THIS INDENTURE made the 3rd day of January, 1994.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
B E T W E E N:
B.A.R.K. HOLDINGS INC., a corporation incorporated under the laws
of Ontario, having its registered office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇,
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
COLUMBIA SPORTSWEAR CANADA LIMITED, a corporation incorporated
under the laws of Ontario, having its registered office at ▇▇▇-▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(herein called the "Tenant")
OF THE SECOND PART
1.01 DEFINITIONS: In this Lease:
"Additional Rent" means all amounts payable by Tenant hereunder, except
Basic Rent.
"Basic Rent" means the rent payable under section 4.01.
"Commencement Date" means first day of January, 1994.
"Insurance Premiums" has a meaning set out in section 5.04 hereof.
"Lease Year" means that period of twelve months commencing on the
Commencement Date and thereafter each consecutive twelve month period commencing
on each anniversary of the Commencement Date.
"Premises" means the warehouse and office building containing approximately
6,600 square feet of office space and approximately 66,000 square feet of
warehouse space and the lands and premises on which it is situate and all
structures and appurtenances located thereon and appurtenant thereto, located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in the Town of Strathroy in the
County of Middlesex, which land are legally described as Park Lot 1, Plan 234,
Town of Strathroy, County of Middlesex, save and except the westerly 8.25 feet
of the said Lot.
"Prime Rate" means the rate of interest per annum publicly quoted by Royal
Bank of Canada, from time to time, as the reference rate of interest, commonly
known as it's "Prime Rate" used by it to determine interest rates charged by it
on loans in Canadian funds to its commercial customers payable on demand.
"Rent" means Basic Rent and Additional Rent.
"Security Deposit" has the meaning as set out in section 4.02(a) hereof;
"Taxes" has the meaning set out in section 5.02 hereof.
"Term" means the Term of this Lease set out in section 3.01 hereof.
1.02 SEVERABILITY: If any one or more clauses or paragraphs or part or parts
thereof in this Lease is judged illegal a legal or unenforceable it or they
shall be considered separate and severable from the Lease and the remaining
provisions of this Lease shall remain in full force and effect and shall be
binding upon the parties hereto as though the said clause or clauses or part or
parts of clauses had never been included.
1.03 NUMBER, JOINT AND SEVERAL LIABILITY: Whenever a word importing the singular
number only is used in this Lease, such word shall include the plural and the
words importing either gender or firms or corporations shall include the persons
or other gender and firms or corporations where applicable. Any reference to the
Term of this Lease shall, unless the context otherwise requires, be deemed to
include any renewals thereof. If there shall be more than one person, firm,
corporation or other entity named as Tenant herein, they shall each be jointly
and severally liable for the observance and performance of all of Tenants'
covenants and obligations under this Lease.
1.04 CAPTIONS: The headings, article and section numbers in captions appearing
in this Lease have been inserted as a matter or convenience and for reference
only and in no way define, limit or enlarge the scope or meaning of this Lease
or of any provisions thereof.
2.01 DEMISE: Witnesseth that in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Tenant to be paid,
observed and performed, Landlord demises and leases unto Tenant and Tenant rents
from Landlord, for the term and upon the conditions hereinafter mentioned the
Premises.
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3.01 TERM: TO HAVE AND TO HOLD the Premises for and during the term of 10 years
commencing on the Commencement Date and ending on the 31st day of December,
2003.
4.01 RENT: YIELDING AND PAYING THEREFOR to Landlord yearly and every year during
the Term hereby granted as Basic Rent the sum of Eighty Three Thousand, Four
Hundred Dollars ($83,400.00) of lawful money of Canada payable in advance on the
first (1st) day of the month in equal monthly instalments of Six Thousand, Nine
Hundred and Fifty Dollars ($6,950.00) such payments to be made by cheque or
money order made payable to Landlord as it may direct from time to time; the
first payment of Basic Rent being due on the Commencement Date. Provided that
the Basic Rent will increase the sixth Lease Year if after the first five Lease
Years of the Term, Landlord's financing costs exceed twelve percent (12%) of
$695,000.00 per annum, Basic Rent then shall be increased by an amount equal to
the increase in financing costs in excess of twelve percent (12%) per annum. The
purposes of this definition financing costs shall include the cost of placing a
loan facility secured by a mortgage of the Premises at market rates applicable
at the time of the refinancing of the Premises.
