Exhibit 10.6
AMERICAN ECO CORPORATION GUARANTEE
This Guarantee is made as of May 7, 1999, between
AMERICAN ECO CORPORATION, an Ontario corporation
("GUARANTOR")
and
GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, on its own behalf and as agent (together with
its successors and assigns, "AGENT") for the financial
institutions and other entities that are from time to time
signatories, as lenders ("LENDERS") to the Credit Agreement
as hereinafter defined
RECITALS
A. Pursuant to that certain credit agreement dated as of the date hereof among
the Persons named therein as Borrowers, Guarantor and the other Persons named
therein as Credit Parties, Agent and Lenders (as from time to time amended,
restated, supplemented or otherwise modified, the "CREDIT AGREEMENT"), Lenders
have agreed to make Loans to Borrowers and to incur Letter of Credit Obligations
on behalf of Borrowers.
B. In connection with the making of the Loans and the incurrence of Letter of
Credit Obligations under the Credit Agreement and as a condition precedent
thereto, Agent and Lenders require that Guarantor shall have executed and
delivered a guarantee of the payment and performance of the obligations of
Borrowers, Canadian Subsidiaries, Nucon Ltd. and Canadian Energy Services
Limited to Agent and Lenders under the Credit Agreement and the other Loan
Documents.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce Lenders to provide the Loans and other
financial accommodations and to incur Letter of Credit Obligations under the
Credit Agreement, it is agreed as follows:
SECTION 1 -- INTERPRETATION
1.1 DEFINED TERMS. In this Guarantee, including the recitals and preamble:
(1) GUARANTEE means this American Eco Corporation Guarantee, as amended,
supplemented, restated and modified from time to time.
(2) GUARANTEED OBLIGATIONS has the meaning given to it in Section 2 of this
Guarantee.
(3) GUARANTEED PARTIES has the meaning given to it in Section 2 of this
Guarantee.
(4) OBLIGORS means Borrowers, Canadian Subsidiaries, any other Credit Party from
time to time named in the Credit Agreement, Nucon Ltd. and Canadian Energy
Services Limited.
(5) TAX and TAXES each has the meaning given to it in Section 3.2(2) of this
Guarantee.
1.2 OTHER DEFINED TERMS. Capitalized terms used herein and not otherwise defined
have the meanings given to them in the Credit Agreement or in Annex "A" thereto.
1.3 REFERENCES. Unless something in the subject matter or context is
inconsistent therewith, all references to Sections are to sections and
subsections of this Guarantee. The words "hereto", "herein", "hereof",
"hereunder" and similar expressions refer to this Guarantee and not to any
particular Section, paragraph or other portion hereof.
1.4 RULES OF INTERPRETATION. In this Guarantee, unless otherwise specifically
provided, the singular includes the plural and vice versa and "in writing" or
"written" includes printing, typewriting, or any electronic means of
communication capable of being visibly reproduced at the point of reception,
including telecopier.
SECTION 2 -- GUARANTEE
2.1 GUARANTEE. Guarantor hereby irrevocably and unconditionally guarantees to
Agent for the benefit of each of the Lenders and Agent and their respective
successors, transferees and assigns (the "GUARANTEED PARTIES") the punctual and
complete payment and satisfaction when due (whether at stated maturity, by
acceleration or otherwise), and at all times thereafter, of all the
indebtedness, liabilities and obligations of each other Obligor, present and
future, direct and indirect, absolute and contingent, matured and unmatured, at
any time or from time to time existing or arising under or by virtue of or
otherwise in connection with the Credit Agreement and any other Loan Documents
to which such Obligor is party which are or may become at any time and from time
to time owing or payable by such Obligor to the Guaranteed Parties, or any of
them, or which remain owing and unpaid to the Guaranteed Parties, or any of
them, (the "GUARANTEED OBLIGATIONS").
2.2 FUNDS TRANSFERS. If Guarantor shall engage in any transaction as a result of
which Borrowers are required to make a mandatory prepayment with respect to the
Guaranteed Obligations under the terms of the Credit Agreement (including any
issuance or sale of Guarantor's Stock or any sale of its assets), Guarantor
shall distribute to Borrowers an amount, or make a contribution to the capital
of Borrowers in an amount, equal to the mandatory prepayment required under the
terms of the Credit Agreement.
