EXHIBIT 10.4
REAL PROPERTY LEASE - HAMILTON, ONTARIO
THIS LEASE dated January 10, 1992,
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
B E T W E E N:
CIBC MORTGAGE CORPORATION
(hereinafter called the "Landlord")
OF THE FIRST PART
and
TRIPLE-C-IMPORTS LIMITED
(hereinafter called the "Tenant")
OF THE SECOND PART
WHEREAS the Landlord is the mortgagee in possession of the lands and
premises known municipally as 8 Burford Road, Hamilton, Ontario and more
particularly described in schedule A attached (the "Premises").
1. DEMISE
In consideration of the rents, covenants, conditions and agreements on
the part of the Tenant, the Landlord leases to the Tenant for the term and upon
the conditions of this lease (the "Lease") that certain part of the Premises
containing approximately 54,605 square feet and shown on the plan of the said
Premises as Schedule B hereto attached, (the "Leased Premises"), which. includes
approximately 4,092 square feet, of mezzanine office area. In addition, the
Landlord agrees to provide an area for the parking of a maximum of 50
automobiles on the Premises immediately east of the office entrance to the
Leased Premises.
2. TERM
To hold the Leased Premises for the term of ten (10) years commencing
on the earlier of the date which is five (5) business days following notice by
the Landlord that the Landlord's work (as specified on Schedule D attached) has
been substantially completed , and the date the Tenant commences its business on
the Leased Premises (the "Commencement Date") and to be fully complete and ended
on the date which is the tenth anniversary of the Commencement Date (the
"Term"). if the Term expires on a date other than the last day of that month,
then the Term shall be extended to and including the last day of that month.
3. BASE RENT
The Tenant shall pay to the Landlord from and after the commencement
Date and throughout the Term as an annual base rent (the "Base Rent") the
following sums payable in equal consecutive monthly instalments as follows each
in advance on the first day of each calendar month through the Term:
Year Net Annual Rental Net Monthly Rental
---- ----------------- ------------------
1 - 3 $140,218.91 $11,684.91
4 $161,367.10 $13,447.27
5 $169,250.70 $14,104.23
6 $177,528.47 $14,794.04
7 $186,220.14 $15,518.35
8 $195,346.39 $16,278.87
9 $204,928.95 $17,077.41
10 $214,990.64 $17,915.89
Base Rent for a fraction of a month shall be adjusted and prorated for that
month.
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4. OPTION TO RENEW
The Tenant, if not in default in any of the terms, covenants and
conditions contained herein, shall have the option of renewing this Lease for
two further consecutive terms of five (5) years each (the "Renewal Terms", or
individually, the "Renewal Term") by giving written notice to the Landlord of
his intention to renew at least six (6) months before expiration of the Term or
the first Renewal Term and failing same the option herein contained shall be
null and void, each. such renewal to be on the same terms and conditions as in
this Lease except as to Base Rent and further right of renewal. Base Rent for
each of the Renewal Terms shall be based upon the fair market value rent for
similar commercial premises in the City of Hamilton such as is mutually agreed
upon by the Tenant and Landlord and failing agreement, Base Rent shall be
determined by arbitration in accordance with the provisions of the Arbitrations
Act (Ontario) as amended. It is agreed that whether such Base Rent for either of
the Renewal Terms is agreed upon or determined by arbitration, such Base Rent
shall in no event be less than the Base Rent for the last year of the Term, or
the last year of the first Renewal Term, as the case may be (the "Minimum Base
Rent"). Pending agreement upon, or determination by arbitration of, the Base
Rent for the Renewal Term, the Tenant shall continue to pay the Minimum Base
Rent and shall pay to the Landlord any underpayment of Base Rent for the Renewal
Term retroactive to the commencement date of the Renewal Term within 30 days of
agreement upon or determination of the Base Pent, for the Renewal Term.
