CIBC
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Equipment Finance CUSTOMER #081425
LEASE NUMBER (LESSOR USE ONLY)
LEASE 002506
REGIONAL OFFICE
0000 XXXXX XXXXXXX XXXX, XXXXXXXXXX, XXXXXXX, X0X 0X0
XXXXXX (the "Company") LEGAL NAME AND ADDRESS SUPPLIER OF EQUIPMENT
NAME XXXXXXXX TECHNOLOGIES INC. NAME SCOTIABANK THE BANK OF NOVA SCOTIA
ADDRESS 0000 XXXXX XXXXXX, XXXXX 0000, ADDRESS 0000 XXXXXXXX XXXXXX, X.
CITY NORTH YORK, CITY SCARBOROUGH,
PROVINCE POSTAL CODE TELEPHONE PROVINCE POSTAL CODE TELEPHONE
ONTARIO M2N 6P4 (000) 000-0000 ONTARIO M1R 3A8 ( )
CONTACT NAME TITLE REPRESENTATIVE
XXXX XXXXXXXX
EQUIPMENT TO BE LEASED
QUANTITY DESCRIPTION UNIT COST
EQUIPMENT AS REFERENCED TO ON BILLS OF SALE DATED SEPT. 6, 1996
BETWEEN THE BANK OF NOVA SCOTIA AND CIBC EQUIPMENT FINANCE
LIMITED.
DETAILED DESCRIPTION ON SCOTIABANK CONTRACTS #'S :
#00000 DATED MARCH 12, 1996
#42721 DATED DEC. 6, 1996
#42054 DATED MARCH 12, 1996
#42393 DATED APRIL 26, 1996
EQUIPMENT COST
$1,260,287.82
INSURANCE
$ -
OTHER FEES
(CEFL's Registration #R136587912) $ $ -
EQUIPMENT LOCATION
000 XXXXXXX XXXXX, XXXXXXXXX, XXXXXXX TOTAL LEASE COST $1,260,287.82
TERMS OF PAYMENT
LEASE TERMS NUMBER RENTAL PERIOD RENTAL PROVINCIAL (INCL. PST & GST)
(MONTHS) OF RENTALS (PAYABLE IN ADVANCE) AMOUNT SALES TAX GST TOTAL RENTAL PER DIEM RENTAL
/X/ MONTHLY SEE ATTACHED EXHIBIT "B" N/A
44 44 / / QUARTERLY $
/ / ANNUALLY
/ / OTHER: SEE ADDITIONAL PROVISIONS $ $ $
PURCHASE OPTION (SUBJECT TO SECTION 17 ON THE REVERSE)
FIRST TOTAL RENTAL PAYMENT DATE
(LESSOR USE ONLY)
(Day 1st - 24th Only)
(i) THE FIRST DAY OF THE 37TH RENTAL PERIOD FOR 20% OF THE TOTAL LEASE COST OR
(ii) THE LAST DAY OF THE 44TH RENTAL PERIOD, FOR MARKET VALUE.
D D M M Y Y
12 09 96
ADDITIONAL PROVISIONS
"THIS ENTITY DOES HAVE A FRENCH NAME OR AN ENGLISH/FRENCH COMBINATION NAME*
TECHNOLOGIES XXXXXXXX INC.
LEASE PROVISIONS
FOR VALUABLE CONSIDERATION, THE COMPANY AND CIBC Equipment Finance
Limited ("CEFL") AGREE AS FOLLOWS (WITH CAPITALIZED TERMS NOT DEFINED
BELOW REFERRING TO THE INFORMATION CORRESPONDING TO THOSE TERMS NOTED
ABOVE):
1. EQUIPMENT LEASED. XXXX agrees to acquire and pay for the property
noted under Equipment To Be Leased, together with all accessories,
attachments, accessions and replacement or additional parts supplied
with or added to that property (collectively, the "Equipment") at a
total cost (including front end tax, freight, preparation, assembly and
installation charges) not exceeding the Total Lease Cost. CEFL agrees
to lease the Equipment to the Company and the Company agrees to lease it
from CEFL in accordance with the provisions of this Lease. CEFL may
from time to time add to that description of the Equipment by setting
out serial numbers or other identifying references.