4.02 DEPOSIT: (a) Landlord acknowledges receipt of the sum of Thirteen Thousand,
Nine Hundred Dollars ($13,900.00) to be held by Landlord without interest, to be
applied against the Basic Rent due on January 1st, 1994 and the balance to be
held as security for the full and faithful performance by Tenant of all its
covenants and obligations hereunder (the Security Deposit").
(b) If at any time during the Term the Rent or other sums payable by Tenant
to Landlord hereunder are overdue and unpaid, or if Tenant fails to keep and
perform any of the terms, covenants and conditions of this Lease, to be kept,
observed and performed by Tenant, and Landlord at its option may, in addition to
any and all other rights and remedies provided for in this Lease or by law,
appropriate and apply the entire Security Deposit, or so much thereof as is
necessary, to compensate Landlord for loss or damage sustained or suffered by
Landlord due to such breach on the part of Tenant. If the entire Security
Deposit, or any portion thereof is appropriated and applied by Landlord for the
payment of overdue Rent, then Tenant shall, upon written demand of Landlord,
forthwith remit to Landlord, a sufficient amount in cash to restore the Security
Deposit to the original sum deposited, and ▇▇▇▇▇▇'s failure to do so in five (5)
days after receipt of such demand constitutes a breach of this Lease. If Tenant
complies with all of the terms, covenants and conditions and promptly pays all
of the Rent and other sums herein provided and payable by Tenant to Landlord,
the Security Deposit shall be applied to the Basic Rent due for the last month
of the Term.
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4.03 NO WARRANTEES: Tenant acknowledges that there are no representations,
conditions or warranties, express or implied, statutory or otherwise, with
respect to the Premises or affecting the rights of the parties hereto, other
than as specifically contained herein. Without limiting the generality of the
foregoing, Landlord shall not be deemed to make at the time of execution of this
Lease or any schedule or upon the exercise of an option provided for, if any, or
at any other time, any representation or warranty, express or implied, as to the
quality of the material or workmanship of the Premises or the conformity of the
Premises to the provisions and specifications of any purchase order or orders
relating thereto or to the condition, design, merchantability, durability,
operation or fitness for use for any particular purpose of the Premises or the
freedom thereof from any liens, encumbrances or rights of others, or any other
representation or warranty whatsoever, express or implied, with respect to the
Premises except as provided herein. ▇▇▇▇▇▇▇▇ does however represent and warrant
that it has taken no action to charge or encumber the Premises and nevertheless
agrees to assign or otherwise make available to Tenant, to the extent permitted
by law, such rights as Landlord may have under any warranties, guarantees or
service contracts with respect to the Premises, including the equipment, made by
any manufacturer, vendor, contractor or supplier thereof.
5.01 TENANT'S COVENANT: Tenant covenants with Landlord to pay Rent in the manner
herein provided without any deduction, statement or set-off whatsoever
conclusively without limitation.
(a) Basic Rent as set out in section 4.01 hereof.
(b) The amount in respect of Taxes and Insurance Premiums referred to in
5.02 and 5.04 hereof.
5.02 TENANT'S TAXES: (a) To pay as and when due each instalment of all municipal
property taxes, rates, including local improvement rates, school rates and
business tax, duty and assessments (hereinafter referred to as the "property
taxes") now or at any time during the term hereof rated, charged, levied or
assessed against the Premises or any part or parts thereof or against any
machinery, equipment or other facilities now or at any time during the Term
brought in or on to the Premises, and to pay any similar tax not now
contemplated but levied at any time during the Tenn hereof by any competent
governmental or municipal body in lieu of, or partially in lieu of, or in
addition to, such property taxes, and if demanded, Tenant shall forthwith after
any such taxes or instalments shall have become due, produce and exhibit to
Landlord's satisfaction evidence of the payment of such taxes or instalment;
provided however, that the responsibility for property taxes in respect of the
calendar years in which this lease commences and ends shall be adjusted between
Landlord and Tenant; Tenant shall have the right to contest the amount or
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validity of any property taxes by appropriate legal proceedings, but Landlord
shall not be required to join in any proceedings, nor shall Landlord be
subjected to any liability for the payment of any costs or expenses in
connection with any proceedings brought by Tenant and Tenant covenants to
indemnify and save harmless Landlord from any such costs or expenses;
(b) Goods and Services Taxes, Etc.: to pay to Landlord (acting as agent for
the taxing authority if applicable) or directly to the taxing authority (if
required by applicable legislation), the full amount of all goods and services
taxes, sales taxes, value-added taxes, multi-stage taxes, business transfer
taxes, and any other taxes imposed on Tenant in respect of any rent payable by
Tenant under this lease, or in respect of the rental of premises by Tenant under
this lease (collectively and individually, "Sales Taxes"); Sales Taxes are
payable by Tenant whether they are characterized as a goods and services tax,
sales tax, value-added tax, multi-stage tax, business transfer tax, or
otherwise; Sales Taxes so payable by Tenant will be:
(i) calculated by Landlord in accordance with the applicable
legislation,
(ii) paid by ▇▇▇▇▇▇ at the same time as the amounts to which Sales
Taxes apply are payable to Landlord under the terms of this lease (or upon
demand at such other time or times as Landlord from time to time
determines), and
(iii) considered not to be Rent, despite anything else in this lease,
but Landlord will have all of the same remedies for and right of recovery
with respect to such amounts as it has for nonpayment of Rent under this
lease or at law;
5.03 GENERAL: Tenant covenants with Landlord to observe and perform all of the
agreements, obligations, provisions of Tenant herein.
