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EXHIBIT 10.11
G U A R A N T E E
BNY FINANCIAL CORPORATION - CANADA in its capacity as a "Lender" under the
"AGREEMENT" (as hereinafter defined) and any other Lenders from time to time
parties to the AGREEMENT by way of assignment or otherwise (hereinafter
collectively referred to as the "LENDERS")
- AND -:
BNY FINANCIAL CORPORATION - CANADA ("BNY") in its capacity as "Agent" for the
LENDERS and any other party who from time to time may succeed BNY in its
capacity as Agent for the LENDERS (hereinafter collectively referred to as the
"AGENT")
(the LENDERS and the AGENT being hereinafter collectively referred to as the
"CREDITOR")
AND: GROUPE CEDAR CANADA INC./CEDAR GROUP CANADA INC. ("DEBTOR")
Dear Sirs:
1.0 DEFINITIONS
1.1 For purposes hereof the following terms have the following meanings:
(a) "AGREEMENT" means the Credit Agreement bearing formal date of September
12, 1997 among the DEBTOR, the CREDITOR and others as the same may be
amended, supplemented, modified, renewed, revised, restated or replaced
from time to time;
(b) "DEBTOR" means the Debtor referred to above, and all its successors,
assigns and legal representatives;
(c) "GUARANTOR" means the undersigned and its successors, assigns and legal
representatives.
(d) "OBLIGATIONS" means all debts, liabilities and obligations of or owing by
the DEBTOR to any one or more of the parties comprising the CREDITOR from
time to time, present and future, direct and indirect, absolute and
contingent, matured or not, whether arising from the AGREEMENT or any
other agreement entered into from time to time by any one or more of the
parties comprising the CREDITOR with the DEBTOR, alone
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or with others, or from any agreements, contracts or dealings with any
third party by which any one or more of the parties comprising the
CREDITOR may be or become in any manner whatsoever a creditor of the
DEBTOR, or howsoever otherwise arising, and whether the DEBTOR be bound
alone or with another and whether as principal or surety, and including,
without limitation, all liabilities of the DEBTOR arising as a consequence
of its failure to pay or fulfil any of the said debts or obligations and
any debts, liabilities and obligations which have been incurred or have
arisen or which may, in the future, be incurred or arise pursuant to the
AGREEMENT or otherwise.
2.0 GUARANTEE
2.1 SOLIDARY AND INDIVISIBLE OBLIGATION
For valuable consideration, receipt and sufficiency whereof are hereby
acknowledged, the GUARANTOR hereby, solidarily with the DEBTOR and with
any and all other guarantors, guarantees and binds itself in favour of the
CREDITOR, for the fulfilment and payment, when due, of all the
OBLIGATIONS. As a result of the foregoing, the GUARANTOR, the DEBTOR and
any other present or future solidary guarantor of the OBLIGATIONS may be
compelled separately to pay or fulfil the OBLIGATIONS. The obligations of
the GUARANTOR under this guarantee are indivisible.
2.2 UNLIMITED LIABILITY OF GUARANTOR
The liability of the GUARANTOR hereunder is unlimited and extends to the
full amount of the OBLIGATIONS.
2.3 WAIVER OF BENEFITS OF DIVISION AND DISCUSSION
The GUARANTOR hereby confirms that the CREDITOR will not be obliged,
before dealing with this guarantee or any security given to the CREDITOR
by the GUARANTOR, to exercise or exhaust its recourses against the DEBTOR
or against any other party or against any security held by or for the
benefit of the CREDITOR as security for the OBLIGATIONS, the GUARANTOR
hereby waiving the benefits of division and discussion.
2.4 CONTINUING NATURE OF GUARANTEE
This guarantee will be a continuing guarantee and will apply to and
guarantee any ultimate balance of the OBLIGATIONS due or remaining unpaid
or unfulfilled to any one or more of the parties comprising the CREDITOR,
subject to termination by the GUARANTOR for future liability as provided
in Section 7.1.
3.0 INFORMATION
3.1 At the request of the GUARANTOR, the CREDITOR will provide
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the GUARANTOR with any useful information respecting the content and the terms
and conditions of the OBLIGATIONS and the progress made in the performance of
the OBLIGATIONS. Any such request will be in writing and will be as precise as
possible. The GUARANTOR acknowledges that the CREDITOR will not be bound to
furnish any such information which has not been requested in writing.
4.0 GUARANTOR'S LIABILITY UNAFFECTED
4.1 The liability of the GUARANTOR hereunder will not be extinguished, lessened
or affected in any way by reason of the occurrence of any of the following:
(a) Any incapacity, inexistence, change of status, change of name,
amalgamation, merger or change in the structure, constitution or
membership of the DEBTOR, any of the parties comprising the CREDITOR, the
GUARANTOR or any other guarantor or if for any reason the entity which is
the creditor of any of the OBLIGATIONS is or becomes someone other than
any of the parties comprising the CREDITOR or any of the parties
comprising the CREDITOR is replaced by any other entity as a party to any
AGREEMENT or any party other than the DEBTOR becomes the debtor of any of
the OBLIGATIONS;
(b) If the DEBTOR, the GUARANTOR or any other guarantor becomes insolvent or
bankrupt or becomes subject to or seeks the protection or exercise of any
rights under any law relating to bankruptcy or insolvency;
(c) The cessation of any special duties to the extent that the present
guarantee may, in any manner, attach thereto or if the GUARANTOR ceases to
have business dealings with the DEBTOR or to hold any position or fulfil
any function whether as director, officer, administrator, partner,
employee or otherwise;
(d) If the DEBTOR sells or otherwise disposes of the whole or any portion of
its property, assets or enterprise or if any property, assets or
enterprise of the DEBTOR becomes subject to a sale or other disposition
giving rise to a distribution and the CREDITOR fails to make a claim or
makes only a partial claim or values its security in a manner which the
GUARANTOR considers inappropriate or refrains from valuing any security
held by it;
(e) Any irregularity, defect or informality in the creation of any of the
OBLIGATIONS or any increase or reduction of the OBLIGATIONS or
modification of the terms and conditions thereof;
(f) The failure of any other anticipated guarantor of the OBLIGATIONS to enter
into a guarantee in favour of the CREDITOR, or the release in whole or in
part, of any other
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guarantor or the termination of any guarantee of any other guarantor;
(g) If, whether or not with the GUARANTOR's knowledge, the CREDITOR grants
extensions of time, renewals, indulgences, waivers, releases, discharges,
makes any compromise or transaction or arrangement or otherwise deals with
any of the OBLIGATIONS, the DEBTOR or any other party or with any
security or guarantees held by it;
(h) The failure of the CREDITOR or any other party to take, protect, perfect
or preserve any rights, hypothecs or other security, from the DEBTOR or
any other party or the loss, diminution or unenforceability or
impossibility to realize or abstention from realization of any such
rights, hypothecs or other security, whether or not caused or resulting
from any act or omission of the CREDITOR or any person acting for or for
whom the CREDITOR may be responsible; or
(i) Any other act, omission or event whatsoever which might otherwise lessen,
affect or discharge a surety.
5.0 ACCOUNTS, IMPUTATION AND COMPENSATION
5.1 The GUARANTOR will be bound by any account settled between the CREDITOR and
the DEBTOR. Any statement by the CREDITOR of the amount owing by the DEBTOR will
constitute evidence of such indebtedness and will be binding on the GUARANTOR in
the same manner and to the same extent as it constitutes evidence and is binding
upon the DEBTOR.
5.2 The CREDITOR may apply any monies received from the DEBTOR or others or from
any security or guarantees held by the CREDITOR as it deems fit, and from time
to time modify such application.
5.3 The CREDITOR may, at its discretion, and without necessity of notice to the
GUARANTOR, set off and compensate any monies held or amounts owing by the
CREDITOR to the GUARANTOR, against any amounts owing to the CREDITOR by the
GUARANTOR under this guarantee.
6.0 POSTPONEMENT AND SUBROGATION
6.1 The GUARANTOR hereby postpones and subordinates payment of all claims, debts
and liabilities, present and future, of the DEBTOR to the GUARANTOR
("GUARANTOR'S CLAIMS") to payment in full of the OBLIGATIONS and hypothecates
and pledges the GUARANTOR'S CLAIMS in favour of the CREDITOR to the extent of an
amount equal thereto as security for the OBLIGATIONS. The GUARANTOR will not
assign or hypothecate any of the GUARANTOR'S CLAIMS to any party other than the
CREDITOR.
6.2 Should the GUARANTOR become subrogated in any hypothecs,
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rights or security of the CREDITOR against the DEBTOR, the property of the
DEBTOR or any third party or property of any third party, the right of the
GUARANTOR to enforce or exercise any such hypothecs, rights or security will be
suspended until the CREDITOR shall have received payment in full of the
OBLIGATIONS.
7.0 TERMINATION
7.1 This guarantee may be terminated at any time after the expiry of three (3)
years following the date of this guarantee by written notice of termination
given by the GUARANTOR to the CREDITOR and will terminate upon the death of the
GUARANTOR. Termination will take effect upon the expiry of thirty (30) days from
the date of receipt by the CREDITOR of the notice of termination or upon the
death of the GUARANTOR, as the case may be (herein referred to as the
"TERMINATION DATE"). Notwithstanding the termination of this guarantee, the
GUARANTOR giving notice of termination or the heirs, legatees, liquidators of
any succession, legal representatives, executors, trustees and beneficiaries of
the deceased GUARANTOR will remain liable and this GUARANTEE will not terminate
as regards the following OBLIGATIONS (even though subject to a condition or a
term), until they have been discharged, namely:
(a) OBLIGATIONS existing on the TERMINATION DATE or arising from transactions
having their inception prior to the TERMINATION DATE; and
(b) OBLIGATIONS arising as a result of the CREDITOR being obliged to make
advances or to incur liability in respect of the DEBTOR based upon any
agreement or undertaking, express or implied, made prior to the
TERMINATION DATE.
8.0 INVALID PAYMENTS AND EVICTION
8.1 If the CREDITOR receives any payment on account of the OBLIGATIONS which is
later set aside or required to be repaid by the CREDITOR in whole or in part,
then, to the extent of any sum not finally retained by the CREDITOR (regardless
of whether such sum is recovered from the CREDITOR by the DEBTOR, its trustee,
or any other party acting for, on behalf of or through the DEBTOR or its
representative), the amount of the payment so set aside or repaid by the
CREDITOR will form part of the OBLIGATIONS and the GUARANTOR will be liable to
the CREDITOR for repayment thereof, on demand, notwithstanding any termination
of this guarantee.
8.2 Notwithstanding any provision of law to the contrary, in the event that the
CREDITOR voluntarily accepts property in payment of the OBLIGATIONS and is
subsequently evicted therefrom or if such property is recovered from the
CREDITOR by any party, the GUARANTOR will not be discharged from its liability
under this guarantee.
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9.0 GENERAL
9.1 Any word herein containing the singular number will include the plural and
any word importing any gender will include the masculine, feminine and neuter
genders and any word importing a person will include a legal person,
corporation, a partnership and any other entity.
9.2 In the event that this guarantee is signed by more than one (1) GUARANTOR,
the guarantee of each GUARANTOR will be separate and distinct from the guarantee
of each other GUARANTOR in the same manner and to the same extent as if each
GUARANTOR had signed a separate document of guarantee in form and content
identical to the present guarantee. The release or termination of this guarantee
with respect to any GUARANTOR will not affect the liability of any other
GUARANTOR.
9.3 The GUARANTOR acknowledges and confirms that no representations, warranties,
inducements or undertakings were made or given to it or to the DEBTOR by the
CREDITOR in connection with this guarantee unless such representations,
warranties, inducements or undertakings were specifically made or given in a
written instrument signed by the CREDITOR or an authorized officer of the
CREDITOR. Moreover, any alteration or amendment to this guarantee or any future
undertaking by the CREDITOR, in order to be binding upon the CREDITOR, must be
made or given by way of such a written instrument.
9.4 The present guarantee is in addition to and not in substitution for nor to
be deemed substituted by any other undertakings, guarantees or security held or
which may hereafter be held by or for the benefit of the CREDITOR.
9.5 The GUARANTOR hereby agrees and confirms that the rights of each of the
parties comprising the CREDITOR are solidary and each of the parties comprising
the CREDITOR is entitled to exact the whole performance of the OBLIGATIONS from
the GUARANTOR, to give a full acquittance therefor and to exercise all rights
and recourses and to enforce any security created hereunder.
9.6 Notwithstanding anything contained herein, each of the parties comprising
the CREDITOR may act alone for all purposes under the present guarantee
including, without limitation, the exercise of any right, remedy, discretion or
rights to make any demand or decision contemplated by or provided for in the
present guarantee and the GUARANTOR shall be entitled to rely upon any act or
decision made or taken in such regard by any one of the parties comprising the
CREDITOR. Any notice, demand or other communication required or permitted to be
given under this guarantee or pursuant to applicable provisions of law shall be
valid if made or given by any one of the parties comprising the CREDITOR, acting
alone.
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9.7 The present guarantee will be governed and construed in accordance with the
laws of the Province of Quebec. The GUARANTOR expressly submits and consents to
the exclusive jurisdiction of the Superior Court, District of Montreal with
respect to any controversy arising out of or relating to this guarantee or any
supplement hereto or to any transactions in connection therewith.
9.8 Any demand or notice to be given to the GUARANTOR pursuant hereto shall be
delivered pursuant to the provisions of the AGREEMENT.
9.9 This guarantee shall not be considered as an indivisible whole and every
provision of this guarantee is and shall be independent of the other. In the
event that any part of this guarantee is declared invalid, illegal or
unenforceable, then the remaining terms, clauses and provisions of this
guarantee shall not be affected by such declaration and all of the remaining
clauses of this guarantee shall remain valid, binding and enforceable.
9.10 This guarantee may be referred to as bearing formal date of September 12,
1997 notwithstanding the actual date of execution.
9.11 The undersigned acknowledges having required that the present guarantee and
all documentation and notices entered into or given pursuant hereto or relating
directly or indirectly hereto be drawn up in English.
Le soussigne reconnait avoir exige la redaction en anglais du present
cautionnement ainsi que de tous documents et avis qui pourront etre executes ou
donnes a la suite de ou ayant un rapport direct ou indirect avec le present
cautionnement.
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AT MONTREAL THIS DAY OF SEPTEMBER 1997.
WITNESS: DOMINION BRIDGE CORPORATION
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NAME OF WITNESS PER: /s/ Xxxxxx X. Xxxxxxxxx
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SIGNATURE OF WITNESS
The DEBTOR named in the above guarantee hereby confirms the following:
1. The DEBTOR authorizes the CREDITOR to furnish the GUARANTOR with any
information relating to the DEBTOR, the AGREEMENT, and the OBLIGATIONS as
the CREDITOR, in its sole discretion, deems appropriate.
2. The DEBTOR acknowledges the postponement, subordination, pledge and
hypothecation by the GUARANTOR contained in the foregoing Guarantee and
acquiesces in the hypothecation and pledge of the GUARANTOR'S CLAIMS in
favour of the CREDITOR and undertakes that it will not make payment of any
of the GUARANTOR'S CLAIMS to the GUARANTOR until the OBLIGATIONS have been
paid in full.
AT MONTREAL, THIS DAY OF SEPTEMBER, 1997.
GROUPE CEDAR CANADA INC./
CEDAR GROUP CANADA INC.
PER: /s/ Xxxxxx X. Xxxxxxxxx
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