L E A S E
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THIS LEASE made this day of March, 1997.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
B E T W E E N:
TORONTO MEDICAL CORP.,
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(the "Landlord")
OF THE FIRST PART
A N D :
TORONTO MEDICAL ORTHOPAEDICS LTD.,
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(the "Tenant")
OF THE SECOND PART
WHEREAS the Landlord has agreed to lease to the Tenant, and
the Tenant has agreed to lease from the Landlord the lands hereinafter
described, together with the building and improvements situate thereon on the
terms and provisions hereinafter set forth:
1.00 - GRANT AND TERM
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.1 Grant
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In consideration of the rents and covenants herein
contained on the part of the Tenant, the Landlord hereby leases to the Tenant
the lands and premises municipally known as 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxx, containing a free standing single storey industrial building (the
"Building") with a gross floor area of 28,547 square feet, more or less, as more
particularly described in Schedule "A" hereto, and all rights and appurtenances
(collectively the "Premises").
.2 Term
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To hold the Premises for the term of 2 years (the "Term") from
March 1, 1997 (the "Commencement Date") until February 28, 1999.
2.00 - RENT
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.1 Rent
----
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The Tenant paying therefor yearly during the Term the
sum of $142,285.00 of lawful money of Canada in 12 equal monthly instalments of
$11,857.00 in advance on the first day of each and every month, the first of
such instalments to become due and payable on March 1, 1997 (the "Base Rent").
.2 Prepaid Rent/Security Deposit
-----------------------------
The Tenant hereby covenants to pay on the execution
of this Lease the sum of:
(a) Prepaid Rent
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$23,714.00 plus GST, $11,857.00 plus GST of which
is to be applied to the account of the first
month's rent and the balance on account of the
last month's rent.
(b) Security Deposit
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INTENTIONALLY DELETED
.3 Additional Rent
---------------
The Tenant covenants and agrees to pay therefor as
additional rent (the "Additional Rent") the moneys and other charges, costs and
expenses herein provided to be paid by the Tenant at the several times when they
become payable.
.4 Rent Past Due
-------------
If the Tenant fails to pay when the same is due and
payable hereunder any Base Rent, Additional Rent or any other amount payable by
the Tenant under this Lease, such unpaid amounts shall bear interest from the
due date thereof to the date of payment at a rate per annum, which is three (3)
percentage points in excess of the Prime Rate.
3.00 - TENANT'S COVENANTS
-------------------------
The Tenant covenants with the Landlord as follows:
.1 Rent
----
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During the Term, to pay to the Landlord the Base Rent
hereby reserved and all Additional Rent in the manner and at the times herein
provided, without deduction, abatement or set-off except as may otherwise be
provided herein, all rent in arrears to bear interest at three (3) percentage
points in excess of the Prime Rate per annum until paid. During the initial Term
(but not during the First Renewal Term or the Second Renewal Term (as
hereinafter defined)), Tenant shall have the set-off rights provided for in
section 8.1(d) of the Purchase and Sale Agreement dated December 30, 1996, among
Tenant as buyer, and Landlord as seller.
