EXHIBIT 10.6.4
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Xxxxxxx Xxxxx 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 AMERICAN
ECO/SP CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (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. 582-7596 between MLBFS and Customer (the "Loan
Agreement"), (b) any "Additional Agreements", as that term is
defined in 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"),
the undersigned 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 Customer to MLBFS, howsoever created or
evidenced, and whether now existing or hereafter arising
(collectively, the "Obligations"). The undersigned 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 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 the undersigned.
Notwithstanding the occurrence of any such event, this Guaranty
shall continue and remain in full force and effect.
The liability of the undersigned 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 the undersigned: (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 of 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 the undersigned'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 the
undersigned or any other guarantor, unless and until all of the
Obligations shall have been fully paid and discharged. The
undersigned 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 the
undersigned 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 are any Obligations, the undersigned 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 the
undersigned 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. The
undersigned 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.
The undersigned agrees to furnish to MLBFS such financial
information concerning the undersigned as may be required by any
of the Guaranteed Documents or as MLBFS may otherwise from time
to time reasonably request. The undersigned 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 the undersigned.
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 the undersigned and the
undersigned's heirs and personal representatives, and shall inure
to the benefit of MLBFS and its successors and assigns. If there
is more than one guarantor of the Obligations, all of the
obligations and agreements of the undersigned are joint and
several.
This Guaranty shall be governed by the laws of the State of
Illinois. THE UNDERSIGNED AGREES THAT THIS GUARANTY MAY BE
ENFORCED BY MLBFS IN ANY JURISDICTION AND VENUE IN WHICH THE LOAN
AGREEMENT MAY BE ENFORCED. THE UNDERSIGNED AND MLBFS HEREBY EACH
EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES
AGAINST ANY 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 OR 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 THE UNDERSIGNED AND AN OFFICER OF MLBFS.
XXXXXXX XXXXX
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CERTIFICATE OF SECRETARY
(WCMA LINE OF CREDIT)
THE UNDERSIGNED HEREBY CERTIFIES that the undersigned is the duly
appointed and acting Secretary (or Assistant Secretary) of
AMERICAN ECO/SP CORPORATION, a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and 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 of
this Corporation that in connection with Working Capital
Management Account No. 582-7596 that this Corporation is
subscribing from Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated it obtain from XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC. ("MLBFS")a commercial line of credit referred
to by MLBFS as a "WCMA Line of Credit;" 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) a WCMA
Note, Loan and Security Agreement and all other agreements,
instruments and documents required by MLBFS in connection
with said Line of Credit, and (ii) any present or future
extensions of and amendments to any of the foregoing; all in
such form as such officer shall approve, as conclusively
evidenced by his signature thereon; (b) grant to MLBFS such
liens and security interests on any of the assets of this
Corporation as collateral therefor and/or the other
obligations of this Corporation to MLBFS as may be required
by MLBFS; and (c) 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 in connection therewith; 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 of the duly elected acting
officers of said corporation:
President: /s/ Xxxxxxx X. XxXxxxxx Xxxxxxx X. XxXxxxxx
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Vice President: -------------------
Secretary: /s/ Xxxx X. Xxxxxx 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 27th day of August, 1996.
(CORPORATE SEAL)
/s/ Xxxx X. Xxxxxx
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Secretary
/s/ Xxxx X. Xxxxxx
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Printed Name
