6000030-E_2011-05 HSBC Bank Canada
DEED OF HYPOTHEC (Residential Immovable)
ON THIS DAY, the day of
BEFORE ME , the undersigned Notary for the Province of Quebec, practising in the .
APPEARED
HSBC BANK CANADA, a bank governed by the Bank Act, having its head office in the City of Vancouver, Province of British Columbia, at 885 West Georgia Street, V6C 3E9, and a branch at , herein acting and represented by , its and , its duly authorized in virtue of a resolution of its board of directors dated .
(“Lender”) the Lender having Published a Notice of Address as hypothecary creditor in the Registration Division of under number 6 165 715 - 2 -
OF THE FIRST PART,
AND
(“Borrower”) - 3 -
OF THE SECOND PART,
WHO DECLARED AND AGREED AS FOLLOWS:
SECTION 1 LOAN, INTEREST AND REPAYMENT 1.1 Lender has agreed to lend to Borrower or to otherwise make credit facilities available to Borrower and Borrower has accepted such loan or credit facilities under the terms and conditions set forth in that certain “Equity Power Facility Letter” and “Mortgage Loan Agreement and Cost of Borrowing Disclosure Statement”, as applicable, entered into by the Borrower on the day of , a copy of which remains annexed to this Deed, after having been recognized as true and signed for the purposes of identification by the parties in the presence of the undersigned Notary (such agreement and any amendment, renewal, replacement or substitution thereof is hereinafter referred to as the “Loan Agreement”), such loan and credit facilities being in the capital amount set forth in the Loan Agreement (the “Principal Sum”).
1.2 Subject, where applicable, to the provisions of Section 9 hereof, the Principal Sum or the balance thereof, from time to time outstanding (collectively the “Loan’), shall bear interest, both before and after maturity and default, calculated at the rate and in the manner set forth in the Loan Agreement (the “Interest Rate”).
1.3 If the Interest Rate in the applicable Loan Agreement includes a reference to the prime rate of the Lender, being the floating annual rate of interest established and announced as such from time to time by the Lender as a reference rate for determining interest rates it will charge on loans denominated in Canadian dollars in Canada (the “Prime Rate”), the Interest Rate shall vary automatically, without notice to the Borrower, as at the date of any change in the Prime Rate. In the event that it may be necessary at any time for the Lender to prove the Prime Rate applicable as at any time or times, a certificate in writing of an authorized employee of the Lender setting forth the Prime Rate as at any time or times shall be deemed to be prima facie evidence as to the Prime Rate at such time.
1.4 For the purpose of the Interest Act (Canada), if the Interest Rate in the applicable Loan Agreement is expressed to be calculated monthly not in advance, such Interest Rate is equivalent to the rate of interest calculated half-yearly not in advance shown in the equivalent rate table found in Section 1.5 of this set of standard mortgage terms. The Borrower may determine the equivalent rate by locating the Interest Rate in the column entitled “Interest Rate Calculated Monthly Not in Advance (%)” and comparing that rate of interest to the rate of interest indicated in the column immediately to the right of such rate of interest entitled “Equivalent Interest Rate Calculated Half Yearly Not in Advance (%)”.
1.5 The following table sets out interest rates calculated half-yearly, not in advance which are equivalent to interest rates calculated monthly, not in advance. The Borrower may determine the equivalent rate by locating the Interest Rate in the column entitled “Interest Rate Calculated Monthly Not in Advance (%)” and comparing that rate of interest to the rate of interest indicated in the column immediately to the right of such rate of interest entitled “Equivalent Interest Rate Calculated Half-Yearly Not in Advance (%)”. - 4 -
EQUIVALENT RATE TABLE
Interest Rate Equivalent Interest Rate Interest Rate Equivalent Interest Rate Calculated Calculated Half-Yearly Calculated Calculated Half-Yearly Monthly Not In Not In Advance (%) Monthly Not In Not In Advance (%) Advance (%) Advance (%) 2.000 2.00835 14.500 14.94514 2.125 2.13443 14.625 15.07791 2.250 2.26057 14.750 15.21075 2.375 2.38678 14.875 15.34366 2.500 2.51306 15.000 15.47664 2.625 2.63940 15.125 15.60968 2.750 2.76580 15.250 15.74279 2.875 2.89228 15.375 15.87597 3.000 3.01881 15.500 16.00922 3.125 3.14542 15.625 16.14254 3.250 3.27208 15.750 16.27593 3.375 3.39882 15.875 16.40939 3.500 3.52562 16.000 16.54291 3.625 3.65249 16.125 16.67650 3.750 3.77942 16.250 16.81016 3.875 3.90642 16.375 16.94389 4.000 4.03348 16.500 17.07769 4.125 4.16061 16.625 17.21156 4.250 4.28781 16.750 17.34550 4.375 4.41507 16.875 17.47950 4.500 4.54240 17.000 17.61358 4.625 4.66979 17.125 17.74772 4.750 4.79725 17.250 17.88193 4.875 4.92478 17.375 18.01621 5.000 5.05237 17.500 18.15056 5.125 5.18003 17.625 18.28498 5.250 5.30776 17.750 18.41947 5.375 5.43555 17.875 18.55403 5.500 5.56341 18.000 18.68865 5.625 5.69133 18.125 18.82335 5.750 5.81932 18.250 18.95811 5.875 5.94738 18.375 19.09295 6.000 6.07550 18.500 19.27785 6.125 6.20369 18.625 19.36282 6.250 6.33195 18.750 19.49766 6.375 6.46027 18.825 19.63297 6.500 6.58866 19.000 19.76815 6.625 6.71711 19.125 19.90340 6.750 6.84564 19.250 20.03872 6.875 6.97423 19.375 20.17411 7.000 7.10288 19.500 20.30956 7.125 7.23160 19.625 20.44509 7.250 7.36039 19.750 20.58068 7.375 7.48925 19.875 20.71635 7.500 7.61817 20.000 20.85208 7.625 7.74716 20.125 20.98789 7.750 7.87621 20.250 21.12376 7.875 8.00534 20.375 21.25971 8.000 8.13452 20.500 21.39572 - 5 -
Interest Rate Equivalent Interest Rate Interest Rate Equivalent Interest Rate Calculated Calculated Half-Yearly Calculated Calculated Half-Yearly Monthly Not In Not In Advance (%) Monthly Not In Not In Advance (%) Advance (%) Advance (%) 8.125 8.26378 20.625 21.53180 8.250 8.39310 20.750 21.66796 8.375 8.52249 20.875 21.80418 8.500 8.65195 21.000 21.94047 8.625 8.78147 21.125 22.07683 8.750 8.91106 21.250 22.21326 8.875 9.04072 21.375 22.34977 9.000 9.17045 21.500 22.48634 9.125 9.30024 21.625 22.62298 9.250 9.43010 21.750 22.75969 9.375 9.56002 21.875 22.89647 9.500 9.69002 22.000 23.03332 9.625 9.82008 22.125 23.17024 9.750 9.95021 22.250 23.30724 9.875 10.08040 22.375 23.44430 10.000 10.21066 22.500 23.58143 10.125 10.34099 22.625 23.71863 10.250 10.47139 22.750 23.85590 10.375 10.60185 22.875 23.99324 10.500 10.73238 23.000 24.13066 10.625 10.86298 23.125 24.26814 10.750 10.99365 23.250 24.40569 10.875 11.12438 23.375 24.54331 11.000 11.25519 23.500 24.68101 11.125 11.38605 23.625 24.81877 11.250 11.51699 23.750 24.95660 11.375 11.64800 23.875 25.09451 11.500 11.77909 24.000 25.23248 11.625 11.91021 24.125 25.37053 11.750 12.04141 24.250 25.50865 11.875 12.17269 24.375 25.64683 12.000 12.30403 24.500 25.78509 12.125 12.43544 24.625 25.92342 12.250 12.56692 24.750 26.06181 12.375 12.69846 24.875 26.20028 12.500 12.83008 25.000 26.33882 12.625 12.96176 25.125 26.47743 12.750 13.09351 25.250 26.61611 12.875 13.22533 25.375 26.75486 13.000 13.35721 25.500 26.89369 13.125 13.48916 25.625 27.03258 13.250 13.62118 25.750 27.17154 13.375 13.75327 25.875 27.31058 13.500 13.88543 26.000 27.44969 13.625 14.01766 26.125 27.58886 13.750 14.14995 26.250 27.72811 13.875 14.28231 26.375 27.86743 14.000 14.41474 26.500 28.00682 14.125 14.54724 26.625 28.14628 14.250 14.67981 26.750 28.28581 14.375 14.81244 26.875 28.42541 - 6 -
1.6 The Loan shall be repaid to the Lender in accordance with the terms and conditions of the Loan Agreement and the full outstanding balance of the Loan shall be due and payable on the day of .
