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EXHIBIT 10.1
LEASE AMENDING AGREEMENT
THIS AGREEMENT made as of the 5TH day of SEPTEMBER, 1997.
B E T W E E N:
GPM REAL PROPERTY (6) LTD. & ENDOW (6) INC.
(The "Lessor")
-and-
DAISYTEK (CANADA) INC.
(The "Lessee")
A. WHEREAS the Lessee entered into a lease dated the 1ST day of JUNE, 1995 (the
"Lease"), for a term of THREE (3) YEARS AND ONE (10) MONTH commencing on
the FIRST (1ST) day of July, 1995 and expiring on the THIRTY-FIRST (31ST)
day of JULY, 1998, the ("Term") whereunder the Lessee leased certain
premises comprising a leasable area of approximately 23,100 square feet
(the "demised premises") and designated as UNIT 1 shown outlined in red on
the plan attached to the Lease as Schedule "B" , located at 00 XXXXXXXXX
XXXXX in the City of MARKHAM, in the Province of ONTARIO; and
B. WHEREAS the Lessor and Lessee entered into an Offer to Lease dated the
FOURTEENTH (14TH) day of JULY, 1997 (the "Offer") to amend the Lease as of
and effective from the EIGHTEENTH (18TH) day of SEPTEMBER, 1997 (the
"Effective Date"), subject to and upon the terms and conditions herein set
out; and
C. WHEREAS the Lessor and Lessee have agreed to expand the Demised Premises to
include UNIT 2 (the "Expansion Premises") comprising a leasable area of
39,631 square feet.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. The consideration for this Agreement is the mutual covenants and agreements
between the parties and the sum of One Dollar ($1.00) that has been paid by
each of the parties to the other, the receipt and sufficiency of which
acknowledged.
2. Clause 1 of the Lease (Premises) is hereby amended to reflect the leasable
area of the demised premises as of the Effective Date as being 62,731 square
feet, being UNITS 1 AND 2.
3. Clause 2 of the Lease (Term) is hereby amended to reflect a period of FOUR
(4) YEARS AND SIXTEEN (16) DAYS commencing of the FIFTEENTH (15TH) day of
SEPTEMBER, 1997 and expiring on the THIRTIETH (30TH) day of SEPTEMBER, 2001.
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4. Clause 4 of the Lease (Rent) is hereby amended as of the Effective Date to
reflect that the Lessee shall pay to the Lessor during the period:
(i) commencing on SEPTEMBER 15TH, 1997 and expiring on SEPTEMBER 30TH,
1999, as basic rent the annual sum of TWO HUNDRED AND NINETY-SEVEN
THOUSAND, NINE HUNDRED AND SEVENTY-TWO DOLLARS AND TWENTY-FIVE CENTS
($297,972.25), payable in equal consecutive monthly installments of
TWENTY-FOUR THOUSAND, EIGHT HUNDRED AND THIRTY-ONE DOLLARS AND TWO
CENTS ($24,831.02), each in advance on the (1st) day of each calendar
month during the aforesaid period, based on an annual rate of FOUR
DOLLARS AND SEVENTY-FIVE CENTS ($4.75) per square foot of the leasable
area of the demised premises;
(ii) commencing on OCTOBER 1ST, 1999 and expiring on SEPTEMBER 30TH, 2001,
as basic rent the annual sum of THREE HUNDRED AND THIRTEEN THOUSAND,
SIX HUNDRED AND FIFTY-FIVE DOLLARS AND ZERO CENTS ($313,655.00),
payable in equal consecutive monthly installments of TWENTY-SIX
THOUSAND, ONE HUNDRED AND THIRTY-SEVEN DOLLARS, AND NINETY-TWO CENTS
($26,137.92), each in advance on the first (1st) day of each calendar
month during the aforesaid period, based on an annual rate of FIVE
DOLLARS AND ZERO CENTS ($5.00) per square foot of the leasable area of
the demised premises.
Clause 4 of the Lease is further amended to reflect that the Lessor
acknowledges that it holds a deposit in the sum of FIFTY-FOUR THOUSAND, FIVE
HUNDRED and THIRTY-SIX DOLLARS and SEVENTY-SIX CENTS ($54,536.76) inclusive
of G.S.T. at 7% which shall be applied to the first month's and last month's
basic rent.
Only those sections of Paragraph 4 of the Lease shall be deemed amended to
incorporate the above and all other terms and conditions of Paragraph 4 of
the Lease shall prevail.
5. As of the Effective Date, the Option to Renew clause on Schedule "D" of the
Lease shall be amended to reflect that the Lessee shall have the option to
renew the Lease for one (1) additional term of one (1) year upon delivering
written notice to the Lessor no later than nine (9) months prior to the
expiry of the Term and upon the same terms and conditions save and except
for the rental rate, which is to be negotiated at the then current market
value, but in no event shall the rental rate be less than the rate in the
last year of the Term.