.2 Additional Rent
---------------
As Additional Rent hereunder, to promptly discharge
and pay when due (subject to the right of contestation as hereinafter mentioned)
before any fine, penalty, interest or cost may be added thereto: all real
property taxes, rates, duties, assessments, impost charges, local improvement
charges and levies, whether general or specified, and other public charges,
excluding any income or capital taxes which shall be payable by the Landlord,
which prior to the commencement of the Term have been, or during the Term may
be, levied, rated, charged or assessed against the Premises and all equipment
and facilities thereon or therein, and any property now or hereafter on the
Premises, whether or not owned or brought thereon by the Tenant, and any taxes
or other amounts that are imposed on the Landlord in lieu of, in substitution
for or in addition to any real property taxes (whether currently contemplated or
not) provided that any such taxes, rates, duties, assessments, charges or levies
which have been levied prior to the commencement of the Term shall be
apportioned such that the Tenant shall be responsible only for the portion of
same pertaining to the period following the Commencement Date; any goods and
services taxes imposed with respect to Base Rent or Additional Rent, whether
characterized as a goods and services tax, value-added tax, sales tax or
otherwise; any commercial concentration levy tax or other similar tax; every
tax, licence fee, business tax and other public charge which before the
commencement of the Term has been or during the Term may be assessed, levied or
charged in respect of the Premises, whether or not caused by the occupancy of
the Tenant or the business carried on therein by the Tenant or the property of
the Tenant therein, whether such taxes, rates, assessments, licence fees and
other public charges are assessed, levied or charged by municipal, provincial,
federal, school or other public body; and all charges for electric current, gas,
telephone, water and other rates in connection with the Premises; and the Tenant
shall indemnify the Landlord against the payment of all such tax, rate, duty,
assessment, licence fee or other public charge, electric current, rate and other
utility charges, and against all loss, liability, cost, charge and expense by
reason of the Tenant's failure to pay such sums when due; and the Tenant shall
forthwith after payment of the foregoing items and charges produce to the
Landlord on request evidence satisfactory to the Landlord of the fact of such
payment; PROVIDED that the Tenant may contest, if it has delivered to the
Landlord security for such taxes, rates, etc. that the Landlord requires, the
validity or the
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amount of any tax, rate, assessment or other public charge (if meanwhile such
contestation will involve no forfeiture, foreclosure, escheat, sale or
termination of the Landlord's title to the Premises or any part thereof), but
upon a final determination of any such contest, the Tenant shall immediately pay
and satisfy the amount of any such tax, rate, assessment or other public charge
declared or found to be due, together with all proper costs, penalties, interest
or other charges payable in connection therewith; and upon being provided with
suitable indemnity or security satisfactory to it, in relation to any costs,
charges, rates, assessments or expenses which it may incur or be likely to
incur, the Landlord agrees to join in any such contest if the Tenant shall
require and if its presence is reasonably necessary to perfect the proceedings
in relation thereto, but the Landlord shall not be responsible for the conduct
or carriage of such proceedings nor incur any liability whatsoever by reason of
having joined therein and the Tenant shall indemnify and save the Landlord
against any such liability. The Tenant agrees to provide the Landlord within 10
days after receipt thereof with a copy of any separate tax bills and separate
tax notices of assessments for the Premises. The Tenant will promptly deliver to
the Landlord evidence of payments satisfactory to the Landlord, acting
reasonably, of all such taxes paid to any such taxing authorities aforesaid and
will furnish such other information in connection therewith as the Landlord may
reasonably require. Notwithstanding the foregoing, Additional Rent should not
include any of the following:
(a) borrowing costs, depreciation, interest and principal on
mortgages and other debt costs, except to the extent included
as set forth above;
(b) any costs incurred as a result of the gross negligence or
wilful misconduct of the Landlord or any of its agents,
contractors or employees;
(c) costs of all repair and replacement to the structure of the
Building including, without limitation, foundations, bearing
walls, structural columns and beams, and the roof structure,
excluding the roof membrane, whether or not they are paid for
from proceeds of insurance or as damages by third parties,
save and except those repairs and replacements resulting from
the acts or omission of the Tenant or any of its agents,
contractors or employees or those for whom it is in law
responsible, which shall be the Tenant's responsibility;
(d) ground rent and other monies payable under any ground lease of
the lands or any part thereof or any lease senior to this
Lease, except for amounts which would be included in
Additional Rent if incurred under this Lease;
(e) proceeds of insurance and damages paid by third parties; and
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(f) any costs relating to any violation of or costs of compliance
with Environmental Laws (as defined in Section 11.1) other
than those for which the Tenant is otherwise responsible under
this Lease.
.3 Maintenance
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At its own cost and expense, to operate, maintain and
keep the Premises and all equipment and fixtures thereon in good order and
condition, reasonable wear and tear excepted, and promptly to make all repairs
and replacements of any nature, whether of a capital nature or otherwise, to the
Premises when needed (both inside and outside, structural or otherwise),
provided, however, that the Tenant shall not be responsible for the costs or
expense of operation, maintenance, replacement or repair of those items
described in Sections 3.2(b), 3.2(c) or 3.2(f). Subject to Section 7.5 hereof,
if the Tenant shall at any time fail to make any such repairs or replacements
when needed, the Landlord may make them or cause them to be made and the cost
thereof, together with interest thereon computed at the Prime Rate from the date
of payment by the Landlord, shall be charged to and paid by the Tenant as
Additional Rent due on the next ensuing rent day. The Tenant shall permit the
Landlord and its representatives at all reasonable times upon 24 hours prior
written notice (except in the case of an emergency) to enter upon and view the
Premises and the state of repair and to make such needed repairs and
replacements as the Landlord may specify in writing.