2. TERM. The term of this Lease starts on the day when any of the
Equipment is first delivered to the Company. The term ends after a
period equal to the Lease Term (except, if that date is the 25th day of
a calendar month or any following day to the end of that month, then the
term extends to the end of that month).
3. RENT. The Company will, on the first day of each consecutive
Rental Period, pay to CEFL, as rent for the use of the Equipment for
that period, the Total Rental together with all sales, use, transaction,
value added, goods and services or similar taxes payable from time to
time by CEFL or the Company in connection with the Equipment to the
extent that such taxes have not already been included in the computation
of Total Rental set out above. The first day of each Rental Period
(when the Total Rental is to be paid) is the day of the calendar month
when the term of this Lease starts except, if the term start date is the
25th day of a calendar month or any following day to the end of that
month, then each Rental Period will commence (and the Total Rental is to
be paid) on the first day of each calendar month commencing with the
month following the term start date and the Company will on the term
start date pay to CEFL an amount equal to the Per Diem Rental times the
number of days in the period from and including that term start date to
but excluding the start of the first Rental Period (together with
applicable taxes as required above) as rent for that period. Upon
signing this Lease, the Company will pay to CEFL a non-refundable
payment equal to the Total Rental (together with the applicable taxes as
required above) which CEFL will apply as payment of the rent for the
first Rental Period.
SEE REVERSE SIDE FOR ADDITIONAL PROVISIONS WHICH ARE PART
OF THIS LEASE
THE COMPANY AND CEFL AGREE TO THE PROVISIONS OF THIS LEASE AS SET OUT
ABOVE AND ON THE REVERSE SIDE OF THIS PAGE, TOGETHER WITH THE PROVISIONS
OF ALL SCHEDULES AND EXHIBITS (IF ANY) ATTACHED TO THIS PAGE, AND, IN
CONSIDERATION OF THOSE PROVISIONS, SIGN AND DELIVER THIS LEASE TO BE
EFFECTIVE ON THE DATE SET OUT BELOW.
CIBC EQUIPMENT FINANCE LIMITED LESSEE NAME (NAME OF COMPANY)
BY XXXXXXXX TECHNOLOGIES INC.
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AUTHORIZED SIGNATURE
BY XXXXX X'XXXX
NAME AND TITLE
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By
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4. PAYMENT. The Company must make all payments to CEFL (without any
condition, deduction, set-off or holdback) at its address as noted at
the top of the first page of this Lease (or any other address that CEFL
advises).
5. EQUIPMENT ACCEPTANCE. The Company will inspect and test the
Equipment as soon as it is delivered. The Company agrees that CEFL has
no duty to inspect or test the Equipment either before or after its
delivery. Immediately after delivery, the Company will notify (in
written form as CEFL may require) either (i) CEFL of its acceptance of
the Equipment or (ii) CEFL and the supplier or manufacturer of its
rejection of the Equipment. By accepting the Equipment, the Company
acknowledges that the Equipment has been delivered in good condition and
operating order and in accordance with its intended purpose as
prescribed by the Equipment supplier and/or manufacturer and that the
Equipment is located at the Equipment Location. If the Company rejects
or does not accept the Equipment or if it is determined at any time that
the Equipment is defective or unacceptable for any reason, the Company
shall remain bound by its obligations under the Lease and will have no
claim against CEFL in respect to the Equipment, but may, if it so
chooses, have a claim against the supplier, the manufacturer and/or
other persons.
