Credit Agreement) upon any of the Guarantor's
properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that
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no such taxes, assessments and governmental charges referred to
in clause (i) above or claims referred to in clause (ii) above
need be paid if being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if
such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor.
(c) If any Equipment or Inventory is in the possession
or control of any Bailee or any of the Guarantor's agents, the
Guarantor shall notify such Bailee or agent of the Agent's
security interest in such Equipment or Inventory and, upon the
Agent's request following the occurrence of an Event of Default,
direct such Bailee or agent to hold all such Equipment or
Inventory for the Agent's account and subject to the Agent's
instructions.
(d) The Guarantor shall maintain or cause to be
maintained in good repair, working order and condition, ordinary
wear and tear excepted, all material properties (including,
without limitation, leased properties) used or useful in the
business of the Guarantor and from time to time will make or
cause to be made all appropriate repairs, renewals and
replacements thereof.
SECTION 7. Insurance. In the event the Borrower at
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any time or times hereafter shall fail to obtain or maintain any
of the policies of insurance required under the Credit Agreement
with respect to the Guaranty Collateral or to pay any premium in
whole or in part relating thereto, then the Guarantor shall
obtain and maintain such policies of insurance and pay such
premiums and take any other action required pursuant to the
Credit Agreement.
SECTION 8. Covenants Regarding Receivables. The
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Guarantor shall keep its chief place of business and chief
executive office and the office where it keeps its records
concerning the Receivables at the location(s) therefor specified
on Exhibit B or, upon thirty (30) days' prior written notice to
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the Agent, at any other locations in a jurisdiction where all
actions required by Section 5 shall have been taken with respect
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to the Receivables.
SECTION 9. Access to Premises; Books and Records. The
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Guarantor shall permit any authorized representative(s)
designated by the Agent to visit and inspect any of the
properties of the Guarantor, to examine, audit, check and make
copies of its financial and accounting records, books, journals,
orders, receipts and any correspondence and other data relating
to its business and to the Guaranty Collateral (including,
without limitation, in connection with environmental compliance,
hazard or liability), and to discuss its affairs, finances and
accounts with its officers and independent certified public
accountants, all upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably
requested. The Guarantor will keep proper books of record and
account in which entries in conformity with GAAP (and all
Requirements of Law) shall be made of all dealings and
transactions in relation to its business and activities.
SECTION 10. Transfers and Other Liens. The Guarantor
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shall not (a) sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of
the Guaranty Collateral, except Inventory in the ordinary course
of business, unless such sale, assignment, disposition or option
is expressly authorized under the Credit Agreement, or (b) create
or permit to exist any Lien, security interest, option or other
charge or encumbrance upon or with respect to any of the Guaranty
Collateral, except for the Liens and security interests granted
under this Guaranty and Liens permitted under Section 10.3 of the
Credit Agreement, and the Guarantor shall defend the right, title
and interest of the Agent in and to the Guarantor's rights to
such Guaranty Collateral, including, without limitation, the
proceeds and products thereof, against the claims and demands of
all Persons whatsoever.
SECTION 11. Agent Appointed Attorney-in-Fact. The
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Guarantor hereby irrevocably appoints the Agent the Guarantor's
attorney-in-fact, with full authority in the place and stead of the
Guarantor and in the name of the Guarantor or otherwise, from
time to time in the Agent's discretion, to take any action and to
execute any instrument which the Agent may deem necessary or
advisable to accomplish the purposes of this Guaranty, including,
without limitation, following the occurrence of an Event of
Default:
(a) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys
due and to become due under or in connection with any of the
Guaranty Collateral;
(b) to receive, indorse, and collect any drafts or
other instruments, documents and chattel paper, in connection
with clause (a) above;
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(c) to file any claims or take any action or institute
any proceedings which the Agent may deem necessary or desirable
for the collection of any of the Guaranty Collateral or otherwise
to enforce the rights of the Agent with respect to any of the
Guaranty Collateral; and
(d) to receive, open and dispose of all mail addressed
to the Guarantor.
The Guarantor hereby ratifies all that such attorney-in-fact
shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest and shall be
irrevocable.
SECTION 12. Agent May Perform. If the Guarantor fails
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to perform any agreement contained herein, the Agent may itself
perform, or cause performance of, such agreement, and the
expenses of the Agent incurred in connection therewith shall be
payable by the Guarantor as Expenses under Section 1(b).
