EXHIBIT 10.32
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and
entered into as of March 16, 1999 by CECO ENVIRONMENTAL, INC., a New York
corporation (the "Guarantor"), with an address at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx, Xxxxxx M56 1X3, in consideration of the extension of
credit by PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 to CECO FILTERS, INC., AIR PURATOR
CORPORATION, NEW XXXXX CO., INC and U.S. FACILITIES MANAGEMENT COMPANY, INC.
(collectively, the "Borrowers"), and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
1. Guaranty of Obligations. The Guarantor hereby guarantees, and
becomes surety for, the prompt payment and -----------------------
performance of all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrowers to the
Bank of any kind or nature, present or future (including, without
limitation, any interest accruing thereon after maturity, or after
the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding relating to the
Borrowers, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether or not evidenced
by any note, guaranty or other instrument, whether arising under
any agreement, instrument or document, whether or not for the
payment of money, whether arising by reason of an extension of
credit, opening of a letter of credit, loan, equipment lease, or
guarantee, under any interest or currency swap, future, option or
other similar agreement, or in any other manner, whether arising
out of overdrafts on deposit or other accounts or electronic funds
transfers (whether through automatic clearing houses or otherwise)
or out of the Bank's non-receipt of or inability to collect funds
or otherwise not being made whole in connection with depository
transfer check or other similar arrangements, whether direct or
indirect (including those acquired by assignment or
participation), absolute or contingent, joint or several, due or
to become due, now existing or hereafter arising, and any
amendments, extensions, renewals or increases and all costs and
expenses of the Bank incurred in the documentation, negotiation,
modification, enforcement, collection or otherwise in connection
with any of the foregoing, including reasonable attorneys' fees
and expenses (collectively, the "Obligations"). If any of the
Borrowers defaults under any such Obligations, the Guarantor will
pay the amount due to the Bank.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and not of
collection and the Bank shall not be required, as a condition of the Guarantor's
liability, to make any demand upon
or to pursue any of its rights against the Borrowers, or to pursue any rights
which may be available to it with respect to any other person who may be liable
for the payment of the Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty
and will remain in full force and effect until all of the Obligations have been
indefeasibly paid in full, and the Bank has terminated this Guaranty. This
Guaranty will not be affected by any surrender, exchange, acceptance, compromise
or release by the Bank of any other party, or any other guaranty or any security
held by it for any of the Obligations, by any failure of the Bank to take any
steps to perfect or maintain its lien or security interest in or to preserve its
rights to any security or other collateral for any of the Obligations or any
guaranty, or by any irregularity, unenforceability or invalidity of any of the
Obligations or any part thereof or any security or other guaranty thereof. The
Guarantor's obligations hereunder shall not be affected, modified or impaired by
any counterclaim, set-off, deduction or defense based upon any claim the
Guarantor may have against the Borrowers or the Bank, except payment or
performance of the Obligations.
Notice of acceptance of this Guaranty, notice of extensions of credit
to the Borrowers from time to time, notice of default, diligence, presentment,
notice of dishonor, protest, demand for payment, and any defense based upon the
Bank's failure to comply with the notice requirements of the applicable version
of Uniform Commercial Code ss. 9-504 are hereby waived to the extent permitted
by law.
The Bank at any time and from time to time, without notice to or the
consent of the Guarantor, and without impairing or releasing, discharging or
modifying the Guarantor's liabilities hereunder, may (a) change the manner,
place, time or terms of payment or performance of or interest rates on, or other
terms relating to, any of the Obligations; (b) renew, substitute, modify, amend
or alter, or grant consents or waivers relating to any of the Obligations, any
other guaranties, or any security for any Obligations or guaranties; (c) apply
any and all payments by whomever paid or however realized including any proceeds
of any collateral, to any Obligations of the Borrowers in such order, manner and
amount as the Bank may determine in its sole discretion; (d) deal with any other
person with respect to any Obligations in such manner as the Bank deems
appropriate in its sole discretion; (e) substitute, exchange or release any
security or guaranty; or (f) take such actions and exercise such remedies
hereunder as provided herein.
3. Repayments or Recovery from the Bank. If any demand is made at any time
upon the Bank for the repayment or recovery of any amount received by it in
payment or on account of any of the Obligations and if the Bank repays all or
any part of such amount by reason of any judgment, decree or order of any court
or administrative body or by reason of any settlement or compromise of any such
demand, the Guarantor will be and remain liable hereunder for the amount so
repaid or recovered to the same extent as if such amount had never been received
originally by the Bank. The provisions of this section will be and remain
effective notwithstanding any contrary action which may have been taken by the
Guarantor in reliance upon such payment, and any such contrary action so taken
will be without prejudice to the Bank's rights hereunder and will be deemed to
have been conditioned upon such payment having become final and irrevocable.