6. WARRANTIES. The Company acknowledges that it alone has selected
the Equipment, the supplier and/or the manufacturer. The Company has
satisfied itself that: (i) the Equipment is suitable for its intended
purpose; (ii) the supplier and/or manufacturer shall bear all
liability, financial and/or otherwise, and will be able to acquit
themselves of any and all obligations in respect to the Equipment
(whether undertaken by them or otherwise imposed by law on them); (iii)
all warranties, guarantees or other undertakings made by the supplier or
manufacturer shall be assignable and the Company shall be able to
address any claim against the supplier, manufacturer and/or any others
(excluding CEFL); or, if not the case, that the Company is prepared to
bear the risk thereof. The Company further acknowledges that CEFL does
not deal in the Equipment and, subject to the provisions contained in
the Lease, CEFL has not made any warranty or guarantee or agreed to any
undertaking or condition with respect to the Equipment, the supplier or
the manufacturer, including whether the Equipment is suitable to the
Company. Specifically, and without limitation to the foregoing, CEFL
shall not be responsible if a supplier or manufacturer delays or fails
to fill an order for the Equipment or if the Equipment is defective or
unacceptable for any reason, including a failure in its performance,
capacity or operation. This Lease is in substance a financial
transaction with CEFL fully performing its obligations by allowing the
Company to possess and use the Equipment and exercise any option rights.
CEFL assigns to the Company, for the term of this Lease, the benefit of
all warranties, guarantees or other undertakings (the Company hereby
guaranteeing the assignability thereof) made by the supplier or the
manufacturer of the Equipment, but CEFL will not be responsible under
these warranties, guarantees or undertakings.
7. USE, MAINTENANCE & RETURN. The Company shall, at its own expense,
lawfully and carefully prepare, assemble and install the
Equipment, maintain it in good repair and working order (except for
normal wear and tear resulting from proper use) and operate it through
competent personnel. The Company will keep the Equipment at the place
of business designated as the Equipment Location and will not remove it
from that place without CEFL's prior written consent, which consent will
not be unreasonably withheld. The Company will use the Equipment in its
business only for commercial purposes and not for personal, consumer,
family or household use. Upon termination of the Lease for any reason
(and assuming that the Company has not exercised a then valid option to
purchase the Equipment), CEFL may require that the Company, promptly and
at the Company's expense, either properly pack the Equipment for
shipment and deliver it in good repair and working order (except for
normal wear and tear resulting from proper use) to CEFL at a place which
CEFL may reasonably designate or, at CEFL's option, dispose of the
Equipment in any reasonable manner. The Company will allow CEFL to have
access from time to time to the Equipment during reasonable business
hours in order to inspect it or observe its use or to repossess and/or
remove it at any time after termination of this Lease for any reason.
8. EQUIPMENT RISKS. The Company is responsible for all risk of loss
and theft of and damage to the Equipment as well as all risks to the
Company and others in connection with the Equipment. The Company's
responsibility for these risks continues, not only during the term of
this Lease, but also while the Equipment is being transported before the
start and after the end of the term of this Lease. If the Equipment is
lost or damaged beyond repair or is stolen or for any other reason is
not available or suitable for return at any time during the term of this
Lease, the Company will notify CEFL of that event and, unless CEFL is
agreeable to another arrangement, will immediately on demand pay to CEFL
the casualty value which will be equal to any excess of what is then the
total present value of all unpaid and future rent payments under this
Lease over any insurance proceeds paid to CEFL as a result of the event.
The present value will be calculated by discounting at the rate per year
equal to 3% per year less than the Prime Rate (being a variable
reference interest rate per year declared by Canadian Imperial Bank of
Commerce from time to time to be its prime rate for Canadian dollar
loans made by it in Canada) on the date of this Lease. Upon payment of
the casualty value, this Lease is terminated.