6. As of the Effective Date, the Right of First Refusal clause on Schedule "D"
of the Lease shall be deleted in its entirety.
7. Schedule "A" attached hereto replaces Schedule "B" of the Lease.
8. All other terms and conditions in the Lease are hereby ratified and
confirmed.
9. The parties confirm that the terms, covenants and conditions of the Lease
remain unchanged and in full force and effect, except as modified by this
Agreement. It is understood and agreed that all terms and expressions when
used in this Agreement, unless a contrary intention is expressed herein,
have the same meaning as they have in THE LEASE.
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ACKNOWLEDGEMENT
Lease between GPM Real Property (6) Ltd. & Endow (6) Inc.
(the "Landlord") and Daisytek (Canada) Inc. (the "Tenant")
dated the 1ST day of JUNE, 1995
WHEREAS a Guarantee and Indemnity Agreement was executed on JUNE 2, 1995,
attached hereto as Schedule "A", whereby Daisytek Incorporated, of Plano, Texas,
in the United State of America (the "Guarantor") did agree to indemnify the
Landlord against the failure of the Tenant to perform, observe and keep all of
the covenants and conditions of the lease dated June 1st, 1995 for premises
located at 00 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx.
AND WHEREAS an Amendment to Lease dated the 18TH day of SEPTEMBER, 1997
increased the area from 23,100 square feet to 62,731 square feet (the "Demised
Premises") and extended the term to the THIRTIETH (30TH) day of SEPTEMBER, 2001
(the "Term").
NOW THEREFORE the Tenant and the Guarantor confirm and acknowledge that the
Guarantee and Indemnity Agreement dated JUNE 2ND, 1995 is hereby amended to
reflect the extension of the Term and the increase in square footage of the
Premises and the rent and that all other terms thereof shall remain in full
force and effect.
AGREED AND ACCEPTED this _______day of __________________, 1997.
DAISYTEK (CANADA) INC.
-----------------------------------
Tenant
AGREED AND ACCEPTED this _______day of __________________, 1997.
DAISYTEK INCORPORATED
---------------------------------c/s
Guarantor
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SCHEDULE "A"
GUARANTEE AND INDEMNITY
WHEREAS GPM REAL PROPERTY (6) LTD., and ENDOW (6) INC., (hereinafter
called the "Landlord") is the registered owner of the following described land:
00 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx;
Parcel 5-2, Section M-2029, town of Markham, registered in the Land
Registry Office for the Land Titles Division of York Regions (No. 65)
at Newmarket, designated as Parts 2, 3, and 4, Plan 65R-6328 being
part block 5 on Plan 65M-2029
(hereinafter called the "Land"): and
WHEREAS the Landlord has agreed to demise and lease unto DAISYTEK
CANADA INC. (hereinafter call the "Tenant") a certain portion of the Land
pursuant to that Lease in writing (hereinafter called the "Lease") to which this
Guarantee and Indemnity is attached; and
WHEREAS it is a condition of the granting of the Lease by the Landlord
that DAISYTEK INCORPORATED, in the City of Plano, in the State of Texas, in the
United States of America, (hereinafter called the "Guarantor") execute and
deliver this Guarantee and Indemnity;
WHERE the Guarantor herein is composed of more than one person, the
obligations of the Lessee are joint and several obligations of each of such
persons;
NOW THEREFORE in consideration of the premises and the sum of TEN
($10.00) DOLLARS and in consideration of other good and valuable consideration
(the sufficiency and receipt whereof the Guarantor hereby acknowledges) the
Guarantor does hereby promise, covenant and agree to and with the Landlord as
follows:
(a) The guarantee and indemnity and the covenants and agreements
respecting the Guarantor as set forth in these presents shall be
as against the Guarantor construed as and be deemed a guarantee
and indemnity respecting all the obligations of the Tenant as set
forth in the Lease;
(b) In the event the Tenant, for any reason whatsoever including,
without limitation, bankruptcy, liquidation, or other insolvency
of the Tenant, fails to duly and timeously perform, observe, and
keep each and every covenant and condition in the Lease on the
Tenant's part to be performed, observed and kept, including the
payment of all monies, whether rent or otherwise then in any and
every such event and so often as the same shall happen up to the
expiry date specified in the Lease, or, in the event the Lease is
renewed or extended, up to the expiry date specified for any such
renewal or extension, provided the Tenant is not then in default
of any of its obligations under the Lease (hereinafter called the
"Expiry Date"), the Guarantor will perform, observe and keep such
covenants and conditions wherein the Tenant has failed, and where
such failure is default in payment or any money, the Guarantor
will promptly pay the same to the Landlord or such other party to
whom the same is payable in accordance with the provision of the
Lease.
