UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly period ended: September 30, 1998
------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number: 0-23804
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Simpson Manufacturing Co., Inc.
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(Exact name of registrant as specified in its charter)
California 94-3196943
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4637 Chabot Drive, Suite 200, Pleasanton, CA 94588
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(Address of principal executive offices)
(Registrant's telephone number, including area code): (925)460-9912
------------
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
The number of shares of the Registrant's Common Stock outstanding as of
September 30, 1998: 11,571,943
----------
<PAGE>
PART I -- FINANCIAL INFORMATION
Item 1. Financial Statements.
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
September 30, December 31,
----------------------------
(Unaudited)
1998 1997 1997
------------ ------------ ------------
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 34,515,012 $ 15,336,889 $ 19,418,689
Trade accounts receivable, net 38,265,344 36,272,399 24,625,568
Inventories 51,699,130 54,342,293 54,982,945
Deferred income taxes 3,289,767 3,462,455 3,536,750
Other current assets 1,504,676 1,055,616 1,723,586
------------ ------------ ------------
Total current assets 129,273,929 110,469,652 104,287,538
Net property, plant and equipment 53,462,633 37,358,613 42,925,088
Investments 535,773 537,509 559,200
Other noncurrent assets 2,993,033 3,270,224 2,993,114
------------ ------------ ------------
Total assets $186,265,368 $151,635,998 $150,764,940
============ ============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Notes Payable and current portion
of long-term debt $ 331,724 $ 29,943 $ 29,605
Trade accounts payable 14,166,453 12,650,774 8,813,196
Accrued liabilities 5,416,675 5,845,211 5,506,903
Income taxes payable 1,304,227 1,582,591 -
Accrued profit sharing trust
contributions 2,463,741 2,251,234 2,886,875
Accrued cash profit sharing
and commissions 5,009,136 4,770,529 3,094,834
Accrued workers' compensation 779,272 809,272 659,272
------------ ------------ ------------
Total current liabilities 29,471,228 27,939,554 20,990,685
Long-term debt, net of current portion 2,722,720 - -
Deferred income taxes and
long-term liabilities 592,453 905,183 823,732
------------ ------------ ------------
Total liabilities 32,786,401 28,844,737 21,814,417
------------ ------------ ------------
Commitments and contingencies (Notes 5 and 6)
Shareholders' equity
Common stock 33,607,488 32,044,605 32,377,563
Retained earnings 120,118,389 90,829,387 96,848,685
Accumulated other comprehensive income (246,910) (82,731) (275,725)
------------ ------------ ------------
Total shareholders' equity 153,478,967 122,791,261 128,950,523
------------ ------------ ------------
Total liabilities and
shareholders' equity $186,265,368 $151,635,998 $150,764,940
============ ============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements.
<PAGE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C>
Net sales $ 77,207,820 $ 68,824,611 $207,248,839 $186,306,707
Cost of sales 47,024,623 40,363,583 126,114,476 112,200,433
------------ ------------ ------------ ------------
Gross profit 30,183,197 28,461,028 81,134,363 74,106,274
------------ ------------ ------------ ------------
Operating expenses:
Selling 6,550,624 5,892,494 18,304,870 17,467,520
General and administrative 8,584,612 8,665,462 24,365,243 22,969,505
Compensation related to stock plans 18,000 290,000 120,000 290,000
------------ ------------ ------------ ------------
15,153,236 14,847,956 42,790,113 40,727,025
------------ ------------ ------------ ------------
Income from operations 15,029,961 13,613,072 38,344,250 33,379,249
Interest income, net 232,500 106,144 553,454 248,233
------------ ------------ ------------ ------------
Income before income taxes 15,262,461 13,719,216 38,897,704 33,627,482
Provision for income taxes 6,027,000 5,531,001 15,628,000 13,661,001
------------ ------------ ------------ ------------
Net income $ 9,235,461 $ 8,188,215 $ 23,269,704 $ 19,966,481
============ ============ ============ ============
Net income per common share
Basic $ 0.80 $ 0.71 $ 2.01 $ 1.74
Diluted $ 0.77 $ 0.68 $ 1.93 $ 1.67
Number of shares outstanding
Basic 11,570,904 11,475,850 11,554,623 11,464,393
Diluted 12,028,293 12,012,522 12,047,356 11,946,675
</TABLE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C>
Net income $ 9,235,461 $ 8,188,215 $ 23,269,704 $ 19,966,481
Other comprehensive income, net of tax:
Foreign currency translation
adjustments 92,451 (98,401) 28,815 (283,185)
------------ ------------ ------------ ------------
Comprehensive income $ 9,327,912 $ 8,089,814 $ 23,298,519 $ 19,683,296
============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements.
<PAGE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months
Ended September 30,
----------------------------
1998 1997
------------ ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 23,269,704 $ 19,966,481
------------ ------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Loss (gain) on sale of capital equipment 17,918 (15,368)
Depreciation and amortization 6,476,887 5,459,743
Deferred income taxes and long-term liabilities 15,702 (790,798)
Equity in income of affiliates (9,000) (110,000)
Noncash compensation related to stock plans 169,894 103,500
Changes in operating assets and liabilities, net of
effects of acquisitions:
Trade accounts receivable (13,609,741) (14,187,289)
Trade accounts payable 5,353,257 1,342,138
Income taxes payable 1,859,638 1,695,718
Inventories 3,297,761 (6,000,885)
Accrued liabilities (90,228) 720,500
Accrued profit sharing trust contributions (423,134) (194,767)
Accrued cash profit sharing and commissions 1,914,302 2,478,472
Other current assets 218,911 (32,566)
Other noncurrent assets (180,252) (46,878)
Accrued workers' compensation 120,000 -
------------ ------------
Total adjustments 5,131,915 (9,578,480)
------------ ------------
Net cash provided by operating activities 28,401,619 10,388,001
------------ ------------
Cash flows from investing activities
Capital expenditures (16,874,152) (9,679,324)
Proceeds from sale of equipment 39,397 56,021
Proceeds from sale of short-term investments - 3,995,333
Acquisitions, net of cash and equity interest
already owned - (9,334,340)
------------ ------------
Net cash used in investing activities (16,834,755) (14,962,310)
------------ ------------
Cash flows from financing activities
Issuance of debt, net of repayments 3,024,839 (260,304)
Issuance of Company's common stock 504,620 356,205
------------ ------------
Net cash provided by financing activities 3,529,459 95,901
------------ ------------
Net increase (decrease) in cash and
cash equivalents 15,096,323 (4,478,408)
Cash and cash equivalents at beginning of period 19,418,689 19,815,297
------------ ------------
Cash and cash equivalents at end of period $ 34,515,012 $ 15,336,889
============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements.
<PAGE>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
Interim Period Reporting
The accompanying unaudited interim condensed consolidated financial
statements have been prepared pursuant to the rules and regulations for
reporting on Form 10-Q. Accordingly, certain information and footnotes
required by generally accepted accounting principles have been condensed
or omitted. These interim statements should be read in conjunction with
the consolidated financial statements and the notes thereto included in
Simpson Manufacturing Co., Inc.'s (the "Company's") 1997 Annual Report on
Form 10-K (the "1997 Annual Report").
The unaudited quarterly condensed consolidated financial statements have
been prepared on the same basis as the audited annual consolidated
financial statements, and in the opinion of management, contain all
adjustments (consisting of only normal recurring adjustments) necessary to
present fairly the financial information set forth therein, in accordance
with generally accepted accounting principles. The year-end condensed
consolidated balance sheet data was derived from audited financial
statements, but does not include all disclosures required by generally
accepted accounting principles. The Company's quarterly results may be
subject to fluctuations. As a result, the Company believes the results of
operations for the interim periods are not necessarily indicative of the
results to be expected for any future period.
Net Income Per Common Share
Basic net income per common share is computed based upon the weighted
average number of common shares outstanding. Common equivalent shares,
using the treasury stock method, are included in the diluted per-share
calculations for all periods when the effect of their inclusion is
dilutive.
The following is a reconciliation of basic earnings per share ("EPS") to
diluted EPS:
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended
September 30, 1998 September 30, 1997
---------------------------------- ----------------------------------
Per Per
Income Shares Share Income Shares Share
------------ ------------ ------ ------------ ------------ ------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS
Income available to
common shareholders $ 9,235,461 11,570,904 $ 0.80 $ 8,188,215 11,475,850 $ 0.71
Effect of Dilutive Securities
Stock options - 457,389 (0.03) - 536,672 (0.03)
------------ ------------ ------ ------------ ------------ ------
Diluted EPS
Income available to
common shareholders $ 9,235,461 12,028,293 $ 0.77 $ 8,188,215 12,012,522 $ 0.68
============ ============ ====== ============ ============ ======
Nine Months Ended Nine Months Ended
September 30, 1998 September 30, 1997
---------------------------------- ----------------------------------
Per Per
Income Shares Share Income Shares Share
------------ ------------ ------ ------------ ------------ ------
Basic EPS
Income available to
common shareholders $ 23,269,704 11,554,623 $ 2.01 $ 19,966,481 11,464,393 $ 1.74
Effect of Dilutive Securities
Stock options - 492,733 (0.08) - 482,282 (0.07)
------------ ------------ ------ ------------ ------------ ------
Diluted EPS
Income available to
common shareholders $ 23,269,704 12,047,356 $ 1.93 $ 19,966,481 11,946,675 $ 1.67
============ ============ ====== ============ ============ ======
</TABLE>
<PAGE>
Newly Issued Accounting Standards
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 131, "Disclosures About
Segments of an Enterprise and Related Information." SFAS No. 131 specifies
revised guidelines for determining an entity's operating segments and the
type and level of financial information to be disclosed. SFAS No. 131 is
effective for annual financial statements issued for periods beginning
after December 15, 1997, and accordingly, management has not determined
the effect, if any, on the Company's financial statements for the three
and nine months ended September 30, 1998.
As of January 1, 1998, the Company adopted SFAS No. 130, "Reporting
Comprehensive Income" and has presented Condensed Consolidated Statements
of Comprehensive Income for the three and nine month periods ended
September 30, 1998 and 1997. The accompanying balance sheets include
accumulated other comprehensive income amounts which consist entirely of
foreign currency translation adjustments.
Certain prior year amounts have been reclassified to conform to the 1998
presentation with no effect on net income as previously reported.
2. Trade Accounts Receivable
Trade accounts receivable consist of the following:
<TABLE>
<CAPTION>
At
At September 30, December 31,
----------------------------
1998 1997 1997
------------ ------------ ------------
<S> <C> <C> <C>
Trade accounts receivable $ 39,858,760 $ 38,189,407 $ 26,398,046
Allowance for doubtful accounts (1,243,048) (1,622,209) (1,539,691)
Allowance for sales discounts (350,368) (294,799) (232,787)
------------ ------------ ------------
$ 38,265,344 $ 36,272,399 $ 24,625,568
============ ============ ============
</TABLE>
3. Inventories
The components of inventories consist of the following:
<TABLE>
<CAPTION>
At
At September 30, December 31,
----------------------------
1998 1997 1997
------------ ------------ ------------
<S> <C> <C> <C>
Raw materials $ 16,941,620 $ 17,980,381 $ 17,882,930
In-process products 5,308,232 6,092,749 5,384,709
Finished products 29,449,278 30,269,163 31,715,306
------------ ------------ ------------
$ 51,699,130 $ 54,342,293 $ 54,982,945
============ ============ ============
</TABLE>
Approximately 89% of the Company's inventories are valued using the LIFO
(last-in, first-out) method. Because inventory determination under the
LIFO method is only made at the end of each year based on the inventory
levels and costs at that time, interim LIFO determinations must
necessarily be based on management's estimates of expected year-end
inventory levels and costs. Since future estimates of inventory levels and
costs are subject to change, interim financial results reflect the
Company's most recent estimate of the effect of LIFO and are subject to
adjustment based upon final year-end inventory amounts. At September 30,
1998 and 1997, and December 31, 1997, the replacement value of LIFO
inventories exceeded LIFO cost by approximately $438,000, $386,000 and
$852,000, respectively.
4. Net Property, Plant and Equipment
Net property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
At
At September 30, December 31,
----------------------------
1998 1997 1997
------------ ------------ ------------
<S> <C> <C> <C>
Land $ 3,891,519 $ 2,785,668 $ 3,366,519
Buildings and site improvements 18,704,333 13,027,998 17,165,509
Leasehold improvements 3,380,305 3,050,405 3,474,278
Machinery and equipment 59,631,004 54,486,765 55,400,034
------------ ------------ ------------
85,607,161 73,350,836 79,406,340
Less accumulated depreciation
and amortization (48,146,143) (40,937,929) (41,986,005)
------------ ------------ ------------
37,461,018 32,412,907 37,420,335
Capital projects in progress 16,001,615 4,945,706 5,504,753
------------ ------------ ------------
$ 53,462,633 $ 37,358,613 $ 42,925,088
============ ============ ============
</TABLE>
5. Debt
Outstanding debt at September 30, 1998 and 1997, and the available credit
at September 30, 1998, consisted of the following:
<TABLE>
<CAPTION>
Available Debt Outstanding
Credit at At September 30,
September 30, ----------------------------
1998 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
Revolving line of credit, interest
at bank's reference rate (at
September 30, 1998, the bank's
reference rate was 8.25%), expires
June 2000 $ 12,667,237 $ - $ -
Revolving term commitment, interest
at bank's prime rate (at September
30, 1998, the bank's prime rate was
8.25%), expires June 2000 8,866,004 - -
Revolving line of credit, interest rate
at the bank's base rate of interest
plus 2%, expires June 1999 424,875 - -
Revolving line of credit, interest rate
at the weighted average French
interbank rate of interest plus 1%,
expires February 1999 178,603 - -
Standby letter of credit facilities 1,466,760 - -
Term loan, interest at LIBOR plus 1.375%
(at October 1, 1998, the LIBOR plus
1.375% was 6.7188%), expires May 2008 - 3,000,000 -
Other notes payable and long-term debt - 54,444 29,943
------------ ------------ ------------
23,603,479 3,054,444 29,943
Less current portion - 331,724 29,943
------------ ------------ ------------
$ 23,603,479 $ 2,722,720 $ -
============ ============
Standby letters of credit issued
and outstanding (1,466,760)
------------
$ 22,136,719
============
</TABLE>
The Company has three outstanding standby letters of credit. Two of these
letters of credit, in the aggregate amount of $667,995, are used to
support the Company's self-insured workers' compensation insurance
requirements. The third, in the amount of $798,765, is used to guarantee
performance on the Company's leased facility in the UK. In June 1998, the
Company's subsidiary, Simpson Dura-Vent Company, Inc., borrowed $3,000,000
to finance the construction of its new facility in Ceres, Mississippi.