5. ADDITIONAL RENT
The Tenant shall pay to the Landlord from and after the commencement
Date and throughout the Term and the Renewal Terms in addition to the Base Rent
(the "Additional Rent") an amount equal to 6.65 percent being a percentage
calculated by using as the numerator the area of the Leased Premises and a
denominator being the rentable area of the Premises multiplied by one hundred
(100) (the "Tenant's Share") of each of the following:
(a) Taxes: The Tenant shall pay an amount equal to the Tenant's
Share of all taxes, rates, duties, levies and assessments
whatsoever, whether municipal, parliamentary or otherwise,
levied, imposed or assessed against, or attributed to the
Premises, or upon the Landlord in respect therefor, or from
time to time levied, imposed or assessed for education in lieu
thereof including those levied, imposed or assessed for
education, schools and local improvements and including all
costs and expenses (including legal and other professional
fees and interest and penalties on deferred payments) incurred
by the Landlord in good faith contesting, resisting or
appealing any taxes, rates, duties, levies or assessments, but
excluding taxes and licence fees in respect of any business
carried on by the Tenants and occupants of the Premises and
income or profits taxes upon the income of the Landlord and
including any and all taxes which may in future be levied in
lieu of taxes hereinbefore referred to;
(b) Separate Tax Assessment: In the event that any or all taxes
for which the Tenant is liable to pay as Additional Rent under
paragraph 5 (a) above are levied or assessed separately as
against the Leased Premises the Tenant shall pay to the
Landlord, or at the Landlord's option directly to the taxing
authority, the taxes, rates, levies or assessments on the
Leased Premises as and when the same shall become due and
payable, and shall pay in addition thereto, as Additional
Rent, its Tenant's Share of the taxes, rates, levies or
assessments levied or assessed against the common areas of the
premises in accordance with the provisions of the within
Section 5.
(c) Operating Costs: The Tenant shall pay an amount equal to the
Tenant's Share of the total cost and expense incurred, accrued
or attributed by the Landlord to maintain and operate the
Premises and to discharge its obligations under this Lease,
such costs and expenses to include, without limitation and
without duplication, the aggregate of the following:
(i) the total annual costs and expense of insuring the
Premises, and improvements, equipment and other
property thereon owned or operated by the Landlord or
for which the Landlord is legally liable, in such
manner and form, with .such companies and such
coverage and in such amounts as the Landlord, or the
Landlord's mortgagee, determines;
(ii) cleaning, garbage and waste collection and disposal;
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(iii) lighting, public utilities and musical broadcasting
systems;
(iv) policing, security and supervising;
(v) labour and/or wages and other payments made to
janitors, caretakers and other employees of the
Landlord, and the charges of any independent
contractors involved in the maintenance and operation
of the Premises;
(vi) the cost of the rental of any equipment and signs,
and the cost of building supplies used by the
Landlord in the maintenance of the Premises;
(vii) audit or accounting fees incurred by the Landlord in
the preparation of statements delivered to the
tenants of the Premises;
(viii) repairs and replacements to, and the maintenance and
operation of the Premises and the systems, facilities
and equipment serving the Premises including all
escalators and elevators, and the heating, air
conditioning, mechanical, plumbing and electrical
systems serving the Premises, save and except for any
maintenance, repair and replacement exceeding normal
maintenance of the office combination heat and air
conditioning unit in existence on the Leased Premises
as at the Commencement Date for which the Landlord
shall be responsible;
(ix) depreciation on fixtures, equipment, systems and
facilities serving or comprising the Premises, in
accordance with generally accepted accounting
principles as set out by the Canadian Institute of
Chartered Accountants;
(x) An administrative fee of fifteen percent (15%) of
such total costs including, without limitation, those
costs referred to in subparagraphs (i) to (viii)
inclusive.
(d) Separate Metering: In the event that the Leased Premises or
any part thereof is separately metered for the supply of any
or all public or private utilities for which the Tenant is
liable to pay as Additional Rent under paragraph 5 (c) above,
the Tenant shall pay to the Landlord, or at the Landlord's
option directly to the supplier of the public utility, the
charges billed for the same as and when the same shall become
due and payable, and shall pay in addition thereto, as
Additional Rent, its Tenant's Share of the cost of public or
private utilities supplied to or for the common areas of the
Premises in accordance with the provisions of the within
Section 5.
(e) Estimation and Payment of Additional Rent: The Tenant shall
pay monthly in advance on the date for payment of Base Rent an
amount equal to one-twelfth (1/12) of the amount estimated by
the Landlord to be the Additional Rent for each annual period
ending January 31st during the Term or Renewal Term (the
"Additional Rent Period"). The Landlord shall be entitled
during each Additional Rant Period, upon fifteen (15) days
written notice to the Tenant, to revise its estimate of the
Additional Rent and the said monthly payment accordingly. if
the said monthly amounts received during an Additional Rent
Period are less than the actual Additional Rent due and owing
for that Additional Rent Period, calculated as at October 1st
of each year during the Term, the Tenant shall pay the
deficiency to the Landlord as Additional Rent within fifteen
(15) days following written notice by the Landlord of the
amount of the deficiency. If the said monthly amounts received
are greater than the actual Additional Rent due and owing fox
an Additional Rent Period, the Landlord shall refund the
excess to the Tenant within fifteen (15) days of the
determination of such excess. Should this Lease be terminated
or the Term or a Renewal Term expire other than on January
31st of any year the Additional Rent shall be prorated and
adjusted as required and any excess or overpayment shall be
paid and settled within fifteen (15) days of its determination
by notice in writing.
