GUARANTY
(Corporate)
New York, New York March 18, 1997
FOR VALUE RECEIVED, and in consideration of loans made or to be made or
credit otherwise extended or to be extended by LaSalle Business Credit, Inc.
("LaSalle"), each of the financial institutions (collectively, "Lenders") named
in or which hereafter become a party to the Loan Agreement (as hereinafter
defined) and LaSalle as agent for Lenders (in such capacity "Agent") to or for
the account of American Buildings Company ("Borrower") from time to time and at
any time and for other good and valuable consideration and to induce Agent and
Lenders, in their discretion, to make such loans or extensions of credit and to
make or grant such renewals, extensions, releases of collateral or
relinquishments of legal rights as Agent and Lenders may deem advisable, the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) unconditionally guaranties to Agent for its
own benefit and for the ratable benefit of Lenders, their successors, endorsees
and assigns the prompt payment when due (whether by acceleration or otherwise)
of all present and future obligations and liabilities of any and all kinds of
Borrower to Agent or Lenders and of all instruments of any nature evidencing or
relating to any such obligations and liabilities upon which Borrower is or may
become liable to Agent or Lenders, whether incurred by Borrower as maker,
endorser, drawer, acceptor, guarantor, accommodation party or otherwise, and
whether due or to become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired by Agent or Lenders, whether
arising under, out of, or in connection with that certain Loan and Security
Agreement by and among Borrower, Lenders and Agent (as amended, supplemented,
modified or restated from time to time, the "Loan Agreement") or any documents,
instruments or agreements relating to or executed in connection with the Loan
Agreement or any documents, instruments or agreements referred to therein
(together with the Loan Agreement, the "Loan Documents"), (all of which are
herein collectively referred to as the "Obligations"), and irrespective of the
genuineness, validity, regularity or enforceability of such Obligations, or of
any instrument evidencing any of the Obligations or of any collateral therefor
or of the existence or extent of such collateral. Terms defined in the Loan
Agreement shall have the same meanings herein, unless otherwise herein expressly
provided. In furtherance of the foregoing, the undersigned xxxxxx agrees as
follows:
1. No Impairment. Agent and Lenders may at any time and from time to time,
either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or surrender
any collateral for, renew or extend any of the Obligations or increase or
decrease the interest rate thereon, and may also make any agreement with
Borrower or with any other party to or person liable on any of the Obligations,
or interested therein, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between or among Agent, Lenders and
Borrower or any such other party or person, or make any election of rights Agent
and Lenders may deem desirable under the United States Bankruptcy Code, as
amended, or any other federal or state bankruptcy, reorganization, moratorium or
insolvency law relating to or affecting the enforcement of creditors' rights
generally (any of the foregoing, an "Insolvency Law") without in any way
impairing or affecting this Guaranty. This instrument shall be effective
regardless of the subsequent incorporation, merger or consolidation of Borrower,
or any change in the composition, nature, personnel or location of Borrower and
shall extend to any successor entity to Borrower, including a debtor in
possession or the like under any Insolvency Law.
2. Guaranty Absolute. The undersigned guarantees that the Obligations will
be paid strictly in accordance with the terms of the Loan Agreement and/or any
other document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Borrower with respect
thereto. The undersigned hereby knowingly accepts the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that Borrower will contract additional indebtedness for which the
undersigned may be liable hereunder after Xxxxxxxx's financial condition or
ability to pay its lawful debts when they fall due has deteriorated, whether or
not Borrower has properly authorized incurring such additional indebtedness. The
undersigned acknowledges that (i) no oral representations, including any
representations to extend credit or provide other financial accommodations to
Borrower, have been made by Agent or any Lender to induce the undersigned to
enter into this Guaranty and (ii) any extension of credit to the Borrower shall
be governed solely by the provisions of the Loan Agreement. The liability of the
undersigned under this Guaranty shall be absolute and unconditional, in
accordance with its terms, and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation: (a) any waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or any
other action or inaction under or in respect of the Loan Documents or any other
instruments or agreements relating to the Obligations or any assignment or
transfer of any thereof; (b) any lack of validity or enforceability of any Loan
Document or other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof; (c) any furnishing of
any additional security to Agent for the ratable benefit of the Lenders or its
assignees or any acceptance thereof or any release of any security by Agent or
its assignees; (d) any limitation on any party's liability or obligation under
the Loan Documents or any other documents, instruments or agreements relating to
the Obligations or any assignment or transfer of any thereof or any invalidity
or unenforceability, in whole or in part, of any such document,
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instrument or agreement or any term thereof; (e) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Borrower, or any action taken with respect to this
Guaranty by any trustee or receiver, or by any court, in any such proceeding,
whether or not the undersigned shall have notice or knowledge of any of the
foregoing; (f) any exchange, release or nonperfection of any collateral, or any
release, or amendment or waiver of or consent to departure from any guaranty or
security, for all or any of the Obligations; or (g) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, the
undersigned. Any amounts due from the undersigned to Agent or any Lender shall
bear interest until such amounts are paid in full at the highest rate then
applicable to the Obligations of Borrower to Lenders under the Loan Agreement.
Obligations include post-petition interest whether or not allowed or allowable.
3. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. Neither Agent nor any Lender shall be under any obligation to
institute suit, exercise rights or remedies or take any other action against
Borrower or any other person liable with respect to any of the Obligations or
resort to any collateral security held by it to secure any of the Obligations as
a condition precedent to the undersigned being obligated to perform as agreed
herein and the undersigned hereby waives any and all rights which it may have by
statute or otherwise which would require Agent or any Lender to do any of the
foregoing. The undersigned further consents and agrees that neither Agent nor
Xxxxxxx shall be under any obligation to marshal any assets in favor of the
undersigned, or against or in payment of any or all of the Obligations. The
undersigned hereby waives any rights to interpose any defense, counterclaim or
offset of any nature and description which it may have or which may exist
between and among Agent, Lenders, Borrower and/or the undersigned with respect
to the undersigned's obligations under this Guaranty, or which Borrower may
assert on the underlying debt, including but not limited to failure of
consideration, breach of warranty, fraud, payment (other than cash payment in
full of the Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
(b) The undersigned further waives (i) notice of the acceptance of this
Guaranty, of the making of any such loans or extensions of credit, and of all
notices and demands of any kind to which the undersigned may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
undersigned; and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of presentment, non-payment
or protest and notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned by Agent or
any Lender, the undersigned shall not be
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entitled to be subrogated to any of the rights of Agent or any Lender against
Borrower or against any collateral or guarantee or right of offset held by Agent
or any Lender for the payment of the Obligations, nor shall the undersigned seek
or be entitled to seek any contribution or reimbursement from Borrower in
respect of payments made by the undersigned hereunder, until all amounts owing
to Agent and each Lender by Borrower on account of the Obligations are paid in
full and the Loan Agreement has been terminated. If, notwithstanding the
foregoing, any amount shall be paid to the undersigned on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full and the Loan Agreement shall not have been terminated, such amount
shall be held by the undersigned in trust for Agent and Lenders, segregated from
other funds of the undersigned, and shall forthwith upon, and in any event
within two (2) business days of, receipt by the undersigned, be turned over to
Agent for the ratable benefit of the Lenders in the exact form received by the
undersigned (duly endorsed by the undersigned to Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
Agent and Lenders may determine, subject to the provisions of the Loan
Agreement. Any and all present and future debts and obligations of Borrower to
any of the undersigned are hereby waived and postponed in favor of, and
subordinated to the full payment and performance of, all present and future
debts and obligations of Borrower to Agent and Lenders.
4. Security. All sums at any time to the credit of the undersigned and any
property of the undersigned in Agent's or any Lender's possession or in the
possession of any bank, financial institution or other entity that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, Agent or any Lender (each such entity, an
"Affiliate") shall be deemed held by Agent, such Lender or such Affiliate, as
the case may be, as security for any and all of the undersigned's obligations to
Agent and Lenders and to any Affiliate of Agent or any Lender, no matter how or
when arising and whether under this or any other instrument, agreement or
otherwise.
5. Representations and Warranties. The undersigned hereby represents and
warrants (all of which representations and warranties shall survive until all
Obligations are indefeasibly satisfied in full and there remain no outstanding
commitments under the Loan Agreement), that:
(a) Corporate Status. The undersigned is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has full power, authority and legal right to own its property
and assets and to transact the business in which it is engaged.
(b) Authority and Execution. The undersigned has full power, authority
and legal right to execute and deliver, and to perform its obligations
under, this
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Guaranty and has taken all necessary corporate and legal action to
authorize the execution, delivery and performance of this Guaranty.
(c) Legal, Xxxxx and Binding Character. This Guaranty constitutes the
legal, valid and binding obligation of the undersigned enforceable in
accordance with its terms, except as enforceability may be limited by
applicable Insolvency Law.
(d) Violations. The execution, delivery and performance of this
Guaranty will not violate any requirement of law applicable to the
undersigned or any material contract, agreement or instrument to which the
undersigned is a party or by which the undersigned or its property is bound
or result in the creation or imposition of any mortgage, lien or other
encumbrance other than to Agent for the ratable benefit of Lenders on any
of the property or assets of the undersigned pursuant to the provisions of
any of the foregoing.
(e) Consents or Approvals. No consent of any other Person (including,
without limitation, any creditor of the undersigned) and no consent,
license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty.
(f) Litigation. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to the
best knowledge of the undersigned, threatened (i) with respect to this
Guaranty or any of the transactions contemplated by this Guaranty or (ii)
against or affecting the undersigned, or any of its property or assets,
which, if adversely determined, would have a material adverse effect on the
business, operations, assets or condition, financial or otherwise, of the
undersigned.
(g) Material Adverse Change. Since November 27, 1996 there has been no
material adverse change in the assets or condition, financial or otherwise,
of the undersigned.
(h) Financial Benefit. The undersigned has derived or expects to
derive a financial or other advantage from each and every loan, advance or
extension of credit made under the Loan Agreement or other Obligation
incurred by Borrower to Agent and Lenders.
The foregoing representations and warranties (other than that set forth in
paragraph (g) above) shall be deemed to have been
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made by the undersigned on the date of each borrowing by Borrower under the Loan
Agreement on and as of such date of such borrowing as though made hereunder on
and as of such date (except insofar as such representations and warranties
relate expressly to an earlier date).
6. Acceleration. (a) If any breach of any covenant or condition or other
event of default shall occur and be continuing under any agreement made by
Borrower or the undersigned to Agent and Lenders, including, without limitation,
this Guaranty, or either Borrower or the undersigned should at any time become
insolvent, or make a general assignment, or if a proceeding in or under any
Insolvency Law shall be filed or commenced by, or in respect of, the
undersigned, or if a notice of any lien, levy, or assessment is filed of record
with respect to any assets of the undersigned by the United States or any
department, agency, or instrumentality thereof, or if any taxes or debts owing
at any time or times hereafter to any one of them becomes a lien or encumbrance
upon any assets of the undersigned in Agent's or any Lender's possession, or
otherwise, any and all Obligations shall for purposes hereof, at Agent's or any
Lender's option, be deemed due and payable without notice notwithstanding that
any such Obligation is not then due and payable by Borrower.
(b) The undersigned will promptly notify Agent of any default by the
undersigned in the performance or observance of any term or condition of any
agreement to which the undersigned is a party if the effect of such default is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an event
occurs, Agent shall have the right to accelerate the undersigned's obligations
hereunder.
7. Payments from Guarantor. Agent, on behalf of Lenders, in its sole and
absolute discretion, with or without notice to the undersigned, may apply on
account of the Obligations any payment from the undersigned or any other
guarantor, or amounts realized from any security for the Obligations, or may
deposit any and all such amounts realized in a non-interest bearing cash
collateral deposit account to be maintained as security for the Obligations.
8. Costs. The undersigned shall pay on demand, all fees and expenses
(including reasonable expenses for legal services of every kind) relating or
incidental to the enforcement or protection of the rights of Agent or any Lender
hereunder or under any of the Obligations.
9. No Termination. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and the
undersigned's successors and assigns, until all of the Obligations have been
paid in full and the Loan Agreement has been terminated. If any of the present
or future Obligations are guarantied by persons, partnerships or corporations in
addition to the undersigned, the death, release or discharge in whole or in part
or the bankruptcy, merger, consolidation, incorporation, liquidation or
dissolution of one or more of them
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shall not discharge or affect the liabilities of the undersigned under this
Guaranty.
10. Recapture. Anything in this Guaranty to the contrary notwithstanding,
if Agent or any Lender receives any payment or payments on account of the
liabilities guarantied hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Agent or any such Lender, the undersigned's
obligations to Agent and Lenders shall be reinstated and this Guaranty shall
remain in full force and effect (or be reinstated) until payment shall have been
made to Lender, which payment shall be due on demand.
11. Books and Records. The books and records of Agent showing the account
among Agent, Xxxxxxx and Borrower shall be admissible in evidence in any action
or proceeding, shall be binding upon the undersigned for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof.
12. No Waiver. No failure on the part of Agent to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Agent of any right, remedy
or power hereunder preclude any other or future exercise of any other legal
right, remedy or power. Each and every right, remedy and power hereby granted to
Agent or allowed it by law or other agreement shall be cumulative and not
exclusive of any other, and may be exercised by Agent at any time and from time
to time.
13. Waiver of Jury Trial. THE UNDERSIGNED DOES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO. THE UNDERSIGNED DOES
HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION.
14. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT CANNOT BE
CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND INTERPRETED
AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE UNDERSIGNED EXPRESSLY CONSENTS TO THE
JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF
NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY JUDICIAL PROCEEDING BY THE
UNDERSIGNED AGAINST AGENT AND/OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY
ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED HEREWITH
SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF
NEW
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YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
THE UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR
PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION
TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF
THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE UNDERSIGNED WAIVES ANY OBJECTION
TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT
ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON
CONVENIENS.
15. Sale, Transfer or Encumbrance of Assets. The undersigned agrees that it
will not, without the prior written consent of the Required Lenders (or Agent
acting at the direction of the Required Lenders), sell, lease, pledge, encumber,
grant or permit a Lien on, or otherwise dispose of or transfer, whether by sole
or otherwise, any of its assets, except sales permitted under Section 8.1 of the
Loan Agreement.
16. Severability. To the extent permitted by applicable law, any provision
of this Guaranty which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the undersigned therefrom shall in any
event be effective unless the same shall be in writing executed by the
undersigned, Agent and Xxxxxxx.
18. Notice. All notices, requests and demands to or upon the undersigned,
shall be in writing or by telecopy or telex and shall be deemed to have been
duly given or made (a) when delivered, if by hand, (b) three (3) days after
being deposited in the mail, postage prepaid, if by mail, (c) when confirmed, if
by telecopy or, (d) in the case of telex notice, when sent, answer back
receiver, in each event, to the number and address set forth beneath the
signature of the undersigned.
19. Successors. Agent or any Lender may, from time to time, without notice
to the undersigned, sell, assign, transfer or otherwise dispose of all or any
part of the Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, Agent or any Lender may assign, or grant
participations to, one or more banks, financial institutions or other entities
all or any part of any of the Obligations. In each such event, Agent, any
Lender, its Affiliates and each and every immediate and
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successive purchaser, assignee, transferee or holder of all or any part of the
Obligations shall have the right to enforce this Guaranty, by legal action or
otherwise, for its own benefit as fully as if such purchaser, assignee,
transferee or holder were herein by name specifically given such right. Agent or
any Lender shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Agent or any such
Lender has not disposed of, sold, assigned, or otherwise transferred.
20. Release. Nothing except cash payment in full of the obligations shall
release the undersigned from liability under this Guaranty.
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned this
18th day of March, 1997.
AMT/XXXXXX CORPORATION
By: "SPECIMEN"
-----------------------------------
Its: Treasurer
Address: State Docks Road
Eufaula, AL 36027
Telephone: 000-000-0000
Facsimile: 000-000-0000
STATE OF ALABAMA )
): ss.:
COUNTY OF ALABAMA )
On the 18th day of March, 1997, before me personally came X. Xxxxxxx
Xxxxxxxx to me known, who being by me duly sworn, did depose and say that he is
the Treasurer of AMT/Xxxxxx Corporation, the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ "SPECIMEN"
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Notary Public
My Commission Expires 2/14/2000
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