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SECTION 13. The Agent's Rights and Duties. The powers
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conferred on the Agent and the Secured Parties hereunder are
solely to protect their interest in the Guaranty Collateral and
shall not impose any duty upon any of them to exercise any such
powers. Except for the safe custody of any Guaranty Collateral
in its possession and the accounting for moneys actually received
by it hereunder, the Agent shall have no duty as to any Guaranty
Collateral. Any action taken or omitted to be taken by the Agent
in connection with any of the Guaranty Collateral shall not
result in any liability of the Agent to the Guarantor unless such
action or omission shall be determined by a court of competent
jurisdiction to have arisen out of the gross negligence or
willful misconduct of the Agent. The Agent may exercise any of
its rights and execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its rights and duties
hereunder.
SECTION 14. Guarantor Remains Liable. Anything herein
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to the contrary notwithstanding, (a) the Guarantor shall remain
liable under the contracts and agreements included in the
Guaranty Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent
as if this Guaranty had not been executed, (b) the exercise by
the Agent of any of the rights hereunder shall not release the
Guarantor from any of its duties or obligations under the
contracts and agreements included in the Guaranty Collateral, and
(c) neither the Agent nor any Secured Party shall have any
obligation or liability under the contracts and agreements
included in the Guaranty Collateral by reason of this Guaranty,
nor shall the Agent or any Secured Party be obligated to perform
any of the obligations or duties of the Guarantor thereunder or
to take any action to collect or enforce any claim for payment
assigned hereunder.
SECTION 15. Remedies. If any Event of Default shall
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have occurred and be continuing:
(a) Upon the occurrence of an Event of Default, the
Agent may proceed directly and at once, without notice, against
the Guarantor to obtain performance of and to collect and recover
the full amount, or any portion, of the Secured Obligations,
without first proceeding against the Borrower or any other
Person, or against any security or Collateral for the Secured
Obligations. Subject only to the terms and provisions of the
Credit Agreement, the Agent shall have the exclusive right to
determine the application of payments and credits, if any, from
the Guarantor, the Borrower or from any other Person on account
of the Secured Obligations or any other liability of the
Guarantor to the Agent or any Secured Party.
(b) IF AN EVENT OF DEFAULT OCCURS, THE GUARANTOR
HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY
KIND PRIOR TO THE EXERCISE BY THE AGENT OF ITS RIGHTS TO
REPOSSESS THE GUARANTY COLLATERAL WITHOUT JUDICIAL PROCESS OR TO
REPLEVY, ATTACH OR LEVY UPON SUCH GUARANTY COLLATERAL WITHOUT
PRIOR NOTICE OR HEARING.
(c) The Agent may exercise in respect of the Guaranty
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies
of a secured party upon default under the Uniform Commercial Code
in effect in the State of New York at that time (the "Uniform
Commercial Code") (whether or not the Uniform Commercial Code
applies to the affected Guaranty Collateral), and also may (i)
without notice, demand or legal process of any kind, all of which
the Guarantor hereby waives to the extent permitted by applicable
law, at any time or times enter the Guarantor's premises and take
physical possession of the Guaranty Collateral and maintain such
possession on the Guarantor's premises, at no cost to the Agent,
or remove the Guaranty Collateral or any part thereof, to such
other places as the Agent may desire, (ii) require the Guarantor
to, and the Guarantor hereby agrees that it will at its own
expense and upon request of the Agent forthwith, assemble all or
part of the Guaranty Collateral as directed by the Agent and make
it available to the Agent at a place to be designated by the
Agent which is reasonably convenient to both parties, and (iii)
without notice, except as specified below, sell, lease, assign,
grant an option or options to purchase or otherwise dispose of
the Guaranty Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Agent's offices
or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as the Agent may deem commercially
reasonable. The Guarantor agrees that, to the extent notice of
sale shall be required by law, at least five (5) business days'
notice to the Guarantor of the time and place of any public sale
or the time after which any private sale is to be made shall
constitute commercially reasonable notification. The Agent shall
not be obligated to make any sale of Guaranty Collateral
regardless of notice of sale having been given. The Agent may
adjourn any pusale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so
adjourned. The Agent is hereby granted a license or other right
to use, without charge, the Guarantor's trademarks, registered
trademarks, trademark applications, service marks, registered
service marks, service mark applications, patents, patent
applications, trade names, rights of use of any name, labels,
fictitious names, inventions, designs, trade secrets, computer
programs, software, printouts and other computer materials,
goodwill, registrations, copyrights, copyright applications,
permits, licenses, franchises, customer lists, credit files,
correspondence, and advertising materials, or any Property of a
similar nature, as it pertains to the Guaranty Collateral, or any
rights to any of the foregoing, in completing production of,
advertising for sale, and selling any Guaranty Collateral, and
the Guarantor's rights under all licenses and franchise
agreements shall inure to the Agent's benefit.