1.7 Each of the periodic instalments shall be inputed firstly to interest calculated at the rate and in the manner set forth in the Loan Agreement and secondly in reduction of the Principal Sum.
1.8 Any monies which are not paid on the date when they are expressed to be due and any monies disbursed by Lender to cure any default by Borrower hereunder shall bear interest at the Interest Rate and in the manner provided for in the Loan Agreement from the date those monies were due and owing to the date of payment.
1.9 Any sum collected by Lender in the exercise of its rights under this Deed shall constitute payment of any amount owing or to become owing to Lender by Borrower only when and to the extent that Lender has expressly applied such sum in reduction of the Loan or any other monies owing by Borrower hereunder.
1.10 In the event that Borrower has repaid all or a portion of the Principal Sum and provided an Event of Default (as hereinafter defined) has not occurred or, if same has occurred, it is not continuing, Lender may from time to time advance to Borrower, as part of the Loan hereby made, additional capital amounts (“Additional Amounts”), the total amount of which together with the then unpaid balance of the Principal Sum shall not exceed the Principal Sum. The evidence of the advance by Lender, and the terms for repayment, of the Additional Amounts shall be set forth in a written agreement signed by Lender and Borrower. Save as expressly amended by the terms of such written agreement, the repayment of the Additional Amounts by Borrower shall be governed by the terms and conditions of this Deed. Moreover, the decision of Lender to advance Additional Amounts to Borrower shall in no way derogate from or constitute novation of the rights, obligations and security of the parties under and to this Deed, and for all purposes of this Deed the Additional Amounts shall be deemed to be an integral part of the Principal Sum, the repayment of which to the Lender is secured by this hypothec.
SECTION 2 PREPAYMENT
2.1 Without derogation from any rights to prepay that Borrower may have under the Interest Act (Canada), Borrower may only prepay the Principal Sum, in whole or in part, if so permitted by the Loan Agreement and then only subject to the conditions set out therein.
SECTION 3 ADVANCES
3.1 Notwithstanding the preparation and execution of the Loan Agreement or this Deed or the publication of this Deed or the advance of all or any part of the monies secured hereby, the Lender is not bound to advance any further monies, and all advances are to be made in such manner, at such times, and in such amounts as the Lender in its sole discretion may determine, but nevertheless the expenses of the examination of the title to and valuation of the Immovable and of this Deed shall form part of the expenses described at Section 16 hereof. - 7 -
SECTION 4 SURETYSHIP OBLIGATIONS
4.1 The parties hereby acknowledge that the Borrower has or may guarantee the obligations to the Lender of a third party or is or may become otherwise bound to the Lender as indemnitor, obligor or covenantor (hereafter, collectively, the “Suretyship Obligations”) and that such Suretyship Obligations shall be secured by this Deed.
SECTION 5 PLACE OF PAYMENT, NOTICES AND ELECTION OF DOMICILE
5.1 Every payment required to be made to Lender hereunder shall be made in lawful money of Canada at Lender’s office at the address mentioned in its appearance, or at such other place as Lender may designate in writing to Borrower, prior to 4:00 p.m. Any payments made after 4:00 p.m. shall be credited as being paid on the next day that the Lender is open for business. Any notice or other communication required to be given or made to Lender hereunder shall be given or made to Lender at the address mentioned in its appearance, or at such other place as Lender may designate in writing to Borrower.
5.2 Any notice required to be given to Borrower and any demand upon Borrower shall be given or made to Borrower at his address mentioned in his appearance or at Borrower’s address last known to Lender.
5.3 If Borrower’s address is unknown to Lender or if Lender is unable to locate Borrower, then any such notice or demand may, at Lender’s option, be served upon Borrower at the office of the Clerk of the Superior Court for the District in which the Hypothecated Property is located, at which office Borrower elects domicile for all purposes of this Deed.
SECTION 6 HYPOTHEC
6.1 To secure the repayment of the Loan, the execution of the Suretyship Obligations and of Borrower’s other obligations hereunder and under the Loan Agreement and the execution of all other obligations to Lender, present and future, direct and indirect, Borrower hereby hypothecates in favor of the Lender to the extent of the sum of dollars ($ ) with interest thereon at the rate of twenty-five per cent (25%) per annum, the immovable property described as follows: - 8 -
Description:
- 9 -
6.2 Borrower also hypothecates the following property for the purposes and the sum (together with interest) indicated above in this Section 6: 6.2.1 all present and future rents and revenues of the Immovable; 6.2.2 all present and future movable property which is now or hereafter physically attached or joined to the Immovable; 6.2.3 all of Borrower’s present and future movable property which is now or hereafter on or in the Immovable for use in carrying on an enterprise or the exercise of activities on the Immovable, save for inventory, where applicable; and 6.2.4 the indemnities payable under all insurance policies covering the Immovable and the property mentioned in subparagraphs 6.2.1, 6.2.2 and 6.2.3 as well as pursuant to any expropriation of the Immovable. 6.3 The property hypothecated at paragraph 6.1 hereof is called the “Immovable” and all property hypothecated hereunder is collectively called the “Hypothecated Property”. If the hypothec affects more than one immovable, the term “Immovable” means any and all such immovables.