5.04 TENANT'S INSURANCE: At the sole cost and expense, to maintain, and pay all
premiums for the mutual benefit of Landlord and Tenant, general public liability
insurance against claims for personal injury, death or property damage occurring
upon, in or about the Premises, in which the limits of the public liability
and/or property damage coverage shall be an amount not less than $2,000,000,
inclusive; at its sole cost and expense to keep all buildings which form a part
of the Premises and the equipment, fixtures and machinery insured on a full
replacement cost basis against loss or damage by fire and against such other
risk as are customarily covered by endorsement commonly known as supplemental or
extended coverage; the insurance shall be with insurers acceptable to Landlord
and with policies in form satisfactory from time to time to Landlord and
certificates of insurance shall be delivered to Landlord forthwith; if Tenant
fails to take out or keep in force any such insurance, Landlord will have the
right to do so and to pay the premium therefor and in such event Tenant shall
repay to Landlord the
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amount so paid as premium which repayment shall be deemed to be Additional Rent
and shall be due on the first day of the next month following said payment by
Landlord;
5.05 REPAIRS AND MAINTENANCE:
(a) Tenant at its own expense shall repair, maintain and keep the Premises
and any part thereof in a clean and sanitary condition and in accordance with
all laws, directions, rules and regulations of the governmental agencies having
jurisdiction and shall keep the Premises (including without limitation all
signs) and every part thereof in good order and repair as a careful owner would
do in a good and workmanlike manner, reasonable wear and tear excepted, provided
however that the obligation of Tenant hereunder shall not extend to damage by
fire, lightning, tempest or other perils against which ▇▇▇▇▇▇▇▇ is insured.
(b) Tenant shall maintain in good order and operating condition the
heating, ventilating and air conditioning, mechanical, electrical, plumbing,
lighting, bathrooms and sprinkler systems, services and equipment installed in
the Premises.
5.06 UTILITIES:
(a) Tenant shall pay as the same become due respectively, all charges for
private and public utilities which, without limiting the generality of the
foregoing shall include water, gas, heat, electrical power or energy, steam or
hot water used upon or in respect of the Premises and for fittings, machines,
apparatus, meters or other things leased in respect thereof and for all work or
services performed by any corporation or a commission in connection with such
public utilities. Tenant shall arrange for a counsel to be opened in its own
name for all such utilities.
(b) in no event shall Landlord be liable for any injury to Tenant, in
servants, agents, employees, customers and invitees or for any injury or damage
to the Premises or to any other property of Tenant or to any property of any
other person, firm or corporation on or about the Premises caused by an
interruption or failure in supplying any such utilities to the Premises.
(c) The Tenant shall replace the heating or air conditioning equipment, or
the electrical or mechanical systems, the roof membrane and make structural
repairs to the Premises during the Term of this Lease.
5.07 USE OF THE PREMISES: To use the Premises for the purpose of operating an
office and warehouse facility only in connection with the business of Tenant. At
no time shall Tenant use the Premises or any part thereof for any other purpose
or business.
