EXHIBIT (E)(9)
GUARANTEE AGREEMENT entered into at Montreal, Province of Quebec, as of November
30, 2001.
AMONG: AUTOMATED LANGUAGE PROCESSING SYSTEMS LTD. ("GUARANTOR")
AND: ARCTIC INC. ("LENDER")
WHEREAS Alpnet Inc. (the "BORROWER") has executed a Secured Convertible
Promissory Note (the "SECURED NOTE") dated November 13, 2001 in favour of Arctic
Inc. (the "LENDER");
WHEREAS the Lender has required the entering into and execution of this
Guarantee Agreement before advancing any sums to the Borrower pursuant to the
Secured Note;
NOW, THEREFORE, in consideration of the Lender having entered into the
Secured Note with the Borrower and having agreed, subject to the terms and
conditions therein provided, to make sums available to the Borrower thereunder,
the parties hereto have agreed as follows:
1. INTERPRETATION
1.1 INCORPORATION OF DEFINITIONS
The capitalized words and expressions used in this Agreement or in any
deed, document or instrument supplemental or ancillary hereto, unless otherwise
defined herein or unless there be something in the subject or the context
inconsistent therewith, shall have the same meaning as that ascribed to them at
any time and from time to time in the Secured Note.
1.2 GENERAL INTERPRETATION
Unless there be something in the subject or the context inconsistent
therewith, words importing the singular only shall include the plural and vice
versa, and words importing the masculine gender shall include the feminine
gender, and vice versa, and all references to dollars shall mean Canadian
Dollars.
1.3 HEADINGS
The headings are inserted for convenience only and shall be ignored in
construing this Agreement.
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1.4 GOVERNING LAW
This Agreement shall be governed, construed and interpreted in accordance
with the laws applicable in the Province of Quebec.
1.5 TIME OF THE ESSENCE
The Guarantor shall be en demeure by the mere lapse of time for performing
its obligations or by the arrival or forfeiture of the term, or by any other
cause provided by the law.
1.6 REFERENCE TO THESE PRESENTS
The expressions "in these Presents" or "hereunder" or "this Agreement"
refer to this agreement together with any future amendment or restatement.
1.7 CONTRACT BY MUTUAL AGREEMENT
The provisions of this Agreement have been freely discussed and negotiated
between the parties and the rules relating to contracts of adhesion do not
apply.
1.8 LANGUAGE
The parties hereto have specifically required that this Agreement and all
related documents be drafted in English. Les parties aux presentes ont
expressement requis que la presente convention et tous les documents accessoires
soient rediges en anglais.
2. COVENANTS OF THE GUARANTOR
2.1 GUARANTEE
The Guarantor hereby irrevocably guarantees the payment of all the present
and future, direct and indirect obligations of the Borrower towards the Lender,
in principal, interest and costs under the Secured Note (the "GUARANTEED
OBLIGATIONS"), up to a maximum aggregate amount of two million United States
dollars (US$2,000,000), which the Guarantor expressly covenants to pay to the
Lender, as of and from any demand for payment presented by the Lender, which
demand for payment shall only be presented to the Guarantor following an Event
of Default.
2.2 PAYMENT UPON RECEIPT OF WRITTEN DEMAND
Following a demand from the Lender pursuant to Section 2.1, the Guarantor
shall make payment of the amount claimed at the office of the Lender located at
the address mentioned under its signature or any other address communicated in
writing by Lender, in the same currency as that which such Guaranteed
Obligations may be outstanding, in funds immediately available to the Lender at
such office.
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2.3 RECORDS OF THE LENDER CONSTITUTING PRIMA FACIE EVIDENCE OF AMOUNT DUE BY
THE BORROWER
Any written records of account/indebtedness maintained by the Lender shall
constitute prima facie evidence of the amount which, as of the date of the
record, is due by the Borrower to the Lender under the Guaranteed Obligations.
2.4 CONTINUING GUARANTEE
The guarantee contemplated in this Article constitutes a continuing
guarantee and remains in full force until repayment of the Guaranteed
Obligations.
2.5 IRREGULARITIES IN BORROWING OF NO EFFECT ON THE OBLIGATIONS OF THE
GUARANTOR
All moneys, advances, renewals and credits borrowed or actually obtained by
the Borrower from the Lender under the Secured Note, shall constitute part of
the Guaranteed Obligations, notwithstanding any irregularity, defect or
informality in the borrowing or the obtaining of the said moneys, advances,
renewals and credits, whether or not the Lender shall have had knowledge of
same, it being expressly understood that any amount which may not be recoverable
from the Borrower as a consequence of any irregularity, defect or informality
whatsoever in the principal indebtedness of the Borrower, may be collected from
the Guarantor as sole or principal debtor and shall be payable to the Lender
upon the demand, with interest, fees and accessories, the whole in accordance
with the provisions of this Article.
2.6 THE LENDER MAY GRANT EXTENSIONS OF TIME
The Lender may, without thereby releasing the Guarantor, in whole or in
part, under the guarantee contemplated in this Article, grant extensions of
time, renewals, postponements and releases; it may also (i) take and give up
security or abandon same, in whole or in part, (ii) abstain from taking,
perfecting, registering, publishing, renewing or enforcing any security, (iii)
accept arrangements or otherwise deal with the Borrower and others including any
guarantor, and (iv) dispose of any security.
