Exhibit 10.33
THIS INDENTURE made this 19th day of May, 1995.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
BETWEEN
966578 Ontario Inc.
Hereinafter called the "Landlord"
OF THE FIRST PART
- and -
Ontario Paint & Wallpaper Limited
Hereinafter called the "Tenant"
OF THE SECOND PART
PREMISES
Witnesses that 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 has demised and leased and hereby does
demise and lease to the Tenant.
ALL THOSE CERTAIN PREMISES excluding any part of the external walls or roof or
structural portions of the Building known and described as 273 Queen Street
East, in the City of Toronto.
TERM
TO HAVE AND TO HOLD the demised premises for and during the term of one (1)
years to be computed from the 19th day of May, 1995 and from thenceforth ensuing
and to be fully completed and ended on the 18th day of May, 1996. The Term shall
automatically be renewed from year to year unless terminated in writing by
either Landlord or Tenant on 30 days written notice.
RENTAL
YIELDING AND PAYING THEREFOR yearly and every year during the said term hereby
granted, to the Landlord, the sum of $24,000 DOLLARS per annum plus G.S.T.,
payable in equal monthly instalments of $2,000.00 DOLLARS plus G.S.T. each, in
advance on the 1st day of each and every month during the term, commencing on
the 1st day of June, 1995 and continuing on the 1st day of each and every month
for the term until and including the 1st day of May, 1996 and per diem
adjustment if necessary for the first and last month of the Term.
RENT
The Tenant covenants with the Landlord to pay rent.
Rent
Rent means the amounts payable by the Tenant to the Landlord as set out above.
Business Taxes
AND to pay all business taxes in respect of the business carried on by the
Tenant in and upon or by reason of their occupancy of the premises hereby
demised;
Repair
AND to repair the premises (reasonable wear and tear, and damage by fire,
lightning and tempest only excepted);
AND that the Landlord may enter and view state of repair;
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AND that the Tenant will repair according to notice in writing (reasonable wear
and tear and damage by fire, lightning and tempest excepted);
AND that they will leave the premises in good repair (reasonable wear and tear
and damage by fire, lightning and tempest only excepted);
Cleanliness
AND to keep the demised premises and every part thereof in a clean and tidy
condition and not to permit waste paper, garbage, ashes or waste or
objectionable material to accumulate thereon.
Comply With Statutes, By-Laws and Regulations
AND the Tenant will at its own cost and expense comply with the requirements of
every applicable by-law, statute, law or ordinance, and with every applicable
regulation or order with respect to the condition, equipment, maintenance, use
or occupation of the premises, as it relates to the use or occupancy of the
premises by the Tenant.
Assignment
AND the Tenant will not assign or sublet the whole or any part of the demised
premises without leave, which leave will not be unreasonably withheld or
delayed.
Business
The demised premises will not, during the term, be at any time used for any
other purpose than that of mixed use commercial/residential.
Fixtures
No fixtures, goods or chattels of any kind will, except in the ordinary course
of business, be removed from the demised premises during the term hereby demised
or at any time thereafter without the written consent of the Landlord, its
successors or assigns, being first had and obtained, until all rent in arrears
as well as all rent to become due during the remainder of the term hereby
granted shall have been full paid, or the payment thereof secured to the
satisfaction of the Landlord or its assigns.
Electric Power
The Tenant will not, during the said term or at any time prior to or subsequent
thereto, purchase, acquire or use any electric current for lighting or other
purposes except from the company or corporation which shall for the time supply
the Landlord with electric current for such purposes in the said building, the
intention being that without the written consent of the Landlord, there shall be
only one system of electric lighting in the building.
Alterations, Partitions, Etc.
If the Tenant shall during the term desire to affix or erect partitions,
counters or fixtures in any part of the walls, floors or ceilings of the demised
premises, it may do so at its own expense at any time and from time to time
provided that the Tenant's rights to make such alterations to the demised
premises shall be subject to the following conditions:
(i) that before undertaking any such alterations, the Tenant shall submit to
the Landlord a plan showing the proposed alterations and shall obtain the
approval and consent of the Landlord to the same;
(ii) that all such alterations shall conform to all building by-laws, if any,
then in force affecting the demised premises.
(iii) that such alterations will not be of such kind or extent as to in any
manner weaken the structure of the building after the alterations are
completed or reduce the value of the building.