9. INSURANCE. The Company will at its own expense maintain "all-risk"
property insurance of not less than the replacement cost of the
Equipment, together with comprehensive general liability insurance
(including coverage for property damage, bodily injury and contractual
liability) and any other form of insurance covering the Equipment
against risks as considered prudent for that type of property by
operators of businesses similar to that run by the Company. The
insurance must be in amounts, in form and with insurers acceptable to
CEFL. Each insurance policy must name both the Company and CEFL as
insureds, name CEFL as loss payee and contain a clause requiring the
insurer to give to CEFL prior notice of a revision to its provisions or
of its cancellation. The Company will maintain that insurance not only
during the term of this Lease but also while the Equipment is being
transported before the start and after the end
of the term. At CEFL's request, the Company will give CEFL evidence
acceptable to CEFL that the insurance coverage is in effect (but CEFL is
not obliged to determine or advise the Company if there is adequate
coverage in effect). If the Company does not, CEFL may (but does not
have to) obtain proper insurance and the Company will immediately on
demand repay CEFL the cost of that insurance.
10. TITLE. Subject to the Company exercising any option to buy, CEFL
shall have full ownership of and title to the Equipment and may require
that the Equipment bear a clear notice of CEFL's rights on the Equipment
in a form acceptable to CEFL. The Company will ensure that the
Equipment is kept free and clear of all liens and will pay all fees,
charges and taxes assessed from time to time in connection with the
Equipment. Alterations, additions and improvements to the Equipment may
be made only with CEFL's prior written consent (unless for usual
maintenance) and immediately become CEFL's property and part of the
Equipment. The Company has no interest in the Equipment other than the
right to possess, insure and use the Equipment for the term of this
Lease and any option or right to buy (and the Company grants to CEFL a
purchase money security interest in the Equipment in consideration of
CEFL enabling the Company to acquire that right). If this Lease is
governed by the laws of the Province of Quebec, for greater assurance
and as security for the performance of its obligations hereunder, the
Company hypothecates to CEFL for an amount equal to the Total Lease
Cost, all of the Company's right to possess and use and under any option
to buy, the Equipment. The Company will ensure that the Equipment
always remains personal or movable property (without the need for any
other party's consent or waiver to allow CEFL to remove it) even though
it may become attached to real or immovable property. The Company will
install the Equipment in a manner permitting its removal without
material damage to the Equipment or the place of its installation. The
Company will be responsible for damage to property and the liability of
CEFL reasonably incurred due to CEFL entering any premises and
repossessing and removing the Equipment upon termination of this Lease
for any reason.
11. LAWS AND TAXES. The Company will comply with all laws relating to
this Lease or to the Equipment (including, without limitation, laws
relating to use, operation or maintenance of the Equipment). Except as
otherwise specifically provided herein, the Company shall pay when due
all taxes and other charges of any kind whatever now or in the future
imposed by any government or public authority or agency ("Taxes"),
including, without limitation, all income, capital, sales, use,
transaction, value-added, goods and services and similar taxes, relating
to or arising in respect of this Lease or the Equipment (including,
without limitation, all Taxes relating to purchase, ownership, delivery,
leasing, financing, possession, use, operation or return of the
Equipment and specifically including any such Taxes payable by CEFL).
Notwithstanding the foregoing, the Company shall have no obligation (i)
to pay separately any Taxes which form part of the Total Rental for any
period, which have been specifically included in computing the Total
Lease Cost or which have been paid by the Company in accordance with
section 3 above, (ii) to pay any goods and services or substantially
similar Taxes imposed on CEFL in respect of which CEFL receives a full,
current input tax credit or
refund, (iii) to pay any Taxes imposed on CEFL which are based on its
net income, or (iv) to pay any large corporations, capital or similar
Taxes imposed on CEFL except to the extent that such Taxes are imposed
on CEFL, or CEFL's liability in respect thereof is increased, by reason
of a change in law or in the application or interpretation thereof
occurring after the date hereof.
