Exhibit 99.8
GUARANTEE AND POSTPONEMENT OF CLAIM
TO: WASANDA ENTERPRISES INC.
WHEREAS WASANDA ENTERPRISES INC., (hereinafter called the "Lender") agreed
to provide financial support to D'Angelo Brands Ltd. and D'Angelo Brands, Inc.
(hereinafter collectively called the "Borrower");
AND WHEREAS providing financial support by the Lender to the Borrower is
acknowledged to be of personal benefit to the undersigned;
AND WHEREAS the Lender has required that the undersigned guarantee
re-payment to the Lender of the obligations and liabilities of the Borrower as a
condition for providing such financial support;
AND WHEREAS the undersigned have therefore agreed to provide the within
guarantee;
NOW THEREFORE in consideration of your providing financial support to the
Borrower, other good and valuable consideration and the sum of Two Dollars
($2.00), paid by the Lender to us, the receipt and sufficiency of which are
hereby acknowledged, the undersigned (hereinafter collectively called the
"Guarantors") hereby declare, covenant and agree as follows:
1. In this Guarantee and Postponement of Claim the following words shall have
the following meanings:
(a) "Credit" means financial accommodation of any kind whatsoever.
(b) "Indebtedness" means all present and future indebtedness, liabilities
and obligations of every kind, nature and description whatsoever,
whether direct or indirect, joint or several, absolute or contingent,
matured or unmatured, of the Borrower to the Lender including, without
limitation, amounts due and owing to the Lender by the Borrower from
time to time pursuant to the terms of a debenture of even date made by
the Borrower in favour of the Lender, as holder thereof together with
interest and compound interest thereon.
2. Without further authorization from or notice to the Guarantors, you may grant
Credit and advance funds to the Borrower from time to time, either before or
after revocation hereof, and in such manner, upon such terms and for such times
as you deem best, and with or without notice to the Guarantors you may alter,
compromise, accelerate, extend or change the time or manner for the payment by
the Borrower or by any person or persons liable to you for any Indebtedness
hereby guaranteed, increase or reduce the rate of interest thereon, release or
add one or more guarantors or endorsers, accept additional or substituted
security, or release or subordinate any security. No exercise or non-exercise by
you of any right hereby given you, no dealing by you with the Borrower or any
guarantor or endorser and no change, impairment or suspension of any right or
remedy you may have against any person or persons shall in any way affect any of
the Guarantors' obligations hereunder or any security furnished by the
Guarantors or give the Guarantors any recourse against you.
3. The Guarantors jointly and severally unconditionally and irrevocably
guarantee and promise to pay to you or your order, on demand, as primary
obligors and not merely as sureties, each item of Indebtedness hereby
guaranteed, interest thereon, and all costs, charges and expenses which may be
incurred by you in respect of any Indebtedness of the Borrower hereby guaranteed
or in enforcing this Guarantee against the Guarantors and promise to perform
each guaranteed obligation when due. Notwithstanding the foregoing, the
liability of ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall be limited to the security
granted by him in support of this Guarantee, being a collateral mortgage on the
property legally described as Part Lot 23, Concession 3, FTB Township of York,
City of Toronto
4. The obligations of the Guarantors under this Guarantee are continuing,
unconditional and absolute and, without limiting the generality of the
foregoing, will not be released, discharged, determined, diminished, limited or
otherwise affected by and the rights of the Lender hereunder shall not be
prejudiced by:
(a) any extension, other indulgence, renewal, settlement, discharge,
compromise, waiver, subordination or release in respect of any item of
Indebtedness, security, person or otherwise;
(b) any modification or amendment of or supplement to any item of
Indebtedness, including any increase or decrease in the principal, the
rates of interest or other amounts payable thereunder;
(c) any release, non-perfection or invalidity of any direct or indirect
security for any item of Indebtedness;
(d) the discontinuance of this Guarantee as to one or more other
Guarantors or by the death or loss or diminution of capacity or
cessation of corporate existence, as the case may be, of the Borrower,
or by the death or loss or diminution of capacity or cessation of
corporate existence, as the case may be, of any other Guarantor;
(e) the existence of any claim, set-off or other rights which the
Guarantors or any of them may have at any time against the Borrower,
the Lender or any other person, whether in connection herewith or any
unrelated transactions;
