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EXHIBIT 19
[CIBC LOGO]
05910, BRENTWOOD SHOPPING CENTRE
0000 XXXXXXXX XXX.
BURNABY, B.C. V5C 3Z6
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BANK OFFICE (insert mailing address and postal code)
GUARANTEE
FOR VALUABLE CONSIDERATION, I, the undersigned guarantor, agree with
Canadian Imperial Bank of Commerce ("CIBC") as follows:
1. CUSTOMER'S NAME. The name of the customer whose debts I am guaranteeing
is:
XxxxXxxxxx.Xxx Corp
------------------------------------------------------- (the "Customer").
2. GUARANTEE. I guarantee payment to CIBC of all the Customer's Debts. My
liability under this Guarantee is:
(a) [ ] unlimited.
(b) [X] limited to the principal sum of $250,000.00 plus interest and
expenses in accordance with Section 5.
NOTE: IF NEITHER BOX (a) NOR BOX (b) IS CHECKED OFF, OR IF BOTH ARE CHECKED
OFF, OR IF BOX (b) IS CHECKED OFF BUT NO FIGURE IS INSERTED IN THE BLANK,
THEN BOX (a) ALONE WILL BE CONSIDERED TO HAVE BEEN CHECKED OFF.
3. GOVERNING LAW. This Guarantee is governed by the laws of BRITISH COLUMBIA
(without reference to the choice of law rules). I irrevocably agree to
submit to the non-exclusive jurisdiction of its courts.
4. COPY RECEIVED. I acknowledge having received a copy of this Guarantee.
NOTE: THE "ADDITIONAL TERMS AND CONDITIONS OF THIS GUARANTEE" ON THE FOLLOWING
PAGES FORM PART OF THIS GUARANTEE.
Dated January 31, 2000
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Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxx
----------------------------------- ------------------------------------ Seal
WITNESS'S NAME (RECORD IN FULL) GUARANTOR'S NAME (RECORD IN FULL)
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxx
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WITNESS'S SIGNATURE SIGNATURE
#000 - 000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxx.
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WITNESS'S ADDRESS GUARANTOR'S ADDRESS
Vancouver, B.C. V6Z 2E6 Burnaby, B.C. V5E 3G4
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(CITY/TOWN, PROVINCE AND POSTAL CODE) (CITY/TOWN, PROVINCE AND POSTAL CODE)
Note: (i) If the Guarantor is a corporation, no witness is needed. The office
(such as "President" or "Secretary") of the person signing should
be noted below that person's signature. The corporation's seal
should be affixed if the resolution so states.
(ii) If the Guarantor is an individual, a red wafer seal is advisable,
but not mandatory. (No seal required in Quebec.)
(iii) For The Guarantees Acknowledgement Act certificate in Alberta, see
page 4.
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ADDITIONAL TERMS AND CONDITIONS OF THIS GUARANTEE
5. PAYMENT ON DEMAND. I will immediately pay CIBC on demand:
(a) the amount (and in the currency) of the Customer's Debts (but if
Section 2(b) applies, subject to that limitation), plus any
expenses (including all legal fees and disbursements) incurred by
CIBC in enforcing any of CIBC's rights under this Guarantee; and
(b) interest (including interest on overdue interest, compounded
monthly) on unpaid amounts due under this Guarantee calculated
from the date on which those amounts were originally demanded
until payment in full, both before and after judgment, at the
rates (and in the currency) applicable to the corresponding
Customer's Debts.
6. MAKING DEMAND. Demand and any other notices given under this Guarantee
will be conclusively considered to have been made upon me when the
envelope containing it, addressed to me (or, if there is more than one
Person signing this Guarantee, to any one of us) at the last address
known to CIBC, is deposited, postage prepaid, first class mail, in a
post office, or is personally delivered to that address. I will give
CIBC immediate written notice, addressed to the Manager of the Bank
Office, of each and every change of my address.
7. NO SETOFF OR COUNTERCLAIM. I will make all payments required to be made
under this Guarantee without regard to any right of setoff or
counterclaim that I have or may have against the Customer or CIBC.
8. APPLICATION OF MONEYS RECEIVED. CIBC may apply all moneys received from
me, the Customer or any other Person (including under any Security that
CIBC may from time to time hold) upon such part of the Customer's Debts
as CIBC considers appropriate.
9. EXHAUSTING RECOURSE. CIBC does not need to exhaust its recourse against
the Customer or any other Person or under any Security CIBC may from
time to time hold before being entitled to full payment from me under
this Guarantee.
