GUARANTEE AGREEMENT
THIS AGREEMENT is dated November , 2006.
B E T W E E N:
0000 XXXXXX XXXX HOLDINGS LTD.
(the "Landlord")
- and -
TARPON INDUSTRIES INC.
(the "Guarantor")
In order to induce the Landlord to sign the lease between the Landlord, as
landlord, and Steelbank Tubular Inc., as tenant, dated November , 2006, (the
"Lease"), the Guarantor agrees with the Landlord that:
1. Throughout the Term of the Lease and any extension or renewal, the Guarantor
will (i) promptly pay all Rent and any other amounts payable by the Tenant under
the Lease, whether to the Landlord or anyone else; (ii) promptly perform each
and every obligation of the Tenant under the Lease; and (iii) indemnify and
protect the Landlord from any losses or costs incurred by the Landlord
(including legal fees) if the Tenant fails to pay the Rent or other amounts or
to perform any of its obligations under the Lease.
2. Even if there is an Early Termination, the Guarantor will remain obligated
under this Agreement throughout the Term and any renewals or extensions as
though the Early Termination had not occurred. An "Early Termination" means a
disaffirmance, disclaimer, repudiation, rejection or termination of the Lease
(as a result of court proceedings or otherwise), or a surrender of the Lease
which the Landlord did not accept in writing, which occurs prior to the
originally specified expiry date of the Term or renewal or extension. If there
is an Early Termination, the Guarantor will, at the Landlord's option, become
the Landlord's tenant on the terms of the Lease.
3. This guarantee is absolute and unconditional. The Guarantor's obligations
under this Agreement will not be affected by (a) any modifications to the
Tenant's rights or obligations under the Lease; (b) the fact that the Landlord
does not enforce any of the terms of the Lease; (c) any Transfer of the Lease by
the Tenant or by any trustee, receiver or liquidator; (d) any consent which the
Landlord gives to any Transfer; (e) any waiver by the Tenant of its rights under
the Lease; (f) any additional security accepted by the Landlord from the Tenant;
(g) the expiry of the Term or any extension or renewal thereof; (h) the release
or discharge of the Tenant by the Landlord or in any receivership, bankruptcy,
winding-up or other creditors' proceedings or by operation of law; or (i) lack
of notice of any of the foregoing. The Guarantor's obligations will not be
affected by any repossession of the Leased Premises by the Landlord, except that
if the Landlord re-lets the Leased Premises then the payments received by the
Landlord (after deducting all costs and expenses of repossessing and reletting
the Leased Premises) will be credited by the Landlord against the Guarantor's
obligations under this Agreement.
4. The Landlord is not required to notify the Guarantor that the Landlord has
accepted this Agreement or that the Tenant has failed to perform any of its
obligations under the Lease. Nevertheless, if the Landlord wishes to send any
notice to the Guarantor, it will deliver it or mail it by prepaid registered
mail addressed to the Guarantor at its head office address or, at the Landlord's
option, at the Leased Premises. Any notice will be considered to have been given
on the day it was delivered, or if mailed, three (3) days after the date it was
mailed. The Guarantor may notify the Landlord in writing of a substitute address
for the above address. If two or more parties are named as Guarantor, the
Landlord may give any notice to be given to the Guarantor to only one of the
parties, and in doing so both of them will be considered to have been notified.
5. If there is a default under the Lease or under this Agreement, the Landlord
will not be required to (a) proceed against or pursue anything against the
Tenant first; (b) proceed against any security of the Tenant held by the
Landlord; or (c) pursue any other remedy whatsoever. The Guarantor is not a mere
guarantor; the Guarantor is primarily responsible for the Tenant's obligations
under the Lease.
6. Even though the Landlord may have already taken action against the Guarantor
under this Agreement because of a default under the Lease, and whether or not
that action has succeeded or been completed, the Landlord may take further
action against the Guarantor under this Agreement if there is any further
default under the Lease.
7. This guarantee can only be modified in writing, signed by both the Guarantor
and the Landlord.
8. If two or more parties are named as Guarantor, each party is responsible for
the obligations of the Guarantor, both individually and together with the
others.
9. All of the terms of this Agreement apply to the Guarantor and to its
successors and permitted assigns, and may be enforced by the Landlord, its
successors and assigns, and any holder of any mortgage or charge over all or any
part of the lands on which the Leased Premises are located. This Agreement may
be assigned by the Landlord free of any equities. The Guarantor shall not assign
its obligations hereunder without the Landlord's prior written consent which may
be withheld in the Landlord's sole, absolute and unfettered discretion.
10. The expressions "Rent", "Term", "Transfer" and "Leased Premises" used in
this Agreement have the meanings they are given in the Lease.
11. This Agreement will be governed by the laws of the Province in which the
Shopping Centre is located.
THE LANDLORD AND GUARANTOR HAVE SIGNED BELOW, to confirm the terms of this
Agreement.
LANDLORD:
0000 XXXXXX XXXX HOLDINGS LTD.
Per:______________________________________
Per:______________________________________
I/we have authority to bind the corporation
--------------------------------- ----------------------------------------
)
) GUARANTOR:
TARPON INDUSTRIES INC.
Per:______________________________________
c/s
Per:______________________________________
I/we have authority to bind the corporation
