EXHIBIT 10.9.4
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THIS INSTRUMENT AND THE OBLIGATIONS REPRESENTED THEREBY IS
SUBORDINATE IN ALL RESPECTS TO CERTAIN OBLIGATIONS OF CHEMPOWER,
INC. AND ITS SUBSIDIARIES TO FIRST NATIONAL BANK OF OHIO,
INCLUDING A PROMISSORY NOTE IN THE MAXIMUM PRINCIPAL AMOUNT OF
$15,700,000 DATED AS OF FEBRUARY 28, 1997.
GUARANTY
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THIS GUARANTY (this "Guaranty") is made as of this
28th day of February, 1997, by AMERICAN ECO CORPORATION, an
Ontario, Canada corporation ("Guarantor") in favor of XXXXXX X.
XXXX, his executors, administrators, successors, or assigns, as
Agent ("Agent") for XXXXXX X. XXXX and XXXX X. ROCHESTER (jointly
and severally, the "Principal Shareholders").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Agreement and
Plan of Merger by and among Guarantor, Sub Acquisition Corp.
("Merger Sub"), and Chempower, Inc., an Ohio corporation
("Chempower") dated as of September 10, 1996 (the "Merger
Agreement"), Merger Sub has agreed to pay certain Merger
Consideration (as defined in the Merger Agreement) to, among
others, the Principal Shareholders; and
WHEREAS, pursuant to that certain Financing
Agreement by and among Guarantor, Chempower, the Principal
Shareholders and the Agent, of even date herewith (the "Financing
Agreement"), Merger Sub's obligation to pay to the Principal
Shareholders all or part of the Merger Consideration is evidenced
by the Principal Shareholders' Note (as defined in the Financing
Agreement); and
WHEREAS, the transactions contemplated by the
Financing Agreement, including the issuance of the Principal
Shareholders' Note, will inure to the benefit of Guarantor; and
WHEREAS, the execution and delivery of this
Guaranty by the Guarantor is required by the Financing Agreement;
NOW, THEREFORE, for good and valuable
consideration, the Guarantor agrees as follows:
1. Definitions. Capitalized terms used and not
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defined herein shall have the meaning given to them in the
Financing Agreement. The term "Guaranteed Obligations shall mean
the obligation of Chempower to pay all of the principal of,
interest on and other indebtedness evidenced by the Principal
Shareholders' Note and any and all other indebtedness of
Chempower to the Agent pursuant to the terms of and transactions
and agreements provided for in the Financing Agreement.
2. Unconditional Guarantee. Guarantor hereby
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represents and warrants to the Agent that it is the sole
shareholder of Chempower and that it will receive substantial
benefits in respect of the Financing Agreement. Guarantor hereby
absolutely and unconditionally guarantees to the Agent, its
successors and assigns:
(a) the punctual and full payment when due of all
the Guaranteed Obligations; it being the intention of
Guarantor that this Guaranty be an absolute, irrevocable,
and unconditional guarantee of payment; and
(b) the performance and observance by Chempower
of all its obligations, agreements, and covenants with the
Agent under the Financing Agreement, the Principal
Shareholders' Note, and the Security Agreement; the
guarantee of such performance and observance to be absolute,
irrevocable, and unconditional (the obligations, agreements,
and covenants referred to in this subparagraph (b) also
being included within and being a part of the Guaranteed
Obligations).
Guarantor further agrees that its guarantee
hereunder will not be discharged or affected by the fact that the
Guaranteed Obligations or any of them shall be or become invalid
or unenforceable for any reason. Guarantor represents and
warrants to the Agent that it has full power, authority, and
capacity to enter into and to fully perform all of its
obligations under this Guaranty.
3. Costs. In addition to its obligations under
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Section 2 above, Guarantor agrees to pay all costs and expenses
incurred by the Agent in the enforcement and/or collection of any
and all of the Guaranteed Obligations, including, without
limitation, reasonable attorneys' fees.
4. Dealing with Guaranteed Obligations.
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Guarantor hereby grants to the Agent full power and authority,
and without notice to or the consent of Guarantor:
(a) to modify, supplement, or otherwise change
any terms of the Guaranteed Obligations, from and after the
occurrence of an Event of Default; to grant any extensions
or renewals of the Guaranteed Obligations; to grant any
other waiver or indulgence with respect to the Guaranteed
Obligations; and to effect any release, compromise, or
settlement with respect to the Guaranteed Obligations; and
(b) to accelerate the maturity of the Guaranteed
Obligations from and after the occurrence of a default
thereunder; to fail to set off any amounts owing by
Chempower to the Agent; to waive or enter into any agreement
of forbearance with respect to the Guaranteed Obligations;
and to change the term of any such waiver or agreement of
forbearance.
No action which the Agent may take or fail to take pursuant to
the foregoing powers shall operate to release or terminate this
Guaranty or impose any liability on the Agent.
5. The Agent Not Required to Pursue Chempower or
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Exhaust Collateral. Guarantor hereby waives any right to require
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payment of the Guaranteed Obligations by Chempower, or to require
the Agent to proceed against any collateral or security for the
Guaranteed Obligations, or to require any action or proceeding
against Chempower on the Guaranteed Obligations, or otherwise to
require the Agent to exhaust any and all remedies against
Chempower or any other person before proceeding against Guarantor
on this Guaranty.
6. Waiver of Acceptance, Etc. Guarantor waives
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acceptance and notice of acceptance hereof, presentment, demand,
protest or other notice of any kind, promptness in commencing
suit and/or giving notice to or in making any claim or demand
upon it, and agrees that no act or omission of any kind on the
part of the Agent shall in any event affect or impair this
Guaranty.
7. Notices. If the Agent desires to give notice
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to Guarantor, such notice shall be deemed given when mailed,
certified mail, return receipt requested, postage prepaid,
addressed to Guarantor at 00000 Xxxxx Xxxx, Xxxxxxx, Xxxxx 00000,
or to such other address as Guarantor may from time to time file
in writing with the Agent for notices to it.
8. Binding Effect. All of the terms, provisions,
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and agreements of this Guaranty shall inure to the benefit of and
be enforceable by the Agent, its successors and assigns, and
shall be binding upon and be enforceable against Guarantor and
its successors and assigns.
9. No Right of Subrogation. Guarantor shall not
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have any right of reimbursement, subrogation, or setoff with
respect to the Guaranteed Obligations unless and until the Agent
shall have received payment in full of all Guaranteed
Obligations.
10. Reinstatement of Guaranty. This Guaranty
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shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any amount
paid by or on behalf of Chempower with respect to the Guaranteed
Obligations is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Chempower or, upon or as a
result of the appointment of a receiver, intervenor, or
conservator of, or trustee or similar officer for, or any
substantial part of its property, or otherwise, all as though
such payments had not been made.
11. Governing Law. This Guaranty is a contract
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entered into under and pursuant to the laws of the State of Ohio,
and shall be in all respects governed, construed, applied and
enforced in accordance with the laws of such state.
12. Termination of Guaranty. This Guaranty shall
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remain in full force and effect until all Guaranteed Obligations
have been paid and performed in full.
13. Warrant of Attorney. Guarantor hereby
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irrevocably authorizes any attorney-at-law to appear for
Guarantor in an action on this Guaranty at any time after the
same becomes due, whether by acceleration or otherwise, in any
court of record in the State of Ohio or elsewhere and to waive
the issuing of service of process against Guarantor and to
confess judgment in favor of the Agent, its successors and
assigns, and against Guarantor, for all amounts that may be due,
together with costs of suit, and thereupon to waive all errors
and all rights of appeal and stays of execution in respect of the
judgment rendered. Guarantor hereby expressly (a) waives any
conflict of interest in an attorney retained by the Agent
confessing judgment against the Guarantor upon this Guaranty, and
(b) consents to any attorney retained by the Agent receiving a
legal fee or other value from the Agent for legal services
rendered for confessing judgment against the Guarantor upon this
Guaranty. The foregoing warrant of attorney shall survive any
judgment, and if any judgment is vacated for any reason, the
Agent may thereafter use the foregoing warrant of attorney to
obtain additional judgment or judgments against Guarantor. A copy
of this Guaranty, certified by the Agent, may be filed in any
proceeding in place of filing the original as a warrant of
attorney.
IN WITNESS WHEREOF, Guarantor has caused this
Guaranty to be executed and delivered to the Agent as of the date
first above written.
"WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE
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AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY
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BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
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OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY
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CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
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GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
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AGREEMENT, OR ANY OTHER CAUSE."
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AMERICAN ECO CORPORATION
By:/s/Xxxxxxx X. XxXxxxxx
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Name:Xxxxxxx X. XxXxxxxx
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Title:President
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