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5.08 ACCESS BY LANDLORD: Landlord, its employees or its agents shall have the
right to enter the Premises at all reasonable times to examine the same and to
make such repairs, alterations, improvements or additions to the Premises as
Landlord may be required to make under the provisions of this lease without the
same constituting an eviction of Tenant in whole or in part and, subject to the
provisions of section 9.01 hereof the rent reserved shall not ▇▇▇▇▇ while said
repairs, alterations, improvements, or additions are being made by reason of
loss or interruption of business of Tenant or otherwise.
5.09 INDEMNIFICATION OF LANDLORD: To indemnify Landlord and save it harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Premises, or the occupancy or
use by Tenant of the Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors, employees or
servants, or by anyone permitted to be on the Premises by Tenant; in case
Landlord shall, without fault on its part, be made a party to any litigation
commenced by or against Tenant, then Tenant shall protect and hold Landlord
harmless and shall pay all costs, expenses and hold Landlord harmless and shall
pay all costs, expenses and reasonable legal fees incurred or paid by Landlord
in connection with such litigation; Tenant shall have no obligation to indemnify
or save harmless Landlord in respect of any matter for which ▇▇▇▇▇▇▇▇ is
responsible at law as a result of the negligent or wilful act or omission of
Landlord or its employees or agents.
5.10 ASSIGNMENT AND SUBLETTING: That it will not assign or sublet the Premises
without the consent of Landlord, such consent not to be unreasonably withheld or
unduly delayed, provided, however, and it is made a condition of the giving of
such consent that:
(i) the proposed assignee of this lease shall agree in writing to
assume and perform all of the terms, covenants, conditions and agreements
by this Lease imposed upon Tenant herein in the form acceptable to
Landlord's solicitor;
(ii) no assignment or sub-letting shall in any manner release Tenant
from its covenants and obligations hereunder;
(iii) Landlord in its absolute discretion shall be satisfied with the
business and credit worthiness of any assignee;
and further provided that the consent of Landlord shall not be required in
connection with any assignment or subletting of the Premises or any part thereof
to any corporation which
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is affiliated or associated with Tenant within the meaning of the Business
Corporations Act, 1990 of Ontario;
5.11 RIGHT TO SHOW PREMISES:
(a) Landlord, its employees or its agents shall have the right within three
months prior to the termination of the Term or any renewal during business hours
of Tenant to enter upon the Premises for purposes of exhibiting same to any
prospective purchaser or mortgagee provided that the exercise of such rights
shall not unreasonable interfere with ▇▇▇▇▇▇'s business.
(b) Landlord shall have the right within three months' prior to the
termination of the Term or any renewal thereof to place upon the Premises a
signage of reasonable dimensions and reasonably placed so as not to interfere
with ▇▇▇▇▇▇'s business, stating that the Premises are for lease; further,
provided that Tenant will not remove such signage or permit the same to be
removed.
5.12 OBSERVANCE OF LAW: Tenant will comply with all provisions of law including,
without limiting the generality of the foregoing, federal and provincial
legislative enactments, building by-laws, and other governmental or municipal
regulations which relate to the Premises and the operation and use thereof, and
to comply with all police, fire and sanitary regulations imposed by any
governmental, provincial or municipal authorities or made by fire insurance
underwriters, and to observe and obey governmental and municipal regulations and
other requirements governing the conduct of any business conducted in the
Premises; provided that Landlord hereby represents and warrants to Tenant that
the Premises and equipment thereon and use thereof as of the commencement of the
term comply with the foregoing requirements.
5.13 SURRENDER ON TERMINATION: Tenant will, at the expiration or sooner to
determination of the Term, peacefully surrender and yield up unto Landlord the
Premises with the appurtenances together with all buildings or erections which
at any time during the said Term shall be made therein or thereon in the same
condition as required to be maintained hereunder.
5.14 LANDLORD RECOVERY: In the event that Landlord shall perform any repairs or
maintenance or pay any some of money due or payable by ▇▇▇▇▇▇, either at the
request of Tenant, or by reason of any default by Tenant in performance of its
convenance herein contained Tenant shall, forthwith after notice from Landlord
repay to Landlord as Additional Rent hereunder, the cost of performing such
repairs and maintenance or the amount paid by Landlord on Tenant's behalf,
together with ▇▇▇▇▇▇▇▇'s overhead fee of 15% of such amount.