(iv) that subject to fixtures which belong to the Tenant, any building,
erection or improvement placed or erected upon the premises shall become
part thereof and shall not be removed and shall be subject to all the
provisions of this lease.
Except as herein provided the Tenant will not erect or affix or remove or change
the location or style of any partitions or fixtures, without the written consent
of the Landlord being first had and obtained, such consent not to be
unreasonably withheld or delayed.
At the expiration of the term hereby granted, or any renewal thereof, all
fixtures belonging to the Tenant shall remain upon the demised premises until
taken down by the Landlord, and the Tenant shall forthwith, upon the same being
taken down, remove the same from the demised premises first paying to the
Landlord the expense of such taking down and making good all damage occasioned
to the demised premises by the taking down or removal thereof.
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Bankruptcy or Insolvency
If the term hereby granted or the goods and chattels of the Tenant or any
assignee or sub-tenant shall be at any time seized or taken in execution or
attachment, or if the Tenant or any such assignee or sub-tenant shall make an
assignment for the benefit of creditors or shall become bankrupt or insolvent,
or make a proposal to its creditors, or without the consent of the Landlord
being first obtained in writing, shall make a sale, under the Bulk Sales Act, in
respect of goods on the premises, or being a company shall become subject to any
legislative enactment relating to liquidation or winding up, either voluntary or
compulsory, at the Landlord's option, the term shall immediately become
forfeited and void, and an amount equivalent to the next ensuing three months'
rent shall be at once due and payable.
Rules and Regulations
The Tenant and its clerks, servants and agents will at all times during the
occupancy of the demised premises observe and conform to such reasonable rules
and regulations as shall be made by the Landlord from time to time including the
rules and regulations set forth in Schedule "A" hereto and of which the Tenant
shall be notified, such rules and regulations being deemed to be incorporated in
and form part of these presents.
Expropriation
If the demised premises be expropriated or condemned by any Department of the
Federal, Provincial or Municipal Governments, then the Landlord shall have the
right notwithstanding anything herein contained to terminate this lease upon
giving three months' notice in writing to the Tenant of his intention so to do
or by paying the Tenant a bonus of three months' rent, in which latter event,
the Tenant undertakes to vacate the premises at the expiration of thirty (30)
days from the delivery of such notice.
Distress
The Tenant covenants, promises and agrees with the Landlord that notwithstanding
any present or future Act of the Legislature of the Province of Ontario, none of
the goods or the chattels of the Tenant at any time during the continuance of
the term hereby created on the demised premises shall be exempt from levy by
distress for rent in arrears by the Tenant as provided for by the said Section
of such Act, and that upon any claim being made for such exemption by the Tenant
or on distress being made by the Landlord, this covenant and agreement may be
pleaded as an estoppel against the Tenant in any action brought to test the
right to the levying upon any such goods as are named exempted in the said
Section, the Tenant waiving as he hereby does all and every benefit that could
or might have accrued to him under and by virtue of the said section of the said
act but for the above covenant.
LANDLORD COVENANTS
The Landlord covenants with the Tenant as follows.
Quiet Enjoyment
For quiet enjoyment.
Taxes and Rates
To pay all taxes and rates, municipal, parliamentary or otherwise, including
electric and water rates for the normal supply of hot and cold water to the
premises, assessed against the demised premises of the Landlord or Tenant on
account thereof saving and excepting any business taxes and taxes upon personal
property or income of the Tenant, license fees, or other taxes imposed upon the
property, business or income of the Tenant;
Electric Power and Gas and Heat
To pay all charges for electricity and gas used by the Tenant in the premised
unless billed directly to sub-tenants.
And to heat the premises in each year in such manner as to keep the premises at
a reasonable temperature for the reasonable use of the Premises by the Tenant
except during the making of repairs. The Landlord shall further repair and
replace all heating equipment serving the premises as necessary at its own
expense and in a reasonable time; however, the Landlord shall not be liable for
indirect or consequential damages for personal discomfort or illness arising
from any default of the Landlord.
Access
To give the Tenant, its agents, clerks, servants and all persons transacting
business with the Tenant, in common with other persons, the right to enter the
premises by means of the main entrance to the building and all other means of
access in current use and free use of the stairway and passages from the parking
lot, streets and lanes to the premises at all reasonable times, subject to rules
and regulations in regard to the building as may be reasonably passed from time
to time.