SECTION 3 -- PAYMENT
3.1 PAYMENT ON DEMAND. Guarantor agrees to make immediate payment to the
Guaranteed Parties, or any of them, of all Guaranteed Obligations owing or
payable to the Guaranteed Parties, or any of them, upon demand for payment
therefor by Agent to Guarantor.
3.2 NO SET-OFF. Each payment to be made by Guarantor hereunder in respect of the
Guaranteed Obligations shall be payable in the currency or currencies in which
such Guaranteed Obligations are denominated, and shall be made:
(1) without set-off or counterclaim; and
(2) free and clear of and without deduction or withholding for or
on account of any present and future taxes, levies, imposts,
stamp taxes, duties, charges to tax, fees, deductions,
withholdings and any conditions or restrictions resulting in
charges to tax and all penalties, interest and other payments
on or in respect thereof ("TAX" or "TAXES") unless Guarantor
is compelled by law to make payment subject to such Taxes.
3.3 TAXES. All Taxes in respect of this Guarantee or any amounts payable or paid
under this Guarantee shall be paid by Guarantor when due and in any event prior
to the date on which penalties attach thereto. Guarantor will indemnify each of
the Guaranteed Parties against and in respect of all such Taxes.
3.4 TAX GROSS-UP. Without limiting the generality of the foregoing, if any Taxes
or amounts in respect thereof must be deducted or withheld from any amounts
payable or paid by Guarantor hereunder, Guarantor shall pay such additional
amounts as may be necessary to ensure that each of the Guaranteed Parties
receives a net amount equal to the full amount which it would have received had
payment (including of any additional amounts payable under this Section 3.4) not
been made subject to such Taxes. Within thirty (30) days of each payment by
Guarantor hereunder of Taxes or in respect of Taxes, Guarantor shall deliver to
Agent satisfactory evidence (including originals, or certified copies, of all
relevant receipts) that such Taxes have been duly remitted to the appropriate
authority or authorities.
SECTION 4 -- OBLIGATIONS ABSOLUTE
4.1 OBLIGATIONS ABSOLUTE. The obligations of Guarantor hereunder are and shall
be absolute and unconditional and any monies or amounts expressed to be owing or
payable by Guarantor hereunder which may not be recoverable from Guarantor on
the footing of a guarantee shall be recoverable from Guarantor as a primary
obligor and principal debtor in respect thereof; provided however that this
Section 4.1 shall not be construed as conferring on Guarantor any rights or
benefits that Guarantor would have in law or equity under any of the Loan
Documents if it were an Obligor. Guarantor agrees that any notice or directive
given at any time to Agent that is inconsistent with the Guarantor being a
principal debtor with respect to the Guaranteed Obligations shall be null and
void and may be ignored by Agent, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guarantee for the
reason that such pleading or introduction would be at variance with the written
terms of this Guarantee, unless Agent has specifically agreed otherwise in
writing. This Guarantee is a guarantee of payment and performance and not of
collection.
SECTION 5 -- INDEMNITY
5.1 INDEMNITY. As an original and independent obligation under this Guarantee,
Guarantor shall:
(1) indemnify each of the Guaranteed Parties and keep each of the
Guaranteed Parties indemnified against any cost, loss, expense
or liability of whatever kind resulting from the failure by
any Obligor to make due and punctual payment of any of the
Guaranteed Obligations or resulting from any of the Guaranteed
Obligations being or becoming void, voidable, unenforceable or
ineffective against any Obligor (including, but without
limitation, all reasonable legal fees and disbursements and
other costs, charges and expenses incurred by the Guaranteed
Parties, or any of them, in connection with preserving or
enforcing, or attempting to preserve or enforce, their rights
under this Guarantee); and
(2) pay on demand the amount of such cost, loss, expense or
liability whether or not any of the Guaranteed Parties have
attempted to enforce any rights against any Obligor or any
other Person or otherwise.
SECTION 6 -- OBLIGATIONS CONTINUING
6.1 NO REDUCTION. The obligations of Guarantor hereunder shall be continuing and
shall remain in full force and effect until the Termination Date. The
obligations of Guarantor hereunder shall not be satisfied, reduced, affected or
discharged by any intermediate payment, settlement or satisfaction of the whole
or any part of the principal, interest, fees and other monies or amounts which
may at any time be or become owing or payable under or by virtue of or otherwise
in connection with the Guaranteed Obligations or the Loan Documents.
6.2 EFFECT OF RECISION. The obligations of Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of Guarantor
hereunder (whether such payment shall have been by or on behalf of any Obligor,
or by or on behalf of Guarantor) is rescinded or reclaimed from any of the
Guaranteed Parties upon the insolvency, bankruptcy, liquidation or
reorganization of any Obligor or Guarantor or otherwise, all as though such
payment had not been made.
SECTION 7 -- OBLIGATIONS NOT AFFECTED
7.1 OBLIGATIONS NOT AFFECTED. The obligations of Guarantor hereunder shall not
be affected or impaired by any act, omission, matter or thing whatsoever,
occurring before, upon or after any demand for payment hereunder (and whether or
not known to Guarantor or any of the Guaranteed Parties) which, but for this
provision, might constitute a whole or partial defence to a claim against
Guarantor hereunder or might operate to release or otherwise exonerate Guarantor
from any of its obligations hereunder or otherwise affect such obligations,
whether occasioned by default of Agent or any of the Lenders or otherwise, and,
to the extent waivable under applicable law, Guarantor hereby irrevocably waives
any defence it may now or hereafter have in any way relating to any of the
foregoing, including, without limitation:
(1) any limitation of status or power, disability, incapacity or
other circumstance relating to Guarantor, any other Obligor,
or any other Person, including any insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition,
dissolution, winding-up or other proceeding involving or
affecting Guarantor, any other Obligor or any other Person;
(2) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of Guarantor,
any other Obligor or any other Person under the Loan Documents
or any other agreement, document or instrument;
(3) any failure of any other Obligor, or any other Person, whether
or not without fault on their part, to perform or comply with
any of the provisions of the Loan Documents or to give notice
thereof to Guarantor;
(4) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy
against any other Obligor or any other Person (including,
without limitation, rights and remedies granted under the Loan
Documents) or their respective assets, or the release or
discharge of any such right or remedies;
(5) the granting of time, renewals, extensions, compromises,
concessions, waivers, consents, releases, discharges and other
indulgences to any Obligor or any other Person;
(6) any amendment, restatement, variation, modification,
supplement or replacement of the Loan Documents or any other
agreement, document or instrument to which Guarantor, any
other Obligor or any other Person is or may become a party;
(7) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of
Guarantor, any other Obligor or any other Person;
(8) any merger or amalgamation of Guarantor or any other Obligor
with any Person or Persons;
(9) the occurrence of any change in the laws, rules, regulations
or ordinances of any jurisdiction or by any present or future
action of any governmental body or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary,
reduce or otherwise affect, any of the Guaranteed Obligations
or the obligations of Guarantor under this Guarantee;
(10) the existence, value or condition of, or the failure to
perfect Agent's Liens against, any collateral for the
Guaranteed Obligations, or any action, or the absence of any
action, by Agent and Lenders or any of them in respect thereof
(including the release of any such security);
(11) the existence of any claim, set-off or other rights which
Guarantor may have at any time against any other Obligor, the
Guaranteed Parties, or any other Person, or which any other
Obligor may have at any time against the Guaranteed Parties,
whether in connection with the Loan Documents or otherwise;
and
(12) any other circumstance (including, without limitation, any
existence of or reliance on any representation by Agent, but
excluding complete, irrevocable payment) that might otherwise
constitute a legal or equitable discharge or defence of
Guarantor or any other Obligor under the Loan Documents
including, without limitation, those of Guarantor in respect
of its guarantee hereunder.
Guarantor acknowledges and agrees that the waivers set out in this Section 7.1,
and in Section 4.1 are of the essence of the transaction contemplated by the
Credit Agreement and the other Loan Documents and that, but for this Guarantee
and such waivers, Agent and Lenders would decline to enter into the Credit
Agreement.
7.2 WAIVER. Without in any way limiting the provisions of Section 7.1 of this
Guarantee, Guarantor hereby waives notice of acceptance hereof, notice of any
liability of Guarantor hereunder, notice or proof of reliance by the Guaranteed
Parties upon the obligations of Guarantor hereunder, and diligence, presentment,
demand for payment on Guarantor or any other Obligor, protest, notice of
dishonour or non-payment of any of the Guaranteed Obligations, or other notice
or formalities to Guarantor or any other Obligor, of any kind whatsoever.
7.3 NO OBLIGATION TO TAKE ACTION AGAINST OBLIGOR. Neither Agent nor any of the
other Guaranteed Parties shall have any obligation to enforce any rights or
remedies or to take any other steps against any Obligor, or any other Person or
any property of any Obligor, or any other Person before Agent is entitled to
demand payment and performance by Guarantor of its liabilities and obligations
under this Guarantee, and Guarantor hereby waives all benefit of discussion. The
obligations of Guarantor hereunder are independent of the Guaranteed Obligations
and a separate action or actions may be brought and prosecuted against Guarantor
to enforce this Guarantee, irrespective of whether any action is brought against
any other Obligor or whether any other Obligor is joined in any such action or
actions.
7.4 DEALING WITH OBLIGORS AND OTHERS. The Guaranteed Parties, without releasing,
discharging, limiting or otherwise affecting in whole or in part Guarantor's
obligations and liabilities hereunder and without the consent of or notice to
Guarantor, may:
(1) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to any
Obligor or any other Person;
(2) amend, vary, modify, supplement or replace any Loan Document
or any other related document or instrument;
(3) take or abstain from taking securities or collateral from any
Obligor, or from perfecting securities or collateral of any
Obligor;
(4) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or
without consideration) any and all collateral, mortgages or
other security given by any Obligor or any third party with
respect to the obligations or matters contemplated by the
Credit Agreement;
(5) accept compromises or arrangements from any Obligor;
(6) apply all monies at any time received from any Obligor, or
from any collateral upon such part of the Guaranteed
Obligations as they may see fit or change any such application
in whole or in part from time to time as they may see fit; and
(7) otherwise deal with, or waive or modify their right to deal
with any Obligor and all other Persons and securities as they
may see fit.
7.5 ACKNOWLEDGEMENT. Guarantor hereby acknowledges communication of the terms of
the Loan Documents and of all the provisions therein contained and consents to
and approves the same. Guarantor hereby represents and warrants that there are
no conditions precedent to the effectiveness of this Guarantee that have not
been satisfied or waived.
7.6 ACCOUNTS STATED. Guarantor shall be bound by any account settled between any
Obligor and the Guaranteed Parties, and if no such account has been so settled
immediately before demand for payment under this Guarantee, any account stated
by Agent shall be accepted by Guarantor as prima facie evidence in the absence
of manifest error of the amount which at the date of the account so stated is
due by such Obligor to the Guaranteed Parties or remains unpaid by such Obligor
to the Guaranteed Parties.
7.7 POSTPONEMENT. Until the Guaranteed Obligations are paid and otherwise
satisfied in full and Guarantor has satisfied all of its obligations pursuant to
this Guarantee including, without limitation, pursuant to Section 3.1 of this
Guarantee, all indebtedness and liabilities, present and future, of each Obligor
to Guarantor, and all notes and instruments evidencing such indebtedness and
liabilities, are hereby assigned to the Guaranteed Parties and postponed to the
liabilities to the Guaranteed Parties and all moneys received by Guarantor in
respect of the indebtedness and liabilities of each Obligor to Guarantor shall
be received in trust for the Guaranteed Parties and forthwith upon receipt shall
be paid over to Agent on behalf of the Guaranteed Parties, the whole without in
any way limiting or lessening the liability of Guarantor under the guarantee
contained in this Guarantee. This assignment and postponement is independent of
such guarantee and shall remain in full effect notwithstanding that the
liability of Guarantor under such guarantee may be extinct; provided that
nothing in this Section 7.7 shall restrict in any way any payments in respect of
the indebtedness and liabilities of any Obligor to Guarantor which are permitted
by the Credit Agreement.
SECTION 8 -- REPRESENTATIONS AND WARRANTIES OF GUARANTOR
8.1 REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Agent
on behalf of the Guaranteed Parties as follows and acknowledges and confirms
that the Guaranteed Parties are relying upon such representations and
warranties:
(1) Guarantor is a corporation duly incorporated and validly
existing under the laws of Ontario and has all requisite power
and authority to execute, deliver and perform this Guarantee;
(2) the execution, delivery and performance by Guarantor of this
Guarantee is within its corporate power, has been duly
authorized by all necessary corporate action, does not
contravene any law or governmental regulation or any
contractual restriction binding on or affecting Guarantor or
any of its property;
(3) no authorization or approval or other action by, and no notice
to or filing with, any governmental body is required for the
due execution, delivery and performance by Guarantor of this
Guarantee;
(4) Guarantor is the direct or indirect beneficial owner of all of
the capital stock of each of the other Obligors (other than
Controlled Power Limited Partnership) and
is the direct or indirect beneficial owner of all of the
capital stock of each of the general and limited partners of
Controlled Power Limited Partnership;
(5) the execution, delivery and performance of the Guarantor's
obligations under this Guarantee will not result in a breach
of any agreement to which Guarantor is a party or by which
Guarantor or its property is bound; and
(6) this Guarantee is a legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with
its terms subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and (ii) the fact
that specific performance and injunctive relief may be given
at the discretion of the court.
SECTION 9 -- GENERAL
9.1 NOTICES. Except as otherwise provided herein, each notice, demand, request,
consent, approval, declaration or other communication which shall or may be
given hereunder shall be in writing and shall be deemed to have been validly
served, given or delivered if served, given or delivered in accordance with
Section 11.10 of the Credit Agreement. The giving of any notice to any party
hereunder may be waived in writing by such party.
9.2 AMENDMENT. No modification, variation or amendment of any provision of this
Guarantee shall be made except by a written agreement, executed by the parties
hereto and no waiver of any provision hereof shall be effective unless in
writing.
9.3 SUCCESSOR AGENT. In the event that Agent for the time being under the Credit
Agreement shall resign or be removed and a successor agent thereafter shall be
appointed in accordance with Section 9.7 of the Credit Agreement, then upon such
successor agent agreeing in writing to be bound by the provisions of this
Guarantee as Agent hereunder, all references herein to Agent in this Guarantee
shall be deemed to be references to such successor agent as and from such date
and such successor agent shall receive and become vested with all the rights,
powers, privileges and duties of the retiring or removed Agent and the retiring
or removed Agent shall be discharged from its further duties and obligations as
Agent under this Guarantee.
9.4 JUDGMENT CURRENCY. If for the purposes of obtaining judgment in any court in
any jurisdiction with respect to this Guarantee it becomes necessary to convert
into the currency of such jurisdiction (herein called the "JUDGMENT CURRENCY")
any amount due hereunder in any currency other than the Judgment Currency, then
conversion shall be made at the rate of exchange prevailing on the Business Day
before the day on which judgment is given. For this purpose, "rate of exchange"
means the rate at which Agent would, on the relevant date at or about 12:00 noon
(New York time), be prepared to sell a similar amount of such currency in New
York against the Judgment Currency. In the event that there is a change in the
rate of exchange prevailing between the Business Day before the day on which the
judgment is given and the date of payment of the amount due, Guarantor will, on
the date of payment, pay such additional amounts (if any) as may be necessary
to ensure that the amount paid on such date is the amount in the Judgment
Currency which when converted at the rate of exchange prevailing on the date of
payment is the amount then due under this Guarantee in such other currency. Any
additional amount due from Guarantor under this Section 9.4 will be due as a
separate debt and shall not be affected by judgment being obtained for any other
sums due under or in respect of this Guarantee.
9.5 APPLICABLE LAW. This Guarantee shall be conclusively deemed to be a contract
made under, and shall for all purposes be governed by, and construed and
interpreted in accordance with, the laws of the Province of Ontario and the
federal laws of Canada applicable therein in effect from time to time without
prejudice to or limitation of any other rights or remedies available under the
laws of any jurisdiction where property or assets of Guarantor may be found.
9.6 JURISDICTION.
(1) Guarantor irrevocably agrees that any suits, actions or
proceedings arising out of or in connection with this
Guarantee (collectively "PROCEEDINGS") may be brought in any
New York State Court or U.S. Federal Court sitting in the
State of New York and submits and attorns to the non-exclusive
jurisdiction of each such court.
(2) Guarantor irrevocably waives any objections which it may have
now or hereafter to the laying of the venue of any Proceedings
in any court referred to in paragraph (a) and any claim that
any such Proceedings have been brought in an inconvenient
forum and further irrevocably agrees that a judgment in any
Proceedings brought in any such court shall be conclusive and
binding upon Guarantor and may be enforced in any courts to
the jurisdiction of which such parties may be subject by
Proceedings upon such judgment.
(3) Nothing contained in this Section 9.6 shall limit the right of
Agent or any other Guaranteed Party to take Proceedings
against Guarantor in any other court of competent jurisdiction
nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(4) Guarantor hereby irrevocably consents generally to the fullest
extent permitted by law in respect of any Proceedings to the
giving of any relief and the issue of any process in
connection with such Proceedings including, without
limitation, the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use)
of any order or judgment which may be made or given in such
Proceedings.
(5) Guarantor hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising
out of or relating to the Loan Documents or this Guarantee,
the transactions contemplated hereby or thereby or the actions
of any Guaranteed Party in the negotiation, administration,
performance or enforcement hereof or thereof.
9.7 COSTS AND EXPENSES. Guarantor shall pay on demand by Agent any and all
reasonable costs, fees and expenses (including, without limitation, reasonable
legal fees and expenses) incurred by Agent in enforcing any of its rights under
this Guarantee.
9.8 NO WAIVER, CUMULATIVE REMEDIES. Agent's or any Lender's failure, at any time
or times, to require strict performance by Guarantor of any provision of this
Guarantee shall not waive, affect or diminish any right of Agent or such Lender
thereafter to demand strict compliance and performance therewith. Any suspension
or waiver of an Event of Default shall not suspend, waive or affect any other
Event of Default whether the same is prior or subsequent thereto and whether the
same or of a different type. Agent's and Lenders' rights and remedies under this
Guarantee shall be cumulative and nonexclusive of any other rights and remedies
which Agent or any Lender may have under any other agreement, including the
other Loan Documents, by operation of law or otherwise. Recourse to the
Collateral shall not be required. No single or partial exercise by Agent or
Lender of any right or remedy precludes or otherwise affects the exercise of any
other right or remedy to which that party may be entitled.
9.9 WAIVER OF RIGHTS OF SUBROGATION, REIMBURSEMENT, ETC. Guarantor hereby
irrevocably waives any claim or other rights that it may now or hereafter
acquire against any Obligor that arise from the existence, payment, performance
or enforcement of the Guaranteed Obligations under this Guarantee, the Credit
Agreement or any other Loan Document, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Guaranteed Parties
against any Obligor, or any collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Obligor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right; provided,
however, that such waiver shall terminate at such time, if any, as the
Guaranteed Obligations and all other amounts payable under this Guarantee have
been paid in full and all obligations of the Guaranteed Parties under the Loan
Documents have terminated; provided that Agent shall be entitled to hold any
Potential Preference Payment (as hereafter defined) in trust for the benefit of
the Guaranteed Parties and shall forthwith pay such amount to the Guaranteed
Parties, to be credited and applied following the expiry of the potential
preference period, to the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms of the Credit Agreement. The term "POTENTIAL
PREFERENCE PAYMENT" shall mean any payment or other transfer received for the
benefit of the Guaranteed Parties for or on account of the Guaranteed
Obligations which could be avoided by a trustee in bankruptcy for any Obligor,
or by or for the benefit of other creditors of any Obligor as a "preference" or
a "preferential transfer" or for any other reason under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect in any
bankruptcy, insolvency or similar proceeding with respect to any Obligor.
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by the Credit Agreement and that the
waiver set forth in this Section 9.9 is knowingly made in contemplation of such
benefits.
9.10 GUARANTEE IN ADDITION TO OTHER OBLIGATIONS. The obligations of Guarantor
under this Guarantee are in addition to and not in substitution for any other
obligations to Agent or to any of the other Guaranteed Parties in relation to
the Loan Documents and any guarantees, indemnities or security at any time held
by or for the benefit of any of them.
9.11 ENTIRE AGREEMENT. This Guarantee, including all documents contemplated
hereby, constitutes the entire agreement between the parties with respect to the
subject matter and supersedes all prior negotiations, undertakings,
representations and understandings.
9.12 SEVERABILITY. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
9.13 SUCCESSORS AND ASSIGNEES. This Guarantee shall be binding upon and enure to
the benefit of Guarantor and Agent and the other Guaranteed Parties and their
respective successors and permitted assignees, except that Guarantor may not
assign any of its obligations hereunder.
The Parties have executed this Guarantee.
AMERICAN ECO CORPORATION
By: /s/ David L. Norris
--------------------------
Name: David L. Norris
Title: Vice President
By:
--------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Charles D. Chiodo
--------------------------
Name: Charles D. Chiodo
Title: Authorized Signatory