<PAGE>
6. DEPOSIT
The Landlord acknowledges receipt of the sum of Twenty-two Thousand
Seven Hundred and Fifty-three Dollars and Ninety-five Cents ($22,753.95) payable
to the Landlord's agent as a deposit (the "Deposit") to be held as a security
deposit and to be applied to the Base Rent otherwise due for first and second
months of the Term to the extent that it is not applied from time to time for
the observance of the Tenant's obligations hereunder. If during the first month
of the Term any Additional Rent shall be overdue and unpaid, or the Tenant shall
fail to keep and perform any of the terms, covenants and conditions of this
Lease, then the Landlord, at its option and in addition to any and all other
rights, may appropriate and apply the remainder of the Deposit to the payment of
any such overdue Additional Rent or to compensate the Landlord for loss or
damage sustained or suffered by the Landlord as a result of the Tenant's failure
to keep and perform any of the terms, covenants and conditions of this Lease.
Should the remainder of the Deposit be so appropriated or applied by the
Landlord then, upon written notice by the Landlord the Tenant shall forthwith
remit to the Landlord a sufficient amount in cash to restore the Deposit to the
original sum deposited and the Tenant's failure to do so shall constitute a
breach of this Lease.
7. TENANT'S COVENANTS
The Tenant covenants with the Landlord as follows:
(a) Rent: The Tenant shall pay Base Rent and Additional Rent;
(b) Business Taxes and License Fees: The Tenant shall pay and
remit to the collector of such tax, as and when they become
due and payable, all taxes, assessments and licence fees
levied or imposed in respect of the personal property,
business or income of the Tenant and in respect of any
leasehold improvements or fixtures installed by the Tenant on
the Leased Premises, including any provincial or federal
sales, or goods and services taxes;
(c) Increase of Insurance Premium: The Tenant will not do or omit
to permit to be done or omitted, anything upon the Leased
Premises which shall cause the rate of insurance upon the
Premises (or any part thereof) to be increased, and if the
insurance rate shall be increased as aforesaid the Tenant
shall pay to the Landlord as Additional Rent, the amount by
which the insurance premiums shall be so increased. If notice
of cancellation shall be given respecting any insurance policy
or if any insurance policy upon the Premises or any part
thereof shall be cancelled or not renewed by an insurer by
reason of the use or occupation of the Leased Premises or any
part thereof, the Tenant shall immediately remedy or rectify
such use or occupation upon written notice by the Landlord,
and if the Tenant shall fail to do so immediately the Landlord
may at its option and in addition to any other rights the
Landlord may have under this Lease terminate this Lease
immediately by notice in writing, and thereon Base Rent and
Additional Rent shall be apportioned and paid in full to the
date of such termination of the Lease, and the Tenant shall
immediately deliver up possession of the Leased Premises Ito
the Landlord;
(d) Use of the Premises: The Leased Premises shall be used only
for the purpose of a warehouse for and facility for
distribution of confectionary products unless the Landlord
consents to an other use in writing. The Tenant shall not
carry on or permit to be carried on in the Leased Premises any
business or activity which shall be deemed by the Landlord
upon reasonable grounds to be a nuisance. The Tenant shall not
cause, permit or suffer any unusual or objectionable noises or
odours to emanate from the Leased Premises;
(e) Signs: The Tenant may erect, at its sole cost, an illuminated
sign on the north face of the building on the Premises in
accordance with the Landlord's sign policy and in accordance
with the requirements of the Ministry of Transportation and
other government authorities with jurisdiction over the
erection of the same. A temporary sign approved by the
Landlord may be erected by the Tenant in the location
designated by the Landlord pending the establishment by the
Landlord of its sign policy. The Tenant shall not erect on the
Premises, or affix or attach to the exterior walls or the roof
of any building on the Premises, any other sign, fixture or
attachment of any kind without first receiving the written
consent of the Landlord;
<PAGE>
(f) Maintenance and Repairs: The Tenant shall at all times during
the Term of Renewal Term at its own cost and expense repair,
maintain and keep the Leased Premises, all equipment and
fixtures within the Leased Premises and any improvements now
or hereafter made to the Leased Premises in good order as a
careful owner would do and the Tenant covenants to perform