12. INDEMNIFICATION. Unless caused by CEFL's sole gross negligence,
the Company will indemnify CEFL for all losses, costs and liability
including but not limited to claims based on strict liability in tort or
legislation including delictual, absolute, legal or contractual
liability in the Province of Quebec, which CEFL incurs in connection
with the Equipment (other than taxes based on CEFL's net income). All
indemnities and liability limitations in favour of CEFL will continue
after the term of this Lease and even if the Lease is terminated.
13. DEFAULT. There shall be default under the terms of the Lease
("Default") in the event that any of the following occurs:
1) The Company does not perform any of its obligations (including not
paying an amount when due) under this Lease or under any other contract,
document or instrument by which it is bound and the default continues
for 15 days;
2) The Company becomes subject to a bankruptcy, insolvency,
receivership or similar proceeding, or an encumbrancer takes possession
of any of the Equipment or a substantial part of the Company's property;
3) The Company suspends business, abandons or attempts to transfer or
gives up possession of any of the Equipment or substantially all of the
Company's property.
4) Other than caused by normal wear and tear resulting from proper use
in the normal course of the Company's business (as conducted on the date
of this Lease), anything happens or is about to happen which CEFL
reasonably believes may materially reduce the value of the Equipment or
CEFL's interest in it or increase the risk to it;
5) If the Company is a corporation, there is a change in the Company's
effective control without CEFL's written consent, or any action is taken
to wind-up, liquidate or dissolve the Company;
6) If the Company is in default under any other lease, contract,
agreement or obligation, now existing or hereafter extended to, with or
due to CEFL, the Canadian Imperial Bank of Commerce or any assignee of
CEFL whether the Company is bound alone or with others; or
14. REMEDIES UPON DEFAULT. In the event of Default or continued
Default, CEFL may without giving notice to the Company terminate this
Lease and/or, in addition to any other right it may have at law or
otherwise, may without notice do any or all of the following:
1) REPOSSESSION - CEFL may enter wherever the Equipment is located (or
CEFL believes that it is located) and repossess and remove it (if
necessary, disconnecting it from any other property);
2) SELL OR RE-LEASE - CEFL may sell or re-lease the Equipment in such
manner and for amounts and upon such terms as CEFL may reasonably
determine and may apply the net proceeds against what the Company owes
to CEFL;
3) RECOVER ARREARS - CEFL may sue for arrears of rent and other
amounts owing by the Company; and/or
4) DAMAGES FOR TERMINATION - CEFL may require the Company to pay
immediately on demand damages suffered by CEFL to CEFL as a result of
the termination of the Lease. These damages will be, as a genuine
pre-estimate of liquidated damages for loss of a bargain and not as a
penalty, the total present value of all unpaid and future rent payments
under this Lease, less the present value of any net proceeds realized by
CEFL upon selling or re-leasing the Equipment after deducting all costs,
expenses and liability incurred in connection with any repossession and
that sale or re-lease. The present values will be calculated by
discounting at the rate per year equal to 3% per year less than the
Prime Rate (as defined in Section 8 hereof) existing at the date of this
Lease.
15. EXPENSES UPON DEFAULT. The Company will immediately on demand pay
for all costs and expenses incurred by CEFL by reason of the occurrence
of a Default or in exercising CEFL's remedies as a result of a Default.
16. DEFAULT INTEREST. Should the Company fail to pay when due any part
of the rent herein reserved or any sum required to be paid to CEFL
hereunder, the Company shall pay to CEFL, in addition thereto, a late
charge of ten dollars ($10.00) for each month or part thereof for which
said rent or other sum shall be delinquent together with interest on any
and all delinquent payments and amounts in default from the date thereof
until paid in full at the rate of 18% per annum calculated monthly. The
Company further agrees to pay to CEFL a returned cheque or
non-sufficient funds (NSF) charge to reimburse CEFL for its time and
expense incurred with respect to a cheque or a pre-authorized payment
debit that is returned for any reason. Such NSF charge shall be the
greater of $25.00 or the actual bank charges to CEFL plus any other
amounts allowed by law.