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5.15 WASTE: Tenant shall not do or suffer any waste or damage, disfiguration or
injury to the Premises or the fixtures and equipment thereof or permitted or
suffer any overloading of the floors thereof and shall not use or permit to be
used any part of the Premises or any dangerous, noxious or offensive trade or
business and shall not do anything or permit anything to be done upon or about
the Premises nor anything to be brought thereon which Landlord may reasonable
deem to be a nuisance and Tenant shall take every reasonable precaution to
protect the Premises from danger of fire, water damage or the elements, and
Tenant shall not allow any ashes, refuse, garbage or other loose, objectional
material to accumulate in, on or about the Premises and will at all times keep
them clean and in wholesome condition.
5.16 ELECTRICAL FACILITIES: Tenant shall not install or use any electrical or
other equipment or electrical arrangement which may overload the electrical or
other service facilities except with the expressed written consent of Landlord
and provided Tenant at its own expense makes whatever changes are necessary in
compliance with the reasonable and lawful requirements of Landlord's insurance
underwriters and governmental authorities having jurisdiction and in any event
Tenant shall make no changes until it first submits plans and specifications for
the same to Landlord and obtains Landlord's written approval for such plans and
specifications, which will not be unreasonably withheld or unduly delayed.
5.17 HEAT: Tenant covenants to heat those portions of the Premises to a
reasonable temperature necessary to prevent all pipes, permanent fixtures,
sprinkler system and other equipment contained therein from bursting or becoming
damaged.
5.18 SNOW AND ICE: Tenant shall keep and maintain the sidewalk, parking areas,
ramps for vehicles and pedestrians, loading areas, stairways, driveways and all
asphalt paving areas and catchbasins and trapdoors and covers about the Premises
clear of snow and ice and all other obstructions and required by the by-laws and
regulations of the Town of Strathroy at all times during the Term.
5.19 LANDSCAPING: Tenant shall keep and maintain the landscaped areas situate
around the buildings in a good and proper order and in a condition satisfactory
to Landlord. Tenant shall have the grass cut every two weeks during the months
of April through October in each calendar year. Tenant shall keep the parking
lot and outside storage area in the rear of the building in a condition
satisfactory to Landlord including the weed killing and keep it free of debris
and maintain it so that the water drains from the parking lot area.
6.00 LANDLORD'S COVENANTS:
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6.01 QUIET ENJOYMENT: Landlord covenants and agrees with Tenants that provided
Tenant pays all Rent and performs all the covenants herein contained on its part
to be performed that Tenant shall have quiet enjoyment of the Premises.
6.02 LANDLORD'S TITLE: Landlord covenants that it has a good marketable title to
the Premises free and clear of all mortgages, charges and encumbrances other
than (i) the mortgages or charges listed in Schedule "A" hereto and (ii)
easements, servitude, agreements, covenants and restrictions which do not
interfere with or restrict Tenant from carrying on its business in the Premises
or the rights of Tenant under this Lease; Landlord has full power and authority
to enter into this Lease; the use of the Premises for the purposes intended by
Tenant is a permitted use thereof under all applicable by-laws, regulations,
statutes, agreements, covenants, restrictions or rights affecting or running
with the lands of which the Premises form part;
6.03 INDEMNIFICATION OF TENANT: That it will indemnify Tenant and save it
harmless from and against any and all claims, actions, damages, liability and
expense in connection with loss of life, personal injury and/or damage to
property arising from or out of any occurrence in, upon or at the Premises
occasioned wholly or in part by any act or omission of Landlord, its employees
or its agents, in case Tenant shall, without fault on its part, be made a party
to litigation commenced by or against Landlord, then Landlord shall protect and
hold Tenant harmless and shall pay all costs, expenses and reasonable legal fees
incurred or paid by Tenant in connection with such litigation.
6.04 Landlord covenants with Tenant to observe and perform all of the agreement
obligations and provisions of Landlord herein.
7.01 SIGNS, FIXTURES AND ALTERATIONS:
(a) Signs, Fixtures and Alterations: Tenant may make or cause to be made
any alterations, additions or improvements and may install or cause to be
installed any trade fixtures, exterior signs, floor covering, interior or
exterior lighting, mechanical or electrical systems and fixtures, and plumbing
fixtures, shades or awnings as Tenant deems desirable or appropriate without
first obtaining Landlord's written approval and consent unless alterations to
the structure of the building forming part of the Premises are involved, in
which event Tenant shall first obtain Landlord's written consent, which consent
shall not be unreasonably withheld or unduly delayed.