(d) Any cash held by the Agent as Guaranty Collateral
and all cash proceeds received by the Agent in respect of any
sale of, collection from, or other realization upon all or any
part of the Guaranty Collateral may, in the discretion of the
Agent, be held by the Agent as Cash Collateral for, and/or then
or at any time thereafter be applied (after payment of any
Expenses payable to the Agent pursuant to Section 1(b)) in whole
-----------
or in part by the Agent against, all or any part of the Secured
Obligations in such order as the Agent shall elect subject to any
provision of the Credit Agreement governing the application of
such cash, proceeds, or other realization upon the Collateral.
(e) The Agent shall have the right, upon notice to the
Guarantor of its intention to do so, to notify the account
debtors or obligors under any Receivables of the assignment of
such Receivables to the Agent and to direct such account debtors
or obligors to make payment of all amounts due or to become due
to the Guarantor thereunder directly to the Agent and, upon such
notification and at the expense of the Guarantor, to enforce
collection of any such Receivables, and to adjust, settle or
compromise the amount or payment thereof, in the same manner and
to the same extent as the Guarantor might have done. After
receipt by the Guarantor of the notice from the Agent referred to
in the preceding sentence, (i) all amounts and proceeds
(including instruments) received by the Guarantor in respect of
the Receivables shall be received in trust for the benefit of the
Agent hereunder, shall be segregated from other funds of the
Guarantor and shall be forthwith paid over to the Agent in the
same form as so received (with any necessary indorsement) to be
held as Cash Collateral and shall be applied as provided by
Section 15(d) above, and (ii) the Guarantor shall not adjust,
-------------
settle or compromise the amount or payment of any Receivable,
release wholly or partly any account debtor or obligor thereof,
or allow any credit or discount thereon. In any suit, proceeding
or action brought by the Agent under any account comprising part
of the Guaranty Collateral, the Guarantor will save, indemnify
and keep the Agent, each Secured Party harmless from and against
all expense, loss or damages suffered by reason of any defense,
setoff, counterclaim, recoupment or reduction of liability
whatsoever of the obligor thereunder, arising out of a breach by
the Guarantor of any obligation or arising out of any other
agreement, Indebtedness or liability at any time owing to or in
favor of such obligor or its successors from the Guarantor, and
all such obligations of the Guarantor shall be and shall remain
enforceable against andarantor and shall not be enforceable
against the Agent or any Secured Party.
SECTION 16. Waivers.
-------
(a) The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in
the event of receivership or bankruptcy of the Borrower, protest
or notice with respect to the Secured Obligations, all setoffs
and counterclaims and all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices
of dishonor and notices of acceptance of this Guaranty, the
benefits of all statutes of limitation, and all other demands
whatsoever (and shall not require that the same be made on the
Borrower as a condition precedent to the Guarantor's obligations
hereunder), and covenants that this Guaranty will not be
discharged, except by the indefeasible payment in full (in cash)
and performance of the Secured Obligations and any other
obligations contained herein. The Guarantor further waives all
notices of the existence, creation or incurring of new or
additional Indebtedness, arising either from additional Loans
extended to the Borrower or otherwise, and also waives all
notices that the principal amount, or any portion thereof, and/or
any interest on any instrument or document evidencing all or any
part of the Secured Obligations is due, notices of any and all
proceedings to collect from the maker, any indorser or any other
guarantor of all or any part of the Secured Obligations, or from
any other Person, and, to the extent permitted by law, notices of
exchange, sale, surrender or other handling of any security or
Collateral given to the Agent to secure payment of all or any
part of the Secured Obligations.