17. OPTION TO PURCHASE. Provided the Company is not in default under
the Lease on an Option Date and has not been at any time previously
thereto, it shall have the option to buy the Equipment at the applicable
Option Price on that Option Date. The Company may exercise that option
by notifying CEFL of its intention at least 30 days (but not more than
90 days) before the Option Date and by paying CEFL on or before the
Option Date the Option Price, together with all applicable taxes and any
other amounts due under this Lease. CEFL will then transfer to the
Company ownership of and title to the Equipment without any warranty,
guarantee or undertaking by CEFL and in its then condition, quantity and
location. This Lease will then terminate. For the purpose of
determining an option price, the fair
market value of the Equipment will be its fair market value, as both the
Company and CEFL may agree to in writing or, if not so agreed, as fixed
by an independent appraiser acceptable to both the Company and CEFL.
18. PROVINCIAL WAIVERS. The Company acknowledges that statements under
the various provincial personal property security acts and the Civil
Code of Quebec may be registered with respect to this Lease and the
Equipment. The Company hereby waives receipt of, and the right to
receive, a copy of any registered statement or verification statement
with respect thereto. To the extent not prohibited by any law
applicable to and governing this Lease, the Company hereby waives the
benefit of all provisions of any law, statute or regulation which would
in any manner affect CEFL's rights and remedies hereunder, including
provisions of the Limitation Civil Rights Act of Saskatchewan. For
purposes of the Civil Code of Quebec, the Company acknowledges that this
Lease shall be considered a contract of leasing.
19. OTHER INFORMATION. The Company will from time to time provide CEFL
with any information or document which CEFL may reasonably request. The
Company authorizes CEFL to conduct credit investigations and authorizes
Canadian Imperial Bank of Commerce to release any credit information to
CEFL.
20. NOTICE. All notices stipulated in the Lease shall be delivered in
writing. Any document in connection with this Lease will be considered
to have been delivered to or served upon, and received by, CEFL or the
Company upon the earlier of actual receipt by an employee or an officer
of the receiving party and (if mailed and there has been no applicable
interruption of postal service) the expiry of 10 days after the date the
document was posted by prepaid ordinary mail to the receiving party's
address as set out on the first page of this Lease (or another address
as the receiving party may have last notified the sender).
21. LANGUAGE. The Company and CEFL wish that this Lease and all
related documents be drawn up and signed in English. LES PARTIES
RECONNAISSENT QU'ELLES ONT EXIGE QUE CE CONTRAT DE LOCATION DE MEME QUE
TOUS LES AUTRES DOCUMENT S'Y RATTACHANT SOIENT REDIGES EN ANGLAIS.
22. MISCELLANEOUS. a) Time is of the essence in respect of this Lease.
b) This Lease will be governed by and construed in accordance with the
laws of the province or territory described by the Equipment Location.
c) This Lease is the entire agreement between the Company and CEFL and
may be varied only by written documentation signed by both the Company
and CEFL.
d) If more than one person, firm or corporation signs this Lease, each
is jointly and severally liable (or, in other words, CEFL may, at is
option, require performance or payment of all obligations under the
Lease from any one of them or a portion from each), but CEFL is released
from any of its obligations by performing that obligation to any one of
them.
e) A provision of this Lease which is void or unenforceable in a
jurisdiction is, as to that jurisdiction, ineffective to that extent
without invalidating the remaining provisions.
f) The Company may not assign the Company's rights and obligations
under this Lease, and may not sub-lease or loan the Equipment, unless
CEFL gives its prior written approval. CEFL may assign, at its sole
discretion at any time, without the consent of the Company, its right,
title and interest in the Lease and in the Equipment described herein to
any individual, or other legal entity and upon such assignment the word
CEFL shall mean and include such assignee. The Company hereby consents
to the delivery by CEFL to any prospective assignee of such information
concerning the Company as may be in CEFL's possession and requested by
the assignee.
g) All CEFL's rights are cumulative and not alternative and may be
exercised by CEFL separately or together in any order or combination.
h) The Company will do all acts and sign all documents as CEFL may
require to give effect to this Lease and to protect CEFL's rights.
i) The Company has received a copy of this Lease.
