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EXHIBIT 10.28
ASSIGNMENT
THIS AGREEMENT made as of and effective from the 18th day of May,
1999.
A M O N G:
STAR BEDDING PRODUCTS (1986) LTD.
(the "Assignor")
OF THE FIRST PART,
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STAR BEDDING PRODUCTS LIMITED
(the "Assignee")
OF THE SECOND PART;
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N.H.D. DEVELOPMENTS LIMITED
(the "Landlord")
OF THE THIRD PART:
W H E R E A S:
A. By a lease dated the 15th day of August, 1995 (the "Lease") the Landlord
leased to the Assignor, as tenant, certain premises (the "Premises"), located in
the building known as 00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, in the Province of
Ontario, for and during a term (the "Term") of five (5) years, commencing on the
1st day of January, 1996 and expiring on the last day of December, 2000.
B. The Lease contains a covenant on the part of the tenant not to assign the
Lease or sublet the Premises without the Landlord's consent;
C. The Assignor has agreed to assign the Lease to the Assignee subject to
obtaining the Landlord's consent to such assignment;
D. The Assignor has applied to the Landlord for the Landlord's consent to assign
the Lease to the Assignee, subject to and upon the terms and conditions herein
set out;
E. The Landlord has agreed to grant its consent to the within assignment as of
the 18th day of May, 1999 (the "Effective Date"), subject to the terms and
conditions herein set out.
1. CONSIDERATION
The consideration for this Agreement is the mutual covenants and
agreements between the parties to this Agreement and the sum of Ten ($10.00)
Dollars that has been paid by each of the parties to each of the others, the
receipt and sufficiency of which is hereby acknowledged.
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2. ASSIGNMENT
The Assignor hereby transfers, sets over and assigns unto the
Assignee, as of and from the Effective Date, all of the Assignor's right, title
and interest both at law and in equity in and to the Lease and the Premises, and
all privileges and appurtenances thereto belonging, together with the unexpired
residue of the Term of the Lease and all benefits and advantages to be derived
therefrom (including, without limitation, the rights of the Assignor to any
deposit given to the Landlord) to have and to hold the same, subject to the
obligation of the Assignee to make payment of the Rent as may become due and
payable under the terms of the Lease, and to observe and perform the covenants
and conditions of the tenant contained in the Lease, in each case from and after
the Effective Date.
For the purpose of this Agreement, "Rent" includes minimum rent,
basic rent, net rent, additional rent and any other amount payable by the tenant
pursuant to the Lease.
3. ASSIGNOR'S COVENANTS
The Assignor hereby makes the following representations and
covenants in favour or the Assignee:
(a) despite any act of the Assignor, the Lease is a good, valid and
subsisting Lease and the Rent thereby reserved has been duly paid up
to the Effective Date (subject to any adjustments to be made
pursuant to the terms of the Lease) and the covenants and conditions
therein contained have been duly observed and performed by the
Assignor up to the Effective Date;
(b) the Assignor has good right, full power and absolute authority to
assign the Lease of the Premises in the manner aforesaid, according
to the true intent and meaning of this Agreement;
(c) subject to the payment of Rent and to the observance and performance
of the terms, covenants and conditions contained in the Lease on the
part of the tenant therein to be observed and performed, the
Assignee may enter into and upon and hold and enjoy the Premises for
the residue of the Term granted by the Lease for its own use and
benefit without any interruption by the Assignor or by any person
whomsoever claiming through or under the Assignor;
(d) the Assignor will from time to time hereafter, at the request and
cost of the Assignee, promptly execute such further assurances as
the Assignee reasonably requires;
(e) the amount of the deposit being held by the Landlord is $17,893.33;
(f) the Lease is in full force and effect, unamended;
(g) the Assignor will indemnify and save harmless the Assignee from all
actions, suits, costs, losses, charges, damages, liabilities and
expenses arising out of the Assignor's tenancy under the Lease up to
the Effective Date.
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(h) the Assignor shall be responsible for rectification of the items
disclosed on the preliminary check-out inspection report attached as
Schedule "A" to this Assignment, if any; and
(i) the Landlord's consent herein, and the fact that an inspection was
carried out and certain deficiencies enumerated therein, shall not
in any way limit the Assignor's obligation to rectify any item
identified in the inspection report.
4. ASSIGNEE'S COVENANTS
(a) The Assignee covenants with the Assignor that it will at all times
during the balance of the Term of the Lease from and including the
Effective Date pay the Rent and observe and perform the terms,
covenants and conditions contained in the Lease respectively
reserved and contained on the part of the tenant therein to be
observed and performed, in each case occurring on or after the
Effective Date, including, without limitation, the provisions of the
Lease relating to the permitted use of the Premises, and indemnify
and save harmless the Assignor from all actions, suits, costs,
losses, charges, damages and expenses for or in respect thereof from
and including the Effective Date.
(b) The Assignee hereby covenants and agrees with the Landlord that it
will at all times during the balance of the Term of the Lease from
and including the Effective Date pay the Rent reserved by the Lease
and all other payments covenanted to be paid by the tenant therein
in each case occurring on or after the Effective Date, and at the
times and in the manner provided for in the Lease, and will observe
and perform all of the terms, covenants and conditions contained in
the Lease on the part of the tenant therein to be observed and
performed as and when the same are required to be observed and
performed as provided by the Lease, including, without limitation,
the provisions of the Lease relating to the permitted use of the
Premises, from and including the Effective Date.
