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EXHIBIT 4.8
GUARANTY
THIS GUARANTY dated as of November 18, 1996, is executed in favor of
International Mezzanine Capital, B.V. and First Commerce Corporation (together
with their successors and permitted assigns, the "Purchasers").
W I T N E S S E T H:
WHEREAS, Air-Cure Technologies, Inc. (the "Company") has entered into
a Subordinated Note and Warrant Purchase Agreement dated as of even date
herewith (as amended or otherwise modified from time to time, the "Note
Agreement"; terms used but not defined herein are used as defined in the Note
Agreement) with the Purchasers;
WHEREAS, each of the undersigned will benefit from the issuance of
Notes pursuant to the Note Agreement and is willing to guaranty the
Liabilities (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally unconditionally and irrevocably, as primary obligor and
not merely as surety, guarantees the full and prompt payment when due, whether
by acceleration or otherwise, and at all times thereafter, of all obligations
(monetary or otherwise) of the Company to each Purchaser under or in connection
with the Note Agreement, the Notes, any other Transaction Document and any
other document or instrument executed in connection therewith, in each case
howsoever created, arising or evidenced, whether direct or indirect, absolute
or contingent, now or hereafter existing, or due or to become due (all such
obligations being herein collectively called the "Liabilities"); provided,
however, that the liability of each of the undersigned hereunder shall be
limited to the maximum amount of the Liabilities which such undersigned may
guaranty without violating any fraudulent conveyance or fraudulent transfer law
(plus all costs and expenses paid or incurred by any Purchaser in enforcing
this Guaranty against such undersigned).
Each of the undersigned agrees that, in the event of the dissolution
or insolvency of the Company or any undersigned, or the inability or failure of
the Company or any undersigned to pay debts as they become due, or an
assignment by the Company or any undersigned for the benefit of creditors, or
the occurrence of any other Event of Default under paragraph 8A(vi) or 8A(vii)
of the Note Agreement, and if such event shall occur at a time when any of the
Liabilities may not then be due and payable, such undersigned will pay to the
Purchasers forthwith the full amount which would be payable hereunder by such
undersigned if all Liabilities were then due and payable.
This Guaranty shall in all respects be a continuing, irrevocable,
absolute and unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the
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dissolution of any of the undersigned or that at any time or from time to time
no Liabilities are outstanding) until all Liabilities have been paid in full.
The undersigned further agree that if at any time all or any part of
any payment theretofore applied by any Purchaser to any of the Liabilities is
or must be rescinded or returned by such Purchaser for any reason whatsoever
(including, the insolvency, bankruptcy or reorganization of the Company or any
of the undersigned), such Liabilities shall, for the purposes of this Guaranty,
to the extent that such payment is or must be rescinded or returned, be deemed
to have continued in existence, notwithstanding such application by such
Purchaser, and this Guaranty shall continue to be effective or be reinstated,
as the case may be, as to such Liabilities, all as though such application by
such Purchaser had not been made.
Any Purchaser may, from time to time, at its sole discretion and
without notice to the undersigned (or any of them), take any or all of the
following actions: (a) retain or obtain a security interest in any property to
secure any of the Liabilities or any obligation hereunder, (b) retain or obtain
the primary or secondary obligation of any obligor or obligors, in addition to
the undersigned, with respect to any of the Liabilities, (c) extend or renew
any of the Liabilities for one or more periods (whether or not longer than the
original period), alter or exchange any of the Liabilities, or release or
compromise any obligation of any of the undersigned hereunder or any obligation
of any nature of any other obligor with respect to any of the Liabilities, (d)
release its security interest in, or surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Liabilities or any obligation hereunder, or extend or renew for one or more
periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with
respect to any such property, and (e) resort to the undersigned (or any of
them) for payment of any of the Liabilities when due, whether or not such
Purchaser shall have resorted to any property securing any of the Liabilities
or any obligation hereunder or shall have proceeded against any other of the
undersigned or any other obligor primarily or secondarily obligated with
respect to any of the Liabilities.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by any Purchaser of this Guaranty, (b) notice of the existence or
creation or nonpayment of all or any of the Liabilities, (c) presentment,
demand, notice of dishonor, protest, and all other notices whatsoever, and (d)
all diligence in collection or protection of or realization upon any
Liabilities or any security for or guaranty of any Liabilities.