Other notes payable represent debt associated with foreign businesses
acquired in March 1997.
6. Commitments and Contingencies
Note 9 to the consolidated financial statements in the Company's 1997
Annual Report provides information concerning commitments and
contingencies. From time to time, the Company is involved in various legal
proceedings and other matters arising in the normal course of business.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Certain matters discussed below are forward-looking statements that
involve risks and uncertainties, certain of which are discussed in this
report and in other reports filed by the Company with the Securities and
Exchange Commission. Actual results might differ materially from results
suggested by any forward-looking statements in this report.
The following is a discussion and analysis of the consolidated financial
condition and results of operations for the Company for the three and nine
months ended September 30, 1998 and 1997. The following should be read in
conjunction with the interim Condensed Consolidated Financial Statements
and related Notes appearing elsewhere herein.
Results of Operations for the Three Months Ended September 30, 1998,
Compared with the Three Months Ended September 30, 1997
Net sales increased 12.2% in the third quarter of 1998 as compared to the
third quarter of 1997. The increase reflected sales growth throughout the
United States and abroad, particularly in California. Simpson Strong-Tie's
third quarter sales increased 13.5% over the same quarter last year, while
Simpson Dura-Vent's sales increased 7.1%. Homecenters and contractor
distributors were the fastest growing connector sales channels. The growth
rate of Simpson Strong-Tie's seismic and high wind and connectors for
engineered wood products was strong. Sales of the Company's Anchoring
Systems products increased. Simpson Dura-Vent sales of Direct-Vent products
increased significantly and the growth rate in the sales of gas vent
products was positive, while chimney and pellet stove products declined.
Income from operations increased 10.4% from $13,613,072 in the third
quarter of 1997 to $15,029,961 in the third quarter of 1998. Gross margins
decreased from 41.4% in the third quarter of 1997 to 39.1% in the third
quarter of 1998 as a result of higher costs, with factory overhead costs
associated with recently added capacity being the most significant item.
Selling expenses increased 11.2% from $5,892,494 in the third quarter of
1997 to $6,550,624 in the third quarter of 1998. The increase was
primarily due to higher promotional expenses as well as higher costs
related to an increase in the number of sales and marketing personnel.
General and administrative expenses decreased 1.0% from $8,665,462 in the
third quarter of 1997 to $8,584,612 in the third quarter of 1998. The
effective tax rate decreased from 40.3% in the third quarter of 1997 to
39.5% in the third quarter of 1998, primarily as a result of the expected
realization of additional investment tax credits in 1998.
Results of Operations for the Nine Months Ended September 30, 1998,
Compared with the Nine Months Ended September 30, 1997
Net sales increased 11.2% in the first nine months of 1998 as compared to
the first nine months of 1997. The increase reflected sales growth
throughout the United States, particularly in the Southeastern region of
the country and in California. International sales also increased at an
above average rate, a portion of which was related to the businesses
purchased in March 1997. Simpson Strong-Tie's sales for the first nine
months of 1998 increased 13.1% over the same period in the prior year,
while Simpson Dura-Vent's sales increased 3.9%. Homecenters and contractor
distributors were the fastest growing connector sales channels. The growth
rate of Simpson Strong-Tie's seismic and high wind and connectors for
engineered wood product sales was strong. Anchoring Systems products also
contributed significantly to the increase in sales. Direct-Vent products
led Simpson Dura-Vent's sales with a strong growth rate as compared to the
same period in the prior year.
Income from operations increased 14.9% from $33,379,249 in the first nine
months of 1997 to $38,344,250 in the first nine months of 1998. Gross
margins decreased from 39.8% in the first nine months of 1997 to 39.1% in
the first nine months of 1998. Selling, general and administrative
expenses increased in the first nine months of 1998, but were lower as a
percentage of sales. Selling expenses increased 4.8% from $17,467,520 in
the first nine months of 1997 to $18,304,870 in the first nine months of
1998. The increase was primarily due to higher expenses related to the
increase in the number of sales and marketing personnel, offset partially
by higher costs associated with acquiring additional homecenter business
in 1997. General and administrative expenses increased 6.1% from
$22,969,505 in the first nine months of 1997 to $24,365,243 in the first
nine months of 1998. The increase was primarily due to increased cash
profit sharing resulting from higher operating income. The effective tax
rate decreased from 40.6% in the first nine months of 1997 to 40.2% in the
first nine months of 1998.
<PAGE>
Liquidity and Sources of Capital
As of September 30, 1998, working capital was $99.8 million as compared to
$82.5 million at September 30, 1997, and $83.3 million at December 31,
1997. The principal components of the increase in working capital from
December 31, 1997, were increases in cash and cash equivalents of
approximately $15.1 million and in the Company's trade accounts receivable
totaling approximately $13.6 million, primarily due to higher sales levels
and seasonal buying programs. Partially offsetting these increases were
increases in certain liability accounts, including trade accounts payable,
accrued cash profit sharing and commissions and income taxes payable.
These accounts increased an aggregate of approximately $8.6 million as
well as a decrease in inventory levels of approximately $3.3 million. The
balance of the change in working capital was due to the fluctuation of
various other asset and liability accounts. The working capital change
combined with net income and noncash expenses, such as depreciation,
amortization and the issuance of stock under the Company's stock bonus
plan, totaling approximately $29.9 million, resulted in net cash provided
by operating activities of approximately $28.4 million. As of September
30, 1998, the Company had unused credit facilities available of
approximately $22.1 million.
The Company used approximately $16.8 million in its investing activities,
primarily to purchase the capital equipment and property needed to expand
its capacity. The Company plans to continue this expansion throughout the
remainder of the year and into 1999.
Financing activities provided the Company with approximately $3.5 million
in cash. This resulted primarily from the issuance of $3.0 million in debt
which the Company's subsidiary, Simpson Dura-Vent Company, Inc., used to
finance the construction of its new facility in Ceres, Mississippi. The
balance of the cash was generated by the issuance of stock upon the
exercise of stock options by current and former employees.
The Company believes that cash generated by operations and borrowings
available under its existing credit agreements, will be sufficient for the
Company's working capital needs and planned capital expenditures through
the remainder of 1998 and into 1999. Depending on the Company's future
growth, it may become necessary to secure additional sources of financing.
Year 2000 Issue
The year 2000 issue is primarily the result of computer programs and
computer controlled equipment using two digits rather than four to define
the applicable year. Such software may recognize a date using "00" as the
year 1900 rather than the year 2000. This could potentially result in
system failures or miscalculations leading to disruptions in the Company's
activities or those of its significant customers, suppliers and banks.
The Company does not produce or sell any computer components, software or
electronic parts in its normal business environment, and therefore, does
not believe that it has any material risk of product liability or
obsolescence resulting from the year 2000 issue.
In 1998, the Company established a Year 2000 Committee (the "Committee")
to evaluate the extent, if any, of its year 2000 and associated problems,
to make any required changes and to establish contingency plans. The
Company's computer systems are PC based with few interfaces to other
internal systems. These systems use a date handling routine that the
Company believes to be year 2000 compliant. The Company has conducted
preliminary tests of its internal software which do not demonstrate a
significant risk from the year 2000 issue. The Company plans additional
tests of these systems to validate the preliminary test results. Should
any year 2000 or associated problems be discovered, the Company intends to
fix or replace any non-compliant internal software with code or software
that is year 2000 compliant. The Company's current target is to identify
and resolve any compliance issues in its important business information
systems by early 1999.
The Company is also focusing on major customers, suppliers and equipment
used in its operations to assess compliance. The Committee will continue
to evaluate these areas of exposure and, where necessary, will develop
contingency plans and alternative sources in order to avoid any
interruptions in the Company's business. Nevertheless, the Company cannot
give any assurance that there will not be a material adverse effect on the
Company if third parties with whom the Company conducts business do not
adequately address the year 2000 issue and, therefore, are unable to
conduct their operations without interruption.
<PAGE>
Costs related to the year 2000 issue are funded through operating cash
flows. The Committee estimates that the costs of conversion is expected to
be less than $100,000. The Company presently expects that the total cost
of achieving year 2000 compliant systems will not be material to its
financial condition, liquidity or results of operations.
Time and cost estimates are based on currently available information.
Developments that could affect estimates include, but are not limited to,
the availability and cost of trained personnel, the ability to locate and
correct all relevant computer code and systems, and remediation success of
the Company's customers, suppliers and banks.
<PAGE>
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
From time to time, the Company is involved in various legal proceedings
and other matters arising in the normal course of business.
ITEM 2. CHANGES IN SECURITIES.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
Alan R. McKay, an outside Director since the Company's initial public
offering in May 1994, resigned from the Board of Directors (the "Board")
in September 1998. His services will be missed as he provided the Board
with the insights of a highly respected structural engineer. The search
for a suitable replacement is underway.
If any shareholder should submit a proposal for a vote at the Company's
Annual Meeting of Shareholders in 1999 and if the proponent does not
request that the proposal be included in the Company's proxy materials,
the proxies solicited by the Company's management will confer
discretionary authority to vote for or against the proposal unless the
Company receives notice of the proposal on or before February 28, 1999.
Item 6. Exhibits and Reports on Form 8-K.
<TABLE>
<CAPTION>
a. Exhibits.
EXHIBIT
NO DESCRIPTION
------- ------------------------------------------------------
<S> <C>
10.1 Lease, dated May 26, 1998, between Minuk Developments
Inc. and Simpson Strong-Tie Canada Limited.
11 Statements re computation of earnings per share
27 Financial Data Schedule, which is submitted
electronically to the Securities and Exchange
Commission for information only and not filed.
b. Reports on Form 8-K
</TABLE>
No reports on Form 8-K were filed during the quarter for which this report
is filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Simpson Manufacturing Co., Inc.
-------------------------------
(Registrant)
DATE: NOVEMBER 13, 1998 By: /s/Stephen B. Lamson
------------------ -------------------------------
Stephen B. Lamson
Chief Financial Officer
EXHIBIT 10.1
------------
THIS INDENTURE made the 26th day of May, 1998
B E T W E E N:
MINUK DEVELOPMENTS INC.,
a corporation incorporated under the
laws of the Province of Ontario
(hereinafter called the "Landlord")
OF THE FIRST PART
-- and --
SIMPSON STRONG-TIE CANADA LIMITED,
a corporation incorporated under the
laws of the Province of Ontario
(hereinafter called the "Tenant")
OF THE SECOND PART
ARTICLE I - DEMISE AND TERM
Definitions:
1.01 The parties hereto agree that when used in this Lease or in any
Schedule attached to this Lease, the words or expressions defined in
Schedule "B" hereto shall have the meanings set forth therein.
Construction of Building:
1.02 The Landlord agrees to construct, at its own expense, and prior to
the date set for occupancy by the Tenant as contemplated hereinafter, the
Building which comprises approximately one hundred and four thousand
(104,000) square feet of net rentable ground floor area in size ("Net
Rentable Area"). The Landlord covenants that the Building shall be
constructed on the property more particularly described on Schedule "A"
hereto (the "Lands") on the basis that the construction shall be in
accordance with the particulars noted in Schedule "C" hereto and in
compliance with all laws and regulations. The Lands and Building are
hereinafter collectively referred to as the "Leased Premises" and are
depicted on Schedule "D" hereto.
Construction Delay
1.03 (a) The Landlord covenants and agrees that the Landlord's work as
outlined in Schedule "C" hereto (the "Landlord's Work") will
be substantially completed (as determined by the landlord's
architects or engineers, acting reasonably) on or before
January 31, 1999. During the period of the Landlord's Work,
the Tenant will be permitted to have its contractors and
agents working in conjunction and cooperatively with the
Landlord's contractors and agents to perform any work which
the Tenant may wish to do. The Tenant shall have a period of
ten (10) days commencing on February 1, 1999 (the "Possession
Date") , to inspect the Leased Premises and provide to the
Landlord a list of any deficiencies in the construction of the
Leased Premises. The Landlord shall diligently proceed to
correct all such deficiencies, to the reasonable satisfaction
of the Tenant, within thirty (30) days following the
Possession Date.
<PAGE>
(b) If the Landlord is delayed in completing construction of the
Leased Premises as a result of any act of God, strike,
lockout, civil commotion, hostilities, sabotage, governmental
regulations or controls, inability to obtain any material,
service or financing or any other cause beyond the control of
the Landlord (referred to herein as "Force Majeure"), and the
Tenant cannot take possession of the Leased Premises on the
Possession Date, then the Possession Date and the Commencement
Date shall be extended for a period equal to the period of any
such delay, and no Minimum Rent or Additional Rent shall be
payable until the Commencement Date.
(c) If the Landlord is delayed in completing construction of the
Leased Premises due to the fault or negligence of the
Landlord, and the Tenant cannot take possession of the Leased
Premises on the Possession Date, then the Possession Date and
the Commencement Date shall be extended for a period equal to
the period of any such delay, and no Minimum Rent or
Additional Rent shall be payable until the Commencement Date,
and the Landlord shall pay to the Tenant all direct reasonable
costs incurred by the Tenant during the period of such delay
at the rate of One Thousand Dollars ($1,000.00) per day. The
Tenant shall forthwith, on the request of the Landlord,
provide to the Landlord satisfactory evidence of all such
costs incurred.
(d) In the event of delay under subsection (b) or (c) above, if
the Possession Date is extended from February 1, 1999 , for a
period exceeding sixty (60) days, the Landlord shall pay to
the Tenant One Thousand Dollars ($1,000.00) for each calendar
day following April 1, 1999, until the extended Possession
Date.
