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G U A R A N T Y
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THIS GUARANTY (this "GUARANTY"), made jointly and severally by each
of the entities listed on Schedule I attached hereto (all such entities
collectively, the "GUARANTORS" and each, a "GUARANTOR"), is issued this 16th day
of August 2002.
W I T N E S S E T H
WHEREAS, XXXXXX XXXXXXX LLC, a limited liability company organized
under the laws of the State of Delaware and successor by merger to the
obligations of Xxxxxx Xxxxxxx Corporation, a corporation previously organized
under the laws of the State of New York (the "ISSUER") on November 15, 1995
issued $200 million in aggregate principal amount of its 6 3/4% Notes due
November 15, 2005 (the "NOTES") pursuant to an Indenture dated as of November
15, 1995 (the "INDENTURE") by and between the Issuer and BNY Midwest Trust
Company, successor to the obligations of Xxxxxx Trust and Savings Bank, as
trustee (together with any successor thereto, the "Trustee") on behalf of the
holders from time to time of the Notes (the "NOTEHOLDERS"); and
WHEREAS, the Issuer has entered into a Third Amended and Restated
Term Loan and Revolving Credit Agreement, of even date herewith (the "CREDIT
AGREEMENT"), by and among the Issuer, the Guarantors, the lenders signatory
thereto, Bank of America, N.A., as Administrative Agent and Collateral Agent,
under which the Guarantors have guaranteed all of the Issuer's obligations
thereunder (the "BANK GUARANTY"); and
WHEREAS, the Guarantors have secured their obligations under the Bank
Guaranty with the pledge of certain assets; and
WHEREAS, Xxxxxx Xxxxxxx Ltd. And Foreign Holdings Ltd. are parent
companies of the Issuer;
WHEREAS, the other Guarantors are subsidiaries of the Issuer; and
WHEREAS, pursuant to the terms of a separate Security Agreement,
dated as of the date hereof, the Issuer and the Guarantors have pledged certain
assets as required by the Credit Agreement; and
WHEREAS, pursuant to the terms and conditions of the Indenture, the
Guarantors, as a result of the pledge of assets pursuant to the Credit
Agreement, are required to secure the Notes equally and ratably in certain of
such pledged assets as, and to the extent, required by the Indenture; and
WHEREAS, the Guarantors are entering into this Guaranty, and pledging
certain of the aforementioned assets in compliance with the Indenture;
I. GUARANTY
1. THE GUARANTY. Each Guarantor, jointly and severally, hereby
unconditionally and irrevocably guarantees as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity, by
acceleration or otherwise, of any and all of the Guaranteed
Obligations (as hereinafter defined) to the Trustee and the Noteholders
(collectively, the "CREDITORS"). If any or all of the Guaranteed Obligations to
the Creditors becomes due and payable hereunder, each Guarantor unconditionally
promises to pay such Guaranteed Obligations to the Creditors in the same
currency in which such Guaranteed Obligations are denominated, or order, on
demand, together with any and all reasonable expenses which may by incurred by
the Creditors in collecting any of the Guaranteed Obligations. As used herein,
the term "GUARANTEED OBLIGATIONS" shall mean the full and prompt payment when
due (whether at the stated maturity, by acceleration of otherwise) of the
principal of, premium, if any, and interest on, the Notes, together with all the
other obligations and liabilities of the Issuer to the Noteholders in respect of
the Notes and to the Trustee in its capacity as such under the Indenture
(including, in each case, without limitation, indemnities, fees and interest
thereon), whether now existing or hereafter incurred, and the due performance
and compliance by the Issuer with all of the terms, conditions and agreements
contained in the Notes and in the Indenture.
2. NATURE OF LIABILITY. The liability of each Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations, whether executed by such Guarantor, any other guarantor
or by any other party, and the liability of each Guarantor hereunder shall not
be affected or impaired by (a) any direction as to application of payment by the
Issuer or by any other party, or (b) any other continuing guaranty, undertaking
or maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations of the Issuer, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Issuer, or (e) any payment made to the
Creditors on the indebtedness which the Creditors repay the Issuer pursuant to
court order in any bankruptcy, reorganizing, arrangement, moratorium or other
debtor relief proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
3. INDEPENDENT OBLIGATION. The obligations of each Guarantor
hereunder are independent of the obligations of any other guarantor or the
Issuer, and a separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other guarantor or
the Issuer and whether or not any other Guarantor or the Issuer be joined in any
such action or actions. Each Guarantor agrees that any payment by the Issuer or
other circumstances which operates to toll any statute of limitations as to the
Issuer shall operate to toll the statute of limitations as to each Guarantor.
4. AUTHORIZATION. Each Guarantor authorizes the Creditors without
notice or demand (except as shall be required by applicable law and cannot be
waived), and without affecting or impairing its liability hereunder, from time
to time, to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, accelerate or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order
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any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against the Issuer
or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Issuer or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of the Issuer to its creditors other than the Creditors;
(f) apply any sums by whomsoever paid or whosoever realized to any
liability or liabilities of the Issuer to the Creditors regardless of what
liability or liabilities of the Issuer remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, the Indenture or the Notes or any of the instruments or
agreements referred to herein, or otherwise amend, modify or supplement the
Indenture or the Notes or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of such
Guarantor from its liabilities under this Guaranty
5. RELIANCE. It is not necessary for the Creditors to inquire into
the capacity or powers of the Issuer or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any Guaranteed Obligations
made or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
6. WAIVER OF SUBROGATION. Each Guarantor hereby agrees with the
Creditors that it will not exercise any right of subrogation or contribution
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the United States Bankruptcy Code or
otherwise) against the Issuer or any other Guarantor until all Guaranteed
Obligations have been irrevocably paid in full in cash. The Guaranteed
Obligations shall not be deemed to be paid in full unless the Creditors shall
have received all amounts set forth in the definition of "Guaranteed
Obligations", including, in the event of a bankruptcy proceeding, all interest,
fees and expenses accruing and arising after the filing of the bankruptcy
petition.
7. WAIVER. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Creditors to (i)
proceed against the Issuer or any other party, (ii) proceed against or exhaust
any security held from the Issuer or any other party or (iii) pursue any other
remedy in the Creditors' power whatsoever. Each Guarantor waives any defense
based on or arising out of any defense of the Issuer or any other party, other
than payment in full of the Guaranteed Obligations, based on or arising out of
the disability of
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the Issuer, any other guarantor or any other party, or the unenforceability of
the Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Issuer other than payment in full of the
Guaranteed Obligations. To the greatest extent permitted by law the Creditors
may, at their election, foreclose on any security held by (or on behalf of) the
Creditors by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Creditors may have against the Issuer or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid. Each
Guarantor waives any defense arising out of any such election by the Creditors,
even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Issuer or any other Guarantor or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices (except as otherwise expressly provided for herein),
including without limitation notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Guaranteed Obligations.
Each Guarantor assumes all responsibility for being and keeping itself informed
of the Issuer's financial condition and assets, and of all circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope
and extent of the risks which each Guarantor assumes and incurs hereunder, and
agrees that the Creditors shall have no duty to advise any Guarantor of
information known to them regarding such circumstances or risks.
8. NATURE OF LIABILITY. It is the desire and intent of the Guarantors
and the Creditors that this Guaranty shall be enforced against each Guarantor to
the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of any Guarantor under this Guaranty shall be adjudicated
to be invalid or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to fraudulent
conveyances or transfers), then the amount of the Guaranteed Obligations of such
Guarantor shall be deemed to be reduced and such Guarantor shall pay the maximum
amount of the Guaranteed Obligations which would be permissible under applicable
law.
9. JUDGMENTS BINDING. If claim is ever upon any Creditor or any
subsequent holder of a Note of the Issuer for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property, or (b) settlement or
compromise of any claim effected by such payee with any such claimant, then and
in such event each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon each Guarantor, notwithstanding
any revocation hereof or the cancellation of any Note or other instrument
evidencing any liability of the Issuer, and each Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
II. MISCELLANEOUS
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1. EXECUTION OF GUARANTY. The validity and enforceability of this
Guaranty shall not be affected by the fact that it is not affixed to any
particular Note. Each of the Guarantors hereby agrees that its Guaranty set
forth herein shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guaranty.
2. RELEASE OF GUARANTORS. Upon the release or discharge of the
obligations of a Guarantor under the Bank Guaranty, except a discharge or
release by or as a result of payment under the Bank Guaranty, such Guarantor's
Guaranty hereunder automatically shall be released, and such Guarantor shall be
deemed released from all obligations under this Guaranty without any further
action required on the part of the Trustee or any other Creditor.
3. GOVERNING LAW. THIS GUARANTY, AND THE RIGHTS AND OBLIGATIONS
HEREUNDER, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4. SUBMISSION TO JURISDICTION. Each Guarantor irrevocably consents
and agrees for the benefit of the Creditors that any legal action, suit or
proceeding against it with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Guaranty may be brought in the
courts of the State of New York or the courts of the United States of America
located in the County of New York and, until all amounts due and to become due
in respect of all the Notes have been paid, or until any such legal action,
suit, or proceeding commenced prior to such payment has been concluded, hereby
irrevocably consents and submits to the non-exclusive jurisdiction of each such
court IN PERSONAM generally and unconditionally with respect to such action,
suit, or proceeding.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
duly executed and delivered by officers thereunto duly authorized as of the day
and year first above written.
EQUIPMENT CONSULTANTS, INC.
By ____________________________________
Name:
Title:
FOREIGN HOLDINGS LTD.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX ASIA LIMITED
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL
& FINANCE CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX DEVELOPMENT CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ENERGY CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ENERGY MANUFACTURING, INC.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX ENERGY SERVICES, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX ENVIRESPONSE, INC.
By_____________________________________
Name:
Title:
XXXXXX XXXXXXX ENVIRONMENTAL CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX FACILITIES MANAGEMENT, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX INC.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX INTERNATIONAL CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX INTERNATIONAL HOLDINGS, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX LTD.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX POWER GROUP, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX POWER SYSTEMS, INC.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX PYROPOWER, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX REAL ESTATE
DEVELOPMENT CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX REALTY SERVICES, INC.
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX USA CORPORATION
By ____________________________________
Name:
Title:
XXXXXX XXXXXXX VIRGIN ISLANDS, INC.
By ____________________________________
Name:
Title:
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XXXXXX XXXXXXX XXXX, INC.
By ____________________________________
Name:
Title:
FW MORTSHAL, INC.
By ____________________________________
Name:
Title:
FW TECHNOLOGIES HOLDING LLC
By ____________________________________
Name:
Title:
HFM INTERNATIONAL, INC.
By____________________________________
Name:
Title:
PROCESS CONSULTANTS, INC.
By ____________________________________
Name:
Title:
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PYROPOWER OPERATING SERVICES COMPANY, INC.
By ____________________________________
Name:
Title:
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PERRYVILLE III TRUST
By: THE BANK OF NEW YORK, not in its
individual capacity but solely in
its capacity as the Owner Trustee of
the Perryville III Trust
By ________________________________
Name:
Title:
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SCHEDULE I
GUARANTORS
Equipment Consultants, Inc. Delaware
Foreign Holdings Ltd. Bermuda
Xxxxxx Xxxxxxx Asia Limited Delaware
Xxxxxx Xxxxxxx Capital & Finance Corporation Delaware
Xxxxxx Xxxxxxx Constructors, Inc. Delaware
Xxxxxx Xxxxxxx Development Corporation Delaware
Xxxxxx Xxxxxxx Energy Corporation Delaware
Xxxxxx Xxxxxxx Energy Manufacturing, Inc. Delaware
Xxxxxx Xxxxxxx Energy Services, Inc. California
Xxxxxx Xxxxxxx Enviresponse, Inc. Delaware
Xxxxxx Xxxxxxx Environmental Corporation Texas
Xxxxxx Xxxxxxx Facilities Management, Inc. Delaware
Xxxxxx Xxxxxxx Inc. Delaware
Xxxxxx Xxxxxxx International Corporation Delaware
Xxxxxx Xxxxxxx International Holdings, Inc. Delaware
Xxxxxx Xxxxxxx Ltd. Bermuda
Xxxxxx Xxxxxxx Power Group, Inc. Delaware
Xxxxxx Xxxxxxx Power Systems, Inc. Delaware
Xxxxxx Xxxxxxx Pyropower, Inc. New York
Xxxxxx Xxxxxxx Real Estate Development Corporation Delaware
Xxxxxx Xxxxxxx Realty Services, Inc. Delaware
Xxxxxx Xxxxxxx USA Corporation Delaware
Xxxxxx Xxxxxxx Virgin Islands, Inc. Delaware
Xxxxxx Xxxxxxx Xxxx, Inc. Delaware
FW Mortshal, Inc. Delaware
FW Technologies Holding LLC Delaware
HFM International, Inc. Delaware
Process Consultants, Inc. Delaware
Pyropower Operating Services Company, Inc. California
Perryville III Trust New York
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