1
EXHIBIT 10.35
GUARANTY
TO: Grafalloy L.P., a Delaware limited partnership
1. GUARANTY OF INDEBTEDNESS. For valuable consideration, The
American Materials & Technologies Corporation, a Delaware corporation
("Guarantor"), unconditionally guaranties and promises to pay to Grafalloy L.P.,
a Delaware limited partnership ("Payee"), or order, on demand, any and all
Indebtedness (as defined below) of Grafalloy Acquisition Corporation, a Delaware
corporation ("Maker"), to Payee, if Maker fails to pay any or all of the
Indebtedness at the time or times and in the manner provided for payment. The
word "Indebtedness" as used in this Guaranty means all of Maker's indebtedness
and obligations to Payee evidenced by (a) the 7% Secured Subordinated
Non-Negotiable Promissory Note, of even date herewith, in the original principal
amount of $800,000.00, executed by Maker in favor of Payee (the "Purchase
Note"), including, principal, interest, and other charges, all costs of
collection, including, attorneys' fees and expenses, if any, and all extensions,
renewals, modifications and amendments of the Purchase Note; (b) the 12% Secured
Subordinated NonNegotiable Promissory Note of even date herewith, in the
original principal amount of $747,254.00, executed by Maker in favor of Payee
(the "Prince Note"), including, principal, interest, late charges and other
charges, all costs of collection, including, attorneys' fees and expenses, if
any, and all extensions, renewals, modifications and amendments of the Prince
Note; (c) the 7% Unsecured Subordinated Non-Negotiable Promissory Note of even
date herewith, in the original principal amount of $175,000.00, executed by
Maker in favor of Payee (the "Shareholder Note"), including, principal,
interest, and other charges, all costs of collection, including attorneys' fees
and expenses, if any, and all extensions, renewals, modifications and amendments
of the Shareholder Note; (d) the Asset Purchase Agreement dated as of February
27, 1997, between Maker, Payee, Guarantor and Grafalloy, Inc. ("the Asset
Purchase Agreement"), including, all costs of collection, including, attorneys'
fees and expenses, if any, and all modifications and amendments of the Asset
Purchase Agreement; and (e) any document, instrument or agreement executed in
connection with Maker's obligations evidenced by the Purchase Note, the Prince
Note, the Shareholder Note, or the Asset Purchase Agreement, including, the
Security Agreement of even date herewith between Maker and Payee, or other
security document. It is not necessary for Payee to inquire into the powers of
Maker or the officers, directors, or agents acting or purporting to act on
Maker's behalf, and any of the Indebtedness made or created in reliance upon the
purported exercise of such powers shall be guarantied hereunder. The Purchase
Note, the Prince Note and the Shareholder Note are hereinafter collectively
referred to as the "Notes."
2. DEFINITIONS. All capitalized terms not otherwise defined in this
Guaranty shall have the meaning assigned thereto in the Notes.
3. EFFECTIVENESS OF GUARANTY. This Guaranty shall bind and obligate
Guarantor for payment of the Indebtedness precisely as if the same had been
contracted and was
2
due and owing by Guarantor directly, and shall constitute a guaranty of payment,
not a guaranty of collection. The obligations of Guarantor hereunder shall
survive and continue in full force and effect until payment in full of the
Indebtedness is actually received by Payee, notwithstanding: (a) any release or
termination of the liability of Maker or any other guarantor, by express or
implied agreement with Payee or by operation of law; (b) Maker may be liable
individually or jointly with others; (c) the Indebtedness or any part thereof is
deemed to have been paid or discharged by operation of law or some act or
agreement of Payee; (d) recovery upon the Indebtedness may be or hereafter
becomes barred by any statutes of limitation, by bankruptcy, by insolvency, by
reorganization, or any other means; or (e) the Indebtedness may be or hereafter
becomes unenforceable or invalid. For purposes of this Guaranty, the
Indebtedness shall be deemed to be paid only the extent that Payee actually
receives immediately available funds and to the extent of any credit bid by
Payee at any foreclosure or trustee's sale of any collateral securing any part
of the Indebtedness.
4. INDEPENDENT OBLIGATION. The obligations of Guarantor hereunder
are separate and independent of the obligations of Maker and of every other
guarantor of the Indebtedness, and a separate action or actions may be brought
and prosecuted against Guarantor regardless of whether an action is brought
against Maker or any other guarantor or whether Maker or any other guarantor is
joined in any such action or actions, or whether Payee forecloses upon, sells or
otherwise disposes of or collects any collateral securing any of the
Indebtedness. Subject to Section 9 below, the Indebtedness may be enforced
against Guarantor at any time following the failure on the part of Maker to pay
and perform the Indebtedness.
5. AUTHORIZATION OF PAYEE. Guarantor authorizes Payee, without
notice or demand, and without affecting Guarantor's liability hereunder, from
time to time to: (a) amend, modify, or restate any instrument, document or
agreement evidencing or relating to all or any portion of the Indebtedness; (b)
renew, compromise, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Indebtedness or any part thereof,
including, any increase or decrease of the rate of interest thereon; (c) take
and hold collateral as security for the payment of this Guaranty or the
Indebtedness, and exchange, substitute, subordinate, enforce, waive and release
any such collateral; (d) apply any and all payments from Maker, Guarantor or any
other guarantor, or recoveries from any collateral securing any of the
Indebtedness, in such order or manner as Payee in its sole and absolute
discretion may determine; (e) direct the order or manner of sale of any
collateral securing any part of the Indebtedness as Payee in its sole and
absolute discretion may determine; (f) release or substitute any one or more of
the Maker, Guarantor or any other guarantor, or acquire additional guarantors;
and (g) assign its rights under this Guaranty in whole or in part.
6. GUARANTOR'S WAIVERS. To the extent permitted by applicable law,
Guarantor waives and agrees not to assert: (a) any right to require Payee to
proceed against Maker, Guarantor, or any other guarantor, proceed against or
exhaust any collateral of Maker held as security for any part of the
Indebtedness, or pursue any other remedy in Payee's power whatsoever; (b) any
defense arising by reason of any disability or other defense of Maker or by
2
3
reason of the cessation of, or unenforceability of, the liability of Maker for
all or any part of the Indebtedness from any cause whatsoever (other than
payment in full); (c) any exemption rights; (d) demand, diligence, grace,
presentment for payment, protest, notice of nonpayment (except as set forth in
SECTION 7.1 of the Security Agreement or in SECTION 8 of the Notes),
nonperformance, extension, dishonor, maturity, protest and default; (e) recourse
to any guaranty or suretyship defenses; (f) notice of acceptance of this
Guaranty; (g) all rights and privileges Guarantor might otherwise have to
require Payee to pursue any other remedy available to Payee in any particular
manner or order; (h) the existence, creation, or incurring of new or additional
Indebtedness; (i) any impairment of collateral securing any part of the
Indebtedness, including, failure to perfect a security interest in, and release
of, any such collateral; (j) the benefits of any statutory provision limiting
the right of Payee to recover a deficiency judgment, or to otherwise proceed,
against any person or entity obligated for payment of the Indebtedness, after
any foreclosure or trustee's sale of any collateral securing any part of the
Indebtedness; and (k) any implied right of reimbursement or contribution from
Maker or any other claim against Maker at law or in equity. Guarantor agrees
that if Payee shall exercise any right or remedy with respect to any collateral
securing any of the Indebtedness, Guarantor shall be and remain liable to Payee
for the deficiency by which the net proceeds of exercise of such right or remedy
actually received by Payee shall be less than the Indebtedness.
7. NO SUBROGATION. Until all Indebtedness of Maker to Payee shall be
paid in full, Guarantor shall have no right of subrogation and waives any right
to enforce any remedy which Guarantor now has or may hereafter have against
Maker, and waives any right to participate in any collateral securing any of the
Indebtedness held by Payee.
8. WAIVER OF GRADSKY AND OTHER RIGHTS AND DEFENSES.
(a) GRADSKY. Guarantor understands and acknowledges that if
Payee forecloses judicially or nonjudicially against any real property security
for the Indebtedness, that foreclosure could impair or destroy any ability that
Guarantor may have to seek reimbursement, contribution or indemnification from
Maker or others based on any right Guarantor may have of subrogation,
reimbursement, contribution or indemnification for any amounts paid by Guarantor
under this Guaranty. Guarantor further understands and acknowledges that in the
absence of this Section, such potential impairment or destruction of Guarantor's
rights, if any, may entitle Guarantor to assert a defense to this Guaranty based
on Section 580d of the California Code of Civil Procedure as interpreted in
UNION BANK X. XXXXXXX, 265 Cal.App.2d 40 (1968). By executing this Guaranty,
Guarantor freely, irrevocably and unconditionally: (i) waives and relinquishes
that defense and agrees that Guarantor will be fully liable under this Guaranty
even though Payee may foreclose judicially or nonjudicially against any real
property security for the Indebtedness; (ii) agrees that Guarantor will not
assert that defense in any action or proceeding which Payee may commence to
enforce this Guaranty; (iii) acknowledges and agrees that the rights and
defenses waived by Guarantor under this Guaranty include any right or defense
that Guarantor may have or be entitled to assert based upon or arising out of
any one or more of Sections 580a, 580b, 580d or 726 of the California Code of
Civil Procedure or
3
4
Section 2848 of the California Civil Code; and (iv) acknowledges and agrees that
Payee is relying on this waiver in making the Indebtedness available to Maker,
and that this waiver is a material part of the consideration which Payee is
receiving for making the Indebtedness available to Maker.
(b) SUBROGATION AND REIMBURSEMENT. Guarantor waives the
Guarantor's rights of subrogation and reimbursement and any other rights and
defenses available to the Guarantor by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code, including: (i) any defenses the
Guarantor may have to the Guaranty obligation by reason of an election of
remedies by Payee; and (ii) any rights or defenses the Guarantor may have by
reason of protection afforded to Maker with respect to the obligation so
guaranteed pursuant to the antideficiency or other laws of California limiting
or discharging Maker's indebtedness, including Section 580a, 580b, 580d or 726
of the Code of Civil Procedure.
(c) ELECTION OF REMEDIES. Guarantor waives all right and
defenses arising out of an election of remedies by Payee, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for a guaranteed obligation, has destroyed the Guarantor's rights of subrogation
and reimbursement against Maker by the operation of Section 580d of the Code of
Civil Procedure or otherwise.
(d) OTHER. No provision or waiver in this Guaranty shall be
construed as limiting the generality of any other waiver contained in this
Guaranty.
9. SUBORDINATION. Payee, by its acceptance of this Guaranty, and all
subsequent holders of this Guaranty, agree to be bound by the provisions of this
Section 9 as follows:
(a) SUBORDINATED DEBT. All of Guarantor's obligations,
liabilities and indebtedness arising under this Guaranty (as the same may be
amended, modified, supplemented or restated), any interest thereon (both before
and after the commencement of any event described in SUBSECTION 9(d) below), and
any costs or expenses associated with the collection or enforcement thereof, are
hereinafter referred to collectively as the "SUBORDINATED DEBT". The
Subordinated Debt is subordinate and junior in right of payment, to the extent
and in the manner set forth below, to all "SUPERIOR DEBT" (as defined in
SUBSECTION 9(b) below) of Guarantor to the extent provided in this SECTION 9.
(b) SUPERIOR DEBT. For the purpose of these subordination
provisions of this Guaranty, the term "SUPERIOR DEBT" shall mean (both before
and after the commencement of any event described in SUBSECTION 9(d) below) any
obligation, liability or indebtedness of Guarantor owing to LaSalle from time to
time under the terms and conditions of (A) that certain Continuing Unconditional
Guaranty dated as of December 19, 1995 executed in favor of LaSalle by
Guarantor, as the same may be amended, modified, supplemented or restated from
time to time, (B) any other instrument of guaranty executed in favor of LaSalle
by Guarantor in respect
4
5
of loans or credit accommodations extended by LaSalle to Maker or to any other
entity owned or controlled by Guarantor (as any such Continuing Unconditional
Guaranty or other instrument of guaranty may be hereafter from time to time
amended, modified, supplemented or restated), and (C) any other note, instrument
or agreement evidencing indebtedness of Guarantor to LaSalle or pursuant to
which such indebtedness is issued or governed (as any such note, instrument or
agreement may be hereafter from time to time amended, modified, supplemented or
restated), and shall include any refinancing, replacement, extension or renewal
of such indebtedness. Anything contained herein to the contrary notwithstanding,
the Subordinated Debt shall be subordinate and junior in right of payment, to
the extent and manner set forth in this Section 9, to an aggregate principal
amount of all Superior Debt of up to $50,000,000.00.
(c) PERMITTED PAYMENTS.
(i) NO BLOCKAGE. Notwithstanding the foregoing
subordination of debt, Payee shall be entitled to receive payments from
Guarantor on the Subordinated Debt, except as set forth in Subsections 9(c)(ii)
and (iii) and Section 9(d) below.
(ii) SUPERIOR DEBT PAYMENT DEFAULTS. During the
continuance of any default in the payment of principal or interest by Guarantor
under the Superior Debt, upon written notice from the holder of the Superior
Debt to Guarantor and Payee and thereafter during the continuance of such
default, Guarantor shall not make, and Payee shall not be entitled to receive,
any direct or indirect payment (in cash, property or securities or by set-off or
otherwise) on the Subordinated Debt until the default in the payment of
principal or interest shall have been cured or waived in writing by the holder
of the Superior Debt, or shall have ceased to exist ("Payment Default Standstill
Period").
(iii) OTHER SUPERIOR DEBT DEFAULTS. During the continuance
of any event of default under the Superior Debt, other than the defaults as
described in Subsection 9(c)(ii) above, upon written notice from the holder of
the Superior Debt to Guarantor and Payee, and thereafter during the continuance
of such event of default, for a period not exceeding 180 days, Guarantor shall
not make, and Payee shall not be entitled to receive, any direct or indirect
payment (in cash, property or securities or by set-off or otherwise) on the
Subordinated Debt until such event of default shall have been cured or waived in
writing by the holder of the Superior Debt, or shall have ceased to exist ("Non-
Payment Default Standstill Period"). Anything contained herein to the contrary
notwithstanding, the holder of the Superior Debt may declare only one such
Non-Payment Default Standstill Period in connection with Guarantor's obligations
hereunder arising from the Purchase Note. The Payment Default Standstill Period
and the Non-Payment Default Standstill Period are collectively referred to as
the "Standstill Period."
(d) CERTAIN EVENTS OF BANKRUPTCY. In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to Guarantor;
5
6
(ii) any proceedings for the liquidation, dissolution or
other winding-up of Guarantor, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings;
(iii) any assignment by Guarantor for the benefit of its
creditors;
or
(iv) any other marshaling of the assets of Guarantor,
the Superior Debt(including any interest on the Superior Debt accruing at the
legal rate after the commencement of any such proceedings and any additional
interest that would have accrued on the Superior Debt but for the commencement
of such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
Payee on account of the Subordinated Debt. Any payment or distribution, whether
in cash, securities or other property, which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the
Subordinated Debt shall be paid or deliverable directly to the holder of the
Superior Debt (including any interest thereon accruing at the legal rate after
the commencement of any such proceedings and any additional interest that would
have accrued on same but for the commencement of such proceedings) until such
time as the Superior Debt shall have been paid in full.
(e) NO PAYMENTS/REMEDIES.
(i) Payee will not ask for, demand receive or accept payment
from Guarantor or on Guarantor's behalf (and Guarantor will not pay to Payee)
any Subordinated Debt during any Standstill Period.
(ii) Notwithstanding the foregoing, Payee may send notices
of default to Guarantor.
(f) PAYMENTS IN TRUST. If any payment or distribution, whether
in cash, securities or other property, shall be received by Payee (i) in
contravention of any of the terms of this SECTION 9 before all the Superior Debt
shall have been paid in full, such payment or distribution shall be received in
trust for the benefit of, and shall promptly be paid over or delivered and
transferred to the holder of the Superior Debt for application to the payment of
the Superior Debt.
(g) CERTAIN RIGHTS OF SUBORDINATED DEBT. The holder of the
Superior Debt shall not be prejudiced in the right to enforce subordination of
the Subordinated Debt as described in this Section 9 by any act or failure to
act on the part of Guarantor. The foregoing provisions as to subordination are
solely for the purpose of defining the relative rights of the holder of the
Superior Debt, on the one hand, and Payee, on the other hand. Nothing contained
herein shall impair, as between Guarantor and Payee, the obligation of
Guarantor, which is
6
7
unconditional and absolute, to pay to Payee the Indebtedness as and when the
same shall become due and payable in accordance with the terms of this Guaranty,
or prevent Payee from exercising all rights, powers and remedies otherwise
permitted by applicable law or under this Guaranty upon an Event of Default
under this Guaranty, all subject to the rights of the holder of the Superior
Debt as set forth in this SECTION 9.
(h) NOTICE OF DEFAULTS. Payee shall give to the holder of the
Superior Debt prompt notice of any Event of Default by Guarantor or Maker of any
of their respective obligations to Payee.
(i) SUBROGATION. Upon payment in full of all the Superior Debt
and until the Subordinated Debt has been paid in full, Payee shall be subrogated
to the rights of the holder of the Superior Debt to receive payments and
distributions with respect to the Superior Debt to the extent that payments and
distributions with respect to the Subordinated Debt otherwise payable to Payee
have been applied to payment of the Superior Debt in accordance with the
provisions of this SECTION 9. As between Guarantor, on the one hand, and Payee,
on the other hand, a payment or distribution applied to payment of the Superior
Debt in accordance with the provisions of this SECTION 9 which otherwise would
have been made to Payee shall not be deemed a payment by Guarantor on the
Subordinated Debt. The subordination provisions of this SECTION 9 define the
relative rights of Payee and the holder of the Superior Debt and do not impair
the obligation of Guarantor to pay the Subordinated Debt to Payee, as and when
due and payable, except as provided herein.
10. SUBORDINATION OF OTHER OBLIGATIONS. Any indebtedness of Maker now
or hereafter held by or payable to Guarantor is hereby subordinated to the
Indebtedness, and such indebtedness of Maker to Guarantor, if Payee so requests,
shall be collected, enforced and received by Guarantor as trustee for Payee and
shall be paid over to Payee on account of the Indebtedness, but without reducing
or affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty.
11. EVENTS OF DEFAULT. Payee may declare Guarantor to be in default
under this Guaranty upon the occurrence of any of the following events ("Events
of Default"):
(a) Guarantor fails to perform any of its obligations under this
Guaranty;
(b) Guarantor revokes this Guaranty or this Guaranty becomes
ineffective for any reason; or
(c) Any of the events described in SECTION 9(d) of this Guaranty
shall occur.
7
8
12. REVIVAL AND REINSTATEMENT. If Payee is required to pay, return or
restore to Maker or any other person any amounts previously paid on the
Indebtedness because of any bankruptcy or other voluntary or involuntary
proceeding, in or out of court, for the adjustment of debtor-creditor
relationships in connection with Maker, or any other reason, the obligations of
Guarantor shall be reinstated and revived and the rights of Payee shall continue
with regard to such amounts, all as though they had never been paid.
13. BANKRUPTCY. In the event of the commencement of a bankruptcy case
by or against Maker or Guarantor or involving any of Payee's collateral for the
Indebtedness, Payee, to the extent not already provided for herein or in the
Financing Documents, shall be entitled to recover, and Guarantor shall be
obligated to pay, Payee's attorneys' fees and costs incurred in connection with:
(a) any determination of the applicability of the bankruptcy laws to the terms
of this Guaranty, the Financing Documents or Payee's rights hereunder or
thereunder; (b) any attempt by Payee to enforce or preserve its rights under the
bankruptcy laws, or to prevent Guarantor, Maker or any other person from seeking
to deny Payee its rights thereunder; (c) any effort by Payee to protect,
preserve, or enforce its rights against Payee's collateral for the Indebtedness,
or seeking authority to modify the automatic stay of 11 U.S.C. ss. 362 or
otherwise seeking to engage in such protection, preservation, or enforcement; or
(d) any civil proceeding(s) arising under the bankruptcy laws, or arising in or
related to a case under the bankruptcy laws.
14. COSTS OF COLLECTION. Guarantor agrees to pay all costs of
collection, including, attorneys' fees, whether or not suit is filed, and all
costs of suit and preparation for suit (whether at trial or appellate level), in
the event any obligation of Guarantor hereunder is not paid or discharged when
required to be paid or discharged, or in case it becomes necessary to protect
any collateral which is security for any obligation of Guarantor hereunder, or
to exercise any other right or remedy hereunder, or in the event Payee is made a
party to any litigation because of the existence of this Guaranty, or if at any
time Payee should incur any attorneys' fees in any proceeding under any federal
bankruptcy law (or any similar state or federal law) in connection with the
obligations evidenced hereby. In the event of any court proceeding, court costs
and attorneys' fees shall be set by the court and not by the jury and shall be
included in any judgment obtained by Payee.
15. NO WAIVER BY PAYEE. No delay or failure of Payee in exercising
any right hereunder shall affect such right, nor shall any single or partial
exercise of any right preclude further exercise thereof.
16. GOVERNING LAW. This Guaranty shall be construed in accordance
with and governed by the laws of the State of California, without regard to the
choice of law rules of the State of California.
17. JURISDICTION AND VENUE. Guarantor hereby expressly agrees that in
the event any actions or other legal proceedings are initiated by or against
Guarantor or Payee
8
9
involving any alleged breach or failure by any party to pay, perform or observe
any sums, obligations or covenants to be paid, performed or observed by it under
this Guaranty, or involving any other claims or allegations arising out of the
transactions evidenced or contemplated by this Guaranty, regardless of whether
such actions or proceedings shall be for damages, specific performance or
declaratory relief or otherwise, such actions, in the sole and absolute
discretion of Payee, may be required to be brought in San Diego County,
California; and Guarantor hereby submits to the jurisdiction of the State of
California for such purposes and agrees that the venue for such actions or
proceedings shall properly lie in San Diego County, California; and Guarantor
hereby waives any and all defenses to such jurisdiction and venue.
18. TIME OF ESSENCE. Time is of the essence of this Guaranty and each
and every provision hereof.
19. ENTIRE AGREEMENT, AMENDMENTS. This Guaranty sets forth the entire
agreement of Payee and Guarantor with respect to the subject matter hereof and
supersedes all prior written agreements and representations by Payee to
Guarantor. There are no conditions, oral or written, to the effectiveness of
this Guaranty. No amendment, modification, change, waiver or discharge of any
provision of this Guaranty or any right of Payee hereunder, or any release of
Guarantor from any of its obligations hereunder, shall be effective unless
evidenced by an instrument in writing and signed by the party against whom
enforcement is sought.
20. SEVERABILITY. If any provision hereof is invalid or
unenforceable, the other provisions hereof shall remain in full force and effect
and shall be liberally construed in favor of Payee in order to effectuate the
other provisions hereof.
21. BINDING NATURE. The provisions of this Guaranty shall be binding
upon Guarantor and the successors and assigns of Guarantor, and shall inure to
the benefit of Payee and its successors and assigns.
22. TRANSFER AND ASSIGNMENT. Payee may from time to time transfer all
or any part of its interest in the Indebtedness and this Guaranty, without
notice to Guarantor. Guarantor shall not transfer (by agreement, operation of
law or otherwise) any obligation under this Guaranty, and any such purported
transfer shall be void.
23. INDUCEMENT OF PAYEE. This Guaranty is given at the instance and
request of Maker in order to induce Payee to make available to Maker certain
financial accommodations which constitute a portion of the Indebtedness.
Guarantor acknowledges and agrees that Payee has acted in reliance upon this
Guaranty in making such financial accommodations available to Maker. Guarantor
hereby represents and warrants that Guarantor is and will continue to be fully
informed about all aspects of the financial condition and business affairs of
Maker, and any other guarantor of the Indebtedness, that Guarantor deems
relevant to the obligation of Guarantor hereunder, and Guarantor hereby waives
and fully discharges Payee from any and all obligations to communicate to
Guarantor any information whatsoever regarding the Indebtedness, Maker,
9
10
or the financial condition, business affairs or otherwise of Maker or any other
guarantor of the Indebtedness.
24. NOTICE. Any notice or other communication with respect to this
Guaranty shall: (a) be in writing; (b) be effective on the day of hand-delivery
thereof to the party to whom directed, one day following the day of deposit
thereof with delivery charges prepaid, with a national overnight delivery
service, or two days following the day of deposit thereof with postage prepaid,
with the United States Postal Service, by regular first class, certified or
registered mail; (c) if directed to Payee, be addressed to Payee at the office
of Payee located at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxx, or to such other address as Payee shall have specified to
Guarantor by like notice, with a copy to Xxxx X. Xxxxxx, Esq. X'Xxxxxx Xxxxxxxx,
et al., Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000; (d) if
directed to Guarantor, be addressed to Guarantor at the address for Guarantor
set forth below Guarantor's name, or to such other address as Guarantor shall
have specified by like notice, with a copy to Xxxxx Xxxxxxxx, Esq., Xxxxx, Xxxx
& Xxxxx LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and (e) if
directed to LaSalle, as holder of the Superior Debt, then to LaSalle Business
Credit, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: District
Credit Manager.
25. SECTION HEADINGS. The section headings set forth in this Guaranty
are for convenience only and shall not have substantive meaning hereunder or be
deemed part of this Guaranty.
26. CONSTRUCTION. This Guaranty shall be construed as a whole, in
accordance with its fair meaning, and without regard to or taking into account
any presumption or other rule of law requiring construction against the party
preparing this Guaranty. Unless the context otherwise requires, the words
"hereof," "herein," and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, the word "include(s)" means "include(s),
without limitation," and the word "including" means "including, without
limitation". All references to dollar amounts shall mean amounts in lawful money
of the United States of America.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of
February 27, 1997.
GUARANTOR:
The American Materials & Technologies
Corporation, a Delaware corporation
By: /s/ Xxxx X.Xxxxxxx
--------------------------------
10
11
Name: Xxxx Xxxxxxx
Title: President
Address:
0000 Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
PAYEE:
Grafalloy, L.P., a Delaware limited
partnership
By its general partner, Grafalloy, Inc.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Address:
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
11