10. ABSOLUTE LIABILITY. My liability under this Guarantee is absolute and
unconditional. It will not be limited or reduced, nor will CIBC be
responsible or owe any duty (as a fiduciary or otherwise) to me, nor
will CIBC's rights under this Guarantee be prejudiced, by the
existence or occurrence (with or without my knowledge or consent) of
any one or more of the following events:
(a) any termination, invalidity, unenforceability or release by CIBC
of any of its rights against the Customer or against any other
Person or of any Security;
(b) any increase, reduction, renewal, substitution or other change
in, or discontinuance of, the terms relating to the Customer's
Debts or to any credit extended by CIBC to the Customer; any
agreement to any proposal or scheme of arrangement concerning, or
granting any extensions of time or any other indulgences or
concessions to, the Customer or any other Person; any taking or
giving up any Security; abstaining from taking, perfecting or
registering any Security; allowing any Security to lapse (whether
by failing to make or maintain any registration or otherwise); or
any neglect or omission by CIBC in respect of, or in the course
of, doing any of these things;
(c) accepting compositions from or granting releases or discharges to
the Customer or any other Person, or any other dealing with the
Customer or any other Person or with any Security that CIBC
considers appropriate;
(d) any unenforceability or loss of or in respect of any Security
held from time to time by CIBC from me, the Customer or any
other Person, whether the loss is due to the means or timing of
any registration, disposition or realization of any collateral
that is the subject of that Security or otherwise due to CIBC's
fault or any other reason;
(e) the death of the Customer; any change in the Customer's name; or
any reorganization (whether by way of amalgamation, merger,
transfer, sale, lease or otherwise) of the Customer or the
Customer's business;
(f) any change in my financial condition or that of the Customer or
any other Guarantor (including insolvency and bankruptcy);
(g) if I am or the Customer is a corporation, any change of effective
control, or if I am or the Customer is a partnership, a
dissolution or any change in the membership;
(h) any event, whether or not attributable to CIBC, that may be
considered to have caused or accelerated the bankruptcy or
insolvency of the Customer or any Guarantor, or to have resulted
in the initiation of any such proceedings;
(i) CIBC's filing of any claim for payment with any administrator,
provisional liquidator, conservator, trustee, receiver, custodian
or other similar office appointed for the Customer or for all or
substantially all of the Customer's assets;
(j) any failure by CIBC to abide by any of the terms and conditions
of CIBC's agreements with, or to meet any of its obligations or
duties owed to, me, the Customer or any Person, or any breach of
any duty (whether as a fiduciary or otherwise) that exists or is
alleged to exist between CIBC and me, the Customer or any Person;
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(k) any incapacity, disability, or lack or limitation of status or of
the power of the Customer or of the Customer's directors,
managers, officers, partners or agents; the discovery that the
Customer is not or may not be a legal entity; or any irregularity,
defect or informality in the incurring of any of the Customer's
Debts; or
(l) any event whatsoever that might be a defence available to, or
result in a reduction or discharge of, me, the Customer or any
other Person in respect of either the Customer's Debts or my
liability under this Guarantee.
For greater certainty, I agree that CIBC may deal with me, the Customer
and any other Person in any manner without affecting my liability under
this Guarantee.
11. PRINCIPAL DEBTOR. All moneys and liabilities (whether matured or
unmatured, present or future, direct or indirect, absolute or
contingent) obtained from CIBC will be deemed to form part of the
Customer's Debts, notwithstanding the occurrence of any one or more of
the events described in Section 10(k). I will pay CIBC as principal
debtor any amount that CIBC cannot recover from me as Guarantor
immediately following demand as provided in this Guarantee.
12. NO LIABILITY FOR NEGLIGENCE, ETC. CIBC will not be liable to me for
any negligence or any breaches or omissions on the part of CIBC, or any
of its employees, officers, directors or agents, or any receivers
appointed by CIBC, in the course of any of its or their actions.
13. CONTINUING GUARANTEE. This is a continuing guarantee of the Customer's
Debts.
14. TERMINATING FURTHER LIABILITY. I may discontinue any further liability
to pay the Customer's Debts by written notice to the Bank Office. I
will, however, continue to be liable under this Guarantee for any of
the Customer's Debts that the Customer incurs up to and including the
30th day after CIBC receives my notice.
15. STATEMENT CONCLUSIVE. Except for demonstrable errors or omissions, the
amount appearing due in any account stated by CIBC or settled between
CIBC and the Customer will be conclusive as to that amount being due.
16. CIBC'S PRIORITY.
(a) If any payment made to CIBC by the Customer or any other Person is
subsequently rendered void or must otherwise be returned for any
reason, I will be liable for that payment (but if Section 2(b)
applies, subject to that limitation). Until all of CIBC's claims
against the Customer in respect of the Customer's Debts have been
paid in full, I will not require that CIBC assign to me any
Security held, or any other rights that CIBC may have, in
connection with the Customer's Debts, and I will not assert any
right of contribution against any Guarantor, or claim repayment
from the Customer, for any payment that I make under this
Guarantee.
(b) If the Customer is bankrupt, or (if the Customer is a corporation)
liquidated or wound up, or if the Customer makes bulk sale of any
assets under applicable law, or if the Customer proposes any
composition with creditors or any scheme of arrangement, CIBC will
be entitled to all dividends and other payments until CIBC is paid
in full, and I will remain liable under this Guarantee (but if
Section 2(b) applies, subject to that limitation).