Leased Premises:
1.04 In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of the Tenant to be paid, observed and
performed, the Landlord does demise and lease unto the Tenant and the
Tenant leases from the Landlord, the Leased Premises.
Term:
1.05 The Tenant shall have and hold the Leased Premises for and during
the term of ten (10) years commencing on the 1st day of March, 1999 and
ending on the 28th day of February, 2009 (the "Term"), unless sooner
terminated pursuant to any of the provisions hereof or extended pursuant
to Section 1.06 .
Right to Renew:
1.06 Provided the Lease is in good standing and the Tenant is not then in
default thereunder, the Tenant shall have the right to renew this Lease
for two (2) additional periods of five (5) years, (each such period
called the "Renewal Period"), on the same terms and conditions as in the
Lease, save as to the Minimum Rent which shall be the then current rate
for a similar building of similar condition in a similar location,
provided that the rate during the first Renewal Term shall not be less
than Five Dollars ($5.00) per square foot and not more than Six Dollars
($6.00) per square foot, and save that there shall be no Rent-Free Period
or further right to renew during the second Renewal Period. Each such
Renewal Period shall follow consecutively upon the expiration of the
original Term of the Lease or upon the expiration of the Prior Renewal
Period, as the case may be. Notice of intent to renew must be given in
writing by the Tenant to the Landlord at least three hundred and sixty-
five (365) days prior to expiration of the Term or the first Renewal
Period, as the case may be. If the parties cannot agree to the Minimum
Rent payable within one hundred and eighty (180) days of the exercise of
the relevant right to renew, the Minimum Rent shall be determined by a
single arbitrator to be agreed upon by the Landlord and Tenant and, in the
event that the Landlord and Tenant cannot agree upon a single arbitrator,
an arbitrator shall be appointed pursuant to the provisions of the
Arbitration Act of Ontario S.O. 1991. If the Minimum Rent has not been
agreed upon or fixed by arbitration by the commencement of either Renewal
Period, then the Tenant shall continue to pay the same Minimum Rent as
that paid during the last year of the immediate prior Term, subject to
adjustments and arbitration. The expenses of the arbitration shall be
shared equally by the parties. Save in respects inconsistent with the
foregoing, the arbitration shall be subject to the Arbitration Act of
Ontario S.O. 1991. Any decision of the arbitration shall be retroactive
to the beginning of the applicable Renewal Term.
<PAGE>
Early Termination:
1.07 Notwithstanding anything contained herein, the Tenant shall have the
right to terminate this Lease effective February 1, 2004 provided that it
gives written notice to the Landlord of its intentions to so terminate no
later than July 31, 2003, together with a payment by certified cheque to
the Landlord in the amount of Four Hundred and Seventy-Five Thousand
Dollars ($475,000.00). If the Option to Expand referred to in Section
15.01, has been exercised in accordance with Section 16.01 hereof, this
early termination right shall be null and void.
Acceptance of Premises:
1.08 The Tenant shall examine the Leased Premises before taking
possession hereunder and such taking of possession shall be conclusive
evidence as against the Tenant that at the time thereof the Leased
Premises were in good order and satisfactory condition and that all
promises, representations and undertakings by or binding upon the Landlord
with respect to any alteration, remodeling or decorating of or
installation of fixtures in the Leased Premises, have been fully satisfied
and performed by the Landlord. The Tenant acknowledges that the existing
leasehold improvements, if any, are acceptable and that the Tenant is
taking possession of the Leased Premises on an "as is" basis.
ARTICLE II - LANDLORD AND TENANT COVENANTS,
REPRESENTATIONS AND WARRANTIES
Landlord Covenants:
2.01 If the Tenant pays the Rent hereby reserved and performs the
covenants herein on its part contained, the Tenant shall and may peaceably
possess and enjoy the Leased Premises for the Term hereby granted without
any interruption or disturbance from the Landlord or any other person or
persons lawfully claiming by, from or under the Landlord.
Tenant Covenants:
2.02 The Tenant covenants to pay Rent and all other charges provided for
in this Lease on their due dates and to observe and perform all of the
covenants and provisions of this Lease on its part to be observed and
performed.
Landlord's Representations and Warranties:
2.03 The Landlord hereby warrants and represents that:
(a) it will be the legal and is the beneficial owner of the Leased
Premises prior to occupancy;
(b) it has the authority to lease the Leased Premises and has entered
into no other agreement to sell or lease the Leased Premises;
(c) all of the Services (as defined in Section 2.06 hereof) shall be
constructed and installed in compliance with all laws and
regulations and will be in proper working order at the Possession
Date;
(d) the Building will be built in a good and workmanlike manner, and
will be as at the Possession Date, in compliance with all
municipal, provincial and federal laws;
(e) the zoning of the Lands is M1 which allows for general industrial
uses including manufacturing, warehousing and office;
<PAGE>
(f) there is no Hazardous Substance (as hereinafter defined), which
requires removal or remediation pursuant to the Legislation (as
hereinafter defined) on or under the Premises;
(g) it has not received notice of, and has no knowledge of or
information with regard to, any pending, contemplated or threatened
judicial or administrative action or of any action pending or
threatened by any adjacent or affected land owner relating to the
existence of any Hazardous Substance on the Leased Premises;
(h) it has complied with the Environmental Protection Act (Ontario)
with respect to the Leased Premises;
(i) except as otherwise provided herein, the Landlord has no knowledge
of existing or threatened environmental litigation or governmental
action with respect to the Leased Premises;
(j) except as otherwise provided herein, the Landlord shall assume full
liability and responsibility for any Hazardous Substance which is
found or discovered, in, on or under the Leased Premises and which
was present or in existence prior to occupancy by the Tenant. To
this end, the Landlord shall be responsible for undertaking at its
sole cost and expense, the removal and disposal of any Hazardous
Substance discovered on, in or under the Leased Premises whether or
not known to the Landlord as of the Commencement Date and whether
or not resulting from any act, omission or negligence of the
Landlord or those for whom it is at law responsible.
Removal of Hazardous Substances
2.04 For the purposes of the foregoing paragraphs, "Hazardous Substance"
means any contaminant, pollutant, dangerous substance, potential dangerous
substance, noxious substance, toxic substance, hazardous waste, flammable
material, explosive material, radioactive material, urea formaldehyde foam
insulation, asbestos, PCB's, any toxins, a contaminant, or a pollutant in
or pursuant to any applicable federal, provincial or municipal statutes,
by-laws, regulations or orders (the "Legislation").
Notwithstanding the provisions contained herein, the Landlord shall
only be required to remove such Hazardous Substance if such removal is
required pursuant to the Legislation and if such removal is required for
reasons not related to the use of the Leased Premises by the Tenant.
No Use of Leased Premises for Hazardous Substances
2.05 The Tenant will not use or permit the use of the Leased Premises or
any part of it for any business which either directly or indirectly
involves the preparation, production or storage of any Hazardous
Substance, except in the ordinary course of its business and then only in
compliance with the Legislation. The Tenant shall be responsible for, and
shall indemnify the Landlord from, all costs incurred for ensuring
compliance with any applicable laws relating to Hazardous Substances where
the presence of the Hazardous Substances is due to the acts or omissions
of the Tenant, its employees, agents, contractors or persons for whom the
Tenant is in law responsible, as a result of its use of the Leased
Premises during the Term.
Structural Warranties
2.06 It is understood and agreed that the Landlord shall be responsible
for any structural defects (latent or patent) including foundation, roof
structure, floor and walls during the Term and any Renewal Period of the
Lease, and will undertake to repair same at its expense promptly after the
receipt of notice from the Tenant. The Landlord shall ensure that the
roof membrane carries a minimum warranty period of five (5) years. The
Tenant shall only be liable for the cost of repair of any structural
damage caused by any acts or omissions of the Tenant or those for whom the
Tenant is responsible at law. The Landlord shall also, until the later of
one (1) year following the Commencement Date and the expiry of any
applicable warranty period provided for all "HVAC Systems", electrical,
mechanical, plumbing and sprinkler systems (collectively the "Services")
be responsible to ensure that all Services are repaired, maintained, and
in good working order. The Landlord shall transfer any and all trade
warranties to the Tenant following expiry of the said period.
<PAGE>
ARTICLE III - RENT
Intent of Lease:
3.01 The Tenant acknowledges that this is an absolutely carefree and net
lease to the Landlord, except as expressly hereinafter set out and it is
the mutual intention of the parties hereto that the Minimum Rent herein
provided to be paid shall be net to the Landlord clear of all taxes, costs
and charges arising from or relating to the Leased Premises. Charges of a
kind personal to the Landlord such as taxes assessed on the income of the
Landlord, estate and inheritance tax and similar taxes and principal and
interest payments to be made by the Landlord in satisfaction of mortgages
now or hereinafter registered against the Leased Premises shall not be
the responsibility or obligation of the Tenant.
Minimum Rent
3.02 The Tenant covenants to pay yearly and every year during the first
five (5) years of the Term unto the Landlord as Minimum Rent for the
Leased Premises the sum of FIVE HUNDRED AND FORTY SIX THOUSAND DOLLARS
($546,000.00) of lawful money of Canada, to be paid in advance in equal
monthly installments of Forty-Five Thousand, Five Hundred Dollars
($45,500.00) per month on the first day of each and every month to the
Landlord during the first five (5) years of the Term and yielding and
paying therefor yearly and every year during the balance of the Term to
the Landlord, the sum of FIVE HUNDRED AND NINETY-EIGHT THOUSAND DOLLARS
(598,000.00) of lawful money of Canada to be paid in advance in equal
monthly installments of FORTY-NINE THOUSAND, EIGHT HUNDRED AND THIRTY-THREE
DOLLARS AND THIRTY-THREE CENTS ($49,833.33) on the first day of each and
every month during the balance of the Term to the Landlord, the first of
such payments to be made on the commencement date of the Term. If the
Term commences on any day other than the first or ends on any day other
than the last day of a month, Minimum Rent and Additional Rent for the
fractions of a month at the commencement and at the end of the Term shall
be adjusted pro rata on a per diem basis.
Calculation of Minimum Rent
3.03 The Minimum Rent is calculated on the basis of the area of the
Building being approximately one hundred and four thousand (104,000)
square feet multiplied by Five Dollars and Twenty-Five Cents ($5.25) per
square foot per annum for the first five years of the Term and Five
Dollars and Seventy-Five Cents ($5.75) per square foot per annum for the
balance of the Term. In the event that the area of the Building is more
or less than one hundred and four thousand (104,000) square feet, then the
Minimum Rent for the Leased Premises shall be adjusted accordingly.
Additional Rent
3.04 The Tenant shall pay Additional Rent due and owing to the
appropriate authority upon receipt of an invoice for such payment and the
Tenant shall provide satisfactory evidence of the due payment of such
amounts to the Landlord upon request. Notwithstanding the foregoing, the
Landlord may, at its option, notify the Tenant that Additional Rent shall
be payable to the Landlord on a monthly basis on the first day of each
month, with such estimated amounts paid to be adjusted upon receipt of
actual invoices and in any event, within thirty (30) days, following each
calendar year.
Deposit
3.05 (a) The Landlord acknowledges receipt by the Landlord's agent, B & M
Losier Realty Ltd. ("Agent") of the sum of Fifty Thousand Dollars
($50,000.00) to be held without interest by the Landlord and to be
applied on account of the Minimum Rent for the first month of the
Term upon the entering into of this Lease;
<PAGE>
(b) The Tenant acknowledges and covenants that it shall pay the sum
of Fifty Thousand Dollars ($50,000.00) on the Possession Date, to
the Landlord and the Landlord acknowledges that such sum shall be
held in an interest bearing account, with all interest accrued to
the account of the Tenant, as a security deposit throughout the Term
of the Lease, for the full and faithful performance by the Tenant of
all the agreements, terms, covenants and conditions herein set forth
with any balance to be applied on account of Minimum Rent due for
the last month of the Term.
Payments to Landlord:
3.06 All payments to be made by the Tenant to the Landlord under this
Lease shall be made at the address hereinafter designated or, at such
other place or places as the Landlord may designate in writing, and to the
Landlord or to such agent of the Landlord as the Landlord shall from time
to time direct.
Overdue Rent:
3.07 The Tenant shall pay the Landlord interest on all overdue Rent, all
such interest to be calculated from the date upon which the amount is
first due hereunder until actual payment thereof and at a rate being the
lesser of five per cent (5%) per annum in excess of the minimum lending
rate to prime commercial borrowers charged by the Landlord's bank from
time to time and the rate permitted by law.
Set-Off:
3.08 All Rent payable by the Tenant to the Landlord shall be paid without
deduction, set-off or abatement except as expressly hereinafter provided.
Adjustments:
3.09 Upon the termination of this Lease other than by reason of default
of the Tenant, the Landlord and the Tenant shall pro-rate, adjust,
apportion and allow between themselves all items of Taxes, insurance,
water rates and other matters of a similar nature, to the intent and
purpose that the Tenant shall bear the burden thereof until it shall
deliver up possession on the termination of this Lease or of any holding
over hereunder and not afterwards.
Goods and Services Tax:
3.10 The Tenant shall pay Minimum Rent and Additional Rent as herein
provided together with all applicable Goods and Services Tax ("GST")
imposed pursuant to the Excise Tax Act, as amended, from time to time, or
any similar or replacement legislation enacted.
Rent Free Period:
3.11 The Tenant shall be given possession of the Leased Premises on the
Possession Date, and for a period of one (1) month the Tenant shall pay no
Additional Rent or Minimum Rent (the "Rent-Free Period"). Additional Rent
and Minimum Rent payments shall commence one (1) month after the
Commencement Date which is presently contemplated as being March 1st,
1999, or such later date that may result from a delay in construction, as
outlined in Section 1.03 hereof At all times during which the Tenant is
in possession of the Leased Premises, the Tenant shall have in effect
insurance contemplated pursuant to the Lease in a form reasonably
acceptable to the Landlord.