SECTION 7 ADDITIONAL HYPOTHEC
7.1 To secure the payment of all monies payable to Lender under any provision of this Deed, including, without limitation, Section 16, and not secured by the hypothec hereinabove created, Borrower hereby hypothecates the Hypothecated Property in favour of Lender for the further sum equal to twenty percent (20%) of the Principal Sum.
SECTION 8 INSURANCE
8.1 Borrower shall insure the Hypothecated Property and keep it constantly insured for its full insurable value with replacement cost endorsement against loss or damage by fire and by the perils covered by the “Extended Coverage Endorsement” of fire insurance policies and against any other insurable peril against which a prudent administrator would insure it or which the Lender would require depending on the nature of the Hypothecated Property or use thereof. Borrower shall also obtain insurance covering loss of revenue resulting from loss of or damage to the Hypothecated Property.
8.2 All insurance shall be effected by means of a policy or policies of insurance with one or more insurance companies of good standing approved by Lender.
8.3 Lender is hereby designated as the beneficiary of the indemnities payable in virtue of these policies. Borrower shall cause such designation to be inscribed in the policies, which must also contain the customary clauses protecting hypothecary creditors in the form approved by the Insurance Bureau of Canada and an undertaking from the insurer to notify Lender in writing, not less than fifteen (15) days prior to any material change, cancellation, failure to renew, or termination thereof.
8.4 The Borrower has delivered to the Lender a copy of the policy or policies evidencing the insurance and any receipts for the premiums thereon and will provide to the Lender, at least fifteen (15) days prior to the expiry of a policy or at least five (5) days prior to the termination or cancellation of any policy, evidence of renewal or replacement of the policy. - 10 -
8.5 No insurance policy shall contain a coinsurance clause without the prior written consent of Lender.
8.6 If the Hypothecated Property or any part thereof shall be destroyed or damaged by the occurrence of any peril insured against, Borrower shall immediately notify Lender and all insurers under all policies of insurance in writing and shall provide Lender with all necessary proofs of claims at its expense and do all necessary acts to enable the Lender to obtain payment of the insurance moneys and the production of these presents shall be sufficient authority for the said insurance company to pay any such loss to the Lender.
8.7 Lender shall be entitled to receive all proceeds of all policies of insurance and, at its option, to apply those proceeds in whole or in part either to pay costs of reconstruction or repair of any Hypothecated Property damaged or destroyed or in reduction of the Principal Sum or of any other monies owing by Borrower hereunder. 8.8 Borrower shall not commence any work of repair to or reconstruction of any buildings destroyed or damaged without first obtaining the written approval of Lender.
SECTION 9 BUILDING LOANS 9.1 The provisions of this Section 9 shall apply if the Loan has been obtained by Borrower for the construction, renovation or improvement (individually or collectively “construction”) of any building (hereinafter in this Section called the “Building”) upon or forming part of the Hypothecated Property. 9.2 All of the plans and specifications for the Building as well as the fixed price contract and budget relating to the construction, including any changes therein or additions thereto made during the course of construction, must be approved by Lender. 9.3 A completion date for the construction must be agreed upon by the Borrower and the Lender, acting reasonably. 9.4 Forthwith upon approval by Lender of the plans, specifications, fixed price contract, budget and completion date, Borrower shall commence the construction of the Building and shall prosecute the same with all due diligence and dispatch, in a proper and workmanlike manner and strictly in accordance with those plans, specifications, fixed price contract, budget and completion date.
9.5 If the Loan is insured by the Canada Mortgage and Housing Corporation (“CMHC”), the Borrower covenants and agrees with the Lender to (1) submit the plans and specifications to CMHC for approval and to construct the Building in accordance with the plans and specifications that have been or are hereafter approved by CMHC and (2) obtain the approval of CMHC to the completion date agreed to with the Lender, incorporate same into its fixed price contract and construct the Building in accordance therewith. 9.6 Borrower shall pay as and when due all costs and expenses of construction of the Building and of all materials, fixtures and equipment required by the plans and specifications to be installed in the Building and shall make all other payments necessary to prevent any prior claim or legal hypothec from affecting or being capable of affecting the Hypothecated Property and to prevent any third party from having or acquiring any interest or right therein or in the said fixtures and equipment. - 11 -
9.7 Should Borrower fail to fulfil any obligation contained in this Section 9, abandon the construction of the Building, fail to proceed to complete the construction of the Building with all due diligence and dispatch, or should any legal hypothec be registered against the Hypothecated Property and not be radiated within ten (10) days of the date of its registration, Lender shall be under no further obligation to disburse the whole or any part of the Principal Sum and Lender shall have the right to pay the claim secured by legal hypothec on behalf of Borrower and free the Hypothecated Property therefrom. 9.8 Upon the occurrence of any of the events set forth in paragraph 9.7, all costs, charges, expenses and disbursements incurred or made by Lender pursuant to that paragraph shall form part of the expenses described at Section 16 hereof and any portion of the Principal Sum theretofore disbursed by Lender and all accrued interest thereon shall be payable forthwith upon demand by Lender and until paid shall bear interest at the Interest Rate, compounded monthly, and shall further be secured by the hypothec herein created.
9.9 If, for any reason whatsoever, including force majeure or cas fortuit, the construction of the Building is not completed by the completion date, and if Lender shall have disbursed any part of the Principal Sum, Lender may by written notice to Borrower require Borrower to commence payment of the portion of the Principal Sum disbursed by Lender together with interest thereon.
9.10 If Lender gives to Borrower the written notice contemplated by paragraph 9.9, the portion of the Principal Sum disbursed by Lender shall from the date of that notice bear interest at the rate, be calculated in the manner set out in the Loan Agreement and shall be repaid by Borrower in and by periodic instalments each in the amount determined by Lender and set out in the said notice, the first of which shall be due and payable on the date specified in that notice.
