Exhibit 99.1
GUARANTEE
TO THE BANK OF NOVA SCOTIA
IN CONSIDERATION OF THE BANK OF NOVA SCOTIA (herein called the
"Bank") agreeing to deal with or to continue to deal with
XXXXXXX XXXX XXXX
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(herein called the "Customer") the undersigned and each of them, if more than
one, hereby jointly and severally guarantees payment to the Bank of all debts
and liabilities, present or future, direct or indirect, absolute or
contingent, matured or not, at any time owing by the Customer to the Bank or
remaining unpaid by the Customer to the Bank, whether arising from dealings
between the Bank and the Customer or from other dealings or proceedings by
which the Bank may be or become in any manner whatever a creditor of the
Customer, and wherever incurred, and whether incurred by the Customer alone
or with another or others and whether as principal or surety, including all
interest, commissions, legal and other costs, charges and expenses (such
debts and liabilities being herein called the "guaranteed liabilities"), the
liability of the undersigned hereunder being limited to the sum of
Insert Limited, if any.
UNLIMITED dollars
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with interest from the date of demand for payment at the rate set out in
paragraph 5 hereof.
AND THE UNDERSIGNED and each of them, if more than one, xxxxxx
jointly and severally agrees with the Bank as follows:
1. In this guarantee the word "Guarantor" shall mean the undersigned
and, if there is more than one guarantor, it shall mean each of them.
2. This guarantee shall be a continuing guarantee of all the guaranteed
liabilities and shall apply to and secure any ultimate balance due or
remaining unpaid to the Bank; and this guarantee shall not be considered as
wholly or partially satisfied by the payment or liquidation at any time of
any sum of money for the time being due or remaining unpaid to the Bank.
3. The Bank shall not be bound to exhaust its recourse against the
Customer or others or any securities or other guarantees it may at any time
hold before being entitled to payment from the Guarantor, and the Guarantor
renounces all benefits of discussion and division.
4. The Guarantor's liability to make payment under this guarantee shall
arise forthwith after demand for payment has been made in writing on the
undersigned or any one of them, if more than one, and such demand shall be
deemed to have been effectually made when an envelope containing such demand
addressed to the undersigned or such one of them at the address of the
undersigned or such one of them last known to the Bank is posted, postage
prepaid, in the post office; and the Guarantor's liability shall bear
interest from the date of such demand at the rate set out in paragraph 5
hereof.
5. The rate of interest payable by the Guarantor from the date of a
demand for payment under this guarantee shall be the Bank's prime rate
applicable at the time of demand, PLUS 2% per annum.
6. Upon default in payment of any sum owing by the Customer to the Bank
at any time, the Bank may treat all guaranteed liabilities as due and payable
and may forthwith collect from the Guarantor the total amount hereby
guaranteed and may apply the sum so collected upon the guaranteed liabilities
or may place it to the credit of a special account. A written statement of a
Manager or Acting Manager of a branch of the Bank at which an account of the
Customer is kept or of a General Manager of the Bank as to the amount
remaining unpaid to the Bank at any time by the Customer shall, if agreed to
by the Customer, be conclusive evidence and shall, in any event, be prima
facie evidence against the Guarantor as to the amount remaining unpaid to the
Bank at such time by the Customer.
7. This guarantee shall be in addition to and not in substitution for
any other guarantees or other securities which the Bank may now or hereafter
hold in respect of the guaranteed liabilities and the Bank shall be under no
obligation to marshal in favour of the Guarantor any other guarantees or
other securities or any moneys or other assets which the Bank may be entitled
to receive or may have a claim upon; and no loss of or in respect of or
unenforceability of any other guarantees or other securities which the Bank
may now or hereafter hold in respect of the guaranteed liabilities, whether
occasioned by the fault of the Bank or otherwise, shall in any way limit or
lessen the Guarantor's liability.
8. Without prejudice to or in any way limiting or lessening the
Guarantor's liability and without obtaining the consent of or giving notice
to the Guarantor, the Bank may discontinue, reduce, increase or otherwise
vary the credit of the Customer, may grant time, renewals, extensions,
indulgences, releases and discharges to and accept compositions from or
otherwise deal with the Customer and others, including the Guarantor and any
other guarantor as the Bank may see fit, and the Bank may take, abstain from
taking or perfecting, vary, exchange, renew, discharge, give up, realize on
or otherwise deal with securities and guarantees in such manner as the Bank
may see fit, and the Bank may apply all moneys received from the Customer or
others or from securities or guarantees upon such parts of the guaranteed
liabilities as the Bank may see fit and change any such application in whole
or in part from time to time.
9. Until repayment in full of all the guaranteed liabilities, all
dividends, compositions, proceeds of securities, securities valued or
payments received by the Bank from the Customer or others or from estates in
respect of the guaranteed liabilities shall be regarded for all purposes as
payments in gross without any right on the part of the Guarantor to claim the
benefit thereof in reduction of the liability under this guarantee, and the
Guarantor shall not claim any set-off or counterclaim against the Customer in
respect of any liability of the Customer to the Guarantor, claim or prove in
the bankruptcy or insolvency of the Customer in competition with the Bank or
have any right to be subrogated to the Bank.
10. This guarantee shall not be discharged or otherwise affected by the
death or loss of capacity of the Customer, by any change in the name of the
Customer, or in the membership of the Customer, if a partnership, or in the
objects, capital structure or constitution of the Customer, if a corporation,
or by the sale of the Customer's business or any part thereof or by the
Customer being amalgamated with a corporation, but shall, notwithstanding any
such event, continue to apply to all guaranteed liabilities whether
theretofore or thereafter incurred; and in the case of a change in the
membership of a Customer which is a partnership or in the case of the
Customer being amalgamated with a corporation, this guarantee shall apply to
the liabilities of the resulting partnership or corporation, and the term
"Customer" shall include each such resulting partnership and corporation.
11. All advances, renewals and credits made or granted by the Bank
purportedly to or for the Customer after the death, loss of capacity,
bankruptcy or insolvency of the Customer, but before the Bank has received
notice thereof shall be deemed to form part of the guaranteed liabilities;
and all advances, renewals and credits obtained from the Bank purportedly by
or on behalf of the Customer shall be deemed to form part of the guaranteed
liabilities, notwithstanding any lack or limitation of power, incapacity or
disability of the Customer or of the directors, partners or agents thereof,
or that the Customer may not be a legal or usable entity, or any
irregularity, defect or informality in the obtaining of such advances,
renewals or credits, whether or not the Bank had knowledge thereof; and any
such advance, renewal or credit which may not be recoverable from the
undersigned as guarantor(s) shall be recoverable from the undersigned and
each of them, if more than one, jointly and severally as principal debtor(s)
in respect thereof and shall be paid to the Bank on demand with interest at
the rate set out in paragraph 5 hereof.
12. All debts and liabilities, present and future, of the Customer to
the Guarantor are hereby assigned to the Bank and postponed to the guaranteed
liabilities, and all moneys received by the Guarantor in respect thereof
shall be received in trust for the Bank and forthwith upon receipt shall be
paid over the Bank, the whole without in any way lessening or limiting the
liability of the Guarantor under this guarantee; and this assignment and
postponement is independent of the guarantee and shall remain in full force
and effect until repayment in full to the Bank of all the guaranteed
liabilities, notwithstanding that the liability of the undersigned or any of
them under this guarantee may have been discharged or terminated.
13. The undersigned or any of them, if more than one, or his or their
executors or administrators, by giving thirty days' notice in writing to the
branch of the Bank at which the main account of the Customer is kept, may
terminate his or their further liability under this guarantee in respect of
liabilities of the Customer incurred or arising after the expiration of such
thirty days, but not in respect of any guaranteed liabilities incurred or
arising before the expiration of such thirty days even though not then
matured; provided that notwithstanding receipt of any such notice the Bank
may fulfil any requirements of the Customer based on agreements express or
implied made prior to the expiration of such thirty days and any resulting
liabilities shall be covered by this guarantee; and provided further that in
the event of the termination of this guarantee as to one or more of the
undersigned, if more than one, it shall remain a continuing guarantee as to
the other or others of the undersigned.
14. This guarantee embodies all the agreements between the parties
hereto relative to the guarantee, assignment and postponement and none of the
parties shall be bound by any representation or promise made by any person
relative thereto which is not embodied herein; and it is specifically agreed
that the Bank shall not be bound by any representation or promises made by
the Customer to the Guarantor.
Possession of this instrument by the Bank shall be conclusive evidence
against the Guarantor that the instrument was not delivered in escrow or
pursuant to any agreement that it should not be effective until any condition
precedent or subsequent has been complied with and this guarantee shall be
operative and binding notwithstanding the non-execution thereof by any
proposed signatory.
15. This guarantee shall be governed in all respects by the laws of the
Province or jurisdiction in which the Customer's main account with the Bank
is kept.
16. This guarantee shall not be discharged or affected by the death or
any disability of the undersigned or any of them, if more than one, and shall
enure to the benefit of and be binding upon the Bank, its successors and
assigns, and the Guarantor, his heirs, executors, administrators, successors
and assigns.
AS WITNESS the hand and seal of the Guarantor at ___________________________ .
this 4th day of May , 1999.
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SIGNED SEALED AND DELIVERED
in the presence of SIGNATURE AND SEAL
______________________________________________________________________________
/s/ Illegible /s/ Xxxx X. Xxxx
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WITNESS XXXX X. XXXX
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N.B.-Signature of this Guarantee involves personal liability.
DATE RECEIVED
_____________
RECORDED_____
APPROVED_____
E.O.
AUDITOR______