ARTICLE IV - TAXES
Taxes Payable by Tenant
4.01 The Tenant shall pay:
(a) the Taxes charged on the Leased Premises;
<PAGE>
(b) all taxes, rates, duties, assessments and other charges that are
levied, rated, charged or assessed against or in respect of all
improvements, equipment and facilities of the Tenant on or in the
Leased Premises or any part thereof; and
(c) every tax and license fee which is levied, rates, charged or
assessed against or in respect of every business carried on in the
Leased Premises or in respect of the use or occupancy thereof or
any part of the Lands or the Building by the Tenant and every sub-
tenant or licensee of the Tenant or against the Landlord on account
of its interest in the Leased Premises, and whether in any case,
any such taxes, rates, duties, assessments or license fees are
rated, charged or assessed by any federal, provincial, municipal,
school or other body during the Term; and
(d) the full amount of any taxes in the nature of a business transfer
tax, value added tax, sales tax or any other tax levied, rates,
charged or assessed in respect of the Rent payable by the Tenant
under this Lease or in respect of the rental of space under this
Lease whether characterized as a goods and services tax, sales tax,
value added tax, business transfer tax or otherwise.
Payment of Taxes:
4.02 (a) Taxes payable pursuant to Section 4.01 (1) shall be paid by the
Tenant to the lawful taxing authority when due or, if directed in
writing by the Landlord, shall be paid to the Landlord within ten
(10) days written demand therefor;
(b) Taxes payable pursuant to Sections 4.01 (b) and (c) shall be
paid by the Tenant to the lawful taxing authority when due;
(c) Taxes payable pursuant to Sections 4.01 (d) and (e) shall be
paid to the Landlord within ten (10) days written demand therefor or
at such time or times as the Landlord from time to time determines
by notice in writing to the Tenant.
Appeal of Assessment:
4.03 The Tenant shall have the right to diligently contest at its own
expense and free expense to the Landlord (and in the name of the Landlord,
if necessary) by appropriate legal proceedings the validity of any Taxes
and if the payment of such Taxes may legally be held in abeyance without
subjecting the Landlord to any liability of whatever nature for failure to
so pay, the Tenant may postpone such payment until the formal
determination of any such proceedings provided they be prosecuted with all
due diligence and dispatch. The Landlord shall execute all powers of
attorney and other documents or proceedings necessary or useful in order
to permit the Tenant to contest, at its own expense in its own name or in
the Landlord's name, the validity of any Taxes. Nothing herein shall
oblige the Tenant or the Landlord to contest the validity of such Taxes.
In the event that the Tenant postpones or defers its obligation to pay the
Taxes in order to perfect the Tenant's contest, then the contest shall not
be undertaken without there being first deposited with the Landlord a sum
of money equal to the amount of the Taxes which are the subject of the
contest, to be held by the Landlord as an indemnity to pay such Taxes upon
conclusion of the contest and all costs thereof which may be imposed upon
the Landlord or the Leased Premises. The Tenant covenants to indemnify
the Landlord from and against payment of all losses, costs, charges and
expenses occasioned by or arising from all Taxes affecting the Leased
Premises.
ARTICLE V - HEATING AND UTILITIES
Utility Charges
5.01 The Tenant shall be solely responsible for and pay to the suppliers
there on the due dates, all charges for telephone, electric current and
all other utilities supplied to or used in connection with the Leased
Premises.
<PAGE>
Heating
5.02 The Tenant shall maintain the temperature in the Leased Premises at
a reasonable level to avoid damage occurring in or to the Leased Premises.
Service Contracts
5.03 (a) The Landlord agrees that until the later of one (1) year
following the Commencement Date of this Lease and the expiry of any
appliance warranty period provided for all "HVAC Systems", and
"Services" to be responsible to ensure that all Services are
repaired, maintained, and in good working order. The Landlord shall
transfer any and all trade warranties to the Tenant following expiry
of the said period.
(b) From and after the expiry of the one (1) year warranty referred
to in Section 5.03 (a), the Tenant covenants that it shall be
solely responsible and shall pay with respect to the Leased
Premises, the aggregate of the total costs and obligations of
supplying water, gas, hydro and electric power ("Utilities") used
or consumed in or with respect to the Leased Premises. Furthermore
the Tenant shall be solely responsible for and pay the cost (which
shall include costs of labour, parts, maintenance and replacement
from time to time either by way of group lamping or otherwise, of
electric light bulbs, tubes and ballasts, fixtures and thermostats
equipment servicing the Leased Premises.
(c) The Tenant covenants and agrees to take out a standard
servicing contract with a capable company for the service and
maintenance of heating units and furnaces and air-conditioning
equipment in the Leased Premises, such contract to include the
monthly cleaning of exchangers and the replacement of filters, and
to keep such contract in force for the Term of the within Lease or
any renewal thereof. The Tenant agrees to provide the Landlord with
a copy of the aforesaid servicing contract. In the event that
during the Term of the Lease or any renewal thereof, any of the
heating units, furnaces or air conditioning equipment require
replacement, new units for the HVAC Systems and new Services systems
are to be installed at the cost of the Tenant.
ARTICLE VI - MAINTENANCE, REPAIR AND ALTERATIONS
Repairs and Replacements
6.01 The Tenant shall make all necessary replacements to and repair the
Leased Premises in all respects both inside and outside including the
drains and sanitary sewers, heating and water apparatus, ventilating, air-
conditioning systems and all fixtures and additions thereto in a state of
repair and condition to the same extent as would a careful owner in
occupation.
Maintenance
6.02 The Tenant shall at all times during the Term at its own cost and
expense be responsible for all routine and periodic maintenance and keep
or cause to be kept, the Leased Premises and all its installations, in a
good state of repair as would a prudent owner of premises of similar size
and condition in a similar location, well maintained, clean and tidy,
including without limiting the generality of the foregoing, keeping the
Building properly painted and decorated and otherwise presentable and of
good appearance and the Lands including without limiting the generality of
the foregoing, the driveways and parking areas free and clear of snow and
ice, and the lawn, trees and shrubs in good order and condition, all to
the standards of a first class industrial building and in accordance with
all the requirements of this Lease and the reasonable requirements of the
Landlord, its insurers and governmental authorities having jurisdiction.
View and Repair
6.03 The Tenant shall allow the Landlord or it duly appointed agent and
work people at reasonable times on prior request to enter the Leased
Premises and view the state of repair and the Tenant shall repair as
aforesaid according to notice in writing, provided always that if the
Tenant shall not within fifteen (15) days after service of such notice,
commence and proceed diligently with the execution of the repairs and
works mentioned in such notice, it shall be lawful for the Landlord to
enter upon the Leased Premises and execute such repairs and works and to
charge the cost thereof to the Tenant.
<PAGE>
Alterations
6.04 (a) The Tenant shall not without the prior written approval of the
Landlord make any installations, alterations, additions, partitions,
repairs or improvements in or to the Leased Premises which might
affect the structural portions of the Leased Premises or the
electrical, heating, ventilating, air-conditioning, sprinkler, fire
protection or other systems therein;, the Tenant's request for
approval shall be in writing and accompanied by an adequate
description of the contemplated work, and where appropriate, working
drawings and specifications therefor; the Landlord's costs of having
its architects, engineers or others examine such drawings and
specifications shall be payable by the Tenant upon demand as
Additional Rent; the Landlord may require that any or all work to
be done hereunder be done by the Landlord's contractors or workmen
or by contractors of workmen engaged by the Tenant but first
approved by the Landlord, and all work shall be subject to
inspection by and the reasonable supervision of the Landlord
including a reasonable supervision fee of the Landlord to be paid by
the Tenant and shall be performed in accordance with all laws and
any reasonable conditions and regulations imposed by the Landlord
and shall be completed in a good and workmanlike manner and with
reasonable diligence in accordance with the approvals given by the
Landlord; any connections of apparatus to the base electrical,
plumbing, heating, ventilating or air-conditioning systems shall be
deemed to be an alteration within the meaning of this Section. The
Tenant shall, at its own cost and before commencement of any work,
obtain all necessary building or other permits and keep same in
force except to the extent such work is to be completed by the
Landlord.
(b) Notwithstanding this Section 6.04 (a), the Landlord agrees to
allow the Tenant to make non-structural alterations and
installations from time to time during the Term, at its own expense,
on written notice to the Landlord. Any structural alterations to
the Building require the written consent of the Landlord, which
consent shall not be unreasonably withheld or delayed. The Tenant
shall obtain all permits from any relevant governmental or utility
authority, required to carry out the alterations and installations
and shall ensure compliance with same. The Tenant shall restore, at
its sole cost and expense, such part of the Leased Premises which
has been altered, to its original condition as is required by the
Landlord, on termination or expiry of the Lease, at the sole option
of the Landlord, acting reasonably. The Tenant shall, at its own
cost and before commencement of any work, obtain all necessary
building or other permits and keep same in force except to the
extent such work is to be completed by the Landlord.
Removal of Fixtures and Improvements
6.05 Leasehold improvements shall immediately become the property of the
Landlord upon affixation or installation without compensation therefor to
the Tenant but the Landlord is under no obligation to repair, maintain or
insure the Leasehold Improvements. Such Leasehold Improvements shall not
be removed from the Leased Premises either during or at the expiration or
earlier termination of the Term, except that the Tenant shall, at the end
of the Term remove such Leasehold Improvements installed or constructed
after the commencement of the Term as the Landlord may require to be
removed. The Tenant may, during the Term remove its trade fixtures
provided that the Tenant is not in default under this Lease and such trade
fixtures are immediately replaced by trade fixtures of equal or better
value. Any removal of such Leasehold Improvements and the Tenant's trade
fixtures shall be done at the Tenant's sole cost and expense and the
Tenant shall make good any damage caused to the Leased Premises or any
part thereof by the installation or removal of such Leasehold Improvements
and trade fixtures. If the Tenant does not remove its trade fixtures at
the expiration or earlier termination of the Term the trade fixtures
shall, at the option of the Landlord, become the property of the Landlord
and maybe removed from the Leased Premises and sold or disposed of by the
Landlord in such manner as it deems advisable. For greater certainty, the
Tenant's trade fixtures shall not include any heating, ventilating and
air-conditioning equipment or other building services or floor covering
affixed to the floor of the Leased Premises. The obligations of the
Tenant set forth herein shall survive the expiry or other termination of
the Term.
<PAGE>
Construction Liens
6.06 The Tenant covenants to pay promptly its contractors and material
men and do any and all things necessary to minimize the possibility of a
lien attaching to the Leased Premises or to any part of the Building or
the Lands and, should any such lien be made or filed, the Tenant shall
discharge the same forthwith (after notice thereof is given to the Tenant)
at the Tenant's expense. In the event the Tenant shall fail to cause any
such lien to be discharged as aforesaid, then, in addition to any other
right or remedy of the Landlord, the Landlord may, but it shall not be so
obligated, discharge same by paying the amount claimed to be due into
Court or directly to any such lien claimant and the amount so paid by the
Landlord and all costs and expenses including solicitors fees (on a
solicitor and his client basis), incurred herein for the discharge of such
lien shall be due and payable by the Tenant to the Landlord as Additional
Rent on demand.
Repairs on Termination, etc.
6.07 At the expiration or sooner termination of the Term, the Tenant
7shall, at its own expense:
(a) deliver up possession of the Leased Premises to the Landlord in
the same condition in which the Tenant is required hereunder to
repair and maintain the Leased Premises, together with all Leasehold
Improvements which the Tenant is required or permitted to leave
therein or thereon free and clear of all encumbrances and in a clean
and tidy condition and free of all rubbish and to deliver to the
Landlord all keys and security devises;
(b) remove any materials which may be deemed by any applicable
legislation as contaminated or hazardous and which have been, during
the Term, brought onto the Leased Premises by the Tenant or which
are a result of the Tenant's use or occupation of the Leased
Premises; and
(c) remove any storage and/or holding tanks whether above ground or
below ground and all pits from the Leased Premises, at the option of
the Landlord.
The covenants contained in this Section shall survive the expiry or other
termination of the Term.
ARTICLE VII - ASSIGNING AND SUBLETTING
Assigning or Subletting
7.01 (a) The Tenant shall not in any event assign this Lease in whole or
in part nor sublet or franchise, license, grant concessions in nor
suffer or permit the occupation by any other party or otherwise part
with or share possession of all or the Leased Premises, or any part
thereof (except to an affiliated corporation pursuant to the Ontario
Business Corporations Act as such Act now exists and regardless of
any amendments thereto) in whole or in part, (all of the foregoing
being collectively referred to in this Section 7.01 as a "Transfer")
without the prior written consent of the Landlord, such consent not
to be unreasonably withheld or unduly delayed; at the time the
Tenant requests such consent the Tenant shall deliver to the
Landlord such information in writing as the Landlord may reasonably
require, including a copy of the proposed offer or agreement, if
any, to assign or sublet or otherwise and the name, address and
nature of business and evidence as to the financial strength of the
proposed assignee or subtenant. In no event shall any assignment of
the Lease release the Tenant from its obligations fully to perform
all the terms, conditions and covenants of this Lease.
PROVIDED however, and it is made a condition to the giving of such
consent that:
(i) The proposed assignee or sublessee of this Lease shall agree in
writing to assume the due and punctual performance of all of
the terms, covenants, conditions and agreements by this Lease
imposed upon the Tenant herein in a form to be approved by the
solicitor for the Landlord;
<PAGE>
(ii) The Tenant shall pay the Landlord all legal fees in connection
with the assignment;
(iii) The consent of the Landlord is not a waiver of the
requirement of the Landlord's consent for subsequent
assignments of the Lease or subletting of the Leased Premises;
(iv) The acceptance by the Landlord of Rent from an assignee or
sublessee without the Landlord's consent shall not constitute
a waiver of the requirement of such consent nor an acceptance
of such party as the Tenant;
(v) The Landlord may, at its option, cancel any options to
purchase, rights to terminate, options to renew and any rights
of first refusal or first opportunity on additional space;
(vi) If the assignment of Lease or subletting of the Leased
Premises does not take place within sixty (60) days of the
giving of consent by the Landlord the consent shall expire and
become null and void;
(vii) If the Lease is disaffirmed, disclaimed or terminated by any
trustee in bankruptcy of an assignee or sublessee, the
original Tenant named in this Lease will be deemed on notice
from the Landlord given within sixty (60) days from the date
of such disaffirmation, disclaimer or termination to have
entered into a Lease with the Landlord containing the same
terms and conditions as in this Lease.