9.11 The Principal Sum may be disbursed in whole or in part by Lender in its sole and absolute discretion either: 9.11.1 during the course of construction of the Building, at the Borrower’s request, upon the following conditions: 9.11.1.1 the Borrower providing the Lender with the following: (a) a claim for progress draw (the “Progress Claim”), containing a breakdown of all subtrade accounts and other accounts which are to be paid under the Progress Claim, accompanied by the related invoices, which shall be accompanied by a statutory declaration of the Borrower declaring that all subtrade accounts for the construction for the period of 30 days immediately preceding the Progress Claim have been paid in full; (b) a project cost summary (the “Project Cost Summary”) certified by the Borrower's architect or contractor, in form approved by the Lender, which shall set out: (i) the original estimate of the cost of construction of the construction; (ii) the present estimate of the cost of construction of the construction; (iii) the percentage of the construction completed to date; - 12 -
(iv) the estimated cost to complete the construction; (v) the value of the construction cost covered under the Progress Claim; and (vi) the variance from the original budget. (c) a statutory declaration from the Borrower that: (i) the construction is being performed in accordance with the plans and specifications and fixed price contract approved by the Lender; (ii) construction is progressing in accordance with the construction timetable approved by the Lender; (iii) the portion of the Progress Claim pertaining to direct construction costs represents work actually completed on the construction; and (iv) the estimate of the cost to complete as set out in the Project Cost Summary, including interest accruing due under the Loan, is reasonable, accurate and sufficient to complete the construction, and does not exceed the unadvanced portion of the Loan; (d) at the Borrower’s cost, a satisfactory report from the Lender's solicitors following a search at the Registry Office immediately prior to the advance, showing the Immovable as being duly registered in the name of the Borrower and encumbered only by this Deed; 9.11.1.2 a holdback of fifteen percent (15%) of the amount of the Progress Claim being made by the Lender until the subtrade accounts and other costs which are the subject of the Progress Claim have been paid by the Borrower or until the expiration of a period of thirty- five (35) days from the end of the construction of the Building, as determined by the parties; failing an agreement between the parties with respect to the date of the end of the construction work on the Building, such date shall be determined by an architect or an engineer hired by the parties at the expense of Borrower; 9.11.2 upon the expiration of a period of thirty-five (35) days from the end of the construction of the Building, as determined by the parties; failing an agreement between the parties with respect to the date of the end of the construction work on the Building, such date shall be determined by an architect or an engineer hired by the parties at the expense of Borrower; but Lender shall be under no obligation to disburse the whole or any part of the Principal Sum if any hypothec is registered against the Hypothecated Property, if there is any material adverse change in the financial condition of Borrower or if any Event of Default shall have occurred and be continuing. - 13 -
SECTION 10 COVENANTS
10.1 Without in any way derogating from any other obligation imposed on Borrower hereunder, Borrower covenants and agrees: 10.1.1 to pay to Lender all monies in the amounts, at the times, and at the place required by the terms of this Deed; and 10.1.2 to insure the Hypothecated Property in accordance with the requirements of Section 8; and 10.1.3 to pay all Taxes, and within thirty (30) days after any such Tax becomes due to exhibit to Lender receipts evidencing payment thereof; and 10.1.4 to protect, prudently use and maintain the Hypothecated Property, to keep the Hypothecated Property in a good and sufficient state of repair so as to prevent depreciation of the market value thereof by reason of neglect or disrepair, the whole to the Lender’s satisfaction; and 10.1.5 not to change the use, destination or nature of the Hypothecated Property nor to make or permit to be made any alterations or additions thereto or demolish any buildings comprised in the Hypothecated Property in whole or in part without the prior written consent of Lender; and 10.1.6 at all times, to promptly observe, perform, execute and comply with all applicable laws, rules, requirements, orders, directions, bylaws, ordinances, work orders and regulations of every governmental or administrative authority or agency and all permits, licenses and approvals issued thereunder whether federal, provincial, municipal or otherwise, including, without limitation those dealing with zoning, use, occupancy, subdivision, parking, historical designations, fire, access, loading facilities, landscaped areas, protection of the environment, contaminated wastes, or hazardous or toxic materials or other environmental hazards, building construction, public health and safety, and all restrictions affecting the Immovable or any part thereof; the Borrower shall immediately report to the Lender any non- compliance thereunder involving the Immovable; and 10.1.7 from time to time, upon request of the Lender, to provide to the Lender evidence of such observance and compliance and shall, at the Borrower’s own expense make any and all improvements or alterations to the Immovable, structural or otherwise, and shall take all such other action as may be required at any time by any such present or future law, rule, requirement, order, direction, bylaw, ordinance, work order or regulation; and 10.1.8 not to grant or permit any leases with respect to the Immovable or any part thereof without the written consent of the Lender; the Borrower has not granted and shall not grant leases at a rent, on terms and conditions and to tenants which are less favourable or desirable to the Borrower than those which a prudent landlord would expect to receive for the Immovable or any part thereof to be leased; the Borrower shall not permit the Immovable or any part thereof to be used in a rental pool, time-share or short term rental program without the written consent of the Lender; and - 14 -
10.1.9 not to dispose of the Hypothecated Property without the prior written consent of Lender and to remain liable for the obligations hereunder notwithstanding such disposal; and 10.1.10 except with the Lender’s prior written consent, in the case where the Borrower is a corporation, not to permit a change in the persons having effective voting control of the Borrower or the Borrower entering into an amalgamation, a merger or similar arrangement; or 10.1.11 to obtain the written agreement of each person to whom the Hypothecated Property may at any time be sold, transferred or transmitted in compliance with terms hereof to be personally liable towards Lender for the due and punctual payment of all monies required to be paid to Lender under this Deed and for the due observance and performance of all of Borrower’s obligations under this Deed, the whole without in any way discharging Borrower from any of his obligations under this Deed; and 10.1.12 within thirty (30) days after any change of ownership made in compliance with the terms hereof of the whole or any part of the Hypothecated Property to furnish, at Borrower’s expense, to Lender a copy, bearing a certificate of registration, of the deed evidencing the change, an accepted transfer of each policy of insurance, and any other documents which Lender may reasonably require; and 10.1.13 to pay all legal and notarial fees and disbursements in respect of the Loan and of any discharge or renewal hereof and to furnish Lender with a copy of this Deed bearing a certificate of registration; and 10.1.14 not to allow any building comprised in the Hypothecated Property to become vacant, in whole or in part, for a continuous and uninterrupted period of 30 days or more or any shorter period which may be prescribed by the insurance policies required to be maintained by the Borrower pursuant hereto; and 10.1.15 subject to subparagraph 11.1.3, to prevent the Hypothecated Property or any part thereof from becoming subject to any prior claim, hypothec or other encumbrance whatsoever ranking equally with or in priority to the hypothec herein granted and to furnish to Lender, on demand, evidence that the debt secured by any such encumbrance has been paid in full; and 10.1.16 in the event of expropriation affecting the Hypothecated Property, to pay or direct payment of any expropriation indemnity to the Lender; the Lender through its agents or employees may order a survey and/or property valuation of the Immovable in order to ascertain the value of the expropriated lands and the remaining lands; any and all reasonable costs, charges and expenses for such survey and/or property valuation shall form part of the expenses described at Section 16 hereof; and 10.1.17 to deliver forthwith to Lender all title deeds including certificates of search and surveyors’ certificates of location as are in the possession of Borrower and a copy of all leases of or relating to the Hypothecated Property and all information relating to the rents thereunder; and 10.1.18 not to permit any Taxes to be paid with subrogation by any third party; and 10.1.19 to keep all books records and accounts that a prudent administrator would keep with respect to the Hypothecated Property and to permit Lender to examine and obtain copies of same on demand; and - 15 -
10.1.20 not to assign the rents or revenues of any immovable forming part of the Hypothecated Property in whole or in part and not to accept payment in advance of more than one month’s rent.
10.2 If this Deed is executed by two or more Borrowers, those Borrowers shall be solidarily liable with each other for the fulfilment of all of Borrower’s obligations under this Deed, without any benefit of discussion or of division.
10.3 Every obligation of Borrower in favour of Lender under this Deed shall be indivisible and performance thereof may be exacted from each heir or legal representative of any person who is liable for performance thereof.