GUARANTEE
For valuable consideration, the undersigned irrevocably and
unconditionally guarantees performance, immediately upon demand, of the
Company's obligations under the lease set out above, as it may from time
to time be amended (the "Lease") and agrees to indemnify CEFL against
any loss incurred by CEFL resulting from the failure by the Company to
perform such obligations. The undersigned's liability under this
Guarantee will not be limited or reduced, nor will CEFL be responsible
or owe a duty (as a fiduciary or otherwise) to the undersigned, nor will
CEFL's rights be prejudiced, by the existence or occurrence (with or
without the undersigned's knowledge or consent) of any circumstance or
event that might otherwise be a defence available to the undersigned or
the Company, including (without limitation) (i) CEFL granting extensions
of time or other indulgences to the Company; (ii) any changes to the
Lease or to the leasing transaction between the Company and CEFL; (iii)
any defect or unsuitability of the Equipment; (iv) any loss of or in
respect of, or the unenforceability of, any collateral security held by
CEFL; (v) any change in the Company's name or its membership or
shareholding; (vi) any incapacity or lack or limitation of power of the
Company; or (vii) the liquidation, bankruptcy or insolvency of the
Company or others. CEFL need not exhaust its recourse against the
Company or other persons or the Equipment or any collateral security it
may hold before being entitled to performance by the undersigned. The
amount appearing due in any account stated by CEFL or settled between
CEFL and the Company will be conclusive as to that amount being due.
All debts and liabilities which the Company has incurred or may
from time to time incur in any manner to the Guarantor are assigned to
CEFL and postponed to amounts owing under the Lease. If the undersigned
receives any moneys in payment of any of those debts and liabilities,
the undersigned will hold them in trust for, and will immediately pay
them to, CEFL without reducing the undersigned's liability to CEFL.
This Guarantee is governed by the laws governing the Lease. If
this Guarantee is governed by the laws of the Province of Quebac, the
undersigned renounces all benefits of division and discussion. If more
than one person, firm of corporation signs this Guarantee, each is
jointly and severally liable (or, in other words, CEFL may, at its
option, require performance or payment of all obligations under the
Lease from any one of them or a portion from each). Capitalized terms
in this Guarantee have the meanings defined in the Lease.
Given this day of ,19
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Witness
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Name: }
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Address: Address:
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EXHIBIT "B"
This is the Schedule of Rentals referred to as Exhibit "B" in the
attached Lease Contract No. 002506 dated Sept. 12th, 1996 between CIBC
Equipment Finance Limited ("CEFL") and Xxxxxxxx Technologies Inc.
Lease Contract based on a 44 month term as follows:
FLOATING RATE RENTAL
1. Based on the current 30 day B.A. Rate of 4.08%, Lease Rate of 7.33%
and the Lease Term, the Monthly Rental Payments are $32,623.94 plus GST
of $2,283.68 plus PST of $2,609.92 for a total monthly rental of
$37,517.54. The total monthly rental is payable on the 12th day of each
month throughout the Lease term starting on Sept. 12, 1996
("Commencement Date"), subject to the adjustment clause below.
FLOATING RATE RENTAL ADJUSTMENT CLAUSE
2. (a) On each anniversary of the Commencement Date, at the end of
the Lease Term, and on the date or dates referred to in paragraph (b)
below, CEFL will calculate the Adjusted Rental (based on the current
B.A. Rate) as of each of the Rental Payment Dates for the preceding year
or since the last calculation thereof, if applicable. If the sum of
such Adjusted Rentals exceeds the sum of the actual Rentals paid on such
Rental Payment Dates then CEFL shall invoice and lessee shall pay to
CEFL such difference, otherwise CEFL shall refund such difference to
lessee.
