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EXHIBIT 4.07
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SUBSIDIARY GUARANTEE
made by
Subsidiaries of
XXXXXXXXXXXX.XXX., INC.
in favor of
RGC INTERNATIONAL INVESTORS, LDC.
Dated as of January 12, 2001
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SUBSIDIARY GUARANTEE, dated as of January 12, 2001, made by each of the
signatories hereto (together with any other entity that may become a party
hereto as provided herein, the "Guarantors"), in favor of RGC INTERNATIONAL
INVESTORS, LDC, as the "Holder" pursuant to the Promissory Note ("Note"), dated
as of January 12, 2001 (as amended, supplemented or otherwise modified from time
to time, the "Note"), from XXXXXXXXXXXX.XXX, INC., a Colorado corporation (the
"Borrower") in favor of Holder.
W I T N E S S E T H:
WHEREAS, the Borrower is obligated to Holder, pursuant to the terms and
subject to the conditions set forth in the Note;
WHEREAS, the Borrower is a member of an affiliated group of companies that
includes each Guarantor;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the loan under the Note; and
WHEREAS, it is a condition precedent to the Holder accepting delivery of
the Note that the Guarantors shall have executed and delivered this Guarantee to
the Holder;
NOW, THEREFORE, in consideration of the premises and to induce the Holder
to accept delivery of the Note, each Guarantor hereby agrees with the Holder as
follows:
SECTION 1
DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Note and
used herein shall have the meanings given to them in the Note.
(b) The following terms shall have the following meanings:
"Guarantee": this Subsidiary Guarantee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Obligations": the collective reference to the unpaid principal of, and
interest on, the Note, the Redemption Agreement, and the other Loan Documents
and the loan evidenced thereby, and all other obligations and liabilities of the
Borrower to the Holder (including, without limitation, interest accruing at the
then applicable rate provided in the Note after the maturity of the Note and
interest accruing at the then applicable rate provided in the Note after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
whether
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direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Note, this Guarantee or the other Loan Documents, or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Holder that are required to be paid by the Borrower pursuant to the terms
of any of the foregoing agreements).
1.2 Other Definitional Provisions. The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Guarantee
shall refer to this Guarantee as a whole and not to any particular provision of
this Guarantee, and Section and Schedule references are to this Guarantee unless
otherwise specified.
(a) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2
GUARANTEE
2.1 Guarantee.
(a) The Guarantors hereby, jointly and severally, if more than
one, unconditionally and irrevocably, guarantee to the Holder and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Holder hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2 shall have been satisfied by
payment in full.
(e) No payment made by the Borrower, any of the Guarantors, any
other guarantor or any other person or received or collected by the Holder from
the Borrower, any of the Guarantors, any other guarantor or any other person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any
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Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Obligations or any payment
received or collected from such Guarantor in respect of the Obligations), remain
liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Holder, and each Guarantor shall remain liable to the
Holder for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the Holder,
no Guarantor shall be entitled to be subrogated to any of the rights of the
Holder against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Holder for the payment of the
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Holder by the Borrower on account of the Obligations are paid in full. If
any amount shall be paid to any Guarantor on account of such subrogation rights
at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Holder, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Holder in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Holder, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Holder may determine.
2.4 Amendments, etc. with respect to the Obligations. Each Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Obligations made by the Holder
may be rescinded by the Holder and any of the Obligations continued, and the
Obligations, or the liability of any other person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Holder, and the Note, the Redemption Agreement and the other Loan Documents
and any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Holder may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Holder for the payment of
the Obligations may be sold, exchanged, waived, surrendered or released. The
Holder shall have no obligation to protect, secure, perfect or insure any Lien
at any time held by them as security for the Obligations or for the guarantee
contained in this Section 2 or any property subject thereto.
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2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Holder upon the guarantee
contained in this Section 2 or acceptance of the guarantee contained in this
Section 2; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Section 2; and all
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Holder, on the other hand, likewise shall be conclusively presumed to have
been had or consummated in reliance upon the guarantee contained in this Section
2. Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Borrower or any of the Guarantors
with respect to the Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Note, the Redemption Agreement or any other
Loan Document, any of the Obligations or any other collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time to
time held by the Holder, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by the Borrower or any other person against the Holder, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Obligations,
or of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Holder may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as they may have against the Borrower,
any other Guarantor or any other person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Holder to make any such demand, to pursue such other rights
or remedies or to collect any payments from the Borrower, any other Guarantor or
any other person or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Holder against any
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Holder upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
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2.7 Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Holder without set-off or counterclaim in United States
Dollars at the office of the Holder as provided for in the Note.
SECTION 3
REPRESENTATIONS AND WARRANTIES
To induce the Holder to enter into the Redemption Agreement and to accept
delivery of the Note, each Guarantor hereby represents and warrants to the
Holder that the representations and warranties set forth in Section 3 of the
Redemption Agreement as they relate to such Guarantor, each of which is hereby
incorporated herein by reference, are true and correct, and the Holder shall be
entitled to rely on each of them as if they were fully set forth herein,
provided that each reference in each such representation and warranty to the
Borrower's knowledge shall, for the purposes of this Section 3, be deemed to be
a reference to such Guarantor's knowledge.
SECTION 4
COVENANTS
Each Guarantor covenants and agrees with the Holder that, from and after
the date of this Guarantee until the Obligations shall have been paid in full,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case maybe, so
that no Event of Default is caused by the failure to take such action or to
refrain from taking such action by such Guarantor or any of its subsidiaries.
SECTION 5
MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Guarantee may be waived, amended, supplemented or otherwise modified except
pursuant to a written instrument signed by Holder.
5.2 Notices. All notices, requests and demands to or upon the Holder or
any Guarantor hereunder shall be effected in the manner provided for in Section
7(f) of the Redemption Agreement; provided that any such notice, request or
demand to or upon any Guarantor shall be addressed to such Guarantor at its
notice address set forth on Schedule 1 attached hereto.
5.3 Waiver by Course of Conduct; Cumulative Remedies. The Holder shall
not by any act (except by a written instrument pursuant to Section 5.1 hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Event of Default. No failure to
exercise, nor any delay in exercising, on the part of the Holder, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the
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exercise of any other right, power or privilege. A waiver by the Holder of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Holder would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
(a) Each Guarantor agrees to pay, or reimburse the Holder for, all
its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 hereof or otherwise enforcing or preserving any
rights under this Guarantee and the other Loan Documents to which such Guarantor
is a party, including, without limitation, the fees and disbursements of counsel
to the Holder.
(b) Each Guarantor agrees to pay, and to save the Holder harmless
from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable in connection with any of the transactions contemplated
by this Guarantee.
(c) Each Guarantor agrees to pay, and to save the Holder harmless
from, any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Guarantee, and hereby expressly and in addition thereto,
makes, assumes, affirms, adopts and ratifies the indemnification obligations
applicable to the Guarantors as set forth in the Note.
(d) The agreements in this Section shall survive repayment of the
Obligations and all other amounts payable under the Note and the Redemption
Agreement and the other Loan Documents.
5.5 Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Holder and their respective successors and assigns; provided that no Guarantor
may assign, transfer or delegate any of its rights or obligations under this
Guarantee without the prior written consent of the Holder.
5.6 Set-Off. Each Guarantor hereby irrevocably authorizes the Holder at
any time and from time to time while an Event of Default shall have occurred and
be continuing, without notice to such Guarantor or any other Guarantor, any such
notice being expressly waived by each Guarantor, to set-off and appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Holder to or for the
credit or the account of such Guarantor, or any part thereof in such amounts as
the Holder may elect, against and on account of the obligations and liabilities
of such Guarantor to the Holder hereunder and claims of every nature and
description of
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the Holder against such Guarantor, in any currency, whether arising hereunder,
under the Note, the Reimbursement Agreement, any other Loan Document or
otherwise, as the Holder may elect, whether or not the Holder has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Holder shall notify such Guarantor promptly of any
such set-off and the application made by the Holder of the proceeds thereof,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Holder under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Holder may have.
5.7 Counterparts. This Guarantee may be executed by one or more of the
parties to this Guarantee on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
5.8 Severability. Any provision of this Guarantee 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.
5.9 Section Headings. The Section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
5.10 Integration. This Guarantee and the other Loan Documents represent
the agreement of the Guarantors and the Holder with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Holder relative to the subject matter
hereof and thereof not expressly set forth or referred to herein or in the other
Loan Documents.
5.11 GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE.
5.12 Submission To Jurisdiction; Waivers. Each Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the exclusive general jurisdiction of the Courts of the State of
Delaware, the courts of the United States of America located in Delaware, and
appellate courts thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or
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proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same; and
(c) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
5.13 Acknowledgments. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Guarantee and the other Loan Documents to which it is a
party;
(b) the Holder has no fiduciary relationship with or duty to any
Guarantor arising out of or in connection with this Guarantee or any of the
other Loan Documents, and the relationship between the Guarantors, on the one
hand, and the Holder, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Guarantors and the Holder.
5.14 WAIVER OF JURY TRIAL. EACH GUARANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE HOLDER, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be duly executed and delivered as of the date first above written.
NIFCO INVESTMENTS, LTD.,
A British Columbia, Canada Corporation
By:
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Name:
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Title:
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XXXXXXXXXXXX.XXX TECHNOLOGIES, INC.,
A British Columbia, Canada Corporation
By:
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Name:
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Title:
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XXXXXXX XXXXX, XXX.,
X Xxxxxxx Xxxxxxxx, Xxxxxx Corporation
By:
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Name:
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Title:
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Schedule 1
NOTICE ADDRESSES OF GUARANTORS
Addresses of Guarantors are:
c/o Xxxxxxxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxxxx, Xxxxxx X0X 0X0
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Exhibit I
Form of Assumption Agreement
ASSUMPTION AGREEMENT, dated as of _______________ __, ______ made by
_________________________, a ______________ corporation (the "Additional
Guarantor"), in favor of RGC INTERNATIONAL INVESTORS, LDC, as Holder, pursuant
to the Note referred to below. All capitalized terms not defined herein shall
have the meaning ascribed to them in such Note.
W I T N E S S E T H :
WHEREAS, Xxxxxxxxxxxx.xxx, Inc. (the "Borrower") has delivered to the
Holder a Promissory Note, dated as of January 12, 2001 (as amended, supplemented
or otherwise modified from time to time, the "Note");
WHEREAS, in connection with the Note, the Borrower and certain of its
subsidiaries (other than the Additional Guarantor) have entered into the
Subsidiary Guarantee, dated as of January 12, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee") in favor of the Holder;
WHEREAS, the Note requires the Additional Guarantor to become a party to
the Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee. By executing and delivering this Assumption Agreement,
the Additional Guarantor, hereby becomes a party to the Guarantee as a Guarantor
thereunder with the same force and effect as if originally named therein as a
Guarantor and, without limiting the generality of the foregoing, hereby
expressly assumes all obligations and liabilities of a Guarantor thereunder. The
information set forth in Annex 1-A hereto is hereby added to the information set
forth in Schedule 1 to the Guarantee. The Additional Guarantor hereby represents
and warrants that each of the representations and warranties contained in
Section 3 of the Guarantee is true and correct on and as the date hereof (after
giving effect to this Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above written.
[ADDITIONAL Guarantor]
By:
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Name:
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Title:
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