Sublet of Part of Premises
7.03 Notwithstanding anything to the contrary herein provided the
Landlord may in its sole and unfettered discretion refuse to give its
consent to any assigning, subletting, setting over or parting by the
Tenant of less than the whole of the Leased Premises notwithstanding any
act or rule of law or regulation now or hereinafter in force to the
contrary.
Mortgage of Leasehold, etc.
7.04 The Tenant shall not mortgage, pledge, hypothecate or otherwise
encumber all or any portion of the Tenant's interest in this Lease or the
Leasehold Improvements without the consent of the Landlord, such consent
not to be unreasonably withheld or delayed.
Advertising Premises
7.05 The Tenant shall not advertise or allow the Leased Premises or a
portion thereof to be advertised as being available for assignment,
sublease or otherwise without the prior written approval of the Landlord
of the form and content of such advertisement, which approval shall not be
unreasonably withheld, provided that no such advertising shall contain any
reference to the Rent for the Leased Premises.
Disposition by Landlord
7.06 If the Landlord sells or leases the Leased Premises or any part
thereof, or assigns this Lease, and to the extent that the covenants and
obligations of the Landlord hereunder are assumed by the purchaser, lessee
or assignee, the Landlord, without further written agreement, will be
discharged and relieved of liability under the said covenants and
obligations.
Unreasonably Withholding Consent
7.07 Despite the Landlord and Tenant Act of Ontario or any statute passed
to take the place of or to amend the Act, the Landlord will not be
considered to be unreasonably withholding its consent and may, whether or
not it would otherwise be considered unreasonable, refuse to give its
consent if its reason or reasons for doing so is or are reasonably based
upon all of the following factors:
<PAGE>
(a) Any factor which a court of law considered to be reasonable in
a legal proceeding which has been initiated by either party against
the other party hereto;
(b) that any mortgagee whose consent is required, has refused to
consent to the Transfer, provided that such consent is not
unreasonably withheld or delayed by such Mortgagee; and
(c) the capability of the proposed transferee taking into account
the nature of its business and its business reputation.
ARTICLE VIII - USE
Use of Leased Premises
8.01 The Tenant shall not use the Leased Premises, nor allow the Leased
Premises, and in each case, or any part thereof, to be used for any
purpose other than office, manufacturing and warehousing. The Tenant
shall obtain all necessary permits and licenses in respect of its business
on the Leased Premises and shall otherwise be responsible for ensuring
that the conduct of its business complies with all applicable legislative
requirements.
Observance of Law
8.02 The Tenant shall comply promptly with and conform to the
requirements of all applicable statutes, by-laws, laws, regulations,
ordinances and orders from time to time or at any time in force during the
Term of this Lease and affecting the condition, equipment, maintenance,
use or occupation of the Leased Premises and with every applicable
regulation, order and requirement of the Insurance Advisory Organization
or any body having similar functions or of any liability or fire insurance
company by which the Landlord and the Tenant or either of them may be
insured at any time during the Term hereof; and, in the event of the
default of the Tenant under the provisions of this section, the Landlord
may itself comply with any such requirements as aforesaid and the Tenant
will forthwith pay all costs and expenses incurred by the Landlord in this
regard and the Tenant agrees that all such costs and expenses shall be
recoverable by the Landlord as if the same were Additional Rent reserved
and in arrears under this Lease.
Waste and Nuisance
8.03 The Tenant will not use or permit the use of the Leased Premises or
any part of it for any business which either directly or indirectly
involves the preparation, production or storage of any Hazardous
Substance, except in the ordinary course of its business and then only in
compliance with all Environmental Legislation. The Tenant shall be
responsible for, and shall indemnify the Landlord from, all costs incurred
for ensuring compliance with any applicable laws relating to Hazardous
Substances where the presence of the Hazardous Substances is due to the
acts or omissions of the Tenant, its employees, agents, contractors or
persons for whom the Tenant is, in law responsible, as a result of its use
of the Leased Premises during the Term.
Signs
8.04 The Tenant may affix a sign or signs to the Building, subject to the
approval of the Landlord which shall not be unreasonably withheld and
subject to municipal and other governmental regulations in that respect
and the Tenant shall remove the same on the expiration of the Term of this
Lease, or other sooner termination thereof, provided the Tenant at its
expense shall forthwith make good all damages which may be caused or
occasioned by such removal and this covenant shall survive the expiry or
other termination of the Term.
<PAGE>
Outside Storage
8.05 The Tenant shall not store any goods or matter of any kind outside
the Building without the written consent of the Landlord.
Overloading Floors
8.06 The Tenant covenants that it will not bring upon the Leased Premises
or any part thereof any machinery, equipment, article or thing that, by
reason of its weight, size, or operation, might damage the Leased Premises
and will not at any time overload the floors of the Leased Premises. The
Tenant shall remove any such machinery, equipment, article or thing within
five (5) days written notice thereof and if any damage is caused to the
Leased Premises by any machinery, equipment, article or thing or by
overloading or by any act, neglect or misuse on the part of the Tenant or
any of its security agents or employees or any person having business with
the Tenant, the Tenant shall forthwith repair such damage at its own
expense.
ARTICLE IX - INSURANCE AND INDEMNITY
Tenant's Insurance
9.01 The Tenant shall, at its sole cost and expense, maintain in force
during the entire Term and any Renewal Period thereof in the names of the
Tenant, the Landlord and the Landlord's mortgagee, as their respective
interests may appear, if any, the following insurance:
(a) comprehensive general and third party liability insurance
against claims for personal and bodily injury, death, and all risk
liability including property damage arising out of all operations
of the Tenant, (including tenants' legal liability, personal
liability, property damage and contractual liability to cover all
indemnities and repair obligations) with respect to the business
carried on in and from the Leased Premises, in the amount of Five
Million Dollars ($5,000,000.00) per occurrence; and
(b) "all risk" property insurance covering all property owned by
the Tenant, or for which the Tenant is legally liable and
responsible pursuant to this Lease, or which has been installed by
or on behalf of the Tenant including without limitation all
chattels, equipment, furniture, inventory, fixtures and all
Leasehold Improvements and all other contents of the Leased
Premises; in an amount equal to the full replacement value thereof
with coverage against at least the perils of fire and standard
extended coverage including sprinkler leakages (where applicable),
earthquake, flood and collapse.
Any policy written pursuant to paragraph (a) hereof, shall contain a
severability of interest clause and a cross liability clause. All
policies shall contain an undertaking by the insurers to notify the
Landlord and its mortgagee, if any, in writing not less than thirty (30)
days prior to any material change, cancellation or termination thereof and
shall be subject only to such deductibles and exclusions as the Landlord
may approve, acting reasonably.
The Tenant agrees to furnish upon request from the Landlord
verification of compliance with the provisions of this Section 9.01.
Landlord's Insurance
9.02 The Landlord shall, throughout the Term, keep at the sole cost and
expense of the Tenant, the Building and appurtenances thereto, insured to
the following extent:
(a) against such loss or damage as are customarily insured against
under a policy of insurance commonly known as an All-Risk policy;
(b) blanket broad boiler and pressure vessel insurance including
repair or replacement;
<PAGE>
(c) rental income protection insurance with respect to fire and
other usual perils for which such insurance is customarily issued
for a period (as selected by the Landlord) of not less than six (6)
months and not more than twelve (12) months for the Minimum Rent and
other sums payable as Additional Rent under this Lease; and
(d) other casualties as are customarily insured against under
insurance contracts normally entered into from time to time during
the Term by owners of buildings in the area of a character similar
to the Leased Premises for such an amount as in the reasonable
opinion of the Landlord and Tenant is necessary to protect the
Landlord against loss or damage.
Notwithstanding anything herein provided, including the covenant of
the Landlord to take out the aforesaid insurance or the contribution of
the Tenant to the cost of such insurance, nothing herein shall confer any
insurable interest on the Tenant in respect of such insurance and the
Tenant acknowledges that it has no right to receive the proceeds or any
part thereof from such insurance policies.
Limit of Landlord's Liability
9.03 The Landlord shall not be responsible in any way for any injury to
any person (including death) or for any loss of or damage to any property
belonging to the Tenant or to other occupants of the Leased Premises or to
their respective employees, agents, invitees, licensees or other persons
from time to time attending at the Leased Premises while such person or
property is in or about the Leased Premises, including without limiting
the foregoing, any loss of or damage to any property caused by theft or
breakage, or by steam, water, rain or snow or for any loss or damage
caused by or attributable to the condition or arrangements of any electric
or other wiring or for any damage caused by smoke or for any other loss
whatsoever with respect to the Leased Premises, goods placed therein or
any business carried on therein except to the extent such loss or damage
is a result of the negligence of the Landlord, or those for whom it is
responsible in law.
Limit of Tenant's Liability
9.04 The Tenant shall not be liable to the Landlord for any direct
injury, loss or damage required to be insured by the Landlord pursuant to
paragraphs (a) or (b) of Section 9.02.
Indemnity
9.05 The Tenant shall promptly indemnify and save harmless the Landlord
from any and all liabilities, damages, costs, claims, suits or actions
arising out of any breach, violation or non-observance by the Tenant of
any of its covenants and obligations under the Lease; from any damage to
property while such property shall be in or about the Leased Premises
including the systems, furnishings and amenities thereof, as a result of
the willful or negligent act, omission or willful misconduct of the Tenant,
its employees, agents, invitees or licensees or persons for whom the
Tenant is responsible for in law; and from any injury to any employee,
agent, invitee or licensee, of the Tenant, including death resulting at
any time therefrom, occurring on or about the Leased Premises except to
the extent resulting from the negligence of the Landlord or those for whom
it is responsible for in law. Notwithstanding anything else herein
contained, this indemnity shall survive the expiry or earlier termination
of this Lease, in respect of any of the foregoing circumstances during the
Term.
Waiver of Subrogation
9.06 The Tenant hereby waives its right of subrogation and to cause its
insurance carrier to waive such insurance carrier's right of subrogation
against the Landlord.
<PAGE>
ARTICLE X - DAMAGE AND DESTRUCTION
Abatement of Rent
10.01 If the Building or any portion thereof is damaged or destroyed by
fire or by other casualty against which the Landlord is required to insure
for hereunder with the result that a portion of the Building is rendered
un-tenantable in whole or in part, Rent shall abate in proportion to the
area of that portion of the Building which, in the reasonable opinion of
the Landlord's architect or engineer, is thereby rendered unfit for the
purposes of the Tenant bears to the area of the entire Building (but only
to the extent to which the Landlord receives proceeds under its loss of
rental income insurance) until the Building is repaired and rebuilt as
certified by the Landlord's architect and the Landlord agrees that it
will, with reasonable diligence, repair, restore and rebuild the Building
to the extent of the Landlord's Work in Schedule "C". The Landlord's
obligation to rebuild and restore the Building shall not include the
obligation to rebuild, restore, replace or repair any chattel, fixture,
Leasehold Improvement, or any other thing that is the property of the
Tenant and/or for which the Tenant is to maintain insurance under Section
9.01(b), (in this Section collectively called "Tenant's Improvements");
the Building shall be deemed restored and rebuilt when the Landlord's
Architect certifies that the Building has been substantially restored and
rebuilt to the state where the Tenant could occupy it for the purpose of
rebuilding, restoring, replacing or repairing the Tenant's Improvements.
The Tenant covenants to continue to pay that portion of the Rent which is
not abated. The issuance of the Architect's certificate shall not relieve
the Landlord of its obligation to complete the rebuilding and restoration
as aforesaid, but the Tenant shall forthwith after issuance of the
certificate proceed to rebuild, restore, replace and repair the Tenant's
Improvements, and the provisions of Section 6.04 shall apply to such work,
mutatis mutandis. Thereafter, receipt of such certificate, the Tenant
covenants to continue to be responsible for and pay all of the Rent as
required herein in this Lease and resume its obligations to maintain all
of the Leased Premises in accordance with the Lease.
Termination
10.02 Notwithstanding the provisions of Section 10.01 hereof, if:
(a) the Building or any portion thereof is damaged or destroyed by
any cause whatsoever and cannot in the reasonable opinion of the
Landlord's architect or engineer be rebuilt or made fit for the
purpose of the Tenant as aforesaid within one hundred and twenty
(120) days from the date of damage or destruction; or
(b) the Building is damaged or destroyed by an uninsured peril,
either the Landlord, instead of rebuilding or making the Building fit for
the Tenant, or the Tenant, may, at its option, terminate this Lease by
giving to the other party, within forty-five (45) days after the date of
such damage or destruction, notice of termination and thereupon Rent shall
be apportioned and paid to the date of such damage or destruction and the
Tenant shall immediately deliver up possession of the Leased Premises to
the Landlord.
If neither party elects to terminate the Lease the Landlord shall
repair and rebuild the Building and Rent shall abate in accordance with
the provisions of Section 10.01 hereof.