(c) That the Landlord is not bound to exhaust its recourse against the
Tenant or any other party or parties nor realize upon any other
security it may hold before requiring the Guarantor to perform the
terms and conditions of the Guarantor's covenants herein;
(d) That the Guarantor shall not be released from the guarantee and
indemnity hereunder for any reason whatsoever and in particular
without restricting the generality of the foregoing, for any of
the following reasons:
(i) any delay, or any extension of the time granted or
permitted to the Tenant by the Landlord; or
(ii) any waiver or any neglect or forbearance by the Landlord
in requiring or enforcing the strict or other performance
of any of the covenants, conditions or agreements imposed
by the Lease on the Tenant; or
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(iii) any failure of the Landlord in notifying the Guarantor
of any default of the Tenant respecting the Lease; or
(iv) any amendment, variation or renewal of the Lease
negotiated between the Landlord and the Tenant whether
with or without the knowledge of the Guarantor,
including any increase in Basic Rent determined upon in
accordance with the term of the Lease; or
(v) any assignment of the Lease or any sub-letting or
abandonment of all or any part of the premises demised
pursuant to the Lease prior to the Expiry Date thereof
and whether effected by the Landlord in concert with the
Tenant or by the Landlord alone or the Tenant alone or
by the operation of law, other than by expropriation or
by condemnation of the demised premises by any competent
authority; or
(vi) any election of any liquidator or trustee in bankruptcy
of the Tenant to assign, surrender, abandon, or disclaim
the whole or any part of the demised premises or the
Lease; or
(vii) any distress, re-entry or dispossession by the
Landlord; or
(viii) any other cause or reason for which sureties or joint
and several debtors may be relieved.
e) That the liability of a Guarantor to pay or perform hereunder
shall arise from time to time when notice in writing is given by
personal service on the Guarantor, or if a corporation or an
officer of the address of the Guarantor last known to the
Landlord, and any such notice so sent shall be deemed to be given
to the Guarantor two (2) days following the day on which the same
was posted in a Post Office in Canada;
f) That in the event the Lease ends or is otherwise terminated or
becomes unenforceable prior the Expiry Date (hereinafter called
"Early Termination"). Then notwithstanding such Early Termination,
the Guarantor with respect to the Lease:
(i) hereby and by these presents indemnify and hold harmless the
Landlord from and against any and all loss, damage, liability
or expense which the Landlord may sustain or incur by reason
of such Early Termination and the loss of rentals and revenue
and all other monies which would otherwise have been payable
to the Landlord pursuant to the Lease for the period from
such Early Termination to the Expiry Date, and
(ii) will pay to the Landlord on demand from time to time the
amount(s) representing any such loss, damage, liability or
expense sustained or incurred by the Landlord to the date of
such demand.
g) That the acceptance of the surrender of the Lease from the Tenant
or the termination of the Lease by the Landlord or by a Court upon
the application of the Landlord in any of the foregoing cases due
to the failure of the Tenant to pay rental or to perform observe
and fulfill the covenants, conditions and agreements imposed by
the Lease on the Tenant shall be regarded as an Early Termination
pursuant to the immediately preceding clause hereof even though
such Early Termination has been brought about by the Landlord if a
consequence of such Early Termination is that the guarantee herein
fails, ceases to exist or becomes unenforceable.
h) That upon Early Termination of the Lease the Landlord shall be at
liberty (but shall not be obligated) to take such reasonably
prudent steps as the Landlord determines to let that portion of
the Lands subject to the Lease, so as to minimize the Landlord's
loss and the Guarantor's liability to the Landlord arising
hereunder. In the event that the Landlord so relets such portion
of the Lands, then all costs of such reletting, including
advertising, legal, commissions or fees paid to any rental agent,
repairs and the like shall be deemed a loss occasioned by an Early
Termination as contemplated in Clause (f) hereof.
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i) That this guarantee and indemnity shall be construed in accordance
with the laws in force in the Province of Ontario.
j) That this guarantee and indemnity shall extend to and enure to the
benefit of the Landlord, its successors and assigns and reference
herein to any one of the undersigned is a reference to and shall
be construed as including the heirs, executors, successors and
assigns of such Guarantor.
k) That notwithstanding anything herein or otherwise to the contrary
the Landlord shall not be required to proceed upon the guarantee
and exhaust its recourse in that regard or proceed against the
Tenant or any other securities it may hold prior to the Landlord
proceeding against the Guarantor or any of them under the
indemnity and that the taking of a judgment with respect to the
guarantee or the recovery of any part of the monies pursuant
thereto shall not constitute or be deemed to constitute a merger
of any of its other rights hereunder.
l) The Guarantor will fulfill all other Tenants covenants and
conditions in the Lease.
IN WITNESS WHEREOF these presents have been duly executed by the
Guarantor at the City of Plano, in the State of Texas, this _________ of
_________, 199__.
SIGNED, SEALED AND DELIVERED )
IN THE PRESENCE OF: )
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WITNESS ) GUARANTOR
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) GUARANTOR