.4 Condition of Premises
---------------------
To keep the 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 and, at its expense, to keep the
driveways, walks, grounds, sidewalks and curbs forming part of or adjoining the
Premises clean and free of snow and ice.
.5 Overloading Floors
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Not to bring upon the Premises or any part thereof
any machinery, equipment, article or thing that by reason of its weight, size or
use might damage the Premises and not at any time to overload the floors of the
Premises, and if any damage is caused to the Premises by any machinery,
equipment, article or thing or by overloading or by any act, neglect or misuse
on the part of the Tenant or any of its servants, agents or employees or any
person having business with the Tenant, to forthwith repair or pay to the
Landlord the cost of making good such damage. The Tenant shall not bring or
permit any heavy vehicles on the Premises which might damage any parking areas
or driveways.
.6 Heat
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To heat the Premises at its own expense to the extent
required by it for its business purposes with the heating systems currently in
the Building, but always to such temperature as may be necessary to prevent
damage to the Premises by frost.
.7 Compliance with Fire and Other Regulations
------------------------------------------
That the Tenant has inspected the Premises and
acknowledges that it is accepting the Premises on an "as is, where is and what
is basis" and that the Landlord is making no covenants, agreements,
representations, warranties or acknowledgements with respect to the condition of
the Premises and finds them to be in a satisfactory condition and that in the
maintenance, use and occupation of the Premises, it will at its own cost and
expense comply with every applicable regulation or order of the Canadian Fire
Underwriters Association, or any body having similar functions, and of any
liability or fire insurance company by which the Landlord or the Tenant may be
insured, and with all applicable laws, ordinances and regulations of duly
constituted public authorities having jurisdiction now or hereafter in any
manner affecting the Premises or the use or occupation thereof, whether or not
such regulations, orders, laws or ordinances which may hereafter be promulgated,
issued or enacted involve a change of policy or require structural or other
changes or alterations in or about the Premises.
.8 Construction and Other Liens
----------------------------
Not at any time to permit any construction,
labourer's, materialman's or similar lien to stand against the Premises for any
labour or materials furnished to or with the consent of the Tenant, its agents
or contractors, in connection with work of any character performed or claimed to
have been performed on the Premises by or at the direction or sufferance of the
Tenant; PROVIDED, however, that the Tenant shall have the right to contest, if
it has delivered to the Landlord security for such lien, as required by the
Landlord, the validity of or the amount claimed under or in respect of any such
lien, provided such contestation shall involve no forfeiture, foreclosure or
sale of the Premises or any part thereof, but upon a final determination of such
contest, the Tenant shall immediately pay and satisfy any judgement or decree
rendered against the Tenant, with all proper costs and charges, and cause such
lien to be discharged and released of record, all without cost or expense to the
Landlord; provided further that on the Tenant's failure promptly to remove or
contest any such lien and all amounts paid by or on behalf of the Landlord,
together with all expenses incurred in connection therewith and interest thereon
at the Prime Rate from the date of payment by or for the Landlord, shall be
charged to and paid by the Tenant as Additional Rent due on the next ensuing
rent day.
.9 Indemnity
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To indemnify the Landlord against all liability,
claims, demands, actions and causes of action of any nature whatsoever, and any
expense incident thereto, for injury to or death of persons or loss of or damage
to property occurring on the Premises or the adjoining walks, drives, ways or
streets or in any manner growing out of or in connection with the Tenant's use
or occupation of the Premises or the condition thereof or the adjoining walks,
drives, ways or streets during the Term or arising out of any breach of the
Tenant's covenants herein or out of any work being done in or about the Premises
unless such liability, claims, demands, actions and causes of actions arise as a
result of the gross negligence or wilful misconduct of the Landlord or those for
whom it is at law responsible.