ARTICLE XI - DEFAULT
Events of Default
11.01 An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any part
thereof within five (5) days following receipt of written notice
from the Landlord of such default;
<PAGE>
(b) the Tenant shall have breached or failed to comply with any of
its covenants and agreements contained in this Lease (save for non-
payment of Rent) and shall have failed to remedy such breach or non-
compliance within fifteen (15) days (or such longer period as the
Landlord may reasonably determine, having regard to the nature of
the default) after receipt of written notice thereof given by the
Landlord to the Tenant;
(c) the Tenant shall make any assignment for the benefit of
creditors or any arrangement or compromise or become bankrupt or
insolvent or take the benefit of any act now or hereinafter in force
for bankrupt or insolvent debtors;
(d) the Tenant is a corporation and any order shall be made for the
winding up of the Tenant or other termination of the corporate
existence of the Tenant;
(e) the Tenant makes or attempts to make a bulk sale of any of its
assets regardless of where they are situated;
(f) a trustee, receiver, interim receiver, receiver and manager,
custodian or liquidator is appointed for the business, property,
affairs or revenue of the Tenant;
(g) this Lease or any of the Tenant's assets on the Leased Premises
are taken or seized under writ of execution, an assignment, pledge,
charge, debenture or other security instrument;
(h) the Tenant abandons or attempts to abandon the Leased Premises;
(i) the Leased Premises shall be used by any person other than the
Tenant, the Tenant's successors or permitted assignees or for any
purpose other than that for which the Leased Premises were let;
(j) any insurance policy on the Building or any part thereof shall
be cancelled or shall be threatened by the insurer to be cancelled
or the coverage thereunder reduced in any way by the insurer by
reason of the use or occupation of the Leased Premises or any part
thereof by the Tenant and the Tenant shall have failed to remedy the
condition giving rise to cancellation, threatened cancellation or
reduction of coverage within forty eight (48) hours after receipt of
written notice given by the Landlord to the Tenant;
(k) the Tenant sells or disposes of the goods, chattels or
equipment in the Leased Premises or removes, commences or threatens
to remove them from the Leased Premises so that in the opinion of
the Landlord there would not, in the event of such sale, disposal or
removal, be sufficient goods on the Leased Premises subject to
distress which would satisfy all Rent due or accruing hereunder for
a period of three (3) months;
(l) the Leased Premises are vacant for any period in excess of
fifteen (15) days other than during repairs or renovations;
(m) this Lease or any of the Tenant's assets within the Leased
Premises are taken under any writ of execution; or
(n) re-entry as determined under any other terms of this Lease or
by-law.
Upon the occurrence of an Event of Default, the then current month's
Rent and next ensuing three (3) months' Rent shall immediately become due
and be paid by the Tenant to the Landlord as accelerated Rent and the
Landlord may immediately distrain for the same together with any Rent
arrears then unpaid.
Right of Re-Entry
11.02 (a) Upon the occurrence of an Event of Default, the Landlord may at
any time thereafter, without notice to the Tenant, re-enter the
Leased Premises or any part thereof in the name of the whole and
terminate this Lease and all the rights of the Tenant thereunder.
<PAGE>
(b) If and whenever the landlord exercises its option to re-enter
the Leased Premises and terminate this Lease pursuant to
paragraph (a) of this Section 11.02:
(i) the Tenant shall immediately vacate the Leased Premises and
the Landlord may remove or cause to be removed from the
Leased Premises the Tenant or any other occupant or
occupants thereof and may remove all property therefrom and
sell or dispose of it as the Landlord considers appropriate
without liability for loss or damage and without prejudice
to the rights of the Landlord to recover arrears of Rent or
damages incurred by the Landlord; and
(ii) the Landlord shall be immediately entitled to the payment
of Rent up to the date of termination together with all
expenses incurred by the Landlord in such termination and
the value of the Rent, calculated at the date of
termination, for the unexpired portion of the Term.
Reletting
11.03 At any time when the Landlord is entitled to re-enter the Leased
Premises or terminate this Lease, the Landlord may without notice to the
Tenant and without terminating the Lease enter upon and take custody of
the Leased Premises in the name of and as agent of the Tenant, together
with all the Tenant's improvements, fixtures and furnishings, and sublet
the Leased Premises in the name of and as the agent of the Tenant on
whatever terms the Landlord may deem appropriate but no such action by the
Landlord shall waive any of the obligations of the Tenant or the
subsequent exercise of any of the Landlord's remedies for default. If the
Landlord shall sublet the Leased Premises as aforesaid, the Landlord shall
be entitled to receive all sublease rent and apply the same in its
discretion to any indebtedness of the Tenant to the Landlord hereunder,
and the payment of any costs and expenses of reletting, and the Landlord
shall be liable to account to the Tenant only for the excess, if any, of
monies actually received by it. If the sublease rent is less than is
necessary to pay and discharge all the then existing and continuing
obligations of the Tenant hereunder, the Tenant shall pay such deficiency
from time to time upon demand to the Landlord. Notwithstanding any such
re-entry and subletting without termination, the Landlord may at any time
thereafter terminate this Lease by reason of the previous or any other
default under the Lease and the provisions of Section 11.02 may apply.
Distress
11.04 The Tenant waives and renounces the benefit of any present or
future statute taking away or limiting the Landlord's right of distress,
and covenants and agrees that notwithstanding any such statute none of the
goods and chattels of the Tenant on the Leased Premises at any time during
the Term shall be exempt from levy by distress for rent in arrears.
Right of Landlord to Cure Defaults
11.05 If the Tenant fails to perform or cause to be performed any of the
covenants or obligations of the Tenant herein, the Landlord shall have the
right (but shall not be obligated) to perform or cause to be performed and
to do or cause to be done such things as may be necessary or incidental
thereto (including without limiting the foregoing, the right to make
repairs, installations, erections and expend monies) and all payments,
expenses, charges, fees and disbursements incurred or paid by or on behalf
of the Landlord in respect thereof shall be paid by the Tenant to the
Landlord within ten (10) days written demand therefor together with
reasonable administrative costs of the Landlord in respect thereof.
Remedies Not Exclusive
11.06 Mention in this Lease of any particular remedy or remedies in
respect of any default or threatened default by the Tenant in the
performance of its obligations shall not preclude the Landlord from
exercising, or limit the extent of, any other remedy in respect thereof,
whether at law, in equity or pursuant to any express provision hereof. No
remedy shall be interpreted as exclusive or dependent upon any other
remedy, but the Landlord may from time to time exercise any one or more of
such remedies independently or in combination.
<PAGE>
Non-Waiver
11.07 No condoning, excusing or overlooking by the Landlord of any
default, breach or non-observance by the Tenant at any time or times in
respect of any covenant, proviso or condition herein contained shall
operate as a waiver of the Landlord's rights hereunder in respect of any
continuing or subsequent default, breach or non-observance, or so as to
defeat or affect in any way the rights of the Landlord herein in respect
of any such continuing or subsequent default or breach, and no waiver
shall be inferred from or implied by anything done or omitted by the
Landlord save only an express waiver in writing.
Recovery of Adjustments
11.08 The Landlord shall have (in addition to any other right or remedy
of the Landlord) the same rights and remedies in the event of default by
the Tenant in payment of any amount payable by the Tenant hereunder as the
Landlord would have in the case of default in payment of Rent.
ARTICLE XII - SUBORDINATION AND ACKNOWLEDGEMENTS
Mortgages
12.01 At the option of the Landlord, this Lease shall be subject and
subordinate to any and all mortgages, charges and deeds of trust, which
may now or at any time hereafter affect the Leased Premises in whole or in
part, or the Lands, or the Building whether or not any such mortgage,
charge or deed of trust affects only the Leased Premises or the Lands or
the Building or affects other premises as well. On request at any time
and from time to time of the Landlord or of the mortgagee, chargee or
trustee under any such mortgage, charge or deed of trust, the Tenant shall
promptly, at no cost to the Landlord or mortgagee, chargee or trustee:
(a) attorn to such mortgagee, chargee or trustee and become its
tenant of the Leased Premises or the tenant of the Leased Premises
of any purchaser from such mortgagee, chargee or trustee in the
event of an exercise of any permitted power of sale contained in any
such mortgage, charge or deed of trust for the then unexpired
residue of the Term on the terms herein contained; and/or
(b) postpone and subordinate this Lease to such mortgage, charge or
deed of trust to the intent that this Lease and all right, title and
interest of the Tenant in the Leased Premises shall be subject to
the rights of such mortgagee, chargee or trustee as fully as if such
mortgage, charge or deed of trust had been executed and registered
and the money thereby secured had been advanced before the execution
of this Lease (and notwithstanding any authority or consent of such
mortgagee, or trustee, expressed or implied, to the making of this
Lease),
provided that all such mortgagees, chargees or trustees provide to the
Tenant a non-disturbance agreement.
Any such attornment or postponement and subordination shall extend
to all renewals, modifications, consolidations, replacements and extension
of any such mortgage, charge or deed of trust and every instrument
supplemental or ancillary thereto or in implementation thereof. The
Tenant shall forthwith execute any instruments of attornment or
postponement and subordination which may be so requested to give effect to
this Section.
Certificates
12.02 The Tenant shall execute and deliver to the Landlord at any time
and from time to time at no cost to the Landlord and upon not less than
ten (10) days' prior notice, a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if modified, stating
the modifications and that the Lease is in full force and effect as
modified), the amount of the annual Minimum Rent then being paid
hereunder, the dates to which the same, by installment or otherwise, and
other charges hereunder have been paid, whether or not there is any
existing default on the part of the Landlord of which the Tenant has
notice, and any other information reasonably required.
<PAGE>
Subordination and Acknowledgment
12.03 On or before thirty (30) days prior to the Commencement Date, and
thereafter throughout the Term and any Renewal Period, the Landlord
covenants to obtain from each lender with security registered against the
Leased Premises, an executed non-disturbance agreement in a form
acceptable to the Tenant's solicitor acting reasonably, assuring that,
notwithstanding any default by the Landlord to the lender or any
foreclosure, power of sale or deed in lieu thereof, the Tenant's rights
under this Lease shall continue in full force and effect and its
possession of the Leased Premises shall remain undisturbed.
ARTICLE XIII - ACCESS BY LANDLORD
Entry by Landlord
13.01 The Tenant shall permit the Landlord and its agents, employees or
workmen to enter upon the Leased Premises at any time and from time to
time on prior notice for the purpose of inspecting and making repairs,
alterations or improvements to the Leased Premises and the Tenant shall
not be entitled to any compensation for any inconvenience, nuisance or
discomfort occasioned thereby, but the Landlord and its agents shall make
all reasonable efforts to avoid disruption of the Tenant's business.
Exhibiting Leased Premises
13.02 The Tenant shall permit the Landlord or its agents to exhibit the
Leased Premises to prospective tenants during the last six (6) months of
the Term or any renewal thereof.
ARTICLE XIV
INDEMNIFICATION
Indemnity
14.01 The Landlord is hereby unconditionally and absolutely indemnified
by Simpson Manufacturing Co. Inc. (the "Indemnifier") for the duration of
the Term and any Renewal Period against the failure of the Tenant to
perform any of the Tenant's covenants and obligations contained in this
Lease arising therefrom. The Indemnity Agreement appended hereto as
Schedule "E" shall be executed by the Indemnifier and shall be delivered
to the Landlord together with the Lease, failing which the Landlord may at
any time thereafter at its option declare this Lease to be at an end
without prejudice to any other rights the Landlord may have.
ARTICLE XV
OPTIONS
Option to Expand on Adjacent Land
15.01 Provided that the Tenant is not then in default under the Lease and
at least five (5) years remain in the Term, including any Renewal Period,
if applicable, or such additional time period as may be negotiated between
the parties, the Landlord shall, at the written request of the Tenant,
permit the expansion of the Building by a minimum of forty-thousand
(40,000) square feet of which office space shall comprise no more than
five per cent (5%), unless otherwise negotiated between the parties (the
"Expansion Area") to be constructed, at the option of the Tenant, by the
Landlord or a third party contractor of its choice, on the approximately
two (2) acres of land adjacent to the Leased Premises as outlined in red
on Schedule "D", on the following terms and conditions.
<PAGE>
(a) The annual net rent regarding the Expansion Area shall be the
actual all-inclusive costs (including, without limitation, all hard
and soft costs) in respect of the Expansion Area multiplied by the
Financing Cost;
(b) The Tenant shall provide the Landlord with complete
specifications for the Expansion Area (the "Specifications") for the
Landlord's approval, such approval not to be unreasonably or
arbitrarily withheld or unduly delayed and which specifications
shall be complete and consistent with the quality of the original
construction of the Building. The Landlord shall respond within
twenty-five (25) business days of receiving the Specifications;
(c) Within thirty (30) days of approving the Specifications, the
Landlord shall submit to the Tenant the Fixed Cost price of
constructing the Expansion Area and give the Tenant the option of
having the Expansion Area constructed on a Cost Plus basis. If the
Tenant accepts the Landlords' Cost Plus construction, the Landlord
shall tender all bids to the subtrades it intends to use in the
construction of the Expansion Area (or to such subtrades named by
the Tenant but approved by the Landlord acting reasonably) and the
Landlord shall provide the Tenant with copies of all such bids for
the Tenant's approval (which approval shall not be unreasonably or
arbitrarily withheld or unduly delayed). If the Tenant does not
accept either option, the Tenant shall notify the Landlord, in
writing, within ten (10) days of receiving the Fixed Cost price that
it will have a third party contractor construct the Expansion Area;
and
(d) the Landlord, the Tenant and the Indemnifier shall enter into a
lease amending agreement (to be prepared by the Landlord's
solicitor at the reasonable cost of the Tenant) in order to amend
the Lease mutatis mutandis in respect of the Expansion Area.
In this section, the following terms shall have the following meanings
ascribed thereto:
(i) "Cost Plus" means the aggregate of the Landlord's actual cost
of constructing the Expansion Area in accordance with the
Specifications, which cost shall include all costs associates with
the design and construction of the Expansion Area including, without
limitation, the cost of labour and materials, construction financing
costs, design, supervision, inspection and testing costs,
development charges, and fees for permits, plus five per cent (5%)
of all of the foregoing costs for overhead plus a further five per
cent (5%) of all of the foregoing costs (including but not limited
to overhead) for profit.
(ii) "Financing Cost" means the factor arrived at by taking the
best available rate of interest for permanent financing for
construction of the Expansion Area at the time of construction to
the Landlord plus one and one-half per cent (1-1/2%), based on an
amortization period of twenty (20) years.
(iii) "Fixed Cost" means the Landlord's price to the Tenant to
construct the Expansion Area in accordance with the specifications.
Option to Purchase
15.02 The Tenant shall have the exclusive option to purchase the Leased
Premises at a purchase price of FIVE MILLION, NINE HUNDRED AND SEVENTY-
FIVE THOUSAND DOLLARS ($5,975,000.00), subject to the usual adjustments.
