EXECUTED VERSION
EXHIBIT 4.7
GUARANTY
GUARANTY, dated as of June 11, 2001, of Flour City Architectural
Metals, Inc., a Delaware corporation (the "Guarantor"), in favor of
Dimensional Partners, L.P. and Dimensional Partners, Ltd. (each, a "Holder",
and, together with any permitted assigns of the Debentures, the "Holders").
WHEREAS, simultaneously herewith, Flour City International, Inc., a
Nevada corporation (the "Issuer"), is issuing its 8 1/2% Subordinated Secured
Convertible Debentures due 2004 in favor of the Holders in an aggregate
principal amount of $2,500,000 (the "Debentures");
WHEREAS, the Guarantor is a wholly-owned subsidiary of the Issuer
and will receive considerable benefit from the sale of the Debentures by the
Issuer, the proceeds of which sale will be used for working capital purposes by
the Issuer and its subsidiaries;
WHEREAS, as a condition to the purchase of the Debentures by the
Holders, the Guarantor is required to guarantee the obligations of the Issuer
under the Debentures; and
WHEREAS, simultaneously herewith, the Guarantor and the Issuer are
entering into a Junior Security Agreement with the Holders (the "Security
Agreement"), pursuant to which the Guarantor has granted to the Holders a
security interest in its domestic accounts receivable and related collateral
(collectively, the "Collateral") to secure its obligations under this Guaranty.
NOW, THEREFORE, in consideration of the foregoing and the
agreements, representations and warranties hereinafter set forth, the Guarantor
agrees as follows:
1. DEFINITIONS. Each capitalized term not defined herein shall
have the meaning set forth in the Debentures.
2. GUARANTY OF PAYMENT. The Guarantor hereby unconditionally and
irrevocably guarantees to the Holders the full and punctual payment, when due,
of all amounts required to be paid by the Issuer under the Debentures
(collectively, the "Obligations"), when and as the same shall become due and
payable, whether at maturity or by acceleration or otherwise. This Guaranty is
an absolute and unconditional guaranty of payment and not of collection only,
and may be enforced by Holders without first resorting to any other right or
remedy which they may have against the Issuer. If the Issuer shall fail to pay
punctually any of the Obligations when and as the same shall become due and
payable, whether at maturity or by acceleration or otherwise, then the Holders
may, without notice to the Issuer or the Guarantor, declare the Obligations to
be due and payable by the Guarantor, and the Guarantor shall forthwith on demand
pay the same in immediately available funds to the Holders.
3. COSTS AND EXPENSES. The Guarantor shall forthwith on demand
reimburse the Holders in immediately available funds for all costs and expenses
reasonably incurred by or on behalf of the Holders (including, without
limitation, reasonable accountants' fees and reasonable attorneys' fees and
their respective disbursements and court costs) in enforcing the obligations of
the Guarantor hereunder.
4. OBLIGATIONS OF GUARANTOR NOT AFFECTED. This Guaranty is a
continuing guaranty and all liabilities to which it applies or may apply shall
be conclusively presumed to have been created in reliance hereon. The
liabilities and obligations of the Guarantor hereunder are primary and
unconditional and shall remain in full force and effect without regard to, and
shall not be affected or impaired in any respect by: (a) any assignment,
transfer, amendment, modification, rescission or cancellation of, or addition or
supplement to, the Debentures; (b) the invalidity, illegality or
unenforceability, in whole or in part, of any of the Debentures; (c) any
exercise, non-exercise, waiver, release or cancellation by the Holders of any
right, remedy, power or privilege under or in respect of any of the Debentures;
(d) any consent, release, extension, indulgence, or any other action, inaction
or omission under or in respect of any of the Debentures or of or with respect
to the Issuer; (e) any receivership, insolvency, bankruptcy, liquidation,
reorganization, arrangement, readjustment, composition, dissolution or other
similar proceeding involving or affecting the Issuer; (f) any sale, exchange,
release, transfer, assignment, conveyance, or other dealing with or disposition
of the Collateral; (g) any improper filing or recording or any failure by the
Holders to file, record or to otherwise perfect or continue perfection of any
lien or security interest in favor of the Holders on any of the Collateral, or
to preserve, maintain or otherwise properly deal with any of the Collateral; (h)
any defense, setoff or counterclaim asserted by the Issuer; or (i) any other
cause or circumstance whatsoever, including, without limitation, any other act,
thing, omission or delay which would or might in any manner or to any extent
vary the risk of the Guarantor or which would or might otherwise operate as a
discharge of the Guarantor as a matter of law, whether or not the Guarantor
shall have notice or knowledge of any of the matters referred to in this Section
4.