(b) Removal and Restoration by Tenant: Upon termination of this lease, all
changes, alterations or improvements which may be effected in or upon the
Premises and which are attached to the floors, walls or ceilings thereof shall
remain and be surrendered with the Premises as part thereof and become the
property of Landlord without any compensation to Tenant. It is agreed, however,
that all trade fixtures installed in the Premises by Tenant shall be removable
at any time and from time to time by ▇▇▇▇▇▇ and
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shall, upon the termination of this lease, remain the property of Tenant
provided Tenant causes no damage to the Premises in such removal or makes good
all damage so caused.
(c) Tenant Shall Discharge Liens: Tenant shall promptly pay all its
contractors and for material and shall do any and all things necessary so as to
minimize the possibility of a lien attaching to the Premises as a result of any
improvements thereto carried out by Tenant and should any such lien be made or
filed, Tenant shall discharge or vacate the same within ten (10) days thereafter
at Tenant's expense.
8.01 HAZARDOUS SUBSTANCES: Tenant shall not use, manufacture or store, or permit
the use, manufacture or storing of any contaminant, toxic or hazardous waste or
substance on the Premises or any part thereof, provided the foregoing shall not
prevent the use on the Premises of substances in common use not inherently
dangerous so long as all applicable laws and regulations are strictly complied
with by Tenant in connection with such use, and Tenant shall indemnify and hold
harmless Landlord of and from all loss, cost and expense attributable to or
arising out of any breach by Tenant of the provisions of this section or the use
by Tenant on the Premises of any hazardous or toxic substance. Landlord shall
indemnify and save harmless Tenant of, from and against all loss, cost and
expense arising out of or attributable to any pollutant, contaminant or toxic or
hazardous waste or substance situate or present upon or under the Premises or
any part thereof due to any cause or reason whatsoever other than due to the
wilful or negligent acts or omissions of Tenant, its employees or agents.
9.01 DAMAGE AND DESTRUCTION: If during the term hereof the Premises shall suffer
any structural failure or collapse or be damaged or destroyed by any cause
whatsoever, whether insured against or not, including, without limitations fire,
lightning, tempest, acts of God or the Queen's enemies, riots, insurrections or
other perils the following provisions shall have effect:
(i) If the Premises are rendered partially unfit for occupancy by
▇▇▇▇▇▇, the rent hereby reserved shall ▇▇▇▇▇ in part only in the proportion
that the part of the Premises so rendered unfit is of the whole of the
Premises until the Premises have been repaired or restored;
(ii) If the Premises are rendered wholly unfit for occupancy by
▇▇▇▇▇▇, the rent hereby reserved shall ▇▇▇▇▇ until the Premises have been
repaired or restored;
(iii) Notwithstanding the provision of clause (i) of this section
9.01, if the Premises are not capable with reasonable diligence of being
repaired or restored within ninety (90) days of the occurrence of the
damage or destruction, then either Landlord or Tenant may terminate this
lease by written notice to the other of them given within thirty (30) days
of the date
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of such occurrence, and if such notice is so given this lease shall cease
and become null and void effective as of and from the date of such
occurrence and Tenant shall immediately surrender the Premises and all its
interest therein to Landlord and the rent shall be apportioned and shall be
payable by Tenant only to the date of such occurrence and Landlord may
re-enter and repossess the Premises discharged of this lease, but if within
the said period of thirty (30) days neither Landlord nor Tenant shall give
notice terminating this lease as aforesaid, then upon the expiration of the
said period of thirty (30) days Landlord shall promptly repair or restore
the premises;
(iv) If the Premises are capable with reasonable diligence of being
repaired or restored within ninety (90) days of the happening of such
damage, then Landlord shall restore or repair the Premises promptly within
the aforesaid ninety (90) days;
10.01 DEFAULT OF TENANT:
(a) Right to Re-Enter: In the event of any failure of Tenant to pay any
rental due hereunder within thirty (30) days after the same shall be due, or any
failure to perform or to observe any other of the terms, conditions or covenants
of this lease to be observed or performed by Tenant, or if Tenant shall become
bankrupt or insolvent, or file any proposal, or if a receiver is appointed of
all or substantially all of Tenant's property, or if Tenant shall abandon the
Premises, or suffer this lease or any of its assets to be taken under any writ
of execution, or if re-entry is permitted under any other terms of this lease,
then Landlord, besides any other rights or remedies it may have, shall have the
immediate right of re-entry and may remove all persons and property from the
Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant, all without service of notice or resort to legal process and
without being deemed guilty of trespass, or becoming liable for any loss or
damage which may be occasioned hereby.
(b) Right to Re-Let: Should Landlord elect to re-enter as herein provided,
or should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this lease or it may from
time to time without terminating the lease, re-let the Premises or any part
thereof for such term or terms (which may be for a term extending beyond the
term of this lease) and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable; upon each such
re-letting all rentals received by Landlord from such re-letting shall be
applied to amounts due from Tenant to Landlord hereunder. If such rentals
received from such re-letting during any month be less than that to be paid
during that month by Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No such re-entry
or taking possession of the Premises by
12
Landlord shall be construed as an election on its part to terminate this lease
unless a written notice of such intention be given to Tenant. Notwithstanding
any such re-letting without termination, Landlord may at any time thereafter
elect to terminate this lease for any breach, and, in addition to any other
remedies it may have, it may recover from Tenant all damages it may incur by
reason of such breach, including the cost of recovering the Premises, reasonable
solicitor's fees and including the present value of the unpaid rent, additional
rent and other charges for the unexpired term of the lease less the actual
rental value of the Premises for that period, which amount shall be immediately
due and payable from Tenant to Landlord. In any of the events referred to in
subsection 9(a) above in addition to any and all other rights, including the
rights referred to in this subsection and in subsection 9(a) hereof, the full
amount of the current month's rent, and any other payments required to be made
monthly hereunder and the next three (3) month's fixed minimum rent and such
payments shall immediately become due and payable, and Landlord may immediately
distrain for the same, together with any arrears then unpaid.
(c) Legal Expenses: In case suit shall be brought for recovery of
possession of the Premises for the recovery of rent or any other amount due
under the provisions of this lease or because of the breach of any other
covenants herein contained on the part of Tenant to be kept or performed and a
breach shall be established, Tenant shall pay to Landlord all expenses incurred
therefor including a reasonable solicitor's fee.
(d) Landlord May Perform Covenants: If Tenant shall fail to perform any of
the covenants or obligations of Tenant under or in respect of this lease,
Landlord may from time to time in its discretion perform or cause to be
performed any of such covenants or obligations or any part thereof, and for such
purpose may do such things as may be requisite, including, without limitation,
entering upon the Premises upon reasonable prior notice to Tenant. All expenses
incurred and expenditures made by or on behalf of Landlord under this subsection
shall be collected in the same manner as rent hereunder and shall be paid by
Tenant upon demand.
11.01 TENANT MAY PERFORM COVENANTS: If Landlord shall fail to perform any of the
covenants or obligations of Landlord under and in respect to this lease, Tenant
may from time to time in its discretion perform or cause to be performed any of
such covenants or obligations or any part thereof and for such purpose may do
such things as may be requisite and any amounts expended by Tenant in so doing
shall be reimbursed by Landlord upon demand and Tenant may deduct any such
amounts so paid from the rent next due hereunder.
12.01 STATUS STATEMENT, ATTORNMENT, SUBORDINATION:
(a) Status Statement: Within ten (10) days after request therefor by either
party to the other hereunder, the party so requested shall deliver a certificate
to the requesting party
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certifying (if such be the case) that this lease in is full force and effect and
that there are no defaults or breaches by the requested party of its obligations
hereunder or stating those claimed by the requested party.
(b) Attornment: Tenant shall, in the event any proceedings are brought for
the foreclosure of or in the event of exercise of the power of sale under any
mortgage made by Landlord covering the Premises, attorn to the mortgagee or the
purchaser upon any such foreclosure or sale and recognize such mortgagee or
purchaser as Landlord under this lease.
(c) Subordination: Upon request by Landlord Tenant will subordinate its
rights hereunder to any mortgage or mortgages, or the lien resulting from any
other method of financing or refinancing, now or hereafter in force against the
Premises or part thereof to all advances made or hereafter to be made on the
security thereof. No subordination by ▇▇▇▇▇▇ shall have the effect of permitting
the holder of any mortgage or lien or other security to disturb the occupation
and possession by Tenant of the Premises so long as Tenant shall perform all of
the terms, covenants and conditions contained in this Lease.