such maintenance, to effect such repairs and replacements and
to decorate at its own cost and expense as and when necessary
or reasonably required so to do by the Landlord. The Tenant
shall deposit all garbage, debris, trash and refuse in the
areas and manner designated by the Landlord;
(g) To Deliver up the Premises in Good Condition: The Tenant
shall, upon the expiration of the Term or Renewal Term quit
the Leased Premises and deliver them up to the Landlord in as
good a state of repair as they were in at the Commencement
Date, excepting only damage by fire, lightning and tempest,
structural defect, act of God, reasonable wear and tear or
acts of the Landlord, or those for whom it is responsible in
law;
(h) Compliance with Legislation: The Tenant shall observe and
fulfil the lawful provisions and requirements of all statutes,
by-laws, rules and regulations, municipal, provincial or
federal, relating to the Leased Premises, and in particular
and without. limiting the generality of the foregoing, shall
maintain all equipment and apparatus now installed or required
to be installed from time to time by any authority on the
Leased Premises;
(i) Rules: The Tenant and its employees and all persons visiting
or doing business with them on the Leased Premises shall be
bound by and will observe and abide by the rules and
regulations made by the Landlord of which notice in writing
shall be given to the Tenant. All such rules and regulations
shall be deemed to be incorporated in and form part of this
Lease;
(j) Inspection and Repairs by Landlord: The Tenant shall permit
the Landlord or its agents at all reasonable times to inspect
and make repairs to the Leased Premises or any part thereof,
or to show the Leased Premises to prospective purchasers,
tenants, or mortgagees;
(k) Indemnity: The Tenant shall indemnify the Landlord against all
liabilities, costs, fines, suits, claims, demands and actions
and causes of action of any kind for which the Landlord may
become liable by reason of any breach, violation or
non-performance by the Tenant of any covenant, term or
provision of this Lease, or any injury to or death of any
person; or damage to property occasioned by reason of any act,
neglect or default by the Tenant or those for whom it is
responsible in law;
(l) Payments Recoverable as Arrears of Rent: Whenever .any amount
by the terms of this Lease is payable by the Tenant whether as
Additional Rent or otherwise, such amount shall be recoverable
by the Landlord in the same manner as if such amount were Base
Rent in arrears under this Lease;
(m) Arrears: The Tenant shall pay interest on all Base Rent or
Additional Rent in arrears at the rate of twenty (20%) percent
per annum calculated monthly, from the date when the same
became due until paid;
(n) Assignment: The Tenant shall not assign, sublet, share or part
with the possession of the whole or any part of the Leased
premises (all of the foregoing may be collectively referred to
as a "Transfer") without the written consent of the Landlord
which consent may be unreasonably withheld. This prohibition
against a Transfer includes a prohibition against any Transfer
by operation of law. If the Tenant is a corporation and if at
any time during the Term any part or all of the corporate
shares or voting rights of shareholders shall be transferred
by sale, assignment, bequest, inheritance, trust, operation of
law or other disposition, or treasury shares be issued so as
to result in a change in the control of said corporation by
reason of ownership of greater than fifty percent (50%) of the
voting shares of the corporation or otherwise, then and so
often as such change of control shall occur, the Tenant shall
notify the Landlord in writing of such changes and
<PAGE>
the Landlord shall have the right to terminate this Lease at
any time after such change of control by giving the Tenant
sixty (60) days written notice of such termination;
(o) Waiver of Exemptions and Set-off: Notwithstanding anything
contained in The Landlord and Tenant Act, R.S.O. 1980, Chapter
232 or any amendments thereto or any present or future act
(the "Act"), none of the goods or chattels of the Tenant at
any time on the teased Premises shall be exempt from levy by
distress for rent in arrears as provided for by any section of
the Act, and the Tenant waives the benefits of the Act
permitting the Tenant to claim a set-off against rent for any
cause whatsoever;
(p) Tenant's Work: The Tenant shall complete the Tenant's work
identified in schedule C to this Lease.
8. LANDLORD'S COVENANTS
The Landlord hereby covenants with the Tenant as follows:
(a) Quiet enjoyment: The Landlord shall provide quiet enjoyment of
the Leased Premises;
(b) Landlord's Work: The Landlord shall complete the Landlord's
work identified in Schedule D to this Lease.