(b) The Guarantor waives all rights and defenses that
the Guarantor may have because the Borrower's debt is secured by
real property. This means, among other things: (1) The Agent may
collect from the Guarantor without first foreclosing on any real
or personal property collateral pledged by the Borrower; and (2)
If the Agent forecloses on any real property collateral pledged
by the Borrower: (A) The amount of the debt may be reduced only
by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price;
(B) The Agent may collect from the Guarantor even if the Agent,
by foreclosing on the real property collateral, has destroyed any
right the Guarantor may have to collect from the Borrower. This
is an unconditional and irrevocable waiver of any rights and
defenses the Guarantor may have because the Borrower's debt is
secured by real property.
(c) The Guarantor waives all rights and defenses
arising out of an election of remedies by the Agent, even though
that election of remedies, such as a nonjudicial foreclosure with
respect to security for the Secured Obligations, has destroyed
the Guarantor's rights of subrogation and reimbursement against
the principal.
(d) The Secured Parties, or the Secured Parties acting
through the Agent, are hereby authorized, without notice or
demand and without affecting the liability of the Guarantor
hereunder, from time to time, in accordance with, and subject to
the terms of, the Credit Agreement, (i) to renew, extend,
accelerate or otherwise change the time for payment of, or other
terms relating to, all or any part of the Secured Obligations, or
to otherwise modify, amend or change the terms of any of the Loan
Documents, (ii) to accept partial payments on all or any part of
the Secured Obligations, (iii) to take and hold security or
Collateral for the payment of all or any part of the Secured
Obligations, this Guaranty, or any other guaranties of all or any
part of the Secured Obligations or other liabilities of the
Borrower, (iv) to exchange, enforce, waive and release any such
security or Collateral, (v) to apply such security or Collateral
and direct the order or manner of sale thereof as in its
discretion it may determine, (vi) to settle, release, exchange,
enforce, waive, compromise or collect or otherwise liquidate all
or any part of the Secured Obligations, this Guaranty, any other
guaranty of all or any part of the Secured Obligations, and any
security or Collateral for the Secured Obligations or for any
such guaranty and (vii) to assign or otherwise transfer all or
any portion of their respective rights, interests and obligations
under the Credit Agreement and the other Loan Documents
(including, without limitation, all or any portion of the
Obligations, the Commitments and the Loans) to any other Person
or Persons. Any of the foregoing may be done in any manner,
without affecting or impairing the obligations of the Guarantor
hereunder.
SECTION 17. Setoff. In addition to any Liens granted
------
under this Guaranty and the other Loan Documents and any rights
now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default,
the Agent, each Secured Party, and any Affiliate of the Agent or
any Secured Party is hereby authorized by the Guarantor at any
time or from time to time, without notice to any Person (any such
notice being hereby expressly waived) to set off and to
appropriate and to apply any and all deposits (general or
special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured (but not
including trust accounts)) and any other Indebtedness at any time
held or owing by the Agent, such Secured Party or any of their
Affiliates to or for the credit or the account of the Guarantor
against and on account of the Secured Obligations of the
Guarantor to the Agent, such Secured Party or any of their
Affiliates, irrespective of whether or not (i) the Agent or such
Secured Party shall have made any demand hereunder or (ii) the
Agent, at the request or with the consent of the Requisite
Lenders, shall have declared the principal of and interest on the
Loans and other amounts due under the Credit Agreement to be due
and payable as permitted by Article XII thereof and even though
such Secured Obligations may be contingent or unmatured. Each
Secured Party agrees that it shall not, without the express
consent of the Requisite Lenders, and that it shall, to the
extent it is lawfully entitled to do so, upon the request of the
Requisite Lenders, exercise its setoff rights hereunder against
any accounts of the Borrower, any of its Subsidiaries, or
Guarantor now or hereafter maintained with such Secured Party or
any Affiliate of either of them.