13.01 RIGHT OF RENEWAL: Provided that Tenant is not in or has ever been in
default under this Lease, Tenant shall have the right to renew this Lease for
two further successive terms of five years upon the same terms and conditions as
contained in this Lease save and except for any further right of renewal and any
allowances or inducements provided to the tenant in the initial term of this
Lease. Tenant shall give Landlord notice in writing of its intention to renew
this Lease no later than six (6) months prior to the expiry of the Term or any
renewal term of the Lease. Failing such notice being by Tenant to Landlord in
writing, Tenant shall have no right to renew this Lease.
14.01 TENANT'S WORK: Tenant shall, at its own risk and expense complete and
install in a good workmanlike manner within the Premises, all Tenant's fixtures
and equipment as outlined in Schedule "B" hereto. Tenant shall be permitted
access to the Premises prior to Commencement Date with the purposes of
completing its improvements. Tenant shall pay all utilities falling due with
respect to the Premises during the period from the time it first gained access
to the Premises for completion of its work and the Commencement Date.
15.01 GENERAL:
(a) No Tacit Renewal: In the event Tenant remains in possession of the
Premises after the end of the term hereof and without the execution and delivery
of a new lease, there shall be no tacit renewal of this lease and the term
hereby granted and Tenant shall be deemed to be occupying the Premises as a
Tenant from month to month at a monthly rental
14
payable in advance on the first day of each month equal to the fixed monthly
rental payable during the last month of the term of the lease and otherwise upon
the same terms and conditions as are set forth in this lease so far as
applicable.
(b) Successors: Subject to the provisions of subsection 5.10, all rights
and liabilities herein given to or imposed upon the respective parties hereto
shall extend to and bind the several respective heirs, executors,
administrators, successors, and assigns of the said parties.
(c) Entire Agreement: This lease and the Schedules attached hereto and
forming part hereof and any Agreement to Lease entered into by Landlord and
Tenant in respect of the Premises set forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than as aforesaid.
Except as herein otherwise provided, no subsequent alteration, amendment, change
or addition to this lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by them.
(d) Force Majeure: In the event that either party hereto shall be delayed
or hindered in or prevented from the performance of any act required hereunder
by reason of strikes, lock-outs, labour troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reasons of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this subsection
shall not operate to excuse Tenant from prompt payment of rent, additional rent
or any other payments required by the terms of this lease.
(e) Compliance with the Planning Act: It is an express condition of the
within lease and Landlord and Tenant so agree and declare that the subdivision
control provisions of the Planning Act, be complied with if necessary.
(f) Consents: If and whenever the consent or leave of either party is
required pursuant to the terms hereof for the doing of any thing by the other
party, such consent or leave shall not be unreasonably withheld or unduly
delayed.
16.01 NOTICES: Any demand, notice or other communication be given in connection
with this Lease shall be given in writing and shall be given by personal
delivery by registered mail and by electronic means of communication addressed
to the recipient as follows to Landlord: B.A.R.K. Holdings Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and to Tenant:
Columbia Sportswear Canada Limited, ▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇. ▇. Box 261,
Strathroy, Ontario, N7G lH5, Attention - Chief Financial Officer with a copy to
Columbia Sportswear U.S.
15
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ 97203, Attention - President or to such
other addressed individual or electronic communication number as may be
designated by notice given by either party to the other. Any demand, notice,
communication given by personal delivery shall be conclusively deemed to have
been given on the day of actual delivery thereof, and, if given by registered
mail, on the 5th Business Day following the deposit thereof in the mail, and, if
given by electronic communication, on the day of transmittal thereof if given
during the normal business hours of the recipient and on the business day during
which such normal business hours next occur if not given during such hours on
any day. If the party is given any demand, notice or other communication knows
or ought reasonably to know of any difficulties with the postal system which
might affect the delivery of mail, any such demand, notice or other
communication shall not be mailed but shall be given by personal delivery or via
electronic communication.
IN WITNESS WHEREOF the parties, respective officers hereto have executed
this lease and placed the respective corporate seals on the day of 1994.
B.A.R.K, HOLDINGS, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ c/s
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
COLUMBIA SPORTSWEAR CANADA LIMITED
By: /s/ c/s
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By: /s/ c/s
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SCHEDULE "A"
PERMITTED ENCUMBRANCES
1. The reservations, limitations, provisions and conditions expressed in the
original grant from the Crown;
2. The Easement in favour of Ontario Hydro;
3. The Charge/Mortgage of Land in favour of Hongkong Bank of Canada;
4. The Charge/Mortgage of Land in favour of ▇▇▇▇▇▇▇▇ Children's Trust;
SCHEDULE "B"
TENANT'S WORK