9. PROVISOS
Provided always and it is hereby agreed as follows:
(a) Fixtures: The Tenant may remove its trade fixtures, provided
that any erection, addition, structure or improvement erected
upon the Leased Premises shall become a part thereof, shall
not be removed and shall be subject to all of the provisions
of this Lease, and no such erection, addition, structure or
improvement shall be erected upon the Leased Premises without
the prior written consent of the Landlord. At the expiry of
the Term or a Renewal Term, if so directed by the Landlord,
the Tenant shall remove such of the improvements to the Leased
Premises as the Landlord may require to be removed, and the
Tenant shall forthwith repair, at its own expense, any damage
to the Leased Premises resulting from the installation or
removal of such improvements;
(b) Insolvency of Tenant: If the Term or any of the goods or
chattels of the Tenant shall be at any time seized or taken in
execution or in attachment by any creditor of the Tenant, or
if a writ of execution shall be issued against the goods and
chattels of the Tenant and remain unsatisfied for ten days, or
if the Tenant executes any conveyance of chattels, other than
a bill of sale of goods in the ordinary course of the Tenant's
business, or if the Tenant shall make any assignment for the
benefit of creditors or any bulk sale or shall be adjudged
bankrupt or insolvent by any court of competent jurisdiction
under any legislation then in force or shall take the benefit
of any Act (that may be in force) for bankrupt or insolvent
debtors or shall attempt to abandon the Leased Premises, or to
sell or dispose of his goods and chattels so that there would
not remain after such sale or disposal a sufficient distress
on the Leased Premises in the opinion of the Landlord for the
then accruing rent, then the current month's Base Rent,
together with the Base Rent for three months next ensuing and
all Additional Rent payable hereunder by the Tenant shall
immediately become due and payable, and the Term shall, at the
option of the Landlord, forthwith be terminated and in each of
the above cases such accelerated Base Rent, Additional Rent
shall be recoverable by the Landlord as if it were rent in
arrears;
(c) Re-entry for Non-Payment of Rent: The Landlord may re-enter
the Leased Premises on non-payment of Base Rent or Additional
Rent, without notice;
<PAGE>
(d) Re-entry for Non-Performance of Covenants: Notwithstanding
anything herein contained to the contrary, if the Tenant shall
fail to comply with any of his covenants hereunder, except the
covenants to pay Base Rent and Additional Rent, the Landlord
may give to the Tenant notice in writing stating the default
with reasonably sufficient particulars and requiring it to be
remedied, and if such default is not remedied by the Tenant
within fifteen (15) days after the receipt of such notice, or
such longer period as may be reasonably necessary in view of
the nature of the default, the Landlord at its option may
either enter the Leased Premises or any part thereof and
repossess them or take such steps as may be necessary to
remedy and correct such default and recover its costs and
expenses incurred in so doing from the Tenant as Additional
Rent;
(e) Further Rights of Re-Entry: If the Term should be seized or
forfeited for any of the causes set forth in proviso 9(b)
above, the Landlord shall have the same right of re-entry
given by proviso 9(d) above;
(f) No Waiver: No waiver of a breach of any of the covenants of
this Lease shall be construed to be a waiver of any succeeding
breach of the same or any other covenant;
(g) Destruction or Damage to Premises: If the Leased Premises are
totally destroyed by fire or other cause or are damaged by
fire or other cause to the extent of fifty per cent (50%) or
more of their full insurable value, as determined by the
insurer or insurers indemnifying the Landlord against such
hazard, or if the Premises are damaged by fire or other cause
to the extent of fifty per cent or more of its full insurable
value determined as aforesaid whether the Leased Premises or
any part of them are included in such damage or not, the
Landlord may terminate this Lease upon written notice, such
notice to be given within thirty (30) days of the time of such
damage or destruction, and the Tenant shall thereupon
immediately surrender the Leased Premises to the Landlord and
Base Rent and Additional Rent shall be apportioned to the date
of such damage or destruction.
If the Premises or the Leased Premises are destroyed or
damaged by fire or other cause not the result of the
negligence, fault or wilful act of the Tenant, its employees,
servants, agents, invitees or licensees and notice to
terminate this Lease shall not have been duly given, the
Landlord shall repair the same with all reasonable speed and:
(i) if the damage is such as to render the Leased
Premises wholly unfit for occupancy Base Rent and
Additional Rent shall cease from the time of
occurrence of the said damage until the completion of
the repairs by the Landlord or
(ii) if the damage is such that the Leased Premises can be
partially used by the Tenant Base Rent and Additional
Rent shall abate in the proportion that the part of
the Leased Premises rendered unfit for occupancy is
of the whole of the Leased Premises from the time of
occurrence of the damage until the completion of the
repairs by the Landlord; and
(iii) upon the completion of the Landlord's repairs all
Base Rent and Additional Rent shall commence and the
Tenant shall with all reasonable speed and at its own
expense complete all works required fully to restore
the Leased Premises.
(h) Liability for Damage or Injury: All property kept or stored in
the Leased premises shall be at the sole risk of the Tenant.