4. Enforceability of Obligations. No modification, limitation or discharge
of the Obligations arising out of or by virtue of any bankruptcy, reorganization
or similar proceeding for relief of debtors under federal or state law will
affect, modify, limit or discharge the Guarantor's liability in any manner
whatsoever and this Guaranty will remain and continue in full force and effect
and will be enforceable against the Guarantor to the same extent and with the
same force and effect as if any such proceeding had not been instituted. The
Guarantor waives all rights and benefits which might accrue to it by reason of
any such proceeding and will be liable to the full extent hereunder,
irrespective of any modification, limitation or discharge of the liability of
the Borrowers that may result from any such proceeding.
5. Events of Default. If any of the following occur (each an "Event of
Default"): (i) any Event of Default (as defined in any of the Obligations); (ii)
any default under any of the Obligations that does not have a defined set of
"Events of Default" and the lapse of any notice or cure period provided in such
Obligations with respect to such default; (iii) demand by the Bank under any of
the Obligations that have a demand feature; (iv) the failure by the Guarantor to
perform any of its obligations hereunder and the lapse of any applicable notice
and cure period; (v) the falsity, inaccuracy or material breach by the Guarantor
of any written warranty, representation or statement made or furnished to the
Bank by the Guarantor; or (vi) the termination or attempted termination of this
Guaranty, then the Guarantor will, on the demand of the Bank, immediately
deposit with the Bank in U.S. dollars all amounts due or to become due under the
Obligations and the Bank will use such funds to repay the Obligations. Upon the
occurrence of any Event of Default, the Bank in its discretion may exercise with
respect to any collateral any one or more of the rights and remedies provided a
secured party under the applicable version of the Uniform Commercial Code.
6. Right of Setoff. In addition to all liens upon and rights of setoff
against the money, securities or other property of the Guarantor given to the
Bank by law, the Bank shall have, with respect to the Guarantor's obligations to
the Bank under this Guaranty and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of setoff against, and
the Guarantor hereby assigns, conveys, delivers, pledges and transfers to the
Bank all of the Guarantor's right, title and interest in and to, all deposits,
moneys, securities and other property of the Guarantor now or hereafter in the
possession of or on deposit with, or in transit to, the Bank whether held in a
general or special account or deposit, whether held jointly with someone else,
or whether held for safekeeping or otherwise, excluding, however, all XXX,
Xxxxx, and trust accounts. Every such security interest and right of setoff may
be exercised without demand upon the Guarantor. Every such right of setoff shall
be deemed to have occurred immediately upon the occurrence of an Event of
Default hereunder without any action of the Bank although the Bank may enter
such setoff on its books and records at a later time.
7. Costs. To the extent that the Bank incurs any costs or expenses in
protecting or enforcing its rights under the Obligations or this Guaranty,
including reasonable attorneys' fees and the costs and expenses of litigation,
such costs and expenses will be due on demand, will be included in the
Obligations and will bear interest from the incurring or payment thereof at the
Default Rate (as defined in any of the Obligations).
8. Postponement of Subrogation. Until the Obligations are indefeasibly
paid in full, the Guarantor postpones and subordinates in favor of the Bank any
and all rights which the Guarantor may have to (a) assert any claim against the
Borrowers based on subrogation rights with respect to payments made hereunder,
and (b) any realization on any property of the Borrowers, including
participation in any marshalling of the Borrowers' assets.
9. Power to Confess Judgment. The Guarantor hereby empowers any attorney
of any court of record, after the occurrence of any Event of Default hereunder,
to appear for the Guarantor and, with or without complaint filed, confess
judgment, or a series of judgments, against the Guarantor in favor of the Bank
for the amount of the Obligations and an attorney's commission of the greater of
three percent (3%) of such principal and interest or $5,000 added as a
reasonable attorney's fee and for doing so this Guaranty or a copy verified by
affidavit shall be a sufficient warrant. The Guarantor hereby forever waives and
releases all procedural errors in said proceedings and all rights of appeal and
all relief from any and all appraisement, stay or exemption laws of any state
now in force or hereafter enacted with respect to such judgment or judgments.