(f) any invalidity, illegality or unenforceability relating to or against
the Borrower or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower of the principal or
interest under any item of Indebtedness;
(g) any limitation, postponement, prohibition, subordination or other
restriction on the rights of the Lender to payment of any item of
Indebtedness;
(h) any release, substitution or addition of any co-signer, endorser or
other guarantor of any item of Indebtedness;
(i) any defence arising by reason of any failure of the Lender to make any
presentment, demand for performance, notice of non-performance,
protest, and any other notice, including notice of all of the
following: acceptance of this Guarantee, partial payment or
non-payment of all or any part of any item of Indebtedness;
(j) any defence arising by reason of any failure of the Lender to proceed
against the Borrower or any other person, to proceed against, apply or
exhaust any security held from the Borrower or any other person for
any item of Indebtedness, to proceed against, apply or exhaust any
security held from the Guarantors or any other person for this
Guarantee or to pursue any other remedy in the power of the Lender
whatsoever;
(k) any law which provides that the obligation of a guarantor must neither
be larger in amount nor in other respects more burdensome than that of
the principal obligation or which reduces a guarantor's obligation in
proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority, or
other defence of the Borrower or any other person, or by reason of any
limitation, postponement, prohibition on the Lender's right to payment
of any item of Indebtedness or any part thereof, or by reason of the
cessation from any cause whatsoever of the liability of the Borrower
or any other person with respect to all or any part of any item of
Indebtedness or by reason of any act or omission of the Lender or
others which directly or indirectly results in the discharge or
release of the Borrower or any other person or all or any part of any
item of Indebtedness or any security or guarantee therefor, whether by
contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Lender to obtain,
record, complete, perfect or maintain a perfected or prior (or any)
security interest in or lien or encumbrance upon any property of the
Borrower, the Guarantors or any other person, or by reason of any
interest of the Lender in any property, whether as owner thereof or
the holder of a security interest therein or a lien or encumbrance
thereon, being invalidated, voided, declared fraudulent or
preferential or otherwise set aside, or by reason of any impairment by
the Lender of any right to recourse or collateral;
(n) any defence arising by reason of the failure of the Lender to ▇▇▇▇▇▇▇▇
any assets;
(o) any defence based upon any failure of the Lender to give to the
Borrower or any Guarantor notice of any sale or other disposition of
any property securing any or all of any item of Indebtedness or any
guarantee thereof, or any defect in any notice that may be given in
connection with any sale or other disposition of any such property;
(p) any dealing whatsoever with the Borrower or any other person or any
security, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency,
reorganization, moratorium, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against the
Borrower, any Guarantor or any other person, including any discharge
of, or bar against collecting, any item of Indebtedness, in or as a
result of any such proceeding; or
(r) any other act or omission to act or delay of any kind by the Borrower,
the Lender or any other person or any other circumstance whatsoever,
whether similar or dissimilar to the foregoing, which might, but for
the provisions of this Section 4 or any other Section of this
Guarantee, constitute a legal or equitable discharge, limitation or
reduction of a Guarantors' obligations hereunder (other than the
payment or extinguishments in full of all of the Indebtedness).
The foregoing provisions apply (and the foregoing waivers will be
effective) even if the effect of any action (or failure to take action) by the
Lender is to destroy or diminish the Guarantors' subrogation rights, the
Guarantors' rights to proceed against the Borrower for reimbursement, the
Guarantors' rights to recover contribution from any other guarantor or any other
right or remedy. The Guarantors hereby waive any objection to or any defence
based upon any or all of the foregoing, to the fullest extent permitted by law.
5. This shall be a continuing guarantee and shall cover and secure any ultimate
balance owing to you, but you shall not be obliged to take any action or exhaust
your recourse against the Borrower, any other Guarantor, any other person, firm
or corporation, or any securities you may hold at any time nor to value such
securities before requiring or being entitled to payment from each Guarantor of
all Indebtedness hereby guaranteed.