.10 Insurance
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During the whole of the Term, at its expense:
(a) to insure the Premises, excluding
foundations, in a stated amount as determined by the
Landlord's insurance advisors, but not exceeding the
full insurable value thereof, against all risk of
loss or damage caused by or resulting from fire,
lightning, explosion, collapse of any boilers, pipes
or accessories in or about the Premises or any peril
defined in a standard fire insurance additional
perils supplementary contract normally in use from
time to time during the Term or any extension thereof
for buildings and structures in the Town of Pickering
similar in nature to the Premises. Insurance under
this Section shall be maintained at the full
replacement value with a by-law compliance
endorsement;
(b) to maintain public liability and property
damage insurance, including personal injury
liability, contractual liability, non-owned
automobile liability, employers' liability and
owners' and contractors' protective insurance
coverage with respect to the Premises and the
Tenant's use thereof, coverage to include the
activities and operation conducted by the Tenant and
any other person on the Premises and by the Tenant
and any other person performing work on behalf of the
Tenant and those for whom the Tenant is in law
responsible in any part of the Premises. Such
policies shall:
(i) be written on a comprehensive basis
with inclusive limits of not less than
$2,000,000.00 for bodily injury to any one
or more persons or property damage or such
higher limits as the Landlord, acting
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reasonably, or any mortgagee of the Premises
requires from time to time; and
(ii) contain a SEVERABILITY of interests
clause and cross- liability clause;
(c) to maintain broad form boiler and machinery
insurance on a blanket repair and replacement basis
with limits for each accident in an amount not less
than the replacement cost of all boilers, pressure
vessels, air-conditioning equipment and miscellaneous
electrical apparatus owned or operated by the
Landlord and the Tenant or by others in the Premises
or relating to or serving the Premises;
(d) to maintain business interruption insurance
to reimburse the Tenant for direct or indirect loss
of earnings attributable to all perils insured
against in Sections 3.10(a) and (c) and other perils
commonly insured against by prudent tenants or
attributable to prevention of access to the Premises
as a result of such perils and, for this purpose, to
the extent that such coverage is not provided for in
the business interruption insurance, shall maintain
the appropriate endorsements to the fire policy (loss
of rental income) and to the boiler policy (use and
occupancy), the limits of which endorsements shall be
equal to the annual rent and Additional Rent
calculated by the Landlord or its insurance advisors;
(e) to maintain tenants' legal liability
insurance for the actual cash value of the Premises,
including loss of use thereof;
(f) to maintain any other form of insurance as
the Landlord, acting as a prudent owner and as is
customary practice for landlords of buildings of a
similar nature, or any mortgagee of the Premises
reasonably requires from time to time in form, in
amounts and for insurance risks against which a
prudent owner would insure; and
(g) to alter or improve any of the insurance
policies placed pursuant to this Section 3.10 as the
Landlord, acting as a prudent owner, or any mortgagee
of the Premises requires from time to time.
All such contracts of insurance placed by the Tenant
hereunder shall, to the extent available, show the Landlord, Tenant and any
mortgagee (to an amount that the Landlord's insurance advisors feel a prudent
owner and landlord should be insured for) as joint insured, as their interests
may from time to time appear,
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and shall contain a waiver of any subrogation rights which the Tenant's insurers
may have against the Landlord and those for whom the Landlord is at law
responsible, whether any such damage is caused by the act, omission or
negligence of the Landlord or those for whom the Landlord is at law responsible.
To the extent available, and provided that it does not increase the cost
otherwise payable by the Landlord for its insurance, the Landlord's insurance in
respect of the Premises shall contain a waiver of any subrogation rights which
the Landlord's insurers may have against the Tenant and those for whom the
Tenant is at law responsible, whether any damage is caused by the act, omission
or negligence of the Tenant or those for whom the Tenant is at law responsible.
If the Tenant fails to obtain the policies of
insurance required hereunder, the Landlord may itself obtain such policies and
shall give the Tenant a notice setting out the amount and dates of payment of
all costs and expenses incurred by the Landlord in connection therewith to the
date of such notice; the Tenant will, with the next instalment of rent which
becomes due, pay the same to the Landlord with interest at three (3) percentage
points in excess of the Prime Rate per annum calculated on the various amounts
from the respective dates of payment thereof by the Landlord to the date of
repayment by the Tenant. Any sum so expended by the Landlord, together with such
interest as aforesaid, shall constitute rent hereunder and be collectable as
such rent and be due and payable on demand by the Landlord.
