EXHIBIT 10.6.3
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Ref. No. 582-07596
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UNCONDITIONAL GUARANTY
FOR VALUE RECEIVED, and in order to induce XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC. ("MLBFS") to advance moneys or extend or
continue to extend credit to or for the benefit of, or modify its
credit relationship with AMERICAN ECO/SP CORPORATION (with any
successor-in-interest, including, without limitation, any
successor by merger or by operation of law, herein collectively
referred to as "Customer"), under: (a) that certain WCMA NOTE,
LOAN AND SECURITY AGREEMENT NO. 582-07596 between MLBFS and
Customer (the "Loan Agreement"), (b) any "Additional Agreements",
as that term is defined in the Loan Agreement (including, without
limitation, the NOTE incorporated by reference into the Loan
Agreement), and (c) all present and future amendments and other
evidences of any extensions, increases, renewals and other
changes of or to the Loan Agreement or Additional Agreements
(collectively, the "Guaranteed Documents"), and for other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, THE UNDERSIGNED C.A. XXXXXX MAINTENANCE,
INC., a corporation organized and existing under the laws of the
State of Texas ("Guarantor"), HEREBY UNCONDITIONALLY GUARANTEES
TO MLBFS (i) the prompt and full payment when due, by
acceleration or otherwise, of all sums now or any time hereafter
due from Customer to MLBFS under the Guaranteed Documents; (ii)
the prompt, full and faithful performance and discharge by
Customer of each and every other covenant and warranty of
Customer set forth in the Guaranteed Documents, and (iii) the
prompt and full payment and performance of all other
indebtedness, liabilities and obligations of customers to MLBFS,
howsoever created or evidenced and whether now existing or
hereafter arising (collectively, the "Obligations"). Guarantor
further agrees to pay all reasonable costs and expenses
(including, but not limited to, court costs and reasonable
attorneys' fees) paid or incurred by MLBFS in endeavoring to
collect or enforce performance of any of the Obligations, or in
enforcing this Guaranty.
This Guaranty is absolute, unconditional and continuing and shall
remain in effect until all of the Obligations shall have been
fully paid, performed and discharged. Upon the occurrence and
during the continuance of any default or Event of Default under
the Guaranteed Documents, any or all of the indebtedness hereby
guaranteed then existing shall, at the option of MLBFS, become
immediately due and payable from Guarantor. Notwithstanding the
occurrence of any such event, this Guaranty shall continue and
remain in full force and effect.
The liability of Guarantor hereunder shall in no event be
affected or impaired by any of the following, any of which may be
done or omitted by MLBFS from time to time, without notice to or
the consent of Guarantor: (a) any renewals, amendments,
modifications or supplements of or to any of the Guaranteed
Documents, or any extensions, forbearances, compromises or
releases of any of the Obligations or any of MLBFS' rights under
any of the Guaranteed Documents; (b) any acceptance by MLBFS of
any collateral or security for, or other guarantors of, any of
the Obligations; (c) any failure, neglect or omission on the part
of MLBFS to realize upon or protect any of the Obligations, or
any collateral or security therefor, or to exercise any lien upon
or right of appropriation of any moneys, credits or property of
Customer or any other guarantor, possessed by or under the
control of MLBFS or any of its affiliates, toward the liquidation
or reduction of the Obligations; (d) any application of payments
or credits by MLBFS; (e) the granting of credit from time to time
by MLBFS to Customer in excess of the amount set forth in the
Guaranteed Documents; or (f) any other act or commission or
omission of any kind or at any time upon the part of MLBFS or any
of its affiliates or any of their respective employees or agents
with respect to any matter whatsoever. MLBFS shall not be
required at any time, as a condition of Guarantor's obligations
hereunder, to resort to payment from Customer or other persons or
entities whatsoever, or any of their properties or estates, or
resort to any collateral or pursue or exhaust any other rights or
remedies whatsoever.
No release or discharge in whole or in part of any other
guarantor of the Obligations shall release or discharge Guarantor
unless and until all of the Obligations shall have been fully
paid and discharged. Guarantor expressly waives presentment,
protest, demand, notice of dishonor or default, notice of
acceptance of this Guaranty, notice of advancement of funds under
the Guaranteed Documents and all other notices and formalities to
which Customer or Guarantor might be entitled, by statute or
otherwise, and, so long as there are any Obligations or MLBFS is
committed to extend credit to Customer, waives any right to
revoke or terminate this Guaranty without the express written
consent of MLBFS.
So long as there any Obligations, Guarantor shall not have any
claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification or participation in
any claim, right, or remedy of MLBFS against Customer or any
security which MLBFS now has or hereafter acquires, whether or
not such claim, right or remedy arises in equity, under contract,
by statute, under common law, or otherwise.
MLBFS is hereby irrevocably authorized by Guarantor at any time
during the continuance of an Event of Default under the Loan
Agreement or any other of the Guaranteed Documents or in respect
of any of the Obligations, in its sole discretion and without
demand or notice of any kind, to appropriate, hold, set off and
apply toward the payment of any amount due hereunder, in such
order of application as MLBFS may elect, all cash, credits,
deposits, accounts, securities and any other property of
Guarantor which is in transit to or in the possession, custody or
control of MLBFS or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("MLPF&S"), or any of their respective agents,
bailees or affiliates, including, without limitation, all
securities accounts with MLPF&S and all cash and securities
therein or controlled thereby, and all proceeds thereof.
Guarantor hereby collaterally assigns and grants to MLBFS a
security interest in all such property as additional security for
the Obligations. Upon the occurrence and during the continuance
of an Event of Default, MLBFS shall have all rights in such
property available to collateral assignees and secured parties
under all applicable laws, including, without limitation, the
UCC.
Guarantor agrees to furnish to MLBFS such financial information
concerning Guarantor as may be required by any of the Guaranteed
Documents or as MLBFS may otherwise from time to time reasonably
request. Guarantor further hereby irrevocably authorizes MLBFS
and each of its affiliates, including without limitation MLPF&S,
to at any time (whether or not an Event of Default shall have
occurred) obtain from and disclose to each other any and all
financial and other information about Guarantor.
No delay on the part of MLBFS in the exercise of any right or
remedy under any agreement (including, but not limited to, this
Guaranty) shall operate as a waiver thereof, and, without
limiting the foregoing, no delay in the enforcement of any
security interest, and no single or partial exercise by MLBFS of
any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. This
Guaranty may be executed in any number of counterparts, each of
which counterparts, once they are executed and delivered, shall
be deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same Guaranty. This
Guaranty shall be binding upon Guarantor and its successors and
assigns, and shall inure to the benefit of MLBFS and its
successors and assigns. If there are more than one guarantor of
the Obligations, all of the obligations and agreements of
Guarantor are joint and several with such other guarantors.
This Guaranty shall be governed by the laws of the State of
Illinois. GUARANTOR AGREES THAT THIS GUARANTY MAY BE ENFORCED BY
MLBFS IN ANY JURISDICTION AND VENUE IN WHICH THE LOAN AGREEMENT
MAY BE ENFORCED. GUARANTOR AND MLBFS HEREBY EACH EXPRESSLY WAIVE
ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE
OTHER PARTY IN ANY WAY RELATED TO OR ARISING OUT OF THIS GUARANTY
OR THE OBLIGATIONS. 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 only to the extent of such
prohibition of invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty. No
modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by both Guarantor
and an officer of MLBFS. Each signatory on behalf of Guarantor
warrants that he or she has authority to sign on behalf of
Guarantor, and by so signing, to bind Guarantor hereunder.
Dated as of August 26, 1996.
C.A. XXXXXX MAINTENANCE, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
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Signature (1) Signature (2)
Xxxxxxx X. XxXxxxxx
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Printed Name Printed Name
Chairman
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Title Title
Address of Guarantor:
0000 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
XXXXXXX XXXXX
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CERTIFICATE OF SECRETARY
(GUARANTY)
THE UNDERSIGNED CERTIFIES that the undersigned is the duly
appointed and acting Secretary (or Assistant Secretary) of C.A.
XXXXXX MAINTENANCE, INC., a corporation duly organized, validly
existing and in good standing under the laws of the State of
Texas; that the following is a true, accurate and compared
transcript of resolutions duly, validly and lawfully adopted on
the __________ day of _________________, 1996 by the Board of
Directors of said corporation acting in accordance with the laws
of the state of incorporation and the charter and by-laws of said
corporation:
"RESOLVED, that it is advisable and in the best interests and to
the benefit of this Corporation to guaranty the obligations of
AMERICAN ECO/SP CORPORATION ("Customer") to XXXXXXX XXXXX
BUSINESS FINANCIAL SERVICES INC. ("MLBFS"); and
"FURTHER RESOLVED, that the President, any Vice President,
Treasurer, Secretary or other officer of this Corporation, or any
one or more of them, be and each of them hereby is authorized and
empowered for and on behalf of this Corporation to: (a) execute
and deliver to MLBFS: (i) an Unconditional Guaranty of the
obligations of Customer, (ii) any other agreements, instruments
and documents required by MLBFS in connection therewith,
including, without limitation, any agreements, instruments and
documents evidencing liens or security interests on any present
or future amendments to any of the foregoing; all in such form as
such officer shall approve, as evidenced by his signature
thereon; and (b) to do and perform all such acts and things deemed
by any such officer to be necessary or advisable to carry out and
perform the undertakings and agreements of this Corporation set
forth therein; and all prior acts of said officers in these
premises are hereby ratified and confirmed; and
"FURTHER RESOLVED, that MLBFS is authorized to rely upon the
foregoing resolutions until it receives written notice of any
change or revocation, which change or revocation shall not in any
event affect the obligations of this Corporation with respect to
any transaction committed to by MLBFS or having its inception
prior to the receipt of such notice by MLBFS."
THE UNDERSIGNED FURTHER CERTIFIES that the foregoing resolutions
have not been rescinded, modified or repealed in any manner and
are in full force and effect as of the date of this Certificate,
and that the following individuals are now the duly elected and
acting officers of said corporation:
President: /s/ Xxxxxxx X. XxXxxxxx
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Vice President:
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Secretary: /s/ Xxxx X. Xxxxxx
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Treasurer:
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IN WITNESS WHEREOF, the undersigned has executed this Certificate
and has affixed the seal of said corporation hereto, pursuant to
due authorization, all as of this 27 day of August, 1996.
(Corporate Seal) /s/ Xxxx X. Xxxxxx
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Secretary
Xxxx X. Xxxxxx
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Printed Name