6. Upon this Guarantee bearing the signature of the Guarantors coming into your
hands or the hands of any officer, agent or employee thereof, the same shall be
deemed to be finally executed and delivered by the Guarantors and shall not be
subject to or affected by any promise or condition affecting or limiting the
Guarantors' liability except as set forth herein, and no statement,
representation, agreement or promise on the part of any officer, employee or
agent of the Lender, unless contained herein, forms any part of this contract or
has induced the making thereof or shall be deemed in any way to affect the
Guarantors' liability hereunder.
7. No delay on the part of the Lender in exercising any of its options, powers
or rights, or partial or single exercise thereof, will constitute a waiver
thereof. No waiver or any of its rights hereunder, and no modification or
amendment of this Guarantee, will be made by or will be binding against the
Lender unless the same will be in writing, duly signed on behalf of the Lender
and the Guarantors and each such waiver, if any, will apply only with respect to
the specific instance involved, and will in no way impair the rights of the
Lender or the liabilities of the Guarantors to the Lender in any other respect
at any other time.
8. Notwithstanding any payment made by the Guarantors or any of them under this
Guarantee or any set-off or application of funds of the Guarantors or any of
them by the Lender, the Guarantors will have no right of subrogation to, and
waive, to the fullest extent permitted by law, any right to enforce any remedy
which the Lender now has or may hereafter have against the Borrower, until all
of the items of Indebtedness have been indefeasibly paid in full; and until that
time, the Guarantors waive any benefit of, and any right to participate in, any
security, whether real or personal property, now or hereafter held by the Lender
for the Indebtedness.
9. All moneys and credits in fact borrowed or obtained by the Borrower from the
Lender will be deemed to form part of the Indebtedness notwithstanding any
incapacity, disability or lack or limitation of status or power of the Borrower
or of the directors, officers, employees, partners or agents thereof, or that
the Borrower may not be a legal entity, or any irregularity, defect or
informality in the borrowing or obtaining of such moneys or credits. Any amount
which may not be recoverable from the Guarantors by the Lender on the basis of a
guarantee will be recoverable by the Lender from the Guarantors as principal
debtor in respect thereof and will be paid to the Lender forthwith after demand
therefor as herein provided.
10. You shall be at liberty (without in any way prejudicing or affecting your
rights hereunder) to appropriate any payment made or moneys received to any
portion of the Indebtedness hereby guaranteed whether then due or to become due,
and from time to time to revoke or alter any such appropriation, all as you
shall from time to time in your uncontrolled discretion see fit.
11. In the event that the Borrower is a corporation or a partnership, no change
in the existence, structure, constitution, name, objects, share capital,
business, membership, directorate powers, organization, management, ownership or
control of the Borrower shall in any way affect the obligations of the
Guarantors, either with respect to transactions occurring before or after any
such change, it being understood that where the Borrower is a partnership or
corporation, this Guarantee is to extend to the person or persons or corporation
for the time being and from time to time carrying on the business now carried on
by the Borrower notwithstanding any change or changes in the name or membership
of the Borrower's firm or in the name of the corporate Borrower, and
notwithstanding any reorganization of the corporate Borrower, or its
amalgamation with another or others or the sale or disposal of its business in
whole or in part to another or others.
12. Where the Borrower is a corporation or partnership or an entity, you shall
not be concerned to see or inquire into the powers of the Borrower or its
directors, partners or agents acting or purporting to act on its behalf, and
Credit in fact obtained from you in the professed exercise of such powers shall
be deemed to form part of the Indebtedness hereby guaranteed even though the
borrowing or obtaining of such Credit was irregularly, fraudulently, defectively
or informally effected, or in excess of the powers of the Borrower or of the
directors, partners or agents thereof. The Guarantors warrant and represent that
they are fully authorized by law to execute this Guarantee of Credit to be
granted to the Borrower.
13. The statement in writing of you or of any of your authorized officers from
time to time of the Indebtedness of the Borrower to you and covered by this
Guarantee shall be received as prima facie evidence as against the Guarantors
that such amount is at such time so due and payable to you and is covered
hereby. Any account settled or stated between the Borrower and the Lender shall
be accepted by the Guarantors as prima facie evidence that the amount thereof is
so due.