The Landlord shall not be liable for any injury to or death of
any person, or damage to property in the Leased Premises or in
the Premises from any cause whatsoever;
(i) Net Lease: The Tenant acknowledges and agrees that it is
intended that this Lease is a completely carefree net lease to
the Landlord, and, except as expressly herein set out, that
the Landlord is not responsible during the Term of the Lease
for any costs, charges, expenses and outlays of any nature
whatsoever arising from or relating to the Leased Premises or
the use and occupancy thereof or to the contents thereof, or
the business carried on therein, and the Tenant shall pay all
charges, impositions, costs and expenses of any nature or kind
relating to toe Leased Premises, except as expressly herein
set out;
<PAGE>
(j) Holdover: Any holdover after the end of the Term or any
Renewal Term shall be construed to be a tenancy from month to
month upon the same terms as specified herein at a monthly
Base Rent equal to twice the amount of Base Rent for the last
month of the expired Term or Renewal Term;
(k) Postponement: This Lease and everything herein contained shall
be deemed at the option of the Landlord to be subordinate to
any charge or charges from time to time created by the
Landlord by mortgage or charge on the Leased Premises or the
Premises. The Tenant shall promptly at any time as required by
the Landlord, execute all documents and give such further
assurances as may be reasonably required to postpone its
rights and privileges to the holder of any charge or mortgage
provided that such mortgage or charge shall permit the Tenant
to remain in quiet possession of the Leased Premised in
accordance with the terms and conditions of this Lease for so
long as the Tenant is not in default hereunder, whether such
mortgage or charge is in good standing or not;
(1) Acknowledgments by Tenant: The Tenant agrees that it will at
any time and from time to time upon not less than fifteen (15)
days written notice by the Landlord, execute and deliver to
the Landlord and, if required, to any mortgagee of the
Landlord an acknowledgement in writing as to the status of
this Lease, in the format required by the Landlord or the
mortgagee;
(m) Attorney: The Tenant hereby irrevocably appoints the Landlord
as the Tenant's attorney with full power and authority to
execute and deliver in the name of the Tenant such documents
as may be required to carry out the intent of this Lease;
(n) Limitation of Landlord's Liability: The term "Landlord" as
used in this Lease so far as covenants or obligations on the
part of the Landlord are concerned, shall be limited to mean
and include only the owner or owners at the time in question
of the Premises, and in the event of any transfer of ownership
of the Premises, the Landlord herein named, and in the case of
any subsequent transfers or conveyances, the then vendor or
transferor, shall be automatically freed and relieved from and
after the date of such transfer or conveyance, of all personal
liability for the performance of any covenants or obligations
on the part of the Landlord contained in this Lease;
(o) Registration: The Tenant will not register this Lease or
notice hereof, in any office without the prior written consent
of the Landlord. If the Tenant desires to make a registration
for the purpose only of giving notice of this Lease, then the
parties hereto shall execute a short form of lease solely for
that purpose in a format approved by the Landlord acting
reasonably.
10. TENANT'S INSURANCE
The Tenant shall, throughout the Term, at its sole cost and expense,
take out and keep in full force and effect in the names of the Tenant, the
Landlord, and the Landlord's mortgagees, if any, the following insurance:
(a) insurance upon property of every description and kind owned by
the Tenant or for which the Tenant is legally liable or
installed by or on behalf of the Tenant and which is located
within the Premises in an amount of not less than one hundred
per cent (100%) of the full replacement cost thereof, with
coverage against the perils of fire and standard extended
coverage, including sprinkler leakages (where applicable),
earthquake, flood and collapse;
(b) broad form boiler and machinery insurance on a blanket repair
and replacement basis with limits for each accident in an
amount not less than the replacement cost of all leasehold
improvements and of all boilers, pressure vessels, air
conditioning equipment and miscellaneous electrical apparatus
owned or operated by the Tenant or by others (other than the
Landlord) on behalf of the Tenant in the Leased Premises or
relating to or serving the Leased Premises;
(c) public liability and property damage insurance including
personal injury liability, contractual liability, non-owned
automobile liability and owners' and contractors' protective
insurance
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coverage with respect to the Leased Premises and the Tenant's
use of the Premises to be written on a comprehensive basis
with inclusive limits of not less than Two Million Dollars
($2,000,000) for bodily injury to any one or more persons or
property damage and to provide that it shall not be
invalidated as respects the interests of the Landlord and the
Landlord's mortgagee by reason of any breach or violation of
any warranties, representations, declarations or conditions
contained in the policies. All such policies must contain a
severability of interests clause, a cross liability clause and
shall be primary and shall not call into contribution any
other insurance available to the Landlord or to the Landlord's
mortgagee. The Tenant agrees that certificates of insurance
or, if required by the Landlord or the Landlord's mortgagee,
certified copies of each such insurance policy, will be
delivered to the Landlord as soon as practicable after the
placing of the required insurance. All such policies shall
contain an undertaking by the insurers to notify the Landlord
and the Landlord's mortgagees in writing not less than thirty
(30) days prior to any material change, cancellation, failure
to renew, or termination thereof.