10.4 If Borrower shall fail to fulfil any obligation hereunder Lender may, without being in any manner obliged to do so, do all such things as may be necessary to perform that obligation and any monies expended by Lender in so doing shall be payable by Borrower forthwith upon demand by Lender and bear interest at the Interest Rate.
SECTION 11 BORROWER’S REPRESENTATIONS AND WARRANTIES
11.1 Borrower represents and warrants that: 11.1.1 there are no Taxes which are due and unpaid and no right in favour of any third party now subsists which arises out of payment with subrogation of any such Tax; 11.1.2 Borrower owns the Hypothecated Property by good and marketable title free from defect of any kind and free and clear of all claims, charges, hypothecs, real rights and encumbrances of every nature and kind whatsoever (including without limitation a declaration of family residence) save and except:
11.1.3 the hypothec created on the Hypothecated Property in Section 6 constitutes a good, valid and enforceable first ranking hypothec; - 16 -
11.1.4 the rents and revenues of the Hypothecated Property have not been assigned or hypothecated to any third party; 11.1.5 if Borrower is married he obtained the intervention of his spouse herein to consent to the hypothecs and to the rights hereby extended to Lender; 11.1.6 the civil status and matrimonial regime of Borrower are as follows, and such status and regime are not in the process of being modified at the date hereof:
11.1.7 the Hypothecated Property is in conformity with the Certificate of Location provided to Lender and has not undergone construction, reconstruction or renovation within the last six months, except as disclosed to Lender in writing prior to the date hereof.
SECTION 12 ENVIRONMENTAL COMPLIANCE
12.1 To the best of the Borrower’s knowledge after due and diligent inquiry, no contaminants, wastes, hazardous or toxic materials are being stored in, on, or about the Immovable nor have any contaminants, wastes, hazardous or toxic materials been stored or used in, on, or about the Immovable prior to the Borrower’s ownership, possession or control of the Immovable. The Borrower agrees to provide written notice to the Lender immediately upon the Borrower becoming aware that the Immovable is being or has been contaminated with any contaminants, wastes, hazardous or toxic materials. The Borrower will not permit any activities on the Immovable which directly or indirectly could result in the Immovable being contaminated with contaminants, wastes, hazardous or toxic materials. The representations and warranties contained in this Section 12 shall survive and remain in full force and effect notwithstanding any independent inspections, investigations and assessments which the Lender may conduct or cause to be conducted with respect to the Immovable.
12.2 The Borrower shall pay immediately when due the cost of removal of any contaminants, wastes, or hazardous or toxic materials in, on, or about the Immovable. - 17 -
12.3 The Borrower shall indemnify and hold harmless the Lender and its directors, officers, employees and agents from and against all loss, cost, damage or expenses (including, without limitation, legal fees and disbursements on an indemnity basis and in no event less than on a solicitor and client basis) incurred in the investigation, defence and settlement of any claim due to the Borrower’s failure to comply with any statutory regulation, order, bylaw, direction or equivalent relating to the protection of the environment, or due to the presence of any contaminant, waste, or hazardous or toxic material in, on, or about the Immovable, as well as any lien or priority asserted with respect thereto, and this indemnity shall survive the discharge of the hypothecs created herein or the release from the hypothecs created herein of part or all of the Immovable.
SECTION 13 EVENTS OF DEFAULT
13.1 The occurrence or happening of any of the following events shall constitute an Event of Default hereunder, namely: 13.1.1 should Borrower fail to make any payment of money, as and when the same is due and payable in accordance with the provisions of the Loan Agreement, the terms of the Suretyship Obligations or the provisions of this Deed; or 13.1.2 should Borrower fail to insure or to keep insured the Hypothecated Property as required by Section 8; or 13.1.3 should Borrower fail to observe and perform any other obligations imposed upon him hereunder or under the Loan Agreement or the terms of the Suretyship Obligations with the exception of those set forth in subparagraphs 13.1.1 and 13.1.2 and such failure continues for 20 days after written notice thereof is sent to Borrower by Lender; or 13.1.4 should any of the declarations or warranties of Borrower in this Deed prove to be untrue or inaccurate in any respect; or 13.1.5 should an event of default occur under the terms of any other deed, charge, encumbrance, hypothec or obligation affecting the Hypothecated Property, whether ranking prior or subsequent to the security constituted under the present Deed, or should the security constituted thereunder become enforceable under the terms thereof; or 13.1.6 if the Borrower is in default under any term, covenant, agreement, proviso or condition contained in any other hypothec, security agreement or other agreement to which the Borrower and the Lender are parties, even though the Borrower is not in default under any term, covenant, agreement, proviso or condition contained herein; or 13.1.7 should any part of the Hypothecated Property be seized before judgment or attached by process of law; or 13.1.8 should Borrower commit an act of bankruptcy within the meaning of the Bankruptcy and Insolvency Act (Canada) or become bankrupt or insolvent or take advantage of any law pertaining to insolvency or bankruptcy of debtors in general or otherwise acknowledge his insolvency or fail by reason of financial inability to pay a debt when same is due or if a petition in bankruptcy is filed against Borrower or if a receiver or trustee for the Borrower of any of the assets of the Borrower is appointed; or - 18 -
13.1.9 should Borrower permit a final and definitive judgment to be rendered or to be obtained against him and remain unsatisfied for a period of 20 days following the date on which the judgment was rendered or obtained; or 13.1.10 should Borrower sell, transfer, encumber, lease or in any way alienate the Hypothecated Property or agree to do so without the prior written consent of Lender and other than in compliance with the terms hereof; or 13.1.11 should a subsequent purchaser, transferee or assignee of the Hypothecated Property fail to assume personally all the obligations stipulated hereunder or fail to fulfil any other conditions herein mentioned; or 13.1.12 if all or any part of the Immovable is expropriated under the provisions of any law of Canada or any province thereof; or 13.1.13 if all or any part of the Hypothecated Property is used for an illegal purpose by any person, or if any illegal business is conducted in, on or about the Immovable, or if equipment believed by the Lender to be related to an illegal business is installed in, on or about the Immovable; or 13.1.14 if any act or thing is done by any person by which the value of the Hypothecated Property, in the opinion of the Lender, diminishes.
13.2 The mere lapse of time for the performance of any obligation in favour of Lender shall, if such obligation shall not have been performed, constitute default without the necessity of any notice or demand on the part of Lender.
SECTION 14 RECOURSES ON DEFAULT
14.1 Upon an Event of Default, Lender may terminate any obligation it may have to grant credit or make advances to Borrower and declare exigible all obligations of Borrower which are not yet due. Lender may also exercise all legally available recourses upon such an Event of Default and may realize its hypothec and security interest in accordance with the hypothecary rights provided in the Civil Code of Quebec.
14.2 Upon an Event of Default, Lender may use and manage the Hypothecated Property at Borrower’s expense with full authority to agree to new leases or renew existing leases upon such terms and conditions as Lender may deem reasonable. Lender may also compromise or transact with the debtors of the rents and revenues of the Hypothecated Property and may grant releases and discharges thereto.
