EXHIBIT 4.26
GUARANTY AND SUBORDINATION AGREEMENT
(PARTICULAR GUARANTY - CONSOLIDATED RESOURCE RECOVERY, INC. - A DELAWARE
CORPORATION REGISTERED IN THE STATE OF FLORIDA)
To: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
FOR VALUE RECEIVED, and in order to induce ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ (the
"Lender") to grant, extend or continue credit or other financial accommodations
to CONSOLIDATED ENVIROWASTE INDUSTRIES INC. (the "Borrower"), the undersigned
(the "Guarantor") unconditionally and irrevocably guarantees to the Lender and
his heirs, administrators, successors and assigns the complete and punctual
payment when due (whether at the stated maturity or earlier by acceleration or
otherwise) of all Liabilities (as defined in the next sentence) at any time
owing by the Borrower to the Lender. "Liabilities" as used in this Guaranty
means all indebtedness, obligations, liabilities and other amounts due, of
whatever nature, of the Borrower to the Lender, whether now existing or
hereafter incurred, whether created directly or acquired by the Lender by
assignment or otherwise, whether matured or unmatured, whether absolute or
contingent, whether characterized as principal, premium, interest, additional
interest, fees, expenses or otherwise and whether the Borrower is bound alone or
with any others or as principal or as surety. The Guarantor's liability under
this Guaranty (but not the Liabilities) is limited to the sum of TWO MILLION,
ONE HUNDRED AND SIXTY THOUSAND, SIX HUNDRED AND EIGHTY DOLLARS AND NINETY-EIGHT
CENTS ($2,160,680.98), in lawful money of Canada, together with interest from
the date of demand for payment at the rate set out in Section 2.4 of the loan
consolidation agreement made effective as of the 1st day of October, 2003
between the Lender and the Borrower as the same may be amended, extended,
renewed, replaced, restated, supplemented, superseded and in effect from time to
time and plus all amounts payable by the Guarantor under paragraph 8 of this
Guaranty.
"Prime Interest Rate of Royal Bank of Canada" means the annual rate of
interest announced from time to time by Royal Bank of Canada as a reference rate
then in effect for determining interest rates on Canadian dollar commercial
loans in Canada.
PROVIDED, however, that, regardless of the amount of the Liabilities of the
Borrower to the Lender, the liability of the Guarantor hereunder is limited to
the greater of (a) the maximum liability that the Guarantor can incur hereunder
without rendering itself insolvent and (b) the amount in United States Dollars
of the value received by the Guarantor as a result of the financial
accommodations made available by the Lender to the Borrower. The terms "value"
and "insolvent", as used in this proviso shall have the same meanings as in 11
U.S.C. sections 548(a)(2)(A) and (B), respectively. If for any reason this
Guaranty would be otherwise avoidable as a fraudulent transfer (whether under
state law or the U.S. federal Bankruptcy Code), then the terms "value" and
"insolvent" as used herein shall be defined and the limitation on the liability
of the Guarantor shall be deemed to operate in such a manner as to prevent this
Guaranty from being avoided as a fraudulent transfer while preserving the
liability of the Guarantor to the fullest extent legally permissible.
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THE GUARANTOR FURTHER AGREES WITH THE LENDER AS FOLLOWS:
1. Certain Rights of Lender. At any time and from time to time (and
whether once or more than once), without the necessity of any reservation of
rights against the Guarantor and without notice to, demand on or further assent
by the Guarantor or any other person:
(a) any collateral security (which term as used in this Guaranty
includes other guaranties) held by or available to the Lender
in respect of the Liabilities or in respect of any guaranty of
the Liabilities may be sold, exchanged, waived, subordinated,
surrendered or released, in whole or in part and in any order;
(b) any of the Liabilities or the obligations of any other
guarantor of the Liabilities may be changed, renewed,
extended, continued, accelerated, surrendered, compromised,
subordinated, waived or released, in whole or in part, or any
default with respect thereto waived or any demand for payment
with respect thereto rescinded;
(c) the Lender may set off, refrain from setting off or release,
in whole or in part, any balance of any and all deposits
(general or special) or credits on its books in favour of the
Borrower or of any such guarantor, may take or refrain from
taking or perfecting any security interest in any collateral
security and may exercise or refrain from exercising any right
against the Borrower or any other person;
(d) the Lender may extend or refrain from extending further credit
or financial accommodations in any manner whatsoever to, may
accept compositions from and may otherwise generally deal with
the Borrower and any other person and with any collateral
security as the Lender may see fit; and
(e) the Lender may apply all moneys at any time received from the
Borrower or any other person or from any collateral security
in such manner, in such amounts and against such part of the
Liabilities (including Liabilities not covered by this
Guaranty) as the Lender considers best and change any such
application in whole or in part as the Lender may see fit.
All of these actions may be taken without in any way limiting, diminishing or
affecting the Guarantor's liability under this Guaranty and without imposing any
obligation of trust on the Lender, and no loss of or in respect of any
collateral security, whether caused by the fault of the Lender or otherwise,
shall in any way limit, diminish or affect the Guarantor's liability under this
Guaranty.
2. Liability of Guarantor Unconditional. This Guaranty is a guaranty of
payment and not merely of collection. The Guarantor's liability under this
Guaranty is absolute and unconditional and shall not be limited, diminished or
affected by the happening from time to time of any event, including (but not
limited to) any event described in paragraph 1 of this Guaranty and any of the
following events, whether or not any such event occurs with notice to or with
the consent of the Guarantor or once or more than once:
(a) the waiver, surrender, compromise, settlement, discharge,
release or termination of any or all of the Liabilities;
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(b) the failure to give any notice to the Borrower;
(c) the extension of the time for payment or performance of any of
the Liabilities;
(d) the change (whether or not material) of the terms of any
document relating to the Liabilities (a "Document");
(e) the taking of or failure to take any action referred to in any
Document;
(f) the illegality, invalidity, unenforceability (including, but
not limited to, by reason of any statute of limitations or
automatic stay) or irregularity of any of the Liabilities or
any Document;
(g) any failure, omission, delay or lack of diligence on the part
of the Lender in the enforcement, assertion or exercise of any
right, power or remedy conferred on the Lender under any
Document, or the inability of the Lender to enforce any
provision of any Document for any reason, or any other act or
omission on the part of the Lender, including (but not limited
to) failure by the Lender to perfect or protect any lien or
security interest granted to the Lender, to commence and
prosecute any action to collect the Liabilities or to enforce
or collect any judgment obtained by the Lender;
(h) the dissolution or liquidation of the Borrower, the sale or
other disposition of all or substantially all of the assets of
the Borrower, the marshalling of assets and liabilities of the
Borrower or the existence of receivership, insolvency,
assignment for the benefit of creditors, bankruptcy,
reorganization, arrangement, adjustment, composition or other
similar proceedings affecting the Borrower; and
(i) any other event, action or circumstance that would, in the
absence of this subparagraph (i), result in the release or
discharge of the Guarantor from the performance or observance
of any obligation, covenant or agreement contained in this
Guaranty.
3. Waiver of Notice. The Guarantor waives all notices of the creation,
renewal, extension or accrual of any of the Liabilities and notice or proof of
reliance by the Lender on this Guaranty or acceptance of this Guaranty. The
Liabilities shall conclusively be considered to have been created, contracted or
incurred in reliance on this Guaranty, and all dealings between the Borrower and
the Lender shall likewise be conclusively presumed to have been had or
consummated in reliance on this Guaranty. The Guarantor also waives (to the
extent permitted by applicable law) all requirements of notice, presentment,
protest or demand on it, the Borrower or any other person, all other notices and
demands whatsoever relating to the Liabilities and any requirement that the
Lender file a claim with a court in any bankruptcy or similar proceedings of the
Borrower or first proceed against the Borrower or any other person or first
realize on any collateral security held by it or otherwise exhaust any right,
power or remedy under any Document or against the Borrower or any other person
before proceeding against the Guarantor under this Guaranty. The Lender shall
have no responsibility to notify the Guarantor of the Borrower's financial
condition or the Borrower's incurrence or performance of the Liabilities.
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4. Continuing Guaranty. This Guaranty is a continuing guaranty, shall not
be discharged until performance and payment in full of all of the Liabilities,
payment of all amounts payable by the Guarantor under this Guaranty and
cancellation of this Guaranty by the Lender and shall remain in full force and
effect notwithstanding any interruption in the business relations between the
Borrower and the Lender or any increase or decrease (including a decrease to
zero) from time to time in the amount of the Liabilities. If demand for, or
acceleration of the time for, payment by the Borrower to the Lender of any of
the Liabilities is stayed upon the insolvency, bankruptcy, reorganization or
proposed compromise or arrangement with creditors of the Borrower, all
Liabilities of which payment or performance is stayed that would otherwise be
subject to demand for payment or acceleration shall nonetheless be payable by
the Guarantor immediately on demand by the Lender.
5. Reinstatement. This Guaranty shall continue to be effective, or shall
be reinstated, if at any time payment, or any part thereof, of any of the
Liabilities is rescinded or must otherwise be returned by the Lender for any
reason whatsoever (including, but not limited to, the bankruptcy, insolvency,
dissolution, liquidation or reorganization of the Borrower or any other person),
all as though such payment had not been received by the Lender.
6. Subordination. All indebtedness, obligations, liabilities and other
amounts due, of whatever nature, of the Borrower to the Guarantor (the
"Subordinated Debt"), whether now existing or hereafter incurred, whether
created directly or acquired by the Guarantor by assignment or otherwise,
whether matured or unmatured, whether absolute or contingent, whether
characterized as principal, premium, interest, additional interest, fees,
expenses or otherwise and whether the Borrower is bound alone or with any others
or as principal or as surety, are hereby assigned to the Lender and shall be
subject and subordinate to the Liabilities, and all moneys received by the
Guarantor in respect of the Subordinated Debt shall immediately on the Lender's
demand be received in trust for the Lender and paid over to the Lender. This
subordination is independent of the guaranty provided in this Guaranty and shall
remain in full force and effect notwithstanding any termination of or decrease
in the Guarantor's liability under this Guaranty. Assets of the Borrower held by
the Guarantor, whether in the form of deposits, collateral security or
otherwise, shall not at any time be set off against the Subordinated Debt but
shall be held in trust for the Lender. The Guarantor hereby undertakes to
execute such additional documents and to do such additional acts as may be
necessary or desirable (in the sole opinion of the Lender) in order to carry
out, complete or perfect this subordination and assignment.
7. Limits on Subrogation. No payment by the Guarantor pursuant to any
provision of this Guaranty or other satisfaction of the Guarantor's liability
under this Guaranty shall entitle the Guarantor, by subrogation or otherwise, to
any right or remedy against the Borrower until after the indefeasible payment in
full of the Liabilities.
8. Costs, Expenses, Etc. The Guarantor agrees to pay on demand all losses,
costs, expenses (including, but not limited to, attorneys' fees (including
allocated costs and expenses of counsel who are employees of the Lender)) and
damages incurred by the Lender in connection with the preparation of this
Guaranty or any amendment, waiver or consent with respect to this Guaranty, in
connection with any rescission or return referred to in paragraph 5 of this
Guaranty, in enforcing or attempting to enforce this Guaranty or any other
guaranty of the Liabilities or in protecting the Lender's rights under this
Guaranty or any other guaranty of the Liabilities following any default by the
Guarantor under this Guaranty, whether the Lender's rights are enforced by suit
or otherwise.
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9. Obligations Additional. This Guaranty and the Guarantor's liability
under this Guaranty are in addition to and not in substitution for:
(a) any other collateral security, by whomsoever given, at any
time held by the Lender; and
(b) any present or future obligation of the Guarantor or any other
obligor to the Lender incurred otherwise than under this
Guaranty whether the Guarantor or such other obligor is bound
with or apart from the Borrower.
10. Setoff, Etc. As security for the payment of the Guarantor's liability
under this Guaranty, the Guarantor grants to the Lender a continuing lien on,
security interest in and right of setoff against all moneys, securities (other
than any "margin stock", as such term is defined in Regulation U of the Board of
Governors of the Federal Reserve System) and other property of the Guarantor,
and the proceeds thereof, now or hereafter in the possession of or on deposit
with the Lender or with any subsidiary or affiliate of the Lender or any third
party for the benefit of the Lender or any subsidiary or affiliate of the
Lender, whether held in a general or special account or deposit (including, but
not limited to, time deposits) or for safekeeping, custody, pledge,
transmission, collection or otherwise, and any other credits, indebtedness or
claims, in each case whether direct or indirect, absolute or contingent, or
matured or unmatured, at any time held or owing by the Lender to or for the
credit or account of the Guarantor. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
the Guarantor authorizes the Lender, on the occurrence of a default by the
Guarantor under this Guaranty, to proceed against all or any part of such
moneys, securities and other property of the Guarantor, at any time or from time
to time, without notice to the Guarantor or any other person, to the full extent
of the Guarantor's liability under this Guaranty, by right of setoff, Lenderer's
lien or otherwise, and to appropriate and apply all or any part of such moneys,
securities and any other property against and on account of the Guarantor's
liability under this Guaranty, whether or not the Lender has made any demand
under this Guaranty and although the obligations and liabilities held or owing
by the Lender may be contingent or unmatured. The Guarantor authorizes the
Lender to do all such acts and to execute all such documents in the Guarantor's
name or the Lender's name as may be considered by the Lender necessary or
appropriate to preserve, protect or perfect its rights and remedies under this
paragraph.
11. Payments. All payments under this Guaranty shall be made to the Lender
at such branch, agency or affiliate of the Lender as the Lender may require, in
immediately available funds and without setoff, counterclaim or deduction of any
kind, and shall be made in the lawful currency in which the Liabilities are
payable ("Primary Currency"). Without in any manner limiting the Guarantor's
obligations contained in the preceding sentence, if any sum is paid to and
received by the Lender under this Guaranty in a currency other than the Primary
Currency (such other currency is called the "Alternative Currency"), whether by
judgment (and notwithstanding the rate of exchange actually applied in such
judgment) or otherwise, the Guarantor's liability under this Guaranty shall
nevertheless be discharged only to the extent of the net amount of Primary
Currency that the Lender is able in accordance with its normal banking
procedures to purchase with such amount of Alternative Currency. If the Lender
is not able to purchase with such amount of Alternative Currency sufficient
Primary Currency to discharge the Guarantor's liability under this Guaranty in
full, the Guarantor's obligations to the Lender with respect to such difference
shall be due as a separate debt and shall not be affected by payment of or
judgment being obtained for any other sums due under this Guaranty.
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12. Successors and Assigns. This Guaranty shall inure to the benefit of the
Lender and its successors, transferees and assigns and shall bind the Guarantor
and the Guarantor's heirs, executors, administrators, legal representatives,
successors and assigns; provided, however, that the Guarantor may not assign its
rights or obligations under this Guaranty without the Lender's prior written
consent. If the Guarantor is a partnership, the Guarantor's liability under this
Guaranty shall remain in full force and effect notwithstanding any change in the
parties comprising the partnership and the term "Guarantor" shall include any
altered or successive partnerships, but the predecessor partnerships and their
partners shall continue to be bound under this Guaranty.
13. Joint and Several Obligations. If this Guaranty is executed by more
than one party, each party's liability under this Guaranty shall be joint and
several; provided, however, that this Guaranty shall be construed for all
purposes as if a separate, identical agreement (including the amount of any
limitation on the Guarantor's liability) had been executed by each party. The
Guarantor's liability under this Guaranty shall not in any way be changed,
reduced or terminated as a result of:
(a) any change or reduction in or termination of the obligations
of any other guarantor of the Liabilities,
(b) the death or loss or diminution of capacity of any other
guarantor of the Liabilities or
(c) the failure of any other person to execute this or any other
guaranty of the Liabilities.
14. No Merger, Etc. The Guarantor shall not, without the Lender's prior
written consent, enter into any merger, amalgamation or consolidation or, except
in the ordinary course of business, sell, lease or otherwise transfer or dispose
of a material portion of the Guarantor's assets.
15. Waivers and Amendments, Cumulative Remedies. The Lender shall not be
obligated to exercise any right, power or privilege under this Guaranty, and no
failure to exercise and no delay in exercising, on the part of the Lender, any
such right, power or privilege under this Guaranty shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
No notice to or demand on the Guarantor shall be deemed to be a waiver of the
Lender's right to take further action without notice or demand as provided
herein. No waiver shall be applicable except in the specific instance for which
given or shall in any way impair the Lender's rights or the Guarantor's
liability in any other respect or at any other time, nor in any event shall any
modification or waiver of any provision of this Guaranty be effective unless in
writing and signed on behalf of the Lender. The rights and remedies provided in
this Guaranty are cumulative and are not exclusive of any other right or remedy
provided by law, in equity or under any other agreement or instrument.
16. Representations and Warranties. The Guarantor represents and warrants
to the Lender that:
(a) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization;
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(b) the Guarantor has full capacity and authority to execute,
deliver and perform this Guaranty, and the execution, delivery
and performance of this Guaranty will not:
(i) violate any law or regulation,
(ii) (if the Guarantor is not an individual) violate any
provision of the Guarantor's organizational
documents,
(iii) violate or constitute (with due notice or lapse of
time or both) a default under any indenture,
agreement, license or other instrument to which the
Guarantor is a party or by which the Guarantor or any
of the Guarantor's properties may be bound,
(iv) violate any order of any court, tribunal or
governmental agency binding on the Guarantor or any
of the Guarantor's properties or
(v) result in the creation or imposition of any lien of
any nature whatsoever on any of the Guarantor's
properties or assets;
(c) no approval or consent of, or filing or registration with, any
federal, state or local regulatory authority is required in
connection with the execution, delivery and performance of
this Guaranty; and
(d) this Guaranty constitutes the legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally and
except that enforceability may be subject to general
principles of equity.
These representations and warranties shall survive the execution of this
Guaranty.
17. Financial Information. The Guarantor agrees to furnish promptly to the
Lender copies of the Guarantor's annual and quarterly financial statements and
such other information relating to the Guarantor's business and financial
condition as the Lender may from time to time request.
18. Stamp Taxes, Etc. The Guarantor agrees to indemnify the Lender against
any claim or liability for any stamp, excise or other similar taxes and any
penalties or interest with respect thereto that may be imposed, levied,
collected, withheld or assessed by any jurisdiction in connection with the
execution and delivery of this Guaranty, any document related to this Guaranty
or any modification of this Guaranty or any such document. This covenant shall
survive the termination of this Guaranty.
19. Withholding Tax. Any and all payments by the Guarantor hereunder shall
be made free and clear of, and without deduction for, any and all present and or
future taxes. If the Guarantor is required by law to deduct any taxes from or in
respect of any sum payable hereunder to the Lender, (a) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
19) the Lender will receive an amount equal to the sum it would have received
had no such deductions been made; (b) the Guarantor shall make such deductions;
and (c) the Guarantor shall pay the full amount deducted to the relevant taxing
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authority or other governmental authority in accordance with applicable law and
promptly forward to the Lender an official receipt or other documentation
acceptable to the Lender evidencing such payment.
20. Governing Law, Submission to Jurisdiction. This Guaranty and the rights
and obligations of the Lender and of the Guarantor under this Guaranty shall be
governed by and construed in accordance with the laws of the State of Delaware.
For purposes of any suit, action or proceeding involving this Guaranty or any
judgment entered by any court in respect of such suit, action or proceeding, the
Guarantor expressly submits to the non-exclusive jurisdiction of any State or
federal court sitting in the State of Delaware and agrees that any order,
process or other paper may be served upon the Guarantor within or without such
court's jurisdiction by mailing a copy to the Guarantor at the Guarantor's
address for notices provided in this Guaranty, provided that a reasonable time
for appearance is allowed. The Guarantor irrevocably waives any objection the
Guarantor may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Guaranty brought in any such
court and further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Nothing contained in this Guaranty shall affect the Lender's right to serve
legal process in any other manner permitted by law or to bring any action or
proceeding against the Guarantor or the Guarantor's property in the courts of
other jurisdictions.
21. Severability. Any provision of this Guaranty that 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 of this Guaranty, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate such provision or
render it unenforceable in any other jurisdiction.
22. Notices. Notices and other communications with respect to this Guaranty
shall be in writing (including telecommunications) and made or delivered to the
party to which such notice or other communication is required or permitted to be
given or made at the address(es) shown on the signature page of this Guaranty or
at such other address as shall be designated by such party in a written notice
to the other party given in accordance with this paragraph and shall be
considered delivered on receipt if telecommunicated or delivered by messenger or
courier service or five days after mailing, postage prepaid. All mailed notices
shall be by certified or registered mail.
23. Headings. The headings used in this Guaranty are for convenience only
and shall not affect the construction of this Guaranty.
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24. Waiver of Jury Trial. EACH PARTY TO THIS GUARANTY, AND BY ITS
ACCEPTANCE OF THIS GUARANTY THE LENDER, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO A JURY TRIAL OF ANY DISPUTE RELATING TO THIS GUARANTY AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by its
duly authorized officer on the 10th day of February, 2004.
Address for Notices: CONSOLIDATED RESOURCE RECOVERY,
Consolidated Resource Recovery, Inc. INC. (A DELAWARE CORPORATION)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By its authorized signatory:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇
"▇▇▇▇ ▇▇▇▇▇▇▇"
----------------------------------
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇. ▇▇▇▇▇▇▇
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇ Title: President
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Lender's Address for Notices:
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone No.
Facsimile No.