14. All indebtedness, present and future, of the Borrower to the Guarantors is
hereby assigned to you and postponed to the present and future Indebtedness of
the Borrower to you and all moneys received from the Borrower or for his account
by the Guarantors shall be received in trust for you, and forthwith upon
receipt, paid over to you until the Borrower's Indebtedness to you is fully paid
and satisfied, all without prejudice to you and without in any way limiting or
lessening the liability of the undersigned to you under this Guarantee. If the
Borrower is a partnership of which a Guarantor is a member, the Guarantors will
not, without the prior written consent of one of your duly authorized officers,
withdraw any capital of such Guarantor invested with the Borrower.
15. Upon the bankruptcy, insolvency, receivership, reorganization, winding up or
other distribution of assets of the Borrower or any surety or guarantor for any
Indebtedness of the Borrower to you, your rights shall not be affected,
released, discharged, diminished, limited or impaired nor shall they be
affected, released, discharged, diminished, limited or impaired by your omission
to prove your claim or to prove your full claim and you may prove such claim as
you see fit and may refrain from proving any claim, and in your discretion you
may value as you see fit or refrain from valuing any security or securities held
by you without in any way releasing, reducing or otherwise affecting the
Guarantors' liability to you and until all Indebtedness of the Borrower to you
has been fully paid to you, you shall have the right to include in your claim
the amount of all sums paid by the Guarantors to you under this Guarantee and to
prove and rank for such sums paid by the Guarantors and to receive the full
amount of all dividends in respect thereto being hereby assigned and transferred
to you. The Guarantors shall not be released from liability if recovery from the
Borrower, any other Guarantor or any other person becomes barred by any Statute
of Limitations or is otherwise prevented.
16. The Guarantors will file all claims against the Borrower in any bankruptcy
or other proceeding in which the filing of claims is required by law upon any
Indebtedness of the Borrower to the Guarantors and will assign to you all of the
Guarantors' rights thereunder. If the Guarantors do not file any such claim,
you, as attorney in fact of the Guarantors, are hereby authorized to do so in
the name of the Guarantors or in your discretion to assign the claim to and
cause proof of claim to be filed in the name of your nominee. In all such cases,
whether in administration, bankruptcy, or otherwise, the person or persons
authorized to pay such claim shall pay to you the full amount payable on the
claim in the proceeding before making any payment to the Guarantors, and to the
full extent necessary for that purpose the Guarantors hereby assign to you all
the Guarantors' right to any payments or distributions to which the Guarantors
otherwise would be entitled. If the amount so paid is greater than the
guaranteed obligations then outstanding, you will pay the amount of the excess
to the party entitled thereto.
17. If acceleration of the time for payment of any amount payable by the
Borrower in respect of the Indebtedness is stayed upon the insolvency,
bankruptcy or reorganization of any of the Debtors or any moratorium affecting
the payment of any item of Indebtedness, all such amounts otherwise subject to
acceleration will nonetheless be payable by the Guarantors hereunder forthwith
on demand by the Lender.
18. If, at any time, all or any part of any payment previously applied by the
Lender to any item of Indebtedness is or must be rescinded or returned by the
Lender for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy, or reorganization of the Borrower), such item of Indebtedness will,
for the purpose of this Guarantee, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence, notwithstanding
such application by the Lender, and this Guarantee will continue to be effective
or be reinstated, as the case may be, as to such item of Indebtedness, all as
though such application by the Lender had not been made.
19. All your rights, powers and remedies hereunder and under any other agreement
now or at any time hereafter in force between you and the Guarantors shall be
cumulative and not alternative and shall be in addition to all rights, powers
and remedies given to you by law and, without restricting the generality of the
foregoing, if you hold one or more guarantees executed by the Guarantors
relating to Credit extended to the Borrower by you, the amount of the
Guarantors' liability imposed by such other guarantee or guarantees shall be
added to the amount of the Guarantors' liability imposed by the provisions
hereof and the resulting total shall be the amount of the Guarantors' liability.
20. In case of default, you may maintain an action upon this Guarantee whether
or not the Borrower is joined therein or separate action is brought against the
Borrower or judgment obtained against it. Your rights are cumulative and shall
not be exhausted by the exercise of any of your rights hereunder or otherwise
against the Guarantors or any of them or by any number of successive actions
until and unless all Indebtedness hereby guaranteed has been paid and each of
the Guarantors' obligations hereunder has been fully performed.
21. If any provision of this Guarantee is determined in any proceeding by a
court of competent jurisdiction to be invalid, illegal, void, unconscionable or
to be wholly or partially unenforceable, that provision shall, for the purposes
of such a proceeding, be severed from this Guarantee at the Lender's option and
shall be treated as not forming a part hereof and all the remaining provisions
of this Guarantee shall remain in full force and shall be unaffected thereby to
the fullest extent permitted by law.
22. Any notice or demand which you may wish to give may be served on the
Guarantors either personally or on his legal personal representative or in the
case of a corporation on an officer of the corporation, or by sending the same
by registered mail in an envelope addressed to the last known place of address
of the person to be served as it appears on your records, and the notice so sent
shall be deemed to be served on the second business day following that on which
it is mailed.
23. This Guarantee shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein and
shall be treated in all respects as an Ontario contract. Without prejudice to
the right and ability of the Lender to enforce this Guarantee in any other
proper jurisdiction, the Guarantors specifically and irrevocably submit and
attorn to the jurisdiction of the courts of the Province of Ontario, and in any
action thereon the Guarantors shall be estopped from denying the same; any
judgment recovered in the courts of such Province against any Guarantor or his
executors, administrators, legal personal representatives, successors and/or
assigns shall be binding on him and them. To the full extent permitted by
applicable law, the Guarantors irrevocably waive any objection (including any
claim of inconvenient forum) that they may now or hereafter have to the venue of
any legal proceeding arising out of or relating to this Guarantee in the courts
of the Province of Ontario.
24. Any word herein contained importing the singular number shall include the
plural and any word importing the masculine gender shall include the feminine
gender and any word importing a person shall include corporation, partnership,
firm and any entity. The term, "Borrower" shall include both D'Angelo Brands
Ltd. and D'Angelo Brands, Inc. and this Guarantee and Postponement of Claim
shall be read with all grammatical changes required as a result thereof such
that all references to the Borrower shall include both corporations or each
Corporation individually as the context requires.
25. The Guarantors shall pay to you on demand (in addition to all debts and
liabilities of the Borrower hereby guaranteed) all costs, charges and expenses
(including without limitation, lawyer's fees on a full indemnity basis) incurred
by you for the preparation, execution and perfection of this Guarantee and of
any securities collateral thereto, together with interest thereon at the rate on
the applicable item of Indebtedness, calculated from the date of payment by you
of each such costs, charges and expenses until payment by the Guarantors
hereunder.
26. The Guarantors will pay on demand, and will indemnify and save the Lender
harmless from any and all liabilities, costs and expenses (including legal fees
and expenses on a full indemnity basis and any sales, goods and services or
other similar taxes payable to any governmental authority with respect to any
such liabilities, costs and expenses):
(a) incurred by the Lender in the enforcement of this Guarantee;
(b) with respect to, or resulting from, any failure or delay by the
Guarantors or any of them in performing or observing any of their
obligations under this Guarantee; or
(c) incurred by the Lender in performing or observing any of the other
covenants of the Guarantors or any of them under this Guarantee.
27. This Guarantee is in addition to, not in substitution for, and without
prejudice to, any security of any kind (including other guarantees) now or
hereafter held by the Lender and any other rights or remedies that the Lender
might have.
28. In the event of your making a demand upon the undersigned or any or all of
the undersigned upon this Guarantee each of the undersigned shall be held and
bound to you directly as principal debtor in respect of the payment of the
amounts hereby guaranteed and if there be more than one undersigned then
liability hereunder shall be joint and several.
29. This Guarantee and agreement on the part of the Guarantors shall extend to,
and enure to, your benefit and the benefit of your successors and assigns and
shall be binding on the Guarantors their respective successors and assigns.
30. Time is of the essence with respect to this Guarantee and the time for
performance of the obligations of the Guarantors under this Guarantee may be
strictly enforced by the Lender.
31. The Guarantors each acknowledge receipt of a fully executed copy of this
Guarantee.
IN WITNESS WHEREOF the Guarantors have hereto set their hand and seal, this
19th day of December, 2002.
/s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
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