14.3 Borrower may collect all rents and revenues of the Hypothecated Property until Lender withdraws its authorization for Borrower to do so. Upon such withdrawal, Lender may collect such rents and revenues and shall be entitled to a reasonable commission which it may deduct from any amounts collected.
14.4 If Lender has possession of the Hypothecated Property, it shall have no obligation to maintain the use for which the Hypothecated Property is normally intended, to make it productive or to continue its use or operation.
14.5 Borrower constitutes and appoints Lender its irrevocable attorney, with power of substitution, in order to do any act and to sign any document necessary or useful to the exercise of the rights conferred on Lender hereunder.
14.6 Borrower promises to execute, sign and deliver to Lender such further deeds and documents as it may from time to time require to give fuller effect to this Section 14 and to this Deed. - 19 -
14.7 No right, remedy or recourse herein conferred upon or reserved to Lender is intended to be exclusive of any other right, remedy or recourse but each such right, remedy or recourse shall be cumulative and shall be in addition to every other right, remedy or recourse hereunder and to every other right, remedy or recourse which may now or hereafter exist by law.
SECTION 15 WITHHOLDINGS AND DEDUCTIONS
15.1 If the Borrower is required by law to make any deduction or withholding from any sum payable by the Borrower to the Lender under the Loan, then the sum payable by the Borrower shall be increased to the extent necessary to ensure that, after making such deduction or withholding, the Lender receives and retains (free from any liability in respect of such deduction or withholding) a net sum equal to the sum which the Lender would have received and so retained had no such deduction or withholding been made or required to be made; and the Borrower shall pay the full amount to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Lender within thirty (30) days after such payment a receipt issued by such authority evidencing such payment. Alternatively, the Lender, at its option, may agree to make such deduction and remit same to the relevant taxation or other authority on behalf of the Borrower. If the Lender remits amounts on behalf of the Borrower, the Borrower shall remain liable for all amounts owing to the relevant taxation or other authority and shall pay to the Lender, on demand, any additional amounts that may be payable to the taxation or other authority or shall provide evidence that the full amount has been paid to the taxation or other authority.
15.2 The Borrower agrees that notwithstanding anything to the contrary contained in this Deed or the Loan Agreement, all payments due from or made by the Borrower shall be made without set-off or counterclaim and, subject to Section 15.1, without any deductions or withholdings, whatsoever.
SECTION 16 EXPENSES
16.1 The Borrower agrees to pay the reasonable costs, charges and expenses of and incidental to this Deed and the hypothecs created herein and all other documents or security required in connection with or collateral to the Loan or the Suretyship Obligations and of anything done in connection with the enforcement of the security granted herein or the procuring of the payment of any monies secured by this Deed including, without limitation: 16.1.1 processing and administration fees (if any); 16.1.2 legal costs and disbursements (on an indemnity basis and in no event less than on a solicitor and client basis); 16.1.3 other costs and expenses relating to inspecting the Hypothecated Property, appraising the value of the Hypothecated Property, examining title, preparing, executing, delivering and/or registering any document, providing legal advice and opinions; 16.1.4 other costs and expenses relating generally to any steps and proceedings reasonably taken by the Lender in order to preserve or protect the Hypothecated Property, defend the validity or priority of the hypothecs created herein or realize on the security created by this Deed. - 20 -
16.2 The Borrower further agrees that any amounts so incurred or charged by the Lender shall be payable immediately on demand by the Borrower, be added to the monies secured by this Deed and bear interest at Interest Rate and in the manner set out in the Loan Agreement.
SECTION 17 MISCELLANEOUS
17.1 Wherever the context requires the singular number shall be interpreted as plural and the converse applies and the masculine gender as the feminine or neuter genders, as the case may be.
17.2 The Lender may grant time, renewals, extensions, indulgences, releases and discharges to, may take securities and guarantees from and give the same and any and all existing securities and guarantees up to, may abstain from taking securities or guarantees from or from perfecting securities or guarantees of, may accept settlements from and may otherwise deal with the Borrower and all other persons, securities and guarantees as the Lender may see fit without prejudicing the rights of the Lender under this Deed.
17.3 This hypothec is in addition to and not in substitution for any other hypothec or security held by Lender.
17.4 This hypothec is a continuing security and shall subsist notwithstanding the payment from time to time, in whole or in part, of any of the obligations secured hereby. Borrower shall not, without the written authorization of Lender, subrogate a third party in the rights of Lender in this hypothec. Notwithstanding the foregoing, the Borrower may subrogate a third party in the rights of the Lender in this hypothec without the written authorization of Lender where (1) the hypothec constituted pursuant hereto does not secure obligations pursuant to an Equity Power Facility Letter, (2) the hypothec constituted pursuant hereto secures no obligations other than the obligations of the Borrower hereunder and under a Mortgage Loan Agreement and Cost of Borrowing Disclosure Statement and (3) such subrogation is related to full and final payment of all amounts owing by the Borrower to the Lender.
17.5 Any sum collected by Lender in the exercise of its rights hereunder or by law may be held by Lender, as Hypothecated Property, or may be applied to the payment of the obligations secured hereby, whether or not due. Lender shall have the choice of how any such sum will be applied.
17.6 Lender is not bound to exercise the rights provided hereunder or by law and shall not be responsible for the non-exercise of its rights. Borrower shall do all things necessary to ensure that the lessees of the Hypothecated Property regularly pay their rent and Lender shall have no obligation to inform Borrower of any payment irregularity of which it is aware.
17.7 Lender is only required to exercise reasonable care in the exercise of its rights and the performance of its obligations and, in any event, is only liable for its intentional fault or gross negligence.
17.8 Lender may delegate the exercise of its rights or the performance of its obligations hereunder to another person. In that event, Lender may furnish that person with any information it may have concerning Borrower or the Hypothecated Property. - 21 -
17.9 The rights of Lender hereunder shall benefit any successor of Lender, including any person resulting from the amalgamation of Lender with any other person.
17.10 If at any time any provision of this Deed in whole or in part is declared or held illegal, invalid or unenforceable under, or inconsistent with any applicable law or would by reason of any such law render the Lender unable to collect the amount of any loss sustained by it as a result of making the loan or loans secured by this Deed which it would otherwise be able to collect, then such provision shall not apply and shall be construed so as not to apply to the extent that it is so illegal, invalid, unenforceable or inconsistent or would so render the Lender unable to collect the amount of any such loss, and the hypothecs created herein will continue in full force and effect and be construed as if it had been executed without such illegal, invalid, unenforceable or inconsistent provision.
17.11 If the Loan and this hypothec are CMHC-insured the Loan and the hypothec are made pursuant to the National Housing Act, R.S.C. 1985, c.N-11, as amended or replaced from time to time.