2.7 IMPUTATION OF PAYMENTS TO BE APPLIED IN THE REDUCTION OF THE GUARANTEED
OBLIGATIONS
All dividends and other sums of money received by the Lender from the
Borrower or from anyone whomsoever, which may be imputed in reduction of the
Guaranteed Obligations, shall be considered as payments which the Lender may
impute as it sees fit, notwithstanding the provisions of Article 1572 of the
Civil Code of Quebec, as well as every other legal rule concerning the
imputation of payments.
The Guarantor may not be subrogated in the rights of the Lender until the
Lender shall have received the entire amount of its claims against the Borrower
in relation to the Guaranteed Obligations and under any other obligation
outstanding under the Secured Note.
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2.8 ADDITIONAL SECURITY
The guarantee contemplated in this Article is in addition to and not in
substitution for any other guarantee given by anyone whomsoever and shall not
prejudice any and all security furnished to the Lender by anyone whomsoever, and
held by it at any time whatsoever. The Lender shall not be bound to rank or
marshal its security or to apply this principle to sums of money which it shall
be entitled to receive or to other assets upon which it may possess rights.
2.9 RENUNCIATION TO THE BENEFITS OF DIVISION AND DISCUSSION
The Lender shall not be obliged to exercise any of its recourses against
the Borrower or against others, or to discuss any of the security which it shall
hold or which the Lender shall hold, before being entitled to the payment by the
Guarantor of the Guaranteed Obligations and it shall not be bound to offer or to
deliver its security before being paid in full. The Guarantor hereby renounces
to the benefit of discussion and division.
2.10 AUTHORITY TO MODIFY GUARANTEED OBLIGATIONS
To the extent permitted by law, the Guarantor expressly authorizes the
Lender, at any time and from time to time without notice and without affecting
the liability of the Guarantor hereunder, to
2.10.1 alter the terms of all or any part of the Guaranteed Obligations
and any security and guaranties therefor, including without
limitation, modification of times for payment, provided however
that the Lender shall not, without the Guarantor's prior written
consent, alter any part of the Guaranteed Obligations which would
increase the amount of the principal amount of the Secured Note,
increase the interest rate applicable to the principal amount of
the Secured Note or increase the monetary obligations of the
Borrower towards the Lender under the Secured Note;
2.10.2 accept new or additional instruments, documents, agreements,
security or guaranties in connection with all or any part of the
Guaranteed Obligations;
2.10.3 accept partial payments of the Guaranteed Obligations;
2.10.4 waive, release, reconvey, terminate, abandon, subordinate,
exchange, substitute, transfer, compound, compromise, liquidate
and enforce all or any part of the Guaranteed Obligations and any
security or guaranties therefor, and apply any such security and
direct the order or manner of sale thereof (and bid and purchase
at any such sale), as the Lender, in its discretion may
determine;
2.10.5 release the Borrower, any guarantor or any other Person from any
personal liability with respect to all or any part of the
Guaranteed Obligations; and
2.10.6 otherwise modify the provisions of the Secured Note.
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3. REPRESENTATIONS AND WARRANTIES
The Guarantor does hereby represent and warrant that:
3.1 ORGANIZATION
The Guarantor is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and of all
jurisdictions in which it carries on business, and is in compliance with all
provisions of its constating documents and by-laws. The Guarantor has all
requisite power and authority, corporate or otherwise, to own its property and
to carry on its business as now being and hereafter proposed to be conducted.
3.2 AUTHORIZATION OF DOCUMENTS BY THE GUARANTOR
The Guarantor has the power, and has taken all necessary action, to
authorize it to guarantee the obligations of the Borrower under the Secured Note
pursuant to the terms hereof and has the power and has taken all necessary
action to authorize it to execute and deliver this Agreement and perform its
obligations hereunder in accordance with the terms hereof and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by a duly authorized officer of the Guarantor.
3.3 NO CONFLICT
The execution, delivery and performance by the Guarantor of this Agreement
and the consummation of the transactions contemplated hereby and thereby do not
violate any law, conflict with, result in a breach of or constitute a default
under the constating documents or by-laws of the Guarantor or under any material
agreement or instrument to which it is a party or by which it or any of its
property may be bound.
3.4 GOVERNMENTAL REGULATION
The Guarantor is not required to obtain any consent, approval,
authorization, permit or license from, or effect any filing or registration
with, any federal, provincial, state or local regulatory authority in connection
with the execution, delivery and performance, in accordance with its respective
terms, of this Agreement.
4. GENERAL PROVISIONS
4.1 NOTICES
Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon the respective parties hereto shall be in
writing and shall be deemed to have been duly given or made to the party to whom
such notice, request, demand or other communication is required or permitted to
be given or made under this Agreement, when delivered to such party (by
certified mail, postage prepaid or by telecopier or hand delivery) at its
address and attention set forth with its signature below, or at such other
address as any of the parties hereto may hereafter notify the others in writing.
No other method of giving notice is
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hereby precluded. The Lender shall not be required to furnish the Guarantor with
copies of any notices and requests sent to the Borrower under the Secured Note.
4.2 SEVERABILITY
Any provision of this Agreement 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 in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
4.3 ACKNOWLEDGMENT
The Guarantor hereby acknowledges that it has received and taken cognizance
of an original executed copy of the Secured Note and is familiar with all the
provisions thereof.
4.4 BENEFIT OF GUARANTEE
This guarantee shall enure to the benefit of the Lender, as well as its
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
date and in the place first hereinabove mentioned.
AUTOMATED LANGUAGE PROCESSING SYSTEMS LTD.
Per: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
ADDRESS:
0000 XxXxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
To the attention of: President
Fax: (000) 000-0000
ARCTIC INC.
Per: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
ADDRESS:
c/o CT Corporations Systems
00 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx
To the attention of:
Fax:
