Exhibit 99.8
Date: January 24, 2002
THE CIT GROUP/COMMERCIAL SERVICES, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LIMITED GUARANTY
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Re: CARLYLE INDUSTRIES, INC.
0 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
XXXXXXXXXX/LANSING COMPANY
0 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
WESTWATER INDUSTRIES, INC.
0 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
(herein collectively the "Client")
Ladies and Gentlemen:
Reference is made to the Accounts Receivable Financing Agreements and
the loan and security documents executed in connection therewith (herein the
"Agreements") between you and the above-named Client. Subject to the limitation
set for in the next paragraph, the undersigned hereby unconditionally guarantees
and agrees to be liable for the full and indefeasible payment and performance
when due of all now existing and future indebtedness, obligations or liabilities
of the Client to you, howsoever arising, whether direct or indirect, absolute or
contingent, secured or unsecured, whether arising under any of the Agreements as
now written or as amended or supplemented hereafter, or by operation of law or
otherwise. Further, the undersigned agrees to pay to you on demand the amount of
all expenses (including reasonable attorney's fees) incurred by you in
collecting or attempting to collect any of the Client's obligations to you,
whether from the Client, or from any other obligor, or from the undersigned, or
in realizing upon any collateral; and agrees to pay any interest at the highest
lawful rate on all amounts payable to you hereunder, even if such amount cannot
be collected from the Client. (All of the aforementioned obligations,
liabilities, expenses and interest are hereinafter collectively called the
"Obligations"). To the extent you receive payment on account of the Obligations
guaranteed hereby, which payment is thereafter set aside or required to be
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repaid by you in whole or in part, then, to the extent of any sum not finally
retained by you (regardless of whether such sum is recovered from you by the
Client, its trustee, or any other party acting for, on behalf of or through the
Client or its representative), the undersigned's obligation to you under this
Guaranty, as amended, modified or supplemented, shall remain in full force and
effect (or be reinstated) until the undersigned has made payment to you
therefor, which payment shall be due upon demand.
In no event shall the total liability of the undersigned arising out or
related to this Guaranty exceed the sum of (i) $1,000,000.00 and (ii) the value
of the Collateral Account pledged by the undersigned to you pursuant to a
certain Brokerage Account Pledge and Security Agreement of even date hereof,
plus interest thereon (at the rate of interest required in the Agreements) from
the date of your demand for payment by the undersigned through and including the
date paid, plus any costs, fees and expenses (including, but not limited to,
reasonable legal fees) incurred by you in enforcing of this Guaranty.
This Guaranty is executed as an inducement to you to make loans or
advances to the Client or otherwise to extend credit or financial accommodations
to the Client, or to enter into or continue a factoring or financing arrangement
with the Client, and is executed in consideration of your doing or having done
any of the foregoing. The undersigned agrees that any of the foregoing shall be
done or extended by you in your sole discretion, and shall be deemed to have
been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do any
of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances,
or the extension of credit to the Client, the purchase or acquisition of
receivables from the Client, the amendment, execution or termination of any of
the Agreements or any other agreements between you and the Client, and
presentment, demand, protest, notice of protest, notice of non-payment and all
other notices to which the Client or the undersigned may be entitled, and your
reliance on this Guaranty are hereby waived. The undersigned also waives any and
all defenses based on suretyship and notice of: changes in terms or extensions
of time of payment, the taking and releasing of collateral or guarantees
(including the release of any of other guarantor) and the settlement, compromise
or release of any Obligations, and agree that, as to the undersigned, the amount
of the Obligations shall not be diminished by any of the foregoing. The
undersigned also agrees that you need not attempt to collect any Obligations
from the Client or other obligors or to realize upon any collateral, but may
require the undersigned to make immediate payment of Obligations to you when due
or at any time thereafter. You shall not be liable for failure to collect
Obligations or to realize upon any collateral or security therefor, or any part
thereof, or for any delay in so doing, nor shall you be under any obligation to
take any action whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing, regardless of
the validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
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prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. The
liability of the undersigned under this Guaranty shall be unaffected by the
death of the undersigned. Payment by the undersigned shall be made to you at
your office from time to time on demand as Obligations become due, and one or
more successive or concurrent actions may be brought hereon against the
undersigned either in the same action in which the Client is sued or in separate
actions. In the event any claim or action, or action on any judgment, based on
this Guaranty, is made or brought against the undersigned, the undersigned
agrees not to assert against you any setoff or counterclaim which the Client may
have, and further the undersigned agree not to deduct, setoff, or seek to
counterclaim for or recoup, any amounts which are or may be owed by you to the
undersigned, or for any loss of contribution from any other guarantor.
Furthermore, in any litigation based on the Guaranty in which you and the
undersigned shall be adverse parties, the undersigned hereby waives the right to
interpose any defense based upon any statute of limitations or any claim of
laches and waive the performance of each and every condition precedent to which
the undersigned might otherwise be entitled by law. The undersigned hereby
consents to the in personam jurisdiction of the courts of New York State. In the
event that you bring any action or suit in any court of record of New York State
or the Federal Government to enforce any or all liabilities of the undersigned
hereunder, service of process may be made on the undersigned by mailing a copy
of the summons to the undersigned at the address below set forth.
All sums at any time to the credit of the undersigned and any property
of the undersigned on which you at any time have a lien or security interest, or
of which you at any time have possession, shall secure payment and performance
of all Obligations and any and all other obligations of the undersigned to you
however arising. The undersigned shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor, or to any assets of the Client.
In the event of any breach of, default under or termination of any of
the Agreements between you and the Client, or in the event that the undersigned
shall fail to observe or perform any agreements, warranties, or covenants
contained herein, or on the death of any of the undersigned, or should the
undersigned call a meeting of his creditors, fail to meet his debts as they
mature, commit an act of bankruptcy, have commenced by or against the
undersigned any bankruptcy, insolvency, arrangement, reorganization,
receivership or similar proceeding under any federal or state law, then the
liability of all of the undersigned for the entire Obligations shall mature even
if the liability of the Client therefor does not.
This Guaranty may be terminated the undersigned only upon actual
receipt by one of your officers of at least ninety (90) days prior written
notice of termination sent by registered or certified mail; provided however,
that the undersigned so terminating this Guaranty shall remain bound hereunder,
and this Guaranty shall continue in full force and effect, with respect to any
and all Obligations created or arising prior to the effective date of such
termination and with respect to any and all extensions, renewals or
modifications of said pre-existing Obligations. This Guaranty shall
automatically terminate upon termination of the Agreements and full, final and
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indefeasible payment in cash of all Obligations of each of the Clients
thereunder. Termination as to the undersigned shall not affect his obligations
hereunder, nor relieve the one giving such notice from liability for any post
termination collection expenses or interest. This is a continuing Guaranty and
written notice as above provided shall be the only means of termination,
notwithstanding the fact that for certain periods of time there may be no
Obligations owing to you by the Client.
Your books and records showing the account between you and the Client
shall be admissible in evidence in any action or proceeding as prima facie proof
of the items therein set forth. Your monthly statements rendered to the Client
shall be binding upon the undersigned (whether or not the undersigned received
copies thereof) and, shall constitute an account stated between you and the
Client, unless you shall have received a written statement of the Client's
exceptions within thirty (30) days after the statement was mailed to the Client.
This Guaranty embodies the whole agreement of the parties and may not
be modified except in writing, and no course of dealing between you and the
undersigned shall be effective to change or modify this Guaranty. Your failure
to exercise any right hereunder shall not be construed as a waiver of the right
to exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by the
undersigned of the terms and provisions of this Guaranty shall constitute a
waiver thereof, nor a waiver of any obligations to be performed by the
undersigned hereunder.
This Guaranty is executed and given in addition to, and not in
substitution, reduction, replacement or satisfaction of any other endorsements
or guarantees of the Obligations, now existing or hereafter executed, by the
undersigned, or others in your favor.
When used in this Guaranty all pronouns shall, wherever applicable, be
deemed to include the plural as well as the masculine and feminine gender. This
Guaranty shall inure to the benefit of you, your successors and assigns and any
parent, subsidiary or affiliate of yours, as well as to any concern which you
may now or hereafter factor or finance; shall be binding jointly and severally
upon the undersigned and upon the respective heirs, executors, administrators,
successors and assigns of the undersigned; and shall pertain to the Client and
its successors and assigns. This Guaranty may be executed in any number of
counterparts, each of which when so executed shall be deemed an original and
such counterparts shall, together, constitute but one and the same document.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING DIRECTLY
OR INDIRECTLY OUT OF THIS GUARANTY OR ANY OTHER AGREEMENT OR TRANSACTION BETWEEN
US OR TO WHICH WE ARE BOTH PARTIES.
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This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York without reference to principles of conflicts of
law other than Sections 5-1401 and 5-1402 of the New York General Obligations
Law.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty effective as of the date above set forth.
/s/ XXXXXX X. XXXXXXXX X.X.
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Xxxxxx X. Xxxxxxxx, an individual
Address: 0000 0xx Xxx.
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XX, Xxx Xxxx 00000
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STATE OF New York
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INDIVIDUAL ACKNOWLEDGEMENT
COUNTY OF New York
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The undersigned, a Notary Public in and for the above State and County,
does hereby certify that on January 23, 2002, before me personally appeared
Xxxxxx X. Xxxxxxxx, residing at the address given above, to me known to be
identical individual described in and who executed the foregoing instrument of
Guaranty, to whom I first made known the contents thereof, and who being by me
duly sworn, did depose and say that same was signed and delivered as a free and
voluntary act and deed, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand.
/s/ XXXX XXXXX
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Notary Public
Commission Expires:
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