SECTION 18 INSPECTION
18.1 The Lender or, where applicable, CMHC or its agent may, at any time and for any purpose deemed necessary by the Lender or CMHC, enter upon the Immovable to conduct any investigations, audits and inspections of or with respect to the Immovable, including but not limited to environmental testing, site assessment, investigation or study, and the costs, charges and expenses incurred in connection therewith shall form part of the expenses described at Section 16 hereof. The Lender or CMHC shall have no liability whatsoever arising or resulting from any action taken by the Lender or CMHC pursuant to this Section 18.1 except in the case of gross negligence or wilful misconduct on the part of the Lender or CMHC.
SECTION 19 OTHER HYPOTHECS
19.1 Borrower covenants and agrees that if this hypothec is subject to one or more prior hypothecs or other charges (“Prior Hypothec”), Borrower will pay or cause to be paid as they become due all payments whether for principal, interest, Taxes, or otherwise under or by virtue of the Prior Hypothec and will otherwise comply with the covenants, provisos and agreements therein contained; and that any default thereunder shall be deemed to be an Event of Default and shall entitle Lender to exercise any and all remedies available to Lender in the case of an Event of Default; and that Lender may at its option make any payment or cure any default under the Prior Hypothec, any amount or amounts so paid together with all costs, charges, expenses and outlays of Lender thereby incurred shall be added to the monies payable hereunder, shall bear interest at the Interest Rate and shall be a charge on the Hypothecated Property, and Lender shall have the same rights and remedies to enforce payment thereof as it would have in the case of an Event of Default.
SECTION 20 SPECIAL CONDITIONS RELATING TO CO-OWNERSHIP
20.1 The parties hereto acknowledge that in the event the Hypothecated Property is subject to divided co-ownership in virtue of Article 1038 and following of the Civil Code of Quebec this Section 20 shall apply. - 22 -
20.2 Borrower undertakes and agrees to respect and observe all the conditions contained, to submit to all the requirements of the law on divided co ownership and its amendments, to observe and comply with the conditions of declarations of co-ownership registered at under the number as well as the amendments thereto and to the by-laws and conditions which will affect the Hypothecated Property as well as the amendments thereto (collectively the “Declaration”).
20.3 In addition, Borrower undertakes and agrees personally to pay, when due, all contributions to the common expenses and other authorized charges which will be imposed by the syndicate of co-owners.
20.4 By these presents, Borrower assigns and transfers to Lender all the voting rights which it holds in virtue of the Declaration.
20.5 By these presents, Lender appoints Borrower as its proxy for the purpose of exercising the said voting rights. This mandate is expressly revocable at the sole discretion of Lender.
20.6 By these presents, Borrower assigns and transfers to Lender all its rights in and to the amounts which form or will form part of the contingency fund. This assignment shall take effect only in the event that Lender becomes the owner of the Hypothecated Property.
20.7 In order to give effect to the assignments mentioned in paragraphs 20.5 and 20.6, Borrower undertakes and agrees to execute all deeds which Lender may request for such purpose.
20.8 In addition, Borrower undertakes and agrees that in any future deed of sale, either of all or part of the Hypothecated Property, the purchaser shall personally assume all the obligations of Borrower as established in virtue hereof, and moreover, the purchaser shall assign and transfer its voting rights as well as its rights in the contingency fund, the whole as hereinbefore provided.
20.9 The Borrower shall, or shall cause the respective syndicate of co-owners to observe and perform all covenants required to be observed and performed by the Borrower in Section 8 hereof, and shall: 20.9.1 immediately on the happening of any loss or damage to the Hypothecated Property, comply fully with the terms of the policy or policies of insurance and, without limiting the generality of the obligation of the Borrower pursuant to this Section 20, with the insurance provisions set out in the Declaration; 20.9.2 cause any insurance monies to be made payable to the syndicate of co- owners or, if any insurance trustees are designated by the Declaration, to named insurance trustees, and to be made payable firstly to the Lender in the event that the syndicate of co-owners resolves not to repair or replace the damaged buildings, common property, common facilities and other insurable improvements in respect thereof as may be provided in the Civil Code of Quebec; 20.9.3 cause all applicable policies of insurance to contain an Insurance Bureau of Canada approved standard mortgage clause or other mortgage clause acceptable to the Lender to be effective in the event that the syndicate of co- owners resolves not to repair or replace the damaged buildings, common property, common facilities and insurable improvements in respect thereof; and - 23 -
20.9.4 if, in the reasonable opinion of the Lender, the insurance carried by the syndicate of co-owners is deemed inadequate, at the Lender’s request, carry a separate policy of insurance on the Immovable at the Borrower’s own cost.
20.10 The parties agree to be bound by the provisions relating to insurance as set forth in the Declaration, but nothing prevents Lender from exercising its voting rights to determine whether or not the Hypothecated Property will be reconstructed, the whole without prejudice to its rights to receive the proceeds of any insurance policy.
20.11 The Borrower acknowledges that being in default under the terms of any provision of the Declaration shall constitute an Event of Default.
SECTION 21 TRANSFER AND DISCLOSURE OF PERSONAL INFORMATION
21.1 The Borrower agrees that the Lender may securitize, assign, transfer or pledge the Loan and the Suretyship Obligations (or the primary obligations thereunder) and the security related thereto for liquidity or other purposes without the consent of or notice to the Borrower. The Borrower acknowledges that the Lender may from time to time obtain credit support, insurance or liquidity in respect of the Loan or the Suretyship Obligations (or the primary obligations thereunder) or in respect of the securitization, assignment, transfer or pledge of the Loan or the Suretyship Obligations (or the primary obligations thereunder). The Borrower irrevocably agrees that the Lender may collect, use and disclose all personal information included in or relevant to the Loan and the Suretyship Obligations (or the primary obligations thereunder) and the security related thereto (including credit and default information) with respect to the Borrower or any other person who assumes or becomes responsible for payment of any amounts secured by this Deed in connection with such securitization, assignment, transfer, pledge, credit support, insurance or liquidity or collection or enforcement proceedings in respect of the Loan and the security related thereto.