The Tenant shall furnish the Landlord with certified
copies of policies or other acceptable evidence of all such insurance promptly
upon request, provided no review or approval of any such policies by the
Landlord shall derogate from or diminish the Landlord's rights or the Tenant's
obligations contained in this Lease or this Article.
.11 Surrender at Expiration of Term
-------------------------------
At the expiration or earlier termination of this
Lease, peaceably to surrender and yield up to the Landlord the Premises in good
and substantial repair and condition, subject to reasonable wear and tear.
PROVIDED that the Tenant may at the expiration of this Lease, if it shall not
then be in default hereunder, remove from the Premises all the Tenant's
fixtures, but shall, in such removal, do no damage to the Premises or shall
promptly make good any damage which may be occasioned thereto and restore them
to their condition prior to such removal.
.12 Use of Premises
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Not to use the Premises other than for the purposes
of manufacturing of orthopaedic medical devices or other medical products
related thereto, warehousing inventory and general office use and not to carry
on, or permit to be carried on in or upon the Premises any noxious or offensive
trade or business which shall be a nuisance at law or by which the buildings or
erections on the Premises shall
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be injuriously affected or by reason of which it shall become impossible to
obtain and maintain insurance against fire and the usual perils.
.13 Waiver re Distress
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To waive and renounce (so far as it may be permitted
to do so by applicable legislation) the benefit of any present or future act in
force in the Province of Ontario which takes away or limits the Landlord's right
of distress, and that the Landlord may seize and sell the Tenant's goods and
chattels for payment of Base Rent and Additional Rent and costs as fully as the
Landlord might have done if such act had not been enacted or passed.
.14 Roof
----
That it will not place anything on the roof, whether
signs or otherwise, or in any way make any opening in the roof for stacks or
other purposes, or in any way alter the walls or structure of the Premises
without the written consent of the Landlord.
.15 Evidence of Payments by Tenant
------------------------------
The Tenant shall from time to time at the request of
the Landlord produce to the Landlord satisfactory evidence of the due payment by
the Tenant of all payments required to be made by the Tenant under this Lease.
.16 Air-Conditioning
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Not to place or attach anything to the outside of the
windows or the exterior of the Premises. No air conditioning equipment shall be
placed in the windows or shall extend from the exterior of the Premises without
the consent in writing of the Landlord, which consent may be arbitrarily
withheld.
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.17 Application to Amend By-Laws
----------------------------
The Tenant will not make any application or
representation to or for any governmental body which would have the effect of,
in any way, amending or varying the provisions of any governmental by-laws,
rules, regulations or requirements affecting the Premises or the building and
lands of which the Premises form a part without first obtaining the written
consent and authorization of the Landlord, which may be arbitrarily withheld.
.18 Financial Statements
--------------------
The Tenant will at the request of the Landlord supply
copies of its financial statements to the Landlord or to the first mortgagee of
the Premises or a prospective first mortgagee or prospective purchaser of the
Premises.
.19 Additions and Fixtures
----------------------
Subject to Section 3.11, any building, erection or
improvement placed or erected upon the Premises shall become a part thereof and
shall not be removed and shall be subject to all the provisions of this Lease,
but no building, erection or improvement shall be erected upon the Premises
without the prior written consent of the Landlord.
.20 Inspection by Interested Parties
--------------------------------
During the Term, any person or persons may inspect
the Premises and all parts thereof at all reasonable times on 24 hours prior
written notice on producing a written order to that effect signed by the
Landlord or its agents, provided such inspection does not unreasonably interfere
with the business of the Tenant.
.21 Notices for Sale or to Let
--------------------------
The Landlord may at any time during the Term or any
renewal thereof enter upon the Premises and affix thereto in some prominent
location which will not interfere with the business of the Tenant a notice or
sign to the effect that the Premises are for sale and within 6 months prior to
the end of the Term a sign to the effect that the Premises are available for
leasing, and the Tenant shall not remove the said notice or sign or permit it to
be removed unless requested to do so by the Landlord.