5. ASSIGNEE'S ACKNOWLEDGMENTS
The Assignee acknowledges that it has received a copy of the
executed Lease and is Familiar with the terms, covenants and conditions
contained therein;
6. LANDLORD'S COVENANTS
The Landlord hereby covenants that subject to the payment of Rent
and to the observance and performance of the terms, covenants and conditions
contained in the Lease on the part of the tenant therein to be observed and
performed, the Assignee may enter into and upon and hold and enjoy the Premises
for the residue of the Term granted by the Lease for its own use and benefit
without any interruption by the Landlord or by any person whomsoever claiming
through or under the Landlord.
The Landlord hereby represents, warrants and covenants to the
Assignee that:
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(a) the Lease is in good standing and in full force and effect in
accordance with its terms and has not been modified or amended;
(b) the Landlord is holding to the credit of the Assignor the sum of
$17,893.33 as a security deposit and/or last month's rent;
(c) to the best of the Landlord's information and belief without having
made any inquiry, the Assignor has observed and performed all
covenants and provisions on its part contained in the Lease and is
not in default thereunder, nor is the Landlord aware of any default
by the Landlord under the Lease or any circumstances which could
give rise to any default by the Landlord or the Assignor under the
Lease;
(d) the Landlord does not currently claim any set-off, defence or
counter-claim against the performance by it of any of its
obligations under the Lease;
(e) the Premises are comprised of approximately 53,680 square feet of
building space;
(f) all rents and other payments required to be made pursuant to the
Lease have been paid up to the first day of May, 1999;
(g) notwithstanding any provision in the Lease to the contrary or the
assignment of the Lease by the Assignor to the Assignee, the option
to extend the term of the Lease contained in section 9 of Schedule D
of the Lease shall continue to be in full force and effect, and the
Assignee shall be entitled to exercise such option in accordance
with the provisions set out in said section 9 of Schedule D of the
Lease;
(h) there is no agreement between the Assignor and the Landlord other
than as is contained in the Lease pertaining to the obligations of
the Landlord and the rights of the Assignor relating to the use and
occupation of the Premises by the Assignor;
(i) the Landlord knows of no litigation or governmental or municipal
proceedings commenced, pending or threatened against the Landlord
with respect to the Premises or which if decided against it, would
adversely impair its ability to comply with the terms of the Lease;
and
(j) the Landlord shall, upon request by the Assignee made after the
Effective Date, make reasonable efforts to obtain from The
Great-West Life Assurance Company (the "Mortgagee") a
non-disturbance agreement on the Mortgagee's customary terms, such
agreement to be procured at the sole cost and expense of the
Assignee.
The Landlord acknowledges that the Assignee is relying an each of
the representations, warranties and covenants set out in this Section.
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7. LANDLORD'S CONSENT
The Landlord consents to this assignment of the Lease from the
Assignor to the Assignee as of and from the Effective Date subject to the
following terms:
(a) the consent does not in any way derogate from the rights of the
Landlord under the Lease nor operate to release the Assignor from
its obligation to pay all of the Rent from time to time becoming due
under the Lease and from the observance and performance of all of
the terms, covenants and conditions contained in the Lease on the
part of the tenant therein to be observed and performed and
notwithstanding the within assignment (or any disaffirmance or
disclaimer of the within assignment), the Assignor shall continue to
remain liable for all of such covenants during the balance of the
Term of the Lease;
(b) the consent does not constitute a waiver of the necessity for
consent to any further assignment of the Lease (as same is required
by the Lease) which must be completed in accordance with the terms
of the Lease. If the Assignee proposes to effect a further
assignment of the Lease, the terms of the Lease with respect to an
assignment shall apply to any such further assignment;
(c) the consent of the Landlord evidenced herein shall not be effective
until the Landlord has received two fully executed original copies
of this Agreement together with payment of its assignment fee
provided for in the Lease together with all taxes exigible thereon
as well as the insurance certificates and\or policies referred to in
sub-paragraph (e) of this provision. The within consent shall be
terminable by the Landlord unless the said items are received by the
Landlord within three (3) business days following the Effective
Date;
(d) the Assignor and the Assignee shall, at their expense, promptly
execute such further assurances with respect to the Promises as the
Landlord reasonably requires from time to time;
(e) the Assignee shall not be entitled to enter into and take possession
of the Premises until it delivers to the Landlord certificates of
insurance, or, if required by the Landlord's mortgagee, certified
copies of each such insurance policy which the tenant is required to
take out pursuant to the Lease confirming that all required coverage
is in effect on the exact terms required by the Lease and all
required permits, licenses, approvals from all governmental
authorities having jurisdiction for the carrying on by the Assignee
of its permitted business in the Premises.
8. In this Agreement, all words and personal pronouns relating thereto shall be
read and construed as the number and gender of the party or parties referred to
in each case require and the verb agreeing therewith shall be construed as
agreeing with the required word or pronoun. Where the context so requires, the
singular of any word shall import the plural and the plural shall import the
singular.
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9. This Agreement shall enure to the benefit of, and be binding upon, the heirs,
executors, administrators and assigns, or successors and assigns, as the case
may be, of the parties.
10. Where the Assignor or the Assignee constitute more than one party, all
covenants, liabilities and obligations of the parties constituting the Assignor
or the Assignee are made on a joint and several basis.
11. This Agreement be executed in counterparts, and such counterparts shall
together be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement as of the day and year first above written.
STAR BEDDING PRODUCTS (1986) LTD.
Per: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
I have authority to bind the Corporation.
STAR BEDDING PRODUCTS LIMITED
Per: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: Chairman of the Board, President
and CEO
I have authority to bind the Partnership.
N.H.D. DEVELOPMENTS LIMITED
Per: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:A.S.O.
I have authority to bind the Corporation.
Schedule "A" - Inspection Report
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