Such option must be exercised by the Tenant by notice in writing to the
Landlord on or before the expiry of the second year of the Term,
accompanied by a deposit by way of certified cheque in the amount of TWO
HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00) payable to the Landlord.
Failure to provide notice and deposit as aforesaid shall mean the option
to purchase is null and void. In the event the option is exercised as
aforesaid, the parties shall execute an Agreement of Purchase and Sale on
the standard Toronto Real Estate Board form as negotiated and amended by
the parties or their respective solicitors (the "Agreement"), which
Agreement shall provide for payment of the Purchase Price by certified
cheque on closing and a closing date of sixty (60) days from the date the
written notice by the Tenant to exercise this option is received by the
Landlord. In the event the Expansion Area has been completed as
aforesaid, the purchase price for the Leased Premises, including the
Expansion Area, shall be as negotiated between the Landlord and the
Tenant. In the event that title to the Leased Premises is as at the date
of exercising said option subject to any mortgage, the Tenant shall have
the option of assuming said mortgage and shall provide such mortgagee with
<PAGE>
all such financial and other information as may be reasonably required for
such assumption. In the event that the Tenant does not wish to assume
such mortgage, then the Tenant shall complete the purchase of the Leased
Premises on an all-cash basis, including any prepayment penalties
resulting from the prepayment of such mortgage. The Agreement shall
provide for the Tenant to accept title to the Leased Premises subject to
registered restrictions, easements and agreements provided same have been
complied with. Upon the closing of the purchase of the Leased Premises
pursuant to this Section, the Landlord shall, without further agreement,
be discharged and relieved of liability and/or obligation under this
Lease.
ARTICLE XVI - MISCELLANEOUS
Notice
16.01 Any notice delivered shall be deemed to have been received as
follows:
(a) If sent by facsimile, on the day of confirmation of
transmission;
(b) If sent by registered mail, four (4) business days after
posting registered mail; and
(c) If sent by prepaid courier, two (2) business days after pick-up
or receipt by the courier, provided that if the courier notifies the
party making the delivery or giving the notice that such delivery or
notice will be delayed then the period for calculating receipt shall
be extended by the duration of the delay.
If there is a substantial interruption in postal service, then
notice or delivery shall be made by facsimile, courier or personal
delivery and the date upon which delivery is deemed to have occurred will
be calculated in accordance with the respective periods for delivery by
facsimile, courier or personal delivery.
To: Minuk Developments Inc.
99 Sante Drive
Concord, Ontario
L4K 3C4
Facsimile No.: (416) 665 3849
Attention: Carolyn Musselman
or such other address as the Landlord shall notify the Tenant in writing
any time or from time to time;
To: The Tenant
at the Leased Premises
and to: Simpson Manufacturing Co. Inc.
4637 Chabot Drive, Suite 200
Pleasanton, Ca.
U.S.A. 94588
and to: Stikeman, Elliott
Barristers and Solicitors
Suite 5300, Box 85
Commerce Court West
Toronto, Ontario
M5L 1B9
Facsimile No.: (416) 947 0866
and such notice shall be deemed to have been received by the Landlord or
the Tenant, as the case may be, on the third business day after the date
on which it shall have been so mailed (in the event that there is an
interruption of postal service, the aforesaid period shall be extended for
a period equivalent to the period of interruption).
<PAGE>
(d) Notice shall also be sufficiently given if and when the same
shall be delivered, in the case of notice to the Landlord, to an
executive officer of the Landlord, and in the case of notice to the
Tenant, to him personally or to an executive officer of the Tenant
if the Tenant is a corporation. Such notice, if delivered, shall be
conclusively deemed to have been given and received at the time of
such delivery. If in this Lease two or more persons are named as
Tenant, such notice shall also be sufficiently given if and when the
same shall be delivered personally to any one of such persons.
Provided that either party may, by notice to the other, from time to
time designate another address in Canada to which notices mailed
more than ten (10) days thereafter shall be addressed.
Registration
16.02 The Tenant covenants and agrees with the Landlord that the Tenant
will not register or record this Lease against the title to the Lands
except by way of notice which shall be subject to the approval of the
Landlord and which shall only describe the parties, the Leased Premises,
the Term and any renewals or options. The Tenant covenants to execute a
short form of Lease prepared by and at the expense of the Landlord setting
out the aforesaid details within ten (10) days of written request
therefor.
Planning Act
16.03 Where applicable, this Lease shall be subject to the condition that
it is effective only if the Planning Act is complied with. Pending such
compliance, the Term and any Renewal Period shall be deemed to be for a
total period of one (1) day less than the maximum lease term permitted by
law without such compliance.
Interpretation of Lease
16.04 All of the provisions contained in this Lease are to be construed
as covenants and agreements and if any provision is illegal or
unenforceable it shall be considered separate and severable from the
remaining provisions which shall remain in force and be binding upon the
Landlord and the Tenant.
Overholding
16.05 If the Tenant shall continue to occupy all or part of the Leased
Premises after the expiration of this Lease with the consent of the
Landlord, and without any further written agreement, the Tenant shall be a
monthly tenant at one hundred percent (100%) of the monthly Basic Rent
payable during the last year of this Lease and otherwise on the terms and
conditions herein set out except as to length of tenancy.
Unavoidable Delays
16.06 Whenever and to the extent either party is unable to fulfill or
shall be delayed or restricted in the fulfillment of any obligation
hereunder by reason of being unable to obtain the material, goods,
equipment, service, utility or labour required to enable it to fulfill
such obligation or by reason of any statute, law, regulation, by-law or
other or by reason of any other cause beyond its reasonable control,
whether of the same nature as the foregoing or not, the affected party
shall be relieved from the fulfillment of such obligation and the other
party shall not be entitled to compensation for any inconvenience,
nuisance or discomfort thereby occasioned. There shall be no deduction
from the Rent or other monies payable hereunder by reason of any such
failure or cause.
Evidence of Payments
16.07 The Tenant shall produce to the Landlord upon request, satisfactory
evidence of due payment by the Tenant of all payments required to be made
by the Tenant under this Lease.
<PAGE>
Time of Essence
16.08 Time shall be of the essence of this Lease.
Law
16.09 This Lease shall be construed and enforced in accordance with the
rights of the parties hereto and shall be governed by the laws of the
Province of Ontario and the laws of Canada applicable herein and the
parties hereto do irrevocably attorn to the jurisdiction of the courts of
the Province of Ontario in respect of the enforcement of the Lease.
Captions
16.10 The captions appearing in the margin of this Lease have been
inserted as a matter of convenience and for reference only and in no way
define, limit or enlarge the scope of meaning of this Lease nor any of the
provisions hereof.
Joint and Several Liability
16.11 If the Tenant shall be comprised of more than one (1) person, the
liability of each such person under this Lease shall be joint and several.
Tenant Partnership
16.12 If the Tenant shall be a partnership, each person who shall be a
member of such partnership or successor thereof shall be and continue to
be jointly and severally liable for the performance and observance of all
covenants, obligations and agreements of the Tenant under this Lease even
if such person ceases to be a member of such partnership or successor
thereof.
Entire Agreement
16.13 The Tenant acknowledges that there have been no representations
made by the Landlord which are not set out in the Lease and the Offer to
Lease dated May 11, 1998 between the Landlord and the Tenant (the
"Offer"). The Tenant further acknowledges that the Offer and the Lease
including the Schedules attached thereto constitute the entire agreement
between the Landlord and Tenant and may not be modified except as herein
explicitly provided or except by subsequent agreement in writing duly
signed by the Landlord and the Tenant. In addition, the Tenant
acknowledges that there are no covenants, representations, warranties,
promises, agreements, conditions or understandings between the Landlord
and the Tenant concerning the Leased Premises either oral or written,
either expressed or implied between them other than those contained herein
or in the Offer. In the event of a conflict or inconsistency, between
the provisions of the Offer and those of the Lease, the provisions of the
Offer shall govern.
Effect of Lease
16.14 This indenture and everything herein contained shall extend to and
bind and may be taken advantage of by the respective heirs, executors,
administrators, successors and assigns, as the case may be, of each and
every of the parties hereto, subject to the granting of consent by the
Landlord as provided herein to any assignment or sublease, and where there
is more than one tenant or there is a female party or a corporation, the
provisions hereof shall be read with all grammatical changes thereby
rendered necessary and all covenants shall be deemed joint and several.
Maintenance
16.15 Subject to the foregoing, the Tenant shall be responsible for all
routine and periodic maintenance necessary to keep the Leased Premises and
all its installations in a good state of repair as would a prudent owner
of premises of a similar size and condition in a similar location.
Canadian Funds
16.16 All payments contemplated herein are expressed in and shall be made
in Canadian funds.
<PAGE>
Right of First Refusal
16.17 In the event the Landlord determines that it desires to sell the
Leased Premises at any time following the expiration of the second year of
the Term, including during any Renewal Period, the Landlord shall first
give the Tenant written notice of its intention to sell (the "Notice"),
and the Tenant shall have the right to purchase the Leased Premises at a
purchase price and upon terms and conditions as negotiated between the
Landlord and the Tenant during the thirty (30) day period following the
receipt by the Tenant of the Notice. Should the Tenant elect to purchase
the Leased Premises as set out hereunder, there shall be a binding
agreement of purchase and sale. If the Tenant does not exercise its right
of first refusal, or does not respond to the Notice within fifteen (15)
days following receipt of the Notice, the Landlord shall be free to
proceed to sell the Leased Premises. The Landlord acknowledges that it
shall require any purchaser of the Leased Premises to agree (i) to enter
into an assumption agreement with the Landlord, assuring the obligations
of the Landlord as contained in this Lease, and (ii) to enter into a non-
disturbance agreement agreeing not to disturb the occupant of the Leased
Premises during the remaining Term or any renewals thereof so long as the
Tenant is in compliance with its obligations contained herein.
Severability
16.18 If any provision of this Lease or the application thereof to any
person or circumstance is found by a court of competent jurisdiction to be
invalid or unenforceable, in whole or in part, then the remainder of this
Lease and the application of such provision to persons or circumstances
other than those to which is held to be invalid or unenforceable shall
not be affected and each provision of this Lease shall be separately valid
and enforceable to the fullest extent permitted by law.
Enurement, Successors and Assigns
16.19 This Lease and everything contained herein shall enure to the
benefit of and be binding upon the parties hereto and each of their
respective permitted successors and assigns. And reference to Landlord
or Tenant in this Lease shall be deemed to mean the Landlord or the
Tenant, their successors, assigns, officers, agents, servants, employees
or other persons for whom either, as the case may be, may be in law
responsible.
LANDLORD: MINUK DEVELOPMENTS INC.
Per: /s/Sam Minuk A.S.O.
---------------------------
Name: Sam Minuk
Position: Director
c/s
Per: /s/ A.S.O.
---------------------------
Name:
Position:
c/s
We have authority to bind the Corporation
TENANT: SIMPSON STRONG-TIE CANADA LIMITED
Per: /s/Stephen Lamson A.S.O.
---------------------------
Name: Stephen Lamson
Position: CFO
c/s
Per: /s/Thomas J Fitzmyers A.S.O.
---------------------------
Name: Thomas J Fitzmyers
Position: President & CEO
c/s
We have authority to bind the Corporation
<PAGE>
SCHEDULE "A"
------------
LEGAL DESCRIPTION:
Part of Parcel Block 10-1, Plan 43M-811, comprising approximately 6.93
acres in the City of Brampton, Regional Municipality of Peel.
<PAGE>
SCHEDULE "B"
------------
DEFINITIONS
For the purposes of this Lease:
(a) "Additional Rent" means all amounts payable by the Tenant under the
terms of this Lease, whether payable to the Landlord or otherwise,
over and above Minimum Rent.
(b) "Building" means the building erected on the Lands having an area of
one hundred and four thousand (104,000) square feet and municipally
known as ____ Kenview Drive, City of Brampton, Regional Municipality
of Peel and as depicted on Schedule "D" attached hereto.
(c) "Lands" means the parcel of land described in Schedule "A" hereto.
(d) "Lease" means this Lease and any schedules attached hereto and any
amendments from time to time made to this Lease in accordance with
the provisions herein set out.
(e) "Leased Premises" means the Lands and Building.
(f) "Leasehold Improvements" means all fixtures (save for trade
fixtures), installations, additions, improvements and alterations
made, erected or installed on the Leased Premises by or on behalf of
the Tenant.
(g) "Minimum Rent" means those amounts set out as Minimum Rent in Section
3.02 of this Lease.
(h) "Rent" means Minimum Rent and Additional Rent.
(i) "Taxes" means all taxes, rates, duties, levies and assessments
whatsoever whether municipal, parliamentary or otherwise, levied,
charged or assessed upon the Lands and Building or upon any part or
parts thereof and all improvements now or hereafter erected or
placed on the Lands, or charged against the Landlord on account
thereof, including local improvement charges but excluding any taxes
which are personal to the Landlord, such as taxes assessed on the
income of the Landlord or capital taxes. In addition to the
foregoing, Taxes shall include any and all taxes, charges, levies or
assessments which may n the future b levied, charged or assessed in
lieu thereof or in addition thereto. Taxes shall also include all
costs and expenses incurred by the Landlord or the Tenant in
obtaining or attempting to obtain a reduction or prevent an increase
in the amount of such Taxes and the cost of all consultants retained
either by the Landlord or the Tenant.
(j) "Term" means that period of time set out in Section 1.05 of this
Lease.
<PAGE>
SCHEDULE "C"
------------
BUILDING SPECIFICATIONS
1. Site/Landscape: Trees, shrubs and sodding around offices and in front
yard; Paved driveways and parking lot for cards,
trucks and trailers; Parking lot lines, precast
bumper strips and concrete dolly pads for trailers
included.
2. Building Size: (a) 104,000 sq. ft. plus 5,000 sq. ft. mezzanine
(layout as per attached Schedule "D");
(b) approximately 50,000 sq. ft. expansion.