5. WAIVERS AND CONSENTS. Except as otherwise specifically provided
herein, the Guarantor hereby waives: (a) notice of acceptance of this Guaranty
or of any action taken or not taken in reliance hereon; (b) presentment, demand,
notice and protest of any kind with respect to the Obligations; (c) notice of
any of the matters referred to in Section 4 of this Guaranty; (d) all other
notices and demands which may be required by statute, rule or law or otherwise
to preserve any right of the Holders against the Issuer or the Guarantor with
respect to the delivery, acceptance, performance, default or enforcement of this
Guaranty or any of the Debentures, including, without limitation, notice of
protest and dishonor, notice of acceptance, default or non-payment; and (e) any
right of subrogation by virtue of payments made hereunder unless and until the
Holders shall have received full payment of all of the Obligations.
6. AUTHORIZATION; ENFORCEABILITY; NO VIOLATIONS OR CONSENTS. The
Guarantor represents and warrants that (a) the Guarantor has the power and has
taken all necessary action to authorize the execution, delivery and performance
of this Guaranty in accordance with its terms, (b) this Guaranty has been duly
executed and delivered by the Guarantor and is a legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforceability of
creditors' rights generally, and (c) the execution and delivery
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by it of this Guaranty does not, and the consummation of the transactions
contemplated herein will not, (i) violate, conflict with, or constitute a
breach or default under, with or without notice or lapse of time or both, or
result in a lien or encumbrance upon any of its assets or property pursuant
to, any contract, guaranty, commitment, indenture, lease, order, judgment or
other agreement or instrument to which the Guarantor is a party or by which
it or its assets may be bound, or (ii) require the consent or approval of any
Person.
7. REINSTATEMENT. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
the Obligations is rescinded or must otherwise be restored to the Issuer or
returned by the Holders upon the insolvency, bankruptcy or reorganization or
similar proceeding involving the Issuer, or otherwise, all as though such
payment had not been made and notwithstanding the cancellation of the Debentures
or satisfaction and discharge of the Debentures, and the Guarantor shall be and
remain liable to the Holders for the payment so rescinded or otherwise restored
to the same extent as if such payment had never been received by the Holders.
8. ECONOMIC BENEFITS; SOLVENCY. The issuance and sale of the
Debentures to the Holders constitute indirect economic benefit to the Guarantor
at least equal in value to the obligations imposed upon the Guarantor under this
Guaranty. The guarantee by the Guarantor of the Obligations and the incurrence
by it of its other obligations under this Guaranty and the Security Agreement
will not render the Guarantor insolvent or unable to pay its debts as they
mature or leave the Guarantor with unreasonably small capital. The Guarantor
does not intend to incur debts, including those under this Guaranty, that would
be beyond its ability to pay as such debts mature.
9. NO WAIVER OR AMENDMENT; CUMULATIVE REMEDIES. No course of dealing
between the Guarantor and the Holders and no failure to exercise or delay in
exercising on the part of the Holders any right, power or privilege under the
terms of this Guaranty, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder preclude the
exercise of any other or further right, power or privilege. No amendment,
rescission or modification of any provision of this Guaranty shall be effective
unless expressly set forth in a writing duly executed by the Holders. The rights
and remedies provided herein or in the Debenture are cumulative and not
exclusive of, or in derogation of, any other rights or remedies provided at law,
in equity or otherwise. This Guaranty, the Debentures and the Security Agreement
set forth the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersede any and all prior agreements and
understandings of the parties hereto with respect to the subject matter hereof.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding
upon, and shall inure to the benefit of and be enforceable by, the respective
successors and assigns of the Holders and the Guarantor but the Guarantor may
not assign any part of its obligations hereunder.
11. TERM OF GUARANTY. This Guaranty shall remain in full force
and effect until the Obligations have been paid and discharged in full.
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12. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given or
made when delivered, if personally delivered by messenger or courier, or when
mailed, if sent by certified or registered mail, return receipt requested,
addressed as set forth below or as otherwise designated by notice given
hereunder:
If to the Holders,
to the addresses contained in the Issuer's
Debenture transfer books.
If to the Guarantor:
Flour City Architectural Metals, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxx
Chief Executive Officer
and
Xx. Xxxxxxx Xxxx
Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
13. ENFORCEABILITY. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the Guarantor hereby waives any provision of law which
renders any provision hereof prohibited or unenforceable in any respect.
14. GOVERNING LAW. This Guaranty shall be governed by the
laws of the State of New York, without reference to its principles of
conflicts of laws (other than Section 5-1401 and Section 5-1402 of the
New York General Obligations Law).
15. COUNTERPARTS. This Guaranty may be executed in any
number of counterparts, each of which so executed shall be deemed an
original, but all such counterparts shall together constitute but one
and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the date first set forth above.
FLOUR CITY ARCHITECTURAL
METALS, INC.
By: /s/ Xxxxxxx K/ Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
DIMENSIONAL PARTNERS, LTD.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
DIMENSIONAL PARTNERS, L.P.
By: JDS Asset Management, LLC
its general partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Member
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