11. NOTICES
Any notice, demand, request, consent, agreement or approval which may
be required to be given pursuant to this Agreement shall be in writing and shall
be sufficiently given or made if served personally upon the party for whom it is
intended, or (except in the case of an actual or pending disruption of postal
service) if mailed by registered mail, or if sent by facsimile transmission, as
follows:
(a) the Landlord, addressed to it at:
P.O. Box 115
Commerce Court Postal Station
Toronto, Ontario M5L 1E5
Attention: Manager, Commercial Lending
Fax No.: (416) 784-7348
(b) the Tenant, addressed to it at:
8 Burford Road
Hamilton, Ontario.
Attention: Management
Fax No.: (416)
or to such other address or in care of such other officers or
to such other telefax number in Canada as a party may from
time to time advise the other party by notice in writing. The
date of receipt of any such notice, demand, request, consent,
agreement or approval, if served personally, shall be deemed
to be the date of delivery thereof, or if mailed as aforesaid,
the third day following the date of mailing (excepting
Saturdays, Sundays and Statutory Holidays observed in the
Province of Ontario), or if sent by telefax, upon the date of
receipt of complete, legible, facsimile transmission. No
notice may be given by mail at any time when a threatened or
actual stoppage of work exists in the post office in the
municipalities from which or to which notices are being sent.
12. GENERAL
(a) Time shall be the essence of this Lease and of each of the
provisions hereof;
(b) No waiver by the Landlord of any breach by the Tenant of any
of its covenants, obligations, or agreements under this Lease
and no waiver by the Landlord of any term or condition of this
Lease shall be a waiver of any subsequent breach or failure of
any other covenant, obligation, agreement, term or condition,
nor shall any forbearance to seek a remedy for any breach or
failure be a waiver of any rights and remedies with respect to
such or any subsequent breach or failure;
<PAGE>
(c) This Lease contains the whole agreement between the parties
with respect to the subject matter of this Lease. There is no
representation, warranty, collateral agreement or condition
affecting the Premises, the Leased Premises or this Lease
other than as expressed in this Lease;
(d) This Lease may not be amended or altered except by instrument
in writing signed by the Landlord and the Tenant;
(e) The Landlord does not in any way or for any purpose become a
partner of the Tenant in the conduct of its business or
otherwise or a member of a joint venture or joint enterprise
with the Tenant. It is not intended that any agency be
established between the Landlord and the Tenant;
(f) This Lease shall be construed and enforced in accordance with
the laws of the Province of Ontario;
(g) This Lease is entered into subject to the express condition
that it is to be effective only if the provisions of Section
49 of the Planning Act, as amended, are complied with;
(h) If any covenant, obligation, agreement, term or condition of
this Lease or the application thereof to any person or
circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application
of such covenant, obligation, agreement, term or condition to
persons or circumstances other than those to which it is held
unenforceable, shall not be affected thereby and each
covenant, obligation, agreement, term and condition of this
Lease shall be separately valid and enforceable to the fullest
extent permitted by law;
(i) The headings of this Lease have been inserted for convenience
of reference only and do not form part of this Lease. They
shall not be referred to in the interpretation of this Lease;
(j) This Lease shall be read with all changes of gender and number
required by the context;
(k) All rights and liabilities herein granted to, or imposed upon
the respective parties hereto, extend to and bind the
successors and assigns of the Landlord and the heirs,
executors, administrators, and permitted successors and
assigns of the Tenant as the case may be. If there is more
than one Tenant, they are all bound jointly and severally by
the terms, covenants and conditions herein;
(1) This Agreement may be executed in several counterparts, each
of which so executed shall be deemed to be an original and
such counterparts together shall constitute one and the same
agreement;
(m) The schedules A, B, C, D and L appended to this Lease form
part of this Lease.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement under seal.
CIBC MORTGAGE CORPORATION
this 3rd day of February, 1992.
Per: /s/ R.W. Fenwick, Vice President
------------------------------------
Per:
------------------------------------
TRIPLE-C-IMPORTS LIMITED
this 31st day of February, 1992.