(c) 24 ft. clear height
3. Exterior: Precast concrete with R12 insulation factor;
Exterior walls shall be non-load bearing. All
exterior standard autoclave concrete block, if any,
to be painted with penetrating water repellent;
Roofing will be 4-ply asphalt and gravel with R20
Insulation factor over fire retardant adhesive;
Galvanized baked enamel flashing to be 26 and to
match siding if any.
4. Window/Doors: Durocon coloured finished aluminum, thermally broken
frame with double tinted glazing;
All aluminum commercial quality doors and entrances
and hardware;
Plant exterior doors to be metal door and frames with
aluminum sills and weather stripping;
1 electrically operated drive-in door to be 12' x
14';
5 shipping and receiving doors to be insulated steel
sectional, manually operated high lift overhead type,
8' x 10' truck level 52" to suit requirements. Truck
seals included and 10 ton mechanical dock levelers
with hinged lip manually operated;
All hardware shall be heavy duty Schlage or equal and
all door locks to key alike.
5. Concrete Floors: 4" concrete slab on grade for office area;
2-1/2" suspended slab on steel deck for mezzanine
area;
6" concrete slab with 60 lbs. traprock shake hardener
for plant area with sawcuts;
Concrete strength of 4,000 psi reinforced with steel
fibre @ 25 kg/cubic meters;
Cure and sealing shall be applied to all plant floors
and curing to office floors.
6. Walls: Plant walls and ceiling to be painted for brightness;
Wall separating offices from plant to be block;
Wall separating warehouse area from manufacturing
area to be block with two (2) drive through openings;
Office walls to be painted drywall;
Vinyl tiles in washrooms;
Walls in plant lunchroom, and washroom to be concrete
block and painted;
Walls around electrical and compressor rooms to be
block.
<PAGE>
7. Flooring: General office and private offices and showroom
display areas to be carpeted and an allowance of
$20.00/sq. yd. supplied and installed;
Reception and vestibules to have ceramic tiles;
Washroom to have ceramic flooring.
8. Ceiling: Acoustic 2 x 4 recessed "T" bar system in office.
9. Offices: 5,000 sq. ft. of office on main floor; exact layout
to be determined between Lessor and Lessee within
forty five (45) days of acceptance of this Offer.
10. Plumbing: Washrooms to be provided to Ministry of Labour
requirements;
Hot water tank;
Male plant washroom equipped with 1 shower and one
half bradley sink;
Male plant washroom equipped with 1 shower and one
half bradley sink;
Plumbing for all areas as indicated in layouts.
11. Heating, Air Heating to be provided by suspended gas fired unit
Conditioning, heaters and/or infra red radiant heaters;
Ventilation Ventilation will be provided to suit regulations
based on propane operated fork lift trucks together
with a tempered air make-up system (allowance
$45,000) in manufacturing area;
Washrooms to be ventilated according to standards;
Heating and air-conditioning for office shall be
provided by combination roof top units with
supplementary electric baseboard units to maintain
the following temperatures:
Summer: Indoor + 72 FDB and 50 FRH
Outdoor + 85 FDB and 67 FDB
Winter: Indoor + 72 FDB
Outdoor -5 FCB with wind velocity of 15
mph
12. Sprinklers: An automatic wet sprinkler system and hydrants will
be provided in accordance with I.A.O. regulations for
Normal Hazard Occupancy ratings for a coverage of 130
sq. ft. per head.
13. Electrical: Power service will be 600 volt 3 phase, 4 wire, 1200
amps. with step down transformers located in
electrical room within the building;
Further underground service to future extension;
Provisions is included for 110 volt outlets and
telephone outlets in the office area;
Lunchroom and coffee areas to have proper power
supply for stove, microwave, fridge.
14. Lighting: Offices: 700 Foot Candles Bright White
Plant: 45 Foot Candles Bright White
Office fixtures shall be 2' x 4' recessed fluorescent
fixtures and grilles;
Plant fixtures will be Metal HyLite Bright White;
Exterior lighting shall include 175 watt Metal HyLite
at each door and shipping;
Standard security lighting to be provided in shipping
area and parking lot;
Emergency lighting to be provided as per code.
15. Bay Size: Min. 50' x 35'.
<PAGE>
SCHEDULE "D"
------------
Map of Site
<PAGE>
SCHEDULE "E"
------------
INDEMNITY AGREEMENT
THIS AGREEMENT made as of the 26th day of May, 1998
B E T W E E N.
MINUK DEVELOPMENTS INC.
a corporation incorporated under
the laws of the Province of Ontario
(the "Landlord")
OF THE FIRST PART
-- and --
SIMPSON MANUFACTURING CO. INC.
a corporation duly incorporated under
the laws of the State of , U,S.A.
(the "Indemnifier")
OF THE SECOND PART
IN ORDER TO induce the Landlord to enter into an offer to lease dated
the 11th day of May, 1998 between the Landlord, as landlord, and Simpson
Strong-Tie Canada Limited (the "Tenant"), as tenant, regarding Parcel 10-
1, Section 43M-811, in the City of Brampton in the Regional Municipality
of Peel in the Province of Ontario and more particularly set out therein
(the "Lease"), and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Indemnifier hereby makes
the following indemnity and agreement (the "Indemnity") with and in favour
of the Landlord:
1. The Indemnifier shall at all times during the Term be responsible to
perform and observe all covenants, provisoes, conditions and agreements on
the part of the Tenant to be performed or observed under the Lease
including the payment of Rent and all other amounts from time to time
payable under the Lease.
2. The Indemnifier shall indemnify the Landlord with respect to all loss
to and damage that may be suffered by the Landlord in consequence of any
default by the Tenant in the performance of any of its obligations under
the Lease.
3. The Indemnifier's obligation pursuant to this Indemnity is that of a
principal obligor and not a mere guarantor or surety and the Indemnifier
shall be jointly and severally bound with the Tenant to the Landlord for
the due performance of all of the Tenant's obligations under the Lease.
<PAGE>
4. If any default shall be made by the Tenant in the performance of any
of its obligations under the Lease, the Landlord shall not be bound or
required to proceed against the Tenant or to have recourse to or exhaust
any security from time to time held by it for the performance of such
obligation or to pursue any other remedy whatsoever which may be available
to it, before proceeding against the Indemnifier.
5. The obligations of the Indemnifier under this Indemnity shall in no
way be released, discharged or reduced and the rights of the Landlord
under this Indemnity shall in no way be prejudiced or impaired by any
neglect, delay or forbearance of the Landlord in demanding, requiring or
enforcing performance by the Tenant of any of its obligations under the
Lease or by the Indemnifier of any of its obligations under this Indemnity
or by granting any extensions of time for performance or by waving any
performance (except as to the particular performance which has been
waived) or by permitting or consenting to any assignment or subletting by
the Tenant pursuant to the Lease or by the dissolution of the Tenant or
any other event or occurrence which would have the effect in law of
terminating the existence or obligations of the Tenant prior to the
expiration of the Term of the Lease (except by the voluntary acceptance by
the Landlord of a surrender of the Lease) or by any agreements or other
dealings between the Landlord and the Tenant having the effect of amending
or altering the Lease or the obligations of the Tenant thereunder or by
any other matter, thing, act or omission of the Landlord whatsoever.
Notwithstanding the foregoing, the Indemnifier shall, for purposes of the
obligations of the Indemnifier under this Indemnity, have the benefit of
all amendments to the Lease made by way of amending agreement duly
executed by both the Tenant and the Landlord and resulting in a reduction
in the obligations of the Tenant, under the Lease. No change or amendment
of the lease or action based on this Indemnity shall be made or taken
until the Indemnifier has received notice thereof.
6. Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity, is not deemed to have been waived,
released, discharged, impaired or affected by reason of the release or
discharge of the Tenant in any receivership, bankruptcy, winding-up or
other creditors' proceedings or the repudiation, rejection, disaffirmance
or disclaimer of the Lease in any proceeding including without limitation,
any proceeding under the Bankruptcy and Insolvency Act (Canada), and shall
continue with respect to the periods prior thereto and thereafter, for and
with respect to the Term as if the Lease had not been disaffirmed or
disclaimed.
7. The obligations of the Indemnifier pursuant to this Indemnity shall
extend to the Term of the Lease or any renewals therein.
8. Subject to Section 9 hereof, the Indemnifier shall only be released by
payment in full of all monies that the Landlord would have received
pursuant to the Lease if the Lease had continued throughout the Term
thereof unless the Lease shall have been terminated by the Landlord for
any reason other than an Event of Default occurring under the Lease or the
Landlord shall have voluntarily accepted a surrender of the Lease.
9. The Indemnifier's liability and obligation to the Landlord pursuant to
this Indemnity shall be limited to Five Million Dollars ($5,000,000.00) in
lawful money of Canada.
10. This Indemnity shall be governed by and construed in accordance with
the laws of the Province of Ontario.
<PAGE>
11. Any notice, request, demand or other writing pursuant to this
Indemnity shall be sufficiently given if delivered by hand and left at the
recipient's address, mailed by registered prepaid mail, or transmitted by
telecopier, addressed as follows:
In the case of notice to the Landlord:
MINUK DEVELOPMENTS INC.
99 Sante Drive
Unit C
Concord, Ontario
L4K 3C4
Attention: Mr. S. Minuk
Telecopier No.: (416) 665-3849
And in the case of notice to the Indemnifier:
SIMPSON MANUFACTURING CO. INC.
4637 Chabot Drive, Suite 200,
Pleasanton, Ca.
U.S.A.
94588
Either party may from time to time by notice given in accordance with the
provisions of this Section 11, change its address or other details
pertaining to such address set out above, and from and after the date such
notice is deemed to have been received as hereinafter provided, the
address or other details set out above pertaining to the party giving such
notice shall be deemed amended in accordance with such notice.
Any notice given as aforesaid and delivered by hand or telecopier shall be
deemed to have been received on the date of delivery or transmission as
the case may be.
Any notice given as aforesaid and delivered by registered prepaid mail
shall be deemed to have been received on the tenth day following the date
of mailing.
12. The expressions "Event of Default", "Landlord", "Tenant", "Term",
"Rent" and other terms or expressions where used in this Indemnity,
respectively, have the same meanings as in the Lease.
13. The Indemnifier acknowledges receipt of an executed copy of the Lease
and this Indemnity.
14. Wherever in this Indemnity reference is made to either the Landlord
or the Tenant, the reference is deemed to apply also to the respective
heirs, executors, administrators, successors and assigns and permitted
assigns, respectively, of the Tenant, as the case may be, named in the
Lease. Any assignment by the Landlord of any of its interest in the Lease
operates automatically as an assignment to such assignee of the benefit of
this Indemnity.
<PAGE>
IN WITNESS WHEREOF the Landlord and the Indemnifier have signed this
Indemnity.
LANDLORD: MINUK DEVELOPMENTS INC.
Per: /s/Sam Minuk c/s
-------------------------------
Authorized Signing Officer
Name: Sam Minuk
Position: Director
Per: c/s
-------------------------------
Authorized Signing Officer
Name:
Position:
I/WE HAVE AUTHORITY TO BIND THE CORPORATION
INDEMNIFIER: SIMPSON MANUFACTURING CO. INC.
Per: /s/Stephen Lamson c/s
-------------------------------
Authorized Signing Officer
Name: Stephen Lamson
Position: CFO
Per: /s/Thomas J Fitzmyers c/s
-------------------------------
Authorized Signing Officer
Name: Thomas J Fitzmyers
Position: President & CEO
I/WE HAVE AUTHORITY TO BIND THE CORPORATION
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
EXHIBIT 11
--------------
BASIC EARNINGS PER SHARE
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Weighted average number of common
shares outstanding 11,570,904 11,475,850 11,554,623 11,464,393
============ ============ ============ ============
Net income $ 9,235,461 $ 8,188,215 $ 23,269,704 $ 19,966,481
============ ============ ============ ============
Basic net income per share $ 0.80 $ 0.77 $ 2.01 $ 1.74
============ ============ ============ ============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIMPSON MANUFACTURING CO., INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
EXHIBIT 11
--------------
DILUTED EARNINGS PER SHARE
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Weighted average number of common
shares outstanding 11,570,904 11,475,850 11,554,623 11,464,393
Shares issuable pursuant to employee
stock option plans, less shares
assumed repurchased at the average
fair value during the period 452,867 530,793 487,960 477,104
Shares issuable pursuant to the
independent director stock option
plan, less shares assumed repurchased
at the average fair value during
the period 4,522 5,879 4,773 5,178
------------ ------------ ------------ ------------
Number of shares for computation of
diluted net income per share 12,028,293 12,012,522 12,047,356 11,946,675
============ ============ ============ ============
Net income $ 9,235,461 $ 8,188,215 $ 23,269,704 $ 19,966,481
============ ============ ============ ============
Diluted net income per share $ 0.77 $ 0.68 $ 1.93 $ 1.67
============ ============ ============ ============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Balance Sheet at September 30, 1998, (Unaudited)
and the Condensed Consolidated Statement of Operations for the three
and nine months ended September 30, 1998, (Unaudited) and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 34,515,012
<SECURITIES> 0
<RECEIVABLES> 39,858,760
<ALLOWANCES> 1,593,416
<INVENTORY> 51,699,130
<CURRENT-ASSETS> 129,273,929
<PP&E> 101,608,776
<DEPRECIATION> 48,146,143
<TOTAL-ASSETS> 186,265,368
<CURRENT-LIABILITIES> 29,471,228
<BONDS> 2,700,000
0
0
<COMMON> 33,607,488
<OTHER-SE> 119,871,479
<TOTAL-LIABILITY-AND-EQUITY> 186,265,368
<SALES> 207,248,839
<TOTAL-REVENUES> 207,248,839
<CGS> 126,114,476
<TOTAL-COSTS> 126,114,476
<OTHER-EXPENSES> 42,790,113
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0<F1>
<INCOME-PRETAX> 38,897,704
<INCOME-TAX> 15,628,000
<INCOME-CONTINUING> 23,269,704
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 23,269,704
<EPS-PRIMARY> 2.01
<EPS-DILUTED> 1.93
<FN>
<F1>Interest income for the nine months ended September 30, 1998,
was $553,454.
</FN>
</TABLE>