(b) Provided that the Lease Rate on the date of written request
referred to below is at least 200 basis points greater than the Lease
Rate in effect on the date of execution of the Lease, then at any time
or times but not more than quarterly either CEFL or the Lessee may, on
15 days prior written notice, request that the Adjusted Rental be
calculated and the difference paid or refunded as set forth in paragraph
2(a) above.
FIXED RATE RENTAL
3. (a) At any time during the Lease Term the Lessee has the option,
provided that it is not in default of its obligations under the Lease
and upon 15 days prior written notice to CEFL, to fix the Periodic
Rental from the next Rental Payment Date following the expiry of the 15
day notice period ("Fixing Date") for the then remaining Lease Term,
subject to paragraph (iii) of this section. If such option is
exercised: (i) the Adjusted Rental shall be calculated in accordance
with paragraph 2(a) hereof for the applicable period prior to the Fixing
Date; (ii) notwithstanding section 2 hereof and subject to paragraph (i)
of this section, no further calculations or adjustments shall at any
time be made pursuant to section 2 hereof; and (iii) the Rental shall be
calculated on the Effective Date and recalculated on each 5th
anniversary of the Fixing Date (if any) by CEFL, and shall be the
product of the Fixed Monthly Rental factor and the Net Book Value
determined as of the Fixing Date and each such 5th anniversary
thereafter.
(b) The fixed Monthly Rental Factor shall be calculated as of the
Fixing Date and each 5th anniversary thereof and in the same manner as
the Monthly Rental Factor but based on the CEFL base rate then in effect
on the 15th day of the month immediately preceding the date of
calculation, plus 225 basis points.
DEFINITIONS
4. For the purpose of the Exhibit and the Lease:
(a) Adjusted Rental means the relevant Rental adjusted as set
forth in Clause 2 of Exhibit B as of any determination date.
(b) Banker's Acceptance means a bill of exchange (i) drawn by CEFL
and accepted by Canadian Imperial Bank of Commerce, (ii) denominated in
Canadian dollars, (iii) for a term of 30 days, (iv) issued and payable
only in Canada, and (v) having a face value of not less than $100,000.
(c) CEFL Base Rate means the rate of interest applicable to CEFL
cost of borrowing.
(d) Lease Rate means the 30 Day BA Rate in effect on the date of
determination, plus 325 basis points.
(e) Monthly Rental Factor is determined in accordance with CEFL's
standard procedures based on that portion of the Lease Term remaining
following the date of determination and based on the Lease Rate in
effect on the date of determination.
(f) Net Book Value means the net book value of CEFL's investment
in the Lease on the date of determination and is calculated by deducting
unearned income from the gross lease receivable which remains unpaid as
of the date of determination in accordance with generally accepted
accounting principles.
(g) Rental referred to in section 1 hereof is calculated by
multiplying the total Equipment Cost by the Monthly Rental Factor in
effect on the date of execution of the Lease and subject to section 3
hereof such amount shall remain in the Rental throughout the Lease Term.
(h) 30 Day BA Rate means either, (i) the yield on the date of
determination on Banker's Acceptance expressed as an annual rate of
interest, as reported on the Reuters Monitor Service, page CDOR, using
the average line and rounded to two decimals; or (ii) if the Reuters
Monitor Service is not available, the rate of interest as would permit
the Canadian Imperial Bank of Commerce to obtain the same effective rate
as if it had accepted and purchased a Banker's Acceptance at the same
acceptance fee and pricing at which it would have accepted and purchased
on the bid side of the market, such
Banker's Acceptance at approximately 10:00 a.m. Toronto time on the date
of determination.
(i) Prime Rate means the variable reference interest rate per year
declared by Canadian Imperial Bank of Commerce ("CIBC") from time to
time to be its prime rate for Canadian dollar loans made by CIBC in
Canada.
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