EXHIBIT 10.12(b)
INDEMNITY AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 2002.
BETWEEN:
COLUMBIA SPORTSWEAR COMPANY, a corporation
subsisting under the laws of the State of
Oregon, in the United States of America,
(hereinafter called the "Indemnitor")
OF THE FIRST PART
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B.A.R.K. HOLDINGS INC.,
a corporation incorporated under the laws
of the Province of Ontario, Canada,
(hereinafter called "BARK")
OF THE SECOND PART
WHEREAS:
1. BARK has entered into a lease made the 3rd day of January, 1994 which
is amended by lease amending agreements made the 1st day of May, 2000
and January 1, 2002 (collectively the "Lease") between BARK, as Landlord,
and Columbia Sportswear Canada Limited, as Tenant (the "Tenant") relating
to the premises being a warehouse and office building located at 000 Xxxxxx
Xxxxxx in the town of Strathroy, Ontario;
2. Upon the request of BARK, the Indemnitor has agreed to execute and deliver
this indemnity agreement (the "Indemnity") in favour of BARK;
NOW THEREFORE for good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged by the Indemnitor), the Indemnitor hereby
agrees with BARK as follows:
1. The Indemnitor shall indemnify and save BARK harmless from all damages and
costs incurred by BARK if, during the term of the Lease and any renewals,
the Tenant fails to pay the rent or other amount to be paid by the Tenant
under the Lease as and when they are due, under the Lease for such period
which, if the Lease were in full force and effect and in good standing,
would be payable under the Lease.
2. If the Tenant defaults in the performance or observance of any of the
covenants, obligations or agreements contained in the Lease, the
Indemnitor shall forthwith, upon demand by BARK, pay to Bark any amount so
payable and all damages that may arise
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upon the default by the Tenant in the payment thereof or in the due
performance of any such obligation.
3. The Indemnitor shall be jointly and severally bound with the Tenant to BARK
for the performance of the obligations of Tenant under the Lease and its
liability shall be that of a direct and primary obligor and not merely that
of a surety.
4. If the Tenant defaults under the Lease, BARK may proceed against the
Indemnitor as if it were the Tenant, without waiving any of its rights
against the Tenant and without any requirement that BARK shall first have
proceeded against the Tenant or had recourse to or exhausted any of its
remedies against the Tenant.
5. The obligation of the Indemnitor and the rights of BARK hereunder shall not
be affected or in any way prejudiced or impaired by any delay, neglect or
forbearance by BARK in enforcing performance by the Tenant of its
obligations under the Lease or the granting by BARK to the Tenant any
extension of time or by any waiver by BARK of any of the Tenant's
obligations or by any assignment or sublease or sublease or other dealing
by the Tenant with the Lease or the premises whether with or without the
consent of BARK or by any want of notice to the Indemnitor or by any
dealing between BARK and the Tenant with or without notice to the
Indemnitor whereby the respective obligations and rights of either BARK or
the Tenant are amended or by any other act or failure to act by BARK which
would release, discharge or affect the obligations of the Indemnitor if it
were a mere surety, and with the intent that this Indemnity shall not be
released or affected or the rights of BARK hereunder in any way impaired
until such time as all the obligations of the Tenant under the Lease have
been fully performed and satisfied
6. The obligations of the Indemnitor hereunder shall not be released,
discharged or affected by the bankruptcy or insolvency of the Tenant or any
disclaimer by any trustee in bankruptcy of the Tenant or by the Tenant
ceasing to exist (whether by winding-up, forfeiture, cancellation or
dissolution, or any other circumstance) or by any event terminating the
Lease including a re-entry pursuant to the Lease.
7. Notwithstanding the provisions set forth herein, in the event of a default
or termination of the Lease BARK shall not be entitled to claim or receive
an amount greater than it would have been entitled to receive from the
Tenant under the terms provided in the Lease.
8. The obligations of the Indemnitor hereunder may be assigned BARK, will
benefit and be enforceable by the successors and assigns of BARK and shall
bind the successors and assigns of the Indemnitor.
9. This Indemnity shall be governed by the laws of the Province of Ontario and
the laws of Canada applicable therein. The Indemnitor acknowledges receipt
of a copy of the Lease and this Indemnity.
10. Any reference to this Indemnity to the Lease shall be deemed to include any
alterations, amendments or modifications from time, made to the Lease. No
dealings between BARK and the Tenant of whatsoever kind, whether with or
without notice to the
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Indemnitor (the requirements of any notice by BARK to the Indemnitor being
hereby waived by the Indemnitor), shall exonerate the Indemnitor in whole
or in part.
11. The Indemnitor will execute such further and other assurances, instruments
and documents as may be reasonably required by BARK to give full effect to
this Indemnity.
12. Unless defined herein or the context otherwise requires, all of the words
and phrases defined in the Lease and used in this Indemnity shall have the
same meanings as in the Lease.
13. If any provision contained in this Indemnity or the application thereof to
any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Indemnity or the application of such
provision to persons or circumstances, other than those as to which it is
held to be invalid or unenforceable, shall not be affected thereby and each
provision of this Indemnity shall be valid and enforceable to the fullest
extent permitted by law.
14. Any notice required or contemplated by any provision of this Indemnity
shall be sent by registered mail, postage prepaid or delivered to the
Indemnitor to its registered head office or to such other address as the
Indemnitor may from time to time designate by written notice to BARK. Every
such notice shall be deemed to have been given and received upon the date
of actual delivery, if delivered, and upon the third business day after
mailing, if mailed. In the event of and during a disruption or threatened
disruption in the postal services, all notices shall be delivered and shall
not be mailed.
15. No modification of this Indemnity shall be effective unless the same is in
writing and is executed by both the Indemnitor and BARK.
IN WITNESS WHEREOF the proper officers of the Indemnitor have executed this
Indemnity.
COLUMBIA SPORTSWEAR COMPANY
/s/ Xxxxxxx X. Xxxxxxxx
Per:------------------------ c/s
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
I have authority to bind the Corporation.