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Property Maintenance
The Landlord shall maintain and repair the building and adjacent lands forming
part of the property in good condition including all alterations and additions
and improvements made thereto, and including all repairs and replacements to the
structure, roof, windows, doors and all systems located therein.
DEFAULT
Proviso for re-entry by the said Landlord on non-payment of rent or
non-performance of covenants.
VOIDANCE OF LEASE - VACANT OR IMPROPER USE
It is further declared and agreed that in case the premises or any part thereof
become and remain vacant and unoccupied for the period of fifteen days, or be
used by any other person or persons, or for any other purpose than as above
provided without the written consent of the Landlord, this lease shall, at the
option of the Landlord, cease and be void, and the term hereby created expire
and be at any end, anything hereinbefore to the contrary notwithstanding and the
proportionate part of the current rent shall thereupon become immediately due
and payable, and the Landlord may re-enter and take possession of the premises
as though the Tenant or other occupant or occupants of said premises were
holding over after the expiration of the term; or in such case instead of
determining this lease as aforesaid and re-entering upon the premises, the
Landlord may take possession of the premises, or any part or parts thereof, and
let and manage the same and grant any lease or leases thereof upon such terms as
to the Landlord or its assigns may appear to be reasonable, and demand, collect,
receive and distrain for all rental which shall become payable in respect
thereof, and apply the said rentals after deducting all expenses incurred in
connection with the premises and in the collection of the said rent including
reasonable commission for the collection thereof and the management of the
premises, upon the rent hereby reserved, and the Landlord and its assigns and
every such agent acting as aforesaid from time to time, shall in so acting be
the agents of the Tenant, who alone shall be responsible for their acts, and the
Landlord and its assigns shall not be accountable for any moneys except those
actually received, notwithstanding any act, neglect, omission or default or any
such agent acting as aforesaid.
WATER AND GAS DAMAGE
It is further declared and agreed that the Landlord shall not be liable for any
damage to any property at any time upon the premises arising from gas, steam,
water, rain or snow, which may leak into, issue or flow from any part of the
building, or from the gas, water, steam or drainage pipes or plumbing works of
the same or from any other place or quarter or for any damage caused by or
attributable to the condition or arrangement of any electric or other wires in
the building.
The Tenant shall be liable for any damage done by reason of water being left
running from the taps in the premises or from gas permitted to escape therein,
RISKS OF INJURY
The Landlord shall not be responsible for any personal injury which shall be
sustained by the Tenant or any employees, customer, or other person who may be
upon the premises or in the building or the entrances or appurtenances thereto.
All risks of any such injury are hereby assumed by the Tenant, who hereby holds
the Landlord harmless and indemnified therefrom.
INDEMNIFICATION
The Tenant covenants to indemnify the Landlord from any and all liabilities,
damages, costs, claims, suits or actions growing out of:
(i) any breach, violation, or non-performance of any covenant or proviso
hereof on the part of the Tenant;
(ii) any damages to property occasioned by the use and occupation of the
premises.
Such indemnification in respect of any such breach, violation or
non-performance, or damage to property occurring during the term of the lease
shall survive any termination of this lease, anything in this lease to the
contrary notwithstanding; PROVIDED, however, that such indemnification shall in
no event extend to the direct, primary and proximate results of the negligent,
reckless or willful conduct of the Landlord, its agents, employees or
representatives.
NOTICE OF ACCIDENT
The Tenant shall give the Landlord prompt written notice of any accident, or any
defect in the sprinkler system, water pipes, gas pipes or heating apparatus,
telephone, electric or other wires on any part of the premises.
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INSURANCE
The Tenant covenants that the Tenant's business to be carried on in the building
will not be of such a nature as to increase the insurance risk on the premises
or cause the Landlord to pay an increased rate of insurance premiums on the
premises by reason thereof, and it is distinctly understood that in case such
business is or becomes of such nature to increase the insurance risk or causes,
the Landlord and/or other occupants of the building to pay an increased rate of
insurance premiums, the Tenant will, from time to time, pay to the Landlord, the
increased amount of insurance premiums which the Landlord and other occupants of
the building have to pay in consequence thereof; provided that the Tenant
covenants that he will not carry on or permit to be carried on any business in
the building which may make void or voidable any insurance held by the Landlord
or the other occupants of the building.