(c) If CIBC gives to any trustee in bankruptcy or receives a valuation
of, or retains, any Security that CIBC holds for payment of the
Customer's Debts, that will not be considered, as between CIBC and
me, to be a purchase of such Security or payment, satisfaction or
reduction of the Customer's Debts.
17. ASSIGNMENT AND POSTPONEMENT OF CLAIM. I postpone in favour of CIBC
all debts and liabilities that the Customer now owes or later may from
time to time owe to me in any manner until CIBC is paid in full. I
further assign to CIBC all such debts and liabilities, to the extent of
the Customer's Debts, until CIBC is paid in full. If I receive any
moneys in payment of any of such debts and liabilities, I will hold
them in trust for, and will immediately pay them to, CIBC without
reducing my liability under this Guarantee.
18. WITHHOLDING TAXES. Unless a law requires otherwise, I will make all
payments under this Guarantee without deduction or withholding for any
present or future taxes of any kind. If a law does so require, I will
pay to CIBC an additional amount as is necessary to ensure CIBC
receives the full amount CIBC would have received if no deduction or
withholding had been made.
19. JUDGEMENT CURRENCY. My liability to pay CIBC in a particular currency
(the "First Currency") will not be discharged or satisfied by any
tender or recovery under any judgement expressed in or converted into
another currency (the "Other Currency") except to the extent the tender
or recovery results in CIBC's effective receipt of the full amount of
the First Currency so payable. Accordingly, I will be liable to CIBC in
an additional cause of action to recover in the Other Currency the
amount (if any) by which that effective receipt falls short of the full
amount of the First Currency so payable, without being affected by any
judgment obtained for any other sums due.
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20. CONSENT TO DISCLOSE INFORMATION. CIBC may from time to time give any
credit or other information about me to, or receive such information
from, any credit bureau, reporting agency or other Person.
21. GENERAL. Any provision of this Guarantee that is void or unenforceable
in a jurisdiction is, as to that jurisdiction, ineffective to that
extent without invalidating the remaining provisions. If two or more
Persons sign this Guarantee, each Person's liability will be joint and
several. This Guarantee is in addition and without prejudice to any
Security of any kind now or in the future held by CIBC. There are no
representations, collateral agreements or conditions with respect to,
or affecting my liability under, this Guarantee other than as
contained in this Guarantee.
22. QUEBEC ONLY. If this Guarantee is governed by the laws of Quebec:
(a) I acknowledge that the terms and conditions of the Customer's
Debts have been expressly brought to my attention;
(b) I renounce the benefit of division and discussion;
(c) if two or more Persons sign this Guarantee, each Person's
liability will be solidary;
(d) I acknowledge that the thirty days' notice specified in
Section 14 constitutes prior and sufficient notice to CIBC;
(e) if this Guarantee is attached to the performance of special
duties, I agree that this Guarantee shall not terminate upon
cessation of such duties; and
(f) it is the express wish of the parties that this document and
any related documents be drawn up in English. Les parties aux
presentes ont expressement demande que ce document et tous
les documents s'y rattachant soient rediges en anglais.
23. DEFINITIONS. In this Guarantee:
(a) "Bank Office" means the CIBC office noted on the first page
of this Guarantee, or such address as CIBC may, from time to
time, advise me in the manner provided in Section 6;
(b) "Customer Debts" means the debts and liabilities that the
Customer has incurred or may incur with CIBC including, among
other things, those in respect of dealings between the
Customer and CIBC, as well as any other dealings by which the
Customer may become indebted or liable to CIBC in any manner
whatever;
(c) "Guarantor" means any Person who has guaranteed or later
guarantees to CIBC any or all of the Customer's Debts,
whether or not such Person has signed this Guarantee or
another document;
(d) "I", "me" and "my" mean the Person who has signed this
Guarantee, and if two or more Persons sign, each of them;
(e) "Person" includes a natural Person, personal representative,
partnership, corporation, association, organization, estate,
trade union, church or other religious organization,
syndicate, joint venture, trust, trustee in bankruptcy,
government and government body and any other entity, and,
where appropriate, specifically includes any Guarantor;
(f) "Section" means a section or paragraph of this Guarantee; and
(g) "Security" means any security held by CIBC as security for
payment of the Customer's Debts and includes, among other
things, any and all guarantees.
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For Use in Alberta Only
THE GUARANTEES ACKNOWLEDGEMENT ACT (ALBERTA)
CERTIFICATE OF NOTARY PUBLIC
(BMO VIA-7-5.06,.07)
I HEREBY CERTIFY THAT:
1. ____________________________ of ____________________________, the Guarantor
in the above Guarantee, appeared in person before me and acknowledged that
he/she had executed the Guarantee;
2. I satisfied myself by examination of him/her that he/she is aware of the
contents of the Guarantee and understands it.
Given at ____________________ this ______ day of _____________________, under my
hand and seal of office.
A Notary Public in and for
_______________________________
STATEMENT OF GUARANTOR
I am the Person named in this certificate. _______________________________
Signature Of Guarantor