Notwithstanding any payment made by or for the account of any of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated
to any right of any Purchaser until such time as the Purchasers shall have
received final payment in cash of the full amount of all Liabilities.
Each of the undersigned further agrees to pay all expenses (including
Attorney Costs) paid or incurred by any Purchaser in endeavoring to collect the
Liabilities of such undersigned, or any part thereof, and in enforcing this
Guaranty against such undersigned.
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The creation or existence from time to time of additional Liabilities
to the Purchasers or any of them is hereby authorized, without notice to the
undersigned (or any of them), and shall in no way affect or impair the rights
of the Purchasers or the obligations of the undersigned under this Guaranty,
including each of the undersigned's guaranty of such additional Liabilities.
Any Purchaser may from time to time without notice to the undersigned
(or any of them), assign or transfer any or all of the Liabilities or any
interest therein; and, notwithstanding any such assignment or transfer or any
subsequent assignment or transfer thereof, such Liabilities shall be and remain
Liabilities for the purposes of this Guaranty, and each and every immediate and
successive assignee or transferee of any of the Liabilities or of any interest
therein shall, to the extent of the interest of such assignee or transferee in
the Liabilities, be entitled to the benefits of this Guaranty to the same
extent as if such assignee or transferee were an original Purchaser.
No delay on the part of any Purchaser in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
any Purchaser of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy; nor shall any
modification or waiver of any provision of this Guaranty be binding upon the
Purchasers except as expressly set forth in a writing duly signed and delivered
on behalf of the Purchasers. No action of any Purchaser permitted hereunder
shall in any way affect or impair the rights of any Purchaser or the
obligations of the undersigned under this Guaranty. For purposes of this
Guaranty, Liabilities shall include all obligations of the Company to any
Purchaser arising under or in connection with the Note Agreement, any Note, any
other Transaction Document or any other document or instrument notwithstanding
any right or power of the Company or anyone else to assert any claim or defense
as to the invalidity or unenforceability of any such obligation, and no such
claim or defense shall affect or impair the obligations of any of the
undersigned hereunder.
This Guaranty shall be binding upon the undersigned and the successors
and assigns of the undersigned; and to the extent that the Company or any of
the undersigned is either a partnership or a corporation, all references herein
to the Company and to the undersigned, respectively, shall be deemed to include
any successor or successors, whether immediate or remote, to such partnership
or corporation. The term "undersigned" as used herein shall mean all parties
executing this Guaranty and each of them, and all such parties shall be jointly
and severally obligated hereunder.
This Guaranty shall be construed in accordance with and governed by
the internal laws of the State of New York. In the event a final judgment by a
court of competent jurisdiction holds that such choice of New York law is
unenforceable, then this Guaranty shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the state
of Louisiana. 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 to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
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This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty. At any time after the date of this
Guaranty, one or more additional Persons may become parties hereto by executing
and delivering to the Purchasers a counterpart of this Guaranty. Immediately
upon such execution and delivery (and without any further action), each such
additional Person will become a party to, and will be bound by all of the terms
of, this Guaranty.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY, OR ANY
TRANSACTIONS RELATING HERETO OR THERETO, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE UNDERSIGNED OR
THE PURCHASERS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND EACH OF THE
UNDERSIGNED HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
EACH OF THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY OBJECTIONS, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
OF THE PURCHASERS, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY, ANY OTHER
TRANSACTION DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF
THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
THIS GUARANTY IS SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN
SUBORDINATION AGREEMENT OF EVEN DATE HEREWITH (AS DEFINED IN THE NOTE
AGREEMENT).
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IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
XXXXXXXX, INC.
By:
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Address: Title:
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AIR-CURE DYNAMICS, INC.
By:
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Address: Title:
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ALLIED INDUSTRIES, INC.
By:
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Address: Title:
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AMEREX INDUSTRIES, INC.
By:
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Address: Title:
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VIC ENVIRONMENTAL SYSTEMS, INC.
By:
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Address: Title:
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INTEREL ENVIRONMENTAL
TECHNOLOGIES, INC.
By:
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Address: Title:
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The undersigned is executing a
counterpart hereof for purposes of
becoming a party hereto:
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By:
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Address: Title:
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