BUSINESS NOT TO BE A NUISANCE
The Tenant will not do or permit anything to be done on the premises or permit
or keep anything therein which may be annoying to the Landlord or other
occupants of the building or which the Landlord may deem to be a nuisance and
that no machinery shall be used therein which shall cause any undue vibration in
or to the premises and that in case of the Landlord or any other occupants of
the building reasonably complaining that any machinery or operation or process
is a nuisance to it or them or which causes any undue vibration or noise in the
premises, that upon receiving notice thereof, the said Tenant will immediately
abate such nuisance. The Tenant covenants not to obstruct or interfere with the
rights of the Landlord or other occupants of the building or in any way injure
or annoy them or conflict with any of the rules and regulations of the Board of
Health or with any Statute or municipal by-law.
SIGN
No sign, advertisement or notice shall be inscribed, painted or affixed by the
Tenant on any part of the outside or inside of the building whatever, unless of
such manner, colour, size and style and in such places upon or in the building
as shall be first designated by the Landlord, and, furthermore, the Tenant, on
ceasing to be Tenant of the premises, will, before removing his goods and
fixtures from the premises, cause any sign as aforesaid to be removed or
obliterated at his own expense and in a workmanlike manner to the reasonable
satisfaction of the Landlord.
WATER
The Landlord agrees to pay for normal water consumed on the premises but in the
event of any abnormal consumption of water either by reason of the character of
the business carried on by the Tenant or by the use of mechanical or other
contrivances the Tenant consents to the installation of a water meter at his own
expense, if necessary, and further agrees to pay for the excess water consumed
on the premises.
PLATE GLASS
The Tenant agrees at his own expense to replace any plate glass or other glass
that has been broken or removed during the term of the within lease or of any
renewal thereof.
FIRE
If during the term herein or any renewal thereof the premises shall be destroyed
or damaged by fire or the elements, then the following provisions shall apply:
(i) If the premises shall be so badly injured as to be unfit for occupancy,
and as to be incapable of being repaired with reasonable diligence within
one hundred and twenty days of the happening of such injury, then the term
hereby granted shall cease and be at an end to all intents and purposes
from the date of such damage or destruction, and the Tenant shall
immediately surrender the same, and yield up possession of the premises to
the Landlord, and the rent from the time of such surrender shall be
apportioned;
(ii) If the premises shall be capable, with reasonable diligence, of being
repaired and rendered fit for occupancy within one hundred and twenty days
from the happening of such injury as aforesaid, but if the damage is such
as to render the premises wholly unfit for occupancy, then the rent hereby
reserved shall not run or accrue after such injury, or while the process
of repair is going on, and the Landlord shall repair the same with all
reasonable speed, and the rent shall recommence immediately after such
repairs shall be completed.
(iii) If the premises shall be repaired within one hundred and twenty days as
aforesaid, and if the damage is such that the said premises are capable of
being partially used, then until such damage shall have been repaired, the
rent shall abate in the proportion that the part of the premises rendered
unfit for occupancy bears to the whole of the premises.
NO ABATEMENT OF RENT
There shall be no abatement from or reduction of the rent due hereunder, nor
shall the Tenant be entitled to damages, losses, costs or disbursements from the
Landlord during the term hereby created on, caused by or on account of fire,
(except as above), water, sprinkler systems, partial or temporary failure or
stoppage of heat, light, elevator, live steam
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or plumbing service in or to the premises or building, whether due to acts of
God, strikes, accidents, the making of alterations, repairs, renewals,
improvements, structural changes to the said premises or buildings or the
equipment or systems supplying the said services, or from any cause whatsoever;
provided that the said failure or stoppage be remedied within a reasonable time.
RENT ARREARS
All arrears of rent and any monies payable by the Tenant hereunder shall bear
interest at the rate of the Landlord's Canadian Banker's prime rate of interest
plus two per cent (2%) per annum from the time such sums become due until they
are paid to the Landlord.
RIGHT TO SHOW PREMISES
The Tenant will permit the Landlord to exhibit the premises during the last
three months of the term to any prospective tenant and will permit all persons
having written authority therefor to view the premises at all reasonable hours,
upon reasonable notice, and so as to not unreasonably interfere with the
business of the Tenant.