SECTION 22 INTERVENTIONS
22.1 Spousal Intervention
AND HERETO INTERVENED
, spouse of Borrower, hereinafter called the “Spouse”, who, after having taken cognizance of the present Deed, 22.1.1 confirms Borrower’s declaration of matrimonial status and regime and that the matrimonial regime has not been modified; 22.1.2 concurs with Borrower for the purposes of this Deed and consents to Borrower hypothecating the Hypothecated Property hereunder; 22.1.3 acknowledges that Lender may extend the term granted for the reimbursement of the whole or any part of the Loan, and may even renounce to an Event of Default or the default of any other person responsible hereunder without affecting or diminishing the responsibility of Spouse; - 24 -
22.1.4 agrees that any judicial award made in favour of Spouse of a right of use, habitation or ownership of the Hypothecated Property, shall by that very fact render Spouse solidarily liable with Borrower for the payment to Lender of the Loan, interest on the interest and accessory costs and for the performance of all obligations of Borrower hereunder, without the benefits of discussion and division, and that any default of Borrower shall automatically cause Spouse to be in default; 22.1.5 acknowledges that all Spouse’s rights to the Hypothecated Property as the principal residence of the family by reason of the law, the registration of a declaration of family residence or the judicial award of the right of use, habitation or ownership, are subordinated to all the rights and recourses of Lender under this Deed or the law, and that Lender shall exercise all such rights and recourses, free and clear of any and all rights of Spouse; 22.1.6 acknowledges to have taken communication of the Loan Agreement and this Deed and hereby declares being content and satisfied therewith; 22.1.7 does hereby bind and oblige himself solidarily with Borrower for the due payment of the Loan, interest on the interest and accessory costs and any other sums of money which may at any time become payable to the Lender under the provisions of this Deed and the due fulfilment by Borrower of all of the obligations under and secured by this Deed, including the Suretyship Obligations; 22.1.8 does hereby waive the benefits of division and discussion and any benefits of subrogation and makes the payment of the Loan, interest on the interest and accessory costs and the due fulfilment of all the terms and conditions of this Deed his own affair; and 22.1.9 acknowledges and agrees that the obligations of the Spouse hereunder are absolute and unconditional and, accordingly, they will not be extinguished, released, discharged, diminished, limited or otherwise affected by any act, omission, event, circumstance or thing that may, in law, if not for this provision, have the effect of extinguishing, releasing, discharging, diminishing, limiting or otherwise affecting the said obligations, in whole or in part. Without limiting the generality of the foregoing, the obligations of the Spouse hereunder shall not be extinguished, released, discharged, diminished, limited or otherwise affected, in whole or in part, by: 22.1.9.1 any lack of validity or enforceability of any agreement between the Borrower and the Lender; 22.1.9.2 the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Borrower or any other person or amalgamation of the Borrower with another person or its change of control or ownership; 22.1.9.3 any lack or limitation of power, incapacity or disability on the part of the Borrower or of its directors, partners, principals or agents or any other irregularity, defect or informality on the part of the Borrower when entering into or carrying out its obligations to the Lender; 22.1.9.4 any law, regulation or other statutory instrument, or any circumstance that might otherwise constitute a defence available to, or a discharge of, the Borrower in respect of any or all of the obligations secured under this Deed; - 25 -
22.1.9.5 anything done, suffered, or permitted by the Lender in connection with obligations of the Borrower to the Lender or with any security therefor, without obtaining the consent of or giving notice to the Spouse, including without limitation: (a) the discontinuance, reduction or increase of, or other variation to, the credit of the Borrower in any manner whatsoever; (b) any change in the term of any agreement between the Borrower and the Lender or the failure on the part of the Borrower to carry out any of its obligations under any such agreement; (c) the granting of time, renewals, extensions, indulgences, releases and discharges to the Borrower or to any other guarantor or obligor; (d) taking, enforcing or perfecting any security for the obligations of the Borrower or abstaining or refraining to do so; (e) accepting compromises from the Borrower; (f) the application of all monies at any time received from the Borrower or from security or from any other person in connection with the obligations of the Borrower to the Lender, as the Lender may see fit; and (g) otherwise dealing with the Borrower and all other persons and security as the Lender may see fit.
22.2 Third-Party Intervention
AND:
, hereinafter called the “Intervenant”, who, after having taken cognizance of the present Deed, 22.2.1 acknowledges to have taken communication of the Loan Agreement and this Deed and hereby declares being content and satisfied therewith; 22.2.2 does hereby bind and oblige himself solidarily with Borrower for the due payment of the Loan, interest on the interest and accessory costs and any other sums of money which may at any time become payable to Lender under the provisions of this Deed and the due fulfilment by Borrower of all of the obligations under and secured by this Deed, including the Suretyship Obligations; 22.2.3 does hereby waive the benefits of division and discussion and any benefits of subrogation and makes the payment of the Loan, interest on the interest and accessory costs and the due fulfilment of all the terms and conditions of this Deed his own affair; and - 26 -
22.2.4 acknowledges and agrees that the obligations of the Intervenant hereunder are absolute and unconditional and, accordingly, they will not be extinguished, released, discharged, diminished, limited or otherwise affected by any act, omission, event, circumstance or thing that may, in law, if not for this provision, have the effect of extinguishing, releasing, discharging, diminishing, limiting or otherwise affecting the said obligations, in whole or in part. Without limiting the generality of the foregoing, the obligations of the Intervenant hereunder shall not be extinguished, released, discharged, diminished, limited or otherwise affected, in whole or in part, by: 22.2.4.1 any lack of validity or enforceability of any agreement between the Borrower and the Lender; 22.2.4.2 the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Borrower or any other person or the amalgamation of the Borrower with another person or its change of control or ownership; 22.2.4.3 any lack or limitation of power, incapacity or disability on the part of the Borrower or of its directors, partners, principals or agents or any other irregularity, defect or informality on the part of the Borrower when entering into or carrying out its obligations to the Lender; 22.2.4.4 any law, regulation or other statutory instrument, or any circumstance that might otherwise constitute a defence available to, or a discharge of, the Borrower in respect of any or all of the obligations secured under this Deed; 22.2.4.5 anything done, suffered or permitted by the Lender in connection with obligations of the Borrower to the Lender or with any security therefor, without obtaining the consent of or giving notice to the Intervenant, including without limitation: (a) the discontinuance, reduction or increase of, or other variation to, the credit of the Borrower in any manner whatsoever; (b) any change in any term of any agreement between the Borrower and the Lender or the failure on the part of the Borrower to carry out any of its obligations under any such agreement; (c) the granting of time, renewals, extensions, indulgences, releases and discharges to the Borrower or to any other guarantor or obligor; (d) taking, enforcing or perfecting any security for the obligations of the Borrower or abstaining or refraining to do so; (e) accepting compromises from the Borrower; (f) the application of all monies at any time received from the Borrower or from security or from any other person in connection with the obligations of the Borrower to the Lender, as the Lender may see fit; and (g) otherwise dealing with the Borrower and all other persons and security as the Lender may see fit. - 27 -
SECTION 23 LANGUAGE
The parties and Intervenant(s) have requested and hereby confirm their request that this Deed be drawn up in English. Les parties aux présentes ainsi que les intervenants ont demandé et confirment, par les présentes, leur demande que ce contrat soit rédigé en anglais.
WHEREOF ACT at , under the number ( ) of the original minutes of the undersigned Notary.
AND AFTER DUE READING, except for the parties who have declared to have taken cognizance of this Deed and to have exempted the undersigned Notaries from reading it or causing it to be read, the parties have signed this Deed, in the presence of the said Notaries as follows:
The authorized representatives of HSBC Bank Canada have signed at , Province of , in the presence of , Notary, in , on .
HSBC BANK CANADA:
By: ______
By: ______
I, the undersigned, Mtre. , Notary in , Province of certify that I have received the signature of the authorized representatives of HSBC Bank Canada at , Province of , on , two thousand ( )
______, Notary
The BORROWER has signed at , Province of , in the presence of , Notary, in , at the date hereof.
______BORROWER ______BORROWER ______, Notary