4.00 - TRANSFERS
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.1 Assigning and Subletting
------------------------
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(a) The Tenant will not assign this Lease in
whole or in part, nor sublet all or any part of the
Premises, nor mortgage or encumber this Lease or the
Premises or any part thereof, nor suffer or permit
the occupation of, or part with or share possession
of all or any part of the Premises by any person (all
of the foregoing being hereinafter collectively
referred to as a "Transfer") without the prior
written consent of the Landlord in each instance,
which consent shall not be unreasonably withheld or
delayed, provided that, notwithstanding any statutory
provision to the contrary, it shall not be considered
unreasonable for the Landlord to take into account
the following factors in deciding whether to grant
its consent:
(i) whether any such Transfer is in
violation or breach of any covenants or
restrictions granted by the Landlord to
other tenants or occupants or prospective
tenants or occupants; and
(ii) whether in the Landlord's
reasonable opinion the financial background,
business history and capability of the
proposed Transferee is satisfactory.
The consent by the Landlord to any Transfer, if
granted, shall not constitute a waiver of the
necessity for such consent to any subsequent
Transfer. This prohibition against a Transfer is
construed so as to include a prohibition against any
Transfer by operation of law and no Transfer shall
take place by reason of a failure by the Landlord to
give notice to the Tenant within 30 days as required
by Section 4.2(b).
(b) If the Tenant intends to effect a Transfer
of all or any part of the Premises or this Lease in
whole or in part, or any estate or interest
hereunder, then and so often as such event shall
occur, the Tenant shall give prior written notice to
the Landlord of such intent specifying therein the
proposed assignee, subtenant or occupant (all of the
foregoing being hereinafter collectively referred to
as the "Transferee") and providing such information
with respect thereto, including, without limitation,
information concerning the principals thereof and as
to any credit, financial or business information
relating to the proposed Transferee as the Landlord
or the mortgagee requires, and the Landlord shall
within 30 days after having received such notice and
all such necessary information, notify the Tenant in
writing either that:
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(i) it consents or does not consent to
the Transfer in accordance with the
provisions and qualifications in this
Article 4.00; or
(ii) it elects to cancel this Lease in
preference to giving of such consent.
If the Landlord elects to cancel this Lease as aforesaid,
the Tenant shall notify the Landlord in writing within 15
days thereafter of the Tenant's intention either to
refrain from such Transfer or to accept the cancellation
of this Lease. If the Tenant fails to deliver such notice
within such period of 15 days, this Lease will thereby be
terminated upon the expiration of the said 15-day period.
If the Tenant advises the Landlord it intends to refrain
from such Transfer, then the Landlord's election to cancel
this Lease as aforesaid shall become null and void in such
instance.
.2 Corporate Ownership
-------------------
If the Tenant is a corporation or if the Landlord has
consented to a Transfer of this Lease to a corporation, any transfer or issue by
sale, assignment, bequest, inheritance, operation of law or other disposition,
or by subscription from time to time of all or any part of the corporate shares
of the Tenant or of any parent or subsidiary corporation of the Tenant or any
corporation which is an associate or affiliate of the Tenant (as those terms are
defined pursuant to the Business Corporations Act [Ontario] and amendments
thereto (the "OBCA")), which results in any change in the present effective
voting control of the Tenant by the person holding such voting control at the
date of execution of this Lease (or at the date a Transfer of this Lease to a
corporation is permitted) and which does not receive the prior written consent
of the Landlord in each instance (which consent may be unreasonably withheld,
notwithstanding any statutory provision to the contrary) entitles the Landlord
to terminate this Lease upon 5 days' written notice to the Tenant. If the
Landlord elects to cancel this Lease as aforesaid, the Tenant shall have the
right to advise the Landlord within 15 days after written notice of the
Landlord's election, that the Tenant elects to have this Lease reinstated by the
transfer, sale, assignment or other disposition (the "Re-Transfer") from the
shareholders of the Tenant after such change in control to the shareholders of
the Tenant existing as at the Commencement Date (or at the date that a Transfer
of this Lease to a corporation is permitted). If the Tenant effects such
Re-Transfer within 30 days following the Landlord's election and forthwith
thereafter provides the Landlord with evidence satisfactory to the Landlord of
such Re-Transfer, this Lease will be reinstated for the balance of the Term as
of the date of the termination by the Landlord as aforesaid. If this Lease is
terminated as
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aforesaid, the Landlord may re-enter and take possession of the Premises,
whereupon the Landlord's rights and remedies contained in Article 7.00 shall
apply. The Tenant shall:
(a) when requesting consent to a sale of shares
as aforesaid, provide the Landlord with such
information as to the proposed purchaser as the
Landlord requires, including, without limitation,
information concerning credit worthiness, financial
standing and business history; and
make available to the Landlord or its lawful
representatives all corporate books and records of the Tenant for inspection at
all reasonable times in order to ascertain whether there has been any change in
control of the Tenant corporation.However, this Section 4.2 shall not apply if
and so long as the Tenant is a public corporation whose shares are, and after
such change in control will continue to be, publicly traded and listed on any
recognized stock exchange in Canada or the United States.
.3 Transfers by Landlord
---------------------
The Landlord, at any time and from time to time, may
sell, transfer, lease, assign or otherwise dispose of the whole or any part of
its interest in the Premises, and at any time and from time to time may enter
into any mortgage of the whole or any of its interest in the Premises. If the
party acquiring such interest shall have agreed that so long as it holds such
interest, to assume and to perform each of the covenants, obligations and
agreements of the Landlord under this Lease in the same manner and to the same
extent as if originally named as the Landlord in this Lease, the Landlord shall
thereupon be released from all of its covenants and obligations under this
Lease.
.4 Additional Rent on Sublet or Assignment
---------------------------------------
(a) In the event of any subletting by the Tenant
by virtue of which the Tenant receives a rental in
the form of cash, goods, services or other
considerations from the subtenant which is higher
than the rental payable hereunder to the Landlord for
the premises sublet, the Tenant shall pay 50% of any
such excess to the Landlord in addition to all
rentals and other costs payable hereunder and such
excess for the period of time during which the said
subtenant remains in possession of the premises
sublet to it.
(b) If the Tenant herein shall receive from any
assignee of this Lease, either directly or
indirectly, any consideration for
-15-
the assignment of this Lease, either in form of cash,
goods or services, the Tenant shall forthwith pay an
amount equivalent to 50% of such consideration shall
be deemed to be further Additional Rent hereunder.
5.00 - LANDLORD'S COVENANTS
---------------------------
The Landlord covenants with the Tenant as follows:
.1 Quiet Enjoyment
---------------
That the Tenant, upon paying the Base Rent and
Additional Rent hereby reserved and performing and observing all of the
covenants and provisions herein contained on its part to be performed and
observed, shall peaceably enjoy and possess the Premises for the Term without
any interruption or disturbance from the Landlord or any other person or persons
lawfully claiming by, from or under it; PROVIDED, however, that nothing herein
contained shall be construed as a warranty by the Landlord to the Tenant as
against any adverse claims, encumbrances or defects in title to the Premises
existing before the Landlord acquired title, or asserted by persons claiming by,
from or under a predecessor in title to the Landlord.
6.00 - NET NET LEASE
--------------------
.1 [Intentionally Deleted]
-----------------------
.2 Adjustment of Taxes
-------------------
The taxes and local improvement rates in respect of
the first and last years of the Term shall be adjusted between the Landlord and
the Tenant.
.3 Net Net Lease
-------------
It is the intention of the parties that the rent
herein provided to be paid shall be absolute net net to the Landlord and clear
of all taxes (except income and capital taxes), costs and charges arising from
or relating to the Premises except as otherwise provided in this Lease and that
the Tenant shall pay all charges, impositions and expenses of every nature and
kind relating to the Premises except as otherwise provided in this Lease, and
the Tenant hereby covenants with the Landlord accordingly.
-16-
.4 [Intentionally Deleted]
-----------------------
.5 Non-Liability of Landlord
-------------------------
Except in the event of any injury or death caused by
the gross negligence or wilful misconduct of the Landlord or those for whom it
is at law responsible, the Landlord shall not in any event whatsoever be liable
or responsible in any way for any personal injury or death that may be suffered
or sustained by the Tenant or any other person who may be upon the Premises or
for any loss of or damage or injury to any property belonging to the Tenant or
its employees or to any other person while such property is on