NOTICES
Any notice which either of the parties is required or permitted to give pursuant
to any provision of this lease may, if intended for the Tenant, be given by a
writing left at the premises or mailed by registered mail addressed to the
Tenant at the premises, and if intended for the Landlord by a writing left at
the premises of the Landlord at 731 Millway Avenue, Concord, Ontario or mailed
by registered mail addressed to the Landlord at the Landlord's said premises,
and such notice shall be deemed to have been given at the time it was delivered
or mailed, as the case may be.
CONSENT OF TENANT
The Tenant shall, whenever reasonably so required by the Landlord, and at the
Landlord's expense, consent to and become a party to an instrument relating to
this lease which may be required by or on behalf of any purchaser, bank or
mortgagee from time to time of the premises provided always that the rights of
the Tenant as hereinbefore set out shall not be waived by the terms of such
instrument or document.
NON-WAIVER OF DEFAULT
The failure of the Landlord or the Tenant to insist upon a strict performance of
any of the covenants and provisos hereof shall not be deemed a waiver of any
rights or remedies that such party may have or a waiver of any subsequent breach
or default.
OVERHOLDING
It is hereby agreed that should the Tenant hold over after the expiration of
this lease and the Landlord thereafter accepts rent for the premises, the Tenant
shall hold the premises as a monthly tenant only of the Landlord but subject in
all other respects to the terms and conditions of this lease.
TENANT'S LIABILITY INSURANCE
The Tenant shall carry public liability insurance in such amounts as shall from
time to time be reasonable, in the name of both the Landlord and the Tenant, and
to pay the premiums for such insurance and to deposit certificates with respect
to such insurance with the Landlord. If the Tenant shall fail to insure and keep
insured, as herein provided, the Landlord shall be free to effect such insurance
at the cost and expense of the Tenant, and the sum so expended by the Landlord
shall be added to the rent due on the next succeeding payment date, and such
amount, in addition to the regular payment then due, shall constitute rent
hereunder.
INSURANCE PREMIUMS
If the Tenant fails to pay any insurance premiums or charges which it has herein
covenanted to pay, the Landlord may pay them and charge the sums paid to the
Tenant who shall pay them forthwith on demand; and the Landlord, in addition to
any other rights, shall have the same remedies and may take the same steps for
the recovery of all such sums as if they were rent in arrears.
SUBORDINATION AND POSTPONEMENT
This Lease and all the rights of the Tenant under this Lease are subject and
subordinate to any and all charges against the land, buildings or improvements
of which the Premises form part, whether the charge is in the nature of a
mortgage, trust deed, lien or any other form of charge arising from the
financing or re-financing, including extensions or renewals of the Landlord's
interest in the property.
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Upon the request of the Landlord, the Tenant will execute any form required to
subordinate this Lease and the Tenant's rights to any such charge, and will, if
required, attorn to the holder of the charge.
No subordination by the Tenant shall have the effect of permitting the holder of
any charge to disturb the occupation and possession of the Premises by the
Tenant as long as the Tenant performs his obligations under this Lease.
SEVERABILITY
The invalidity of any particular provision of this lease shall not affect any
other provision herein, but the lease shall be construed as if such invalid
provision were omitted.
GOVERNING LAW
This lease is governed by and is to be construed and enforced in accordance with
the internal laws of the Province of Ontario as those laws apply to contracts
made in Ontario.
HEADINGS
The headings included in this lease are for convenience only and are not to
affect the interpretation of the provisions herein.
BINDING EFFECT
The words importing the singular number only shall include the plural, and vice
versa, and words importing the masculine gender shall include the feminine
gender, and words importing persons shall include firms and corporations and
vice versa.
Unless the context otherwise required, the word "Landlord" and the word "Tenant"
wherever used herein shall be construed to include and shall mean the executors,
administrators, successors and/or assigns of the said Landlord and Tenant,
respectively, and when there are two or more Tenants bound by the same covenants
herein contained, their obligations shall be joint and several.
IN WITNESS WHEREOF the parties hereto have executed these presents.
SIGNED, SEALED AND DELIVERED
In the presence of ) 966578 ONTARIO INC. (Landlord)
)
) Per:
)
)
) /s/ Sidney Ackerman
) --------------------------------------
) Sidney Ackerman, President
)
) Per:
)
)
) /s/ Alan Fine
) --------------------------------------
) Alan Fine, Secretary
)
) ONTARIO PAINT & WALLPAPER
) LIMITED (Tenant)
)
)
) /s/ Sidney Ackerman
) --------------------------------------
) Sidney Ackerman, President