Per: /s/ Jack Scholtens, Vice President
------------------------------------
Per:
------------------------------------
<PAGE>
SCHEDULE A
Legal Description of Premises
Part Lot 23, Concession 1, designated as Parts 1 and 2 on Reference Plan
62R-9578, City of Hamilton, Regional Municipality of Hamilton-Wentworth
<PAGE>
SCHEDULE B
Floor Plan of Premises Identifying Leased Premises
[NOTE: This section, which cannot be reproduced electronically, is a floor plan
of the Leased Premises]
<PAGE>
SCHEDULE C
Tenant's Work
The Tenant shall complete the following work and installations at its
sole expense. The Landlord's consent must be obtained on all plans prior to
construction, which consent will not be withheld unreasonably. The Landlord
shall permit the Tenant to take possession of the Leased Premises prior to the
Commencement Date for the purposes of completing the within work and the receipt
of shipments of goods from suppliers provided the Tenant's early possession does
not interfere with the use of the Premises by the other tenants of the Landlord.
Such early possession shall be free of Base Rent. The Tenant shall be
responsible for payment of Additional Rent through such period. The Tenant shall
be solely responsible for obtaining all necessary building permits and approvals
and shall keep title to the Premises free of any construction lien for such work
and improvements. In the event that such a lien is registered, the Tenant
covenants to remove such lien immediately at its own expense, failing which the
Landlord may remove such lien and the Landlord's entire costs and expenses in so
doing shall be borne by the Tenant.
1. The Tenant shall renovate the office space existing in the
Leased Premises and shall construct approximately 2,500 square
feet of additional office space, including thermopane windows
on the south wall of the office extension as shown on Schedule
E of this Lease. The Landlord agrees to pay the cost of a
space planner to a maximum amount of Five Thousand Dollars
($5,000.00) to work on the Tenant's behalf for the purpose of
providing an office layout and specifications for paint,
wallcoverings and floorcoverings for the entire office area.
2. The Tenant shall supply and install a roof top air
conditioning unit to the warehouse area of the Leased
Premises. On the expiry of the Term or a Renewal Term, the
Tenant may remove the unit provided all necessary repairs to
the building on the Premises are completed by the Tenant in a
manner acceptable to the Landlord.
<PAGE>
SCHEDULE D
Landlord's Work
The Landlord agrees to provide and install the following work at its
own expense subject to its obtaining price quotes which are satisfactory to it,
said work to be fully completed in a good and workmanlike manner prior to the
Commencement Date subject to delays by causes beyond its reasonable control:
1. Repair and replace heavy duty asphalt immediately in front of the
Tenant's six (6) truck level doors and supply and install concrete
dolly pads for use by the Tenant's trailers in front of each of the six
(6) doors;
2. Remove approximately 242 feet of dividing wall within the building on
the Premises between Sections H and G as indicated on Schedule E hereto
and repair floor as required, subject to receipt of a qualified
engineer's report confirming that the work can be completed without
adversely affecting the structure of the building on the Premises;
3. Construct a new concrete block demising wall to the Leased Premises as
outlined on Schedule E hereto;
4. All mechanical, electrical and overhead doors and dock levellers at the
Leased Premises shall be serviced and in a state of good repair and
fully operable;
5. Arrange for installation of and hook-up of new 600 amp electrical
service to the west wall of the Leased Premises from the main power
house at the northwest end of the building on the Premises, including
the installation of a meter in the power house to permit the electrical
supply to the Leased Premises to be measured by the electrical utility.
It is understood and agreed that the cost of the said installations in
the amount of approximately $43,900.00 (inclusive of provincial sales
tax: exclusive of goods and services tax) shall be shared equally by
the Landlord and the Tenant. The Tenant's share of the cost, in the
total amount of $23,500.00, amortized over the Term at a rate of
interest of 10 percent per annum has been added to the Base Rent
provided for in the Lease, in the amount of $3,695.16 annually, or
$307.93 monthly;
6. Remove high pressure gas piping in the vicinity of the expanded
mezzanine offices in the Leased Premises and install a high pressure
meter and relight all unit heaters at an approximate cost of $3,290.00,
plus applicable tax, the cost of which will be the Tenant's expense to
be due and owing on or before the Commencement Date;
7. Install check meter to permit natural gas supply to the Leased Premises
to be measured by the gas supplier;
8. Replace all tubes, lamps and bulbs in light fixtures in the warehouse
portion of the Leased Premises;
9. Clean the floor of the warehouse portion of the Leased Premises with
high pressure or "power" equipment for that purpose.
In addition to the above and notwithstanding the terms of the Lease the
Landlord shall be responsible for repairs and maintenance to the roof of the
building on the Premises until such time as a new roof over the Leased Premises
is installed, after which time, the maintenance and repairs to the roof over the
Leased Premises will be the Tenant's responsibility, excluding the cost of
repairs resulting from the installation of air conditioners other than the air
conditioning unit installed by the Tenant under the provisions of Schedule C -
Tenant's Work.