SECTION 18. Financial Information. The Guarantor
---------------------
hereby assumes responsibility for keeping itself informed of the
financial condition of the Borrower and any and all indorsers
and/or other guarantors of all or any part of the Secured
Obligations, and of all other circumstances bearing upon the risk
of nonpayment of the Secured Obligations, or any part thereof,
that diligent inquiry would reveal, and the Guarantor hereby
agrees that none of the Secured Parties nor the Agent shall have
any duty to advise the Guarantor of information known to any of
them regarding such condition or any such circumstances. In the
event the Agent or any Secured Party, in its sole discretion,
undertakes at any time or from time to time to provide any such
information to the Guarantor, the Agent and such Secured Party
shall be under no obligation (a) to undertake any investigation
not a part of its regular business routine, (b) to disclose any
information which the Agent or such Secured Party, pursuant to
accepted or reasonable commercial finance or banking practices,
wishes to maintain confidential or (c) to make any other or
future disclosures of such information or any other information
to the Guarantor.
SECTION 19. No Marshalling; Reinstatement. The
-----------------------------
Guarantor consents and agrees that none of the Secured Parties
nor the Agent nor any Person acting for or on behalf of any of
them shall be under any obligation to marshall any assets in
favor of the Guarantor or against or in payment of any or all of
the Secured Obligations. The Guarantor further agrees that, to
the extent that the Borrower, the Guarantor or any other
guarantor of all or any part of the Secured Obligations makes a
payment or payments to any Secured Party or the Agent, or any
Secured Party or the Agent receives any proceeds of Collateral,
which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to the Borrower, the Guarantor, such
other guarantor or any other Person, or their respective estates,
trustees, receivers or any other party, including, without
limitation, the Guarantor, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent
of such payment or repayment, the part of the Secured Obligations
which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the time
immediately preceding such initial payment, reduction or
satisfaction.
SECTION 20. Waiver of Subrogation. The Guarantor
---------------------
hereby waives all rights of subrogation (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) to the
claims of the Agent or any of the Secured Parties against the
Borrower and all contractual, statutory and common law rights of
reimbursement, contribution and indemnity from the Borrower which
may otherwise have arisen in connection with this Guaranty or any
of the other Loan Documents.
SECTION 21. Subordination.
-------------
(a) The Guarantor agrees that any and all claims of
the Guarantor against the Borrower, any indorser or any other
guarantor of all or any part of the Secured Obligations, or
against any of their respective properties, shall be subordinate
and subject in right of payment to the prior indefeasible
payment, in full and in cash, of all Secured Obligations.
Notwithstanding any right of the Guarantor to ask, demand, sue
for, take or receive any payment from the Borrower, all rights,
Liens and security interests of the Guarantor, whether now or
hereafter arising and howsoever existing, in any assets of the
Borrower (whether constituting part of the security or Collateral
given to any Secured Party or the Agent to secure payment of all
or any part of the Secured Obligations or otherwise) shall be and
hereby are subordinated to the rights of the Secured Parties and
the Agent in those assets. The Guarantor shall have no right to
possession of any such asset or to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of
the Secured Obligations shall have been indefeasibly paid in full
(in cash) and satisfied and all financing arrangements between
the Borrower, the Agent and the Secured Parties have been
terminated.
(b) If all or any part of the assets of the Borrower,
or the proceeds thereof, are subject to any distribution,
division or application to the creditors of the Borrower, whether
partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership,
assignment for the benefit of creditors or any other action or
proceeding, or if the business of the Borrower is dissolved or if
substantially all of the assets of the Borrower are sold, then,
and in any such event, any payment or distribution of any kind or
character, either in cash, securities or other property, which
shall be payable or deliverable upon or with respect to any
Indebtedness of the Borrower to the Guarantor ("Borrower
Indebtedness") shall be paid or delivered directly to the Agent
for application on any of the Secured Obligations, due or to
become due, until the Secured Obligations shall have first been
indefeasibly paid in full (in cash) and satisfied. The Guarantor
irrevocably authorizes and empowers the Agent to demand, sue for,
collect and receive every such payment or distribution and give
acquittance therefor and to make and present for and on behalf of
the Guarantor such proofs of claim and take such other action, in
the Agent's own name or in the name of the Guarantor or
otherwise, as the Agent may deem necessary or advisable for the
enforcement of this Guaranty. The Agent may vote such proofs of
claim in any such proceeding, receive and collect any and all
dividends or other payments or disbursements made thereon in
whatever form the same may be paid or issued and apply the same
on account of any of the Secured Obligations.
(c) Should any payment, distribution, security or
instrument or proceeds thereof be received by the Guarantor upon
or with respect to the Borrower Indebtedness prior to the
satisfaction of all of the Secured Obligations and the
termination of all financing arrangements between the Borrower,
the Agent and the Secured Parties, the Guarantor shall receive
and hold the same in trust, as trustee, for the benefit of the
Agent and the Secured Parties and shall forthwith deliver the
same to the Agent, for its benefit and the ratable benefit of the
Secured Parties, in precisely the form received (except for the
indorsement or assignment of the Guarantor where necessary), for
application to any of the Secured Obligations, due or not due,
and, until so delivered, the same shall be held in trust by the
Guarantor as the property of the Agent, for its benefit and the
ratable benefit of the Secured Parties. If the Guarantor fails
to make any such indorsement or assignment to the Agent, the
Agent or any of its agents, officers or employees are hereby
irrevocably authorized to make the same.
(d) The Guarantor agrees that until the Secured
Obligations have been indefeasibly paid in full (in cash) and
satisfied and all financing arrangements between the Borrower,
the Agent and the Secured Parties have been terminated, the
Guarantor will not assign or transfer to any Person any
claim the Guarantor has or may have against the Borrower.
SECTION 22. Enforcement; Amendments; Waivers.
--------------------------------
(a) No delay on the part of any Secured Party or the
Agent in the exercise of any right or remedy arising under this
Guaranty, the Credit Agreement, any of the other Loan Documents
or otherwise with respect to all or any part of the Secured
Obligations, the Guaranty Collateral or any other guaranty of or
security for all or any part of the Secured Obligations shall
operate as a waiver thereof, and no single or partial exercise by
any such Person of any such right or remedy shall preclude any
further exercise thereof.
(b) No modification or waiver of any of the provisions
of this Guaranty shall be binding upon the Secured Parties or the
Agent, except as expressly set forth in a writing duly signed and
delivered by the party making such modification or waiver.
Failure by any of the Secured Parties or the Agent at any time or
times hereafter to require strict performance by the Borrower,
the Guarantor, any other guarantor of all or any part of the
Secured Obligations or any other Person of any of the provisions,
warranties, terms and conditions contained in any of the Loan
Documents now or at any time or times hereafter executed by such
Persons and delivered to the Agent or any Secured Party shall not
waive, affect or diminish any right of the Agent or such Secured
Party at any time or times hereafter to demand strict performance
thereof, and such right shall not be deemed to have been waived
by any act or knowledge of the Agent or any Secured Party, or
their respective agents, officers or employees, unless such
waiver is contained in an instrument in writing, directed and
delivered to the Borrower or the Guarantor, as applicable,
specifying such waiver, and is signed by the party or parties
necessary to give such waiver under the Credit Agreement. No
waiver of any Event of Default by the Agent or any Secured Party
shall operate as a waiver of any other Event of Default or the
same Event of Default on a future occasion, and no action by the
Agent or any Secured Party permitted hereunder shall in any way
affect or impair the Agent's any Secured Party's rights and
remedies or the obligations of the Guarantor under this Guaranty.
(c) Any determination by a court of competent
jurisdiction of the amount of any principal and/or interest, or
any other amount, owing by the Borrower to the Agent or any
Secured Party shall be conclusive and binding on the Guarantor
irrespective of whether the Guarantor was a party to the suit or
action in which such determination was made.
SECTION 23. Survival of Representations and
-------------------------------
Warranties.
----------
The Guarantor covenants, warrants, and represents to the Agent
and the Secured Parties that all representations and warranties
of the Guarantor contained in this Guaranty shall be true at the
time of the Guarantor's execution of this Guaranty, shall survive
the execution, delivery and acceptance hereof by the parties
hereto and the closing of the transactions described in the
Credit Agreement and the other Loan Documents and shall continue
in effect until the termination of this Guaranty in accordance
with Section 24 below.
----------
SECTION 24. Effectiveness; Termination. This Guaranty
--------------------------
shall become effective upon its execution by the Guarantor and
shall continue in full force and effect and may not be terminated
or otherwise revoked until the Secured Obligations shall have
been indefeasibly paid in full (in cash) and discharged and the
Credit Agreement and financing arrangements between the Borrower,
the Agent and the Secured Parties shall have been terminated.
THE GUARANTOR HEREBY EXPRESSLY WAIVE THE BENEFITS OF ANY LAW
PURPORTING TO ALLOW A GUARANTOR TO REVOKE A CONTINUING GUARANTY
WITH RESPECT TO ANY TRANSACTIONS OCCURRING AFTER THE DATE OF THE
GUARANTY. If, notwithstanding the foregoing, the Guarantor shall
have any other right under applicable law to terminate or revoke
this Guaranty, the Guarantor agrees that such termination or
revocation shall not be effective until a written notice of such
revocation or termination, specifically referring hereto, signed
by the Guarantor, is actually received by the Agent. Such notice
shall not affect the right or power of any Secured Party or the
Agent to enforce rights arising prior to receipt thereof by the
Agent. If the Agent or any Secured Party grants Loans or takes
other action after the Guarantor terminates or revokes this
Guaranty but before the Agent receives such written notice, the
rights of the Agent or such Secured Party with respect thereto
shall be the same as if such termination or revocation had not
occurred.
SECTION 25. Successors and Assigns. This Guaranty
----------------------
shall be binding upon the Guarantor and upon the successors and
assigns of the Guarantor and shall inure to the benefit of the
Secured Parties and the Agent and their respective successors and
assigns; all references herein to such parties and to the
Borrower shall be deemed to include their respective successors
and assigns. The successors and assigns of the Guarantor and the
Borrower shall include, without limitation, their respective
receivers, trustees and debtors-in-possession.
SECTION 26. Officer Authority. The Guarantor
-----------------
authorizes its Chairman, President, Treasurer, and each of its
Executive Vice Presidents and Vice Presidents, Secretaries and
Assistant Secretaries, respectively, from time to time, severally
and not jointly, on behalf and in the name of the Guarantor from
time to time in the discretion of such officer, to take or omit
to take any and all action and to execute and deliver any and all
documents and instruments which such officer may determine to be
necessary or desirable in relation to, and perform any
obligations arising in connection with, this Guaranty and any of
the transactions contemplated hereby, and, without limiting the
generality of the foregoing, hereby gives to each such officer
severally the power and right on behalf of the Guarantor, without
notice to or assent by the Guarantor, to do the following: (a) to
execute and deliver any amendment, waiver, consent, supplement,
other modification or reaffirmation of this Guaranty or any
document covering any of the security for this Guaranty, and to
perform any obligation arising in connection herewith or
therewith; (b) to sell, transfer, assign, encumber or otherwise
deal in or with the security for this Guaranty or any part
thereof; (c) to grant Liens, security interests or other
encumbrances on or in respect of any Property or assets of the
Guarantor, whether now owned or hereafter acquired, in favor of
the Secured Parties and the Agent; (d) to send notices,
directions, orders and other communications to any Person
relating to this Guaranty, or the security for all or any part of
the Secured Obligations; (e) to take or omit to take any other
action contemplated by or referred to in this Guaranty or any
document covering any of the security for all or any part of the
Secured Obligations; and (f) to take or omit to take any action
with respect to this Guaranty, any of the security for all or any
part of the Secured Obligations or any document covering any such
security, all as such officer may determine in his or her sole
discretion. The undersigned hereby certifies that he/she has all
necessary authority to grant and execute this Guaranty on behalf
of the Guarantor.
SECTION 27. Governing Law. THIS GUARANTY SHALL BE
-------------
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 28. Consent to Jurisdiction; Counterclaims;
--------------------------------------
Forum Non Conveniens.
--------------------
(a) EACH OF THE AGENT AND THE GUARANTOR IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL
COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING
JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY
LAW, IN SUCH FEDERAL COURT. THE GUARANTOR IRREVOCABLY DESIGNATES
AND APPOINTS CT CORPORATION SYSTEM AS ITS AGENT (THE "PROCESS
AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE
AGENT AND THE GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. THE GUARANTOR WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(b) THE GUARANTOR AGREES THAT THE AGENT SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GUARANTOR OR ITS PROPERTY IN A COURT
IN ANY LOCATION TO ENABLE THE AGENT AND THE SECURED PARTIES TO
REALIZE ON THE GUARANTY COLLATERAL OR ANY OTHER SECURITY FOR THE
SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF THE AGENT OR ANY SECURED PARTY. THE
GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE AGENT OR ANY
SECURED PARTY TO REALIZE ON THE GUARANTY COLLATERAL OR ANY OTHER
SECURITY FOR THE SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF THE AGENT OR ANY SECURED PARTY.
THE GUARANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH THE AGENT OR ANY SECURED PARTY MAY
COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
SECTION 29. Service of Process. THE GUARANTOR
------------------
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE GUARANTOR'S NOTICE
ADDRESS SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE FIVE
(5) DAYS AFTER SUCH MAILING. THE GUARANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS)
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE AGENT TO
BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY
OTHER JURISDICTION.
SECTION 30. Waiver of Jury Trial. EACH OF THE AGENT
--------------------
AND THE GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION
OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT.
SECTION 31. Notices. Unless otherwise specifically
-------
provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be
personally served, telecopied, telexed or sent by courier service
or United States mail and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of a
telecopy or telex or four (4) Business Days after deposit in the
United States mail with postage prepaid and properly addressed.
For the purposes hereof, the addresses of the parties hereto
(until notice of a change thereof is delivered as provided in
this Section 31) shall be as set forth below:
----------
if to the Guarantor, at
c/o American Eco Corporation
11011 Jones Road
Houston, Texas 77070
Attention: David L. Norris
Telecopy: (281) 774-7006
with a copy to
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
Attention: Bruce A. Rich, Esq.
Telecopy: (212) 603-2001
if to the Agent, at
Union Bank of California, N.A.
Environmental Services
445 South Figueroa Street, 15th Floor
Los Angeles, California 90071
Attention: Vicente C. Bendanillo, Jr.
Telecopy: (213) 236-4096
with a copy to
Sidley & Austin
555 West Fifth Street, 40th Floor
Los Angeles, California 90013
Attention: Edward D. Eddy, Esq.
Telecopy: (213) 896-6600
or, as to each party, at such other address as may be designated
by such party in a written notice to the other party.
SECTION 32. Construction.
------------
(a) The parties acknowledge that each party and its
counsel have reviewed and revised this Guaranty and that the
normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be
employed in the interpretation of this Guaranty or any amendments
or exhibits hereto.
(b) The words "hereof", "herein" and "hereunder" and
words of like import when used in this Guaranty shall refer to
this Guaranty as a whole and not to any particular provision of
this Guaranty and section references are to this Guaranty unless
otherwise specified.
(c) All terms defined in this Guaranty in the singular
shall have comparable meanings when used in the plural, and vice
----
versa, unless otherwise specified.
-----
(d) Unless otherwise defined herein or in the Credit
Agreement, terms used in Article 9 of the Uniform Commercial Code
are used herein as therein defined.
(e) Section headings in this Guaranty are included
herein for convenience of reference only and shall not constitute
a part of this Guaranty for any other purpose.
SECTION 33. Execution in Counterparts. This Guaranty
-------------------------
and any amendments, waivers, consents or supplements hereto may
be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 34. Severability. Wherever possible, each
------------
provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this
Guaranty.
SECTION 35. Merger. This Guaranty represents the
------
final agreement of the Guarantor with respect to the matters
contained herein and may not be contradicted by evidence of prior
or contemporaneous agreements between the Guarantor and the Agent
or any Secured Party.
IN WITNESS WHEREOF, this Guaranty has been duly
executed by the Guarantor as of the day and year first set forth
above.
[GUARANTOR]
By:__________________________
Name:________________________
Title:_______________________
Accepted and agreed to
as of the ___ day of ______, 1997.
UNION BANK OF CALIFORNIA, N.A.,
as Agent
By:__________________________
Name:________________________
Title:_______________________
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT A
to
Unlimited Guaranty and Security Agreement
Locations of Inventory and Equipment
------------------------------------
Locations Owned or Leased by the Guarantor
------------------------------------------
None, except:
Bailees
-------
None, except:
Ports and Other Points of Entry Into the United States
------------------------------------------------------
None, except:
EXHIBIT B
to
Unlimited Guaranty and Security Agreement
Address Where Records Concerning
Accounts Are Located
--------------------
Chief Executive Office
----------------------
Other Addresses
---------------
None, except:
EXHIBIT C
to
Unlimited Guaranty and Security Agreement
Corporate or Fictitious Names
-----------------------------
None, except:
EXHIBIT D
to
Unlimited Guaranty and Security Agreement
Financing Statements Naming the Agent
-------------------------------------
as Secured Party
----------------
None, except: