Exhibit 10.52
APPENDIX I-7
Owner Guaranty
GUARANTY
This Owner Guaranty (this
“ Guaranty ”) is made by ADA-ES, Inc., a
Colorado corporation (the “ Guarantor ”), in
favor of BE&K Construction Company, LLC (the “
Beneficiary ”) in consideration of the Beneficiary
entering into that certain Amended and Restated Engineering,
Procurement and Construction Agreement, dated as of
September 8, 2008 (the “ Agreement ”), by
and between the Beneficiary and Red River Environmental Products,
LLC, a Delaware limited liability company (the “
Counterparty ”). Capitalized terms used and not
defined herein shall have the respective meanings set forth in the
Agreement, as amended from time to time.
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1.
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Guaranty : For valuable and separate consideration, the
receipt of which is hereby acknowledged by the Guarantor, the
Guarantor, as primary obligor and not as surety, does hereby
unconditionally and absolutely guarantee to the Beneficiary in
accordance with the provisions of this Guaranty, the prompt, full
and faithful payment when due (whether at maturity, upon a default,
upon resolution of a dispute, by acceleration or otherwise under
the Agreement) by the Counterparty to the Beneficiary of all
amounts due to the Beneficiary under the Agreement created,
incurred or arising from the Effective Date up to, but not
including, the date of Financial Closing, as such date and term are
defined in the Agreement (the “ Guaranteed Obligations
”) for so long as the Guaranteed Obligations remain in effect
under and pursuant to the Agreement. The Guarantor’s
obligations and liability under this Guaranty shall be limited to,
and fully satisfied upon the payment of, amounts due under and
pursuant to the obligations of the Counterparty under the
Agreement, and the Guarantor shall have no obligation to perform
under the Agreement with regard to performance other than the
provisions regarding payment and recourse for non-payment of the
Guaranteed Obligations.
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2.
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Guaranty
Absolute : The Guarantor
guarantees that the Guaranteed Obligations will be paid in full and
complete accordance with the terms of the Agreement, regardless of
any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the
Beneficiary with respect thereto. The obligations of the Guarantor
under this Guaranty are independent of but related to the
Counterparty’s obligations under the Agreement, and a
separate action or actions may be brought and prosecuted against
the Guarantor to enforce this Guaranty, irrespective of whether any
action or arbitration is brought against the Counterparty or
whether the Counterparty is joined in any such action or
arbitration or whether the Counterparty is the subject of
insolvency, bankruptcy, or reorganization proceedings. The
liability of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the
Guarantor hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to, any or all of the
following:
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(a) any lack of validity or
enforceability of the Agreement;
(b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations under the Agreement, any modification,
extension or waiver of any of the terms of the Agreement, or any
other amendment or waiver of or any consent to departure from any
term of the Agreement, all or any of which shall be binding on the
Guarantor;
(c) any taking, exchange, release or
non-perfection or the taking or failure to take any other action
with respect to any collateral, or any taking, release or amendment
or waiver of or consent to departure from any other guaranty, for
all or any of the Guaranteed Obligations;
(d) any requirement that the
Beneficiary proceed against the Counterparty, any other person or
entity, any collateral or any manner of application of any
collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any
collateral for all or any of the Guaranteed Obligations;
(e) any change, restructuring or
termination of the company structure or existence of the
Counterparty or any of its subsidiaries;
(f) any lack or failure of notice or
any failure of the Beneficiary to disclose to the Counterparty or
the Guarantor any information relating to the financial condition,
operations, properties or prospects of the Counterparty or the
Guarantor, or relating to the Agreement, as the case may be, now or
in the future known to the Beneficiary (the Guarantor waiving any
duty on the part of the Beneficiary to disclose such
information);
(g) any existence of or reliance on
any representation by the Beneficiary that might otherwise
constitute a defense available to, or a discharge of, the Guarantor
or any other guarantor or surety; and
(h) any permitted assignment of the
Agreement.
Notwithstanding any provision to the
contrary contained herein, the Guarantor’s liability for the
Guaranteed Obligations hereunder shall be and is specifically
limited to payments required to be made under the Agreement (even
if such payments are deemed to be damages), and in no event shall
the Guarantor be subject hereunder to consequential, exemplary,
loss of profits, punitive, tort, or any other damages (other than
those arising out of the Agreement), costs, or attorneys’
fees (except as provided herein including, without limitation, in
Section 5 hereof).
This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any
payment of any of the Guaranteed Obligations is rescinded or must
otherwise be returned by the Beneficiary or any other person upon
the insolvency, bankruptcy or reorganization of the Counterparty or
the Guarantor or otherwise, all as though such payments had not
been made. The obligations of the Guarantor under this Guaranty
shall at all times rank at least pari passu in right of
payment with all other unsecured and unsubordinated indebtedness
(actual or contingent) of the Guarantor, except as may be required
by law. This Guaranty shall continue to be effective if the
Counterparty merges or consolidates with or into another entity,
loses its separate legal identity or ceases to exist.
Subject to the Section 1
hereof, this Guaranty is a continuing guaranty of the payment (and
not of collection) by the Counterparty of its obligations under the
Agreement. In no event shall the Guarantor’s liability to the
Beneficiary exceed the Counterparty’s liability under the
Agreement, such liability to be determined without regard to the
insolvency, bankruptcy or reorganization of the
Counterparty.
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3.
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Term and
Termination : This
Guaranty shall continue in full force and effect until the earlier
of (i) Financial Closing or (ii) satisfaction of all
obligations of the Counterparty under the Agreement arising from
the Effective Date up to, but not including, the date of Financial
Closing; provided , however , upon termination
hereof, the Guarantor agrees that (a) the obligations and
liabilities hereunder shall continue in full force and effect with
respect to any Guaranteed Obligations to the extent then subject to
pending claims identified in writing by the Beneficiary to the
Guarantor or the Counterparty and existing on the termination date,
whether such Guaranteed Obligations with respect to such pending
claims become due prior to or after the termination date and
(b) this Guaranty, and Guarantor’s obligations and
liabilities hereunder, shall be reinstated in accordance with
Section 2 hereof in the event any payment hereunder is
rescinded or must be set aside in which case this Guaranty and such
obligations and liabilities shall continue until indefeasibly paid
in full.
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4.
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Waivers and
Acknowledgments : The
Guarantor hereby waives presentment, protest, acceleration,
dishonor, promptness, diligence, filing of claims with a court in
the event of insolvency or bankruptcy of the Counterparty, notice
of acceptance of this Guaranty and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any
requirement that the Beneficiary protect, secure, perfect or insure
any lien or any property subject thereto or exhaust any right or
take any action against the Counterparty or any other Person or
entity, or any collateral. The Guarantor hereby waives any right to
revoke this Guaranty.
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Except as to applicable statutes of
limitation, no delay of the Beneficiary in the exercise of, or
failure to exercise, any rights hereunder shall operate as a waiver
of such rights, a waiver of any other rights, or a release of the
Guarantor from any obligations hereunder, nor shall any single or
partial exercise by the Beneficiary of any right, remedy or power
hereunder preclude any other or future exercise of any right,
remedy or power. Each and every right, remedy and power hereby
granted to the Beneficiary or allowed it by law or other agreement
shall be cumulative and not exclusive of any other, and may be
exercised by the Beneficiary from time to time.
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5.
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Expenses : Notwithstanding (and in addition to) the limit
on the Guarantor’s liability hereunder set forth in
Section 1, Guarantor agrees to pay on demand any and all
out-of-pocket costs, including reasonable legal fees and expenses,
and other expenses incurred by the Beneficiary in successfully
enforcing the Guarantor’s payment obligations under this
Guaranty; provided , however , that the Guarantor
shall not be liable for any expenses of the Beneficiary if no
payment under this Guaranty is due.
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6.
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Subrogation : The Guarantor will not exercise any right that
it may now or hereafter acquire against the Counterparty that
arises from the existence, payment, performance or enforcement of
the Guarantor’s payment obligations unde
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