No single exercise of the foregoing power to confess judgment, or a
series of judgments, shall be deemed to exhaust the power, whether or not any
such exercise shall be held by any court to be invalid, voidable, or void, but
the power shall continue undiminished and it may be exercised from time to time
as often as the Bank shall elect until such time as the Bank shall have received
payment in full of the Obligations and costs.
10. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be
effective upon receipt if delivered personally, or if sent by facsimile
transmission with confirmation of delivery, or by nationally recognized
overnight courier service, to the addresses for the Bank and the Guarantor set
forth above or to such other address as one may give to the other in writing for
such purpose.
11. Preservation of Rights. No delay or omission on the Bank's part to
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the Bank's
action or inaction impair any such right or power. The Bank's rights and
remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in equity.
The Bank may proceed in any order against the Borrowers, the Guarantor or any
other obligor of, or collateral securing, the Obligations.
12. Illegality. In case any one or more of the provisions contained in this
Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13. Changes in Writing. No modification, amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom will be effective unless made in a writing signed by the Bank, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on the Guarantor
in any case will entitle the Guarantor to any other or further notice or demand
in the same, similar or other circumstance.
14. Entire Agreement. This Guaranty (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the Guarantor and the Bank with respect to the subject matter hereof.
15. Successors and Assigns. This Guaranty will be binding upon and inure to
the benefit of the Guarantor and the Bank and their respective successors and
assigns; provided, however, that the Guarantor may not assign this Guaranty in
whole or in part without the Bank's prior written consent and the Bank at any
time may assign this Guaranty in whole or in part.
16. Interpretation. In this Guaranty, unless the Bank and the Guarantor
otherwise agree in writing, the singular includes the plural and the plural the
singular; references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute referred to; the
word "or" shall be deemed to include "and/or", the words "including", "includes"
and "include" shall be deemed to be followed by the words "without limitation";
and references to sections or exhibits are to those of this Guaranty unless
otherwise indicated. Section headings in this Guaranty are included for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purpose. If this Guaranty is executed by more than one party as
Guarantor, the obligations of such persons or entities will be joint and
several.
17. Indemnity. The Guarantor agrees to indemnify each of the Bank, its
directors, officers and employees and each legal entity, if any, who controls
the Bank (the "Indemnified Parties") and to hold each Indemnified Party harmless
from and against any and all claims, damages, losses, liabilities and expenses
(including all reasonable fees of counsel with whom any Indemnified Party may
consult and all expenses of litigation or preparation therefor) which any
Indemnified Party may incur or which may be asserted against any Indemnified
Party as a result of the execution of or performance under this Guaranty;
provided, however, that the foregoing indemnity agreement shall not apply to
claims, damages, losses, liabilities and expenses solely attributable to an
Indemnified Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of this
Guaranty. The Guarantor may participate at its expense in the defense of any
such claim.
18. Governing Law and Jurisdiction. This Guaranty has been delivered to and
accepted by the Bank and will be deemed to be made in the State where the Bank's
office indicated above is located. THIS GUARANTY WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE BANK AND THE GUARANTOR DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED,
EXCLUDING ITS CONFLICT OF LAWS RULES. The Guarantor hereby irrevocably consents
to the exclusive jurisdiction of any state or federal court for the county or
judicial district where the Bank's office indicated above is located, and
consents that all service of process be sent by nationally recognized overnight
courier service directed to the Guarantor at the Guarantor's address set forth
herein and service so made will be deemed to be completed on the business day
after deposit with such courier; provided that nothing contained in this
Guaranty will prevent the Bank from bringing any action, enforcing any award
or judgment or exercising any rights against the Guarantor individually, against
any security or against any property of the Guarantor within any other county,
state or other foreign or domestic jurisdiction. The Guarantor acknowledges and
agrees that the venue provided above is the most convenient forum for both the
Bank and the Guarantor. The Guarantor waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Guaranty.
19. Equal Credit Opportunity Act. If the Guarantor is not an "applicant for
credit" under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974
("ECOA"), the Guarantor acknowledges that (i) this Guaranty has been executed to
provide credit support for the Obligations, and (ii) the Guarantor was not
required to execute this Guaranty in violation of Section 202.7(d) of the ECOA.
20. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL
RIGHT THE GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
The Guarantor acknowledges that it has read and understood all the
provisions of this Guaranty, including the confession of judgment and waiver of
jury trial, and has been advised by counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the
date first written above, with the intent to be legally bound hereby.
CECO ENVIRONMENTAL, INC.
By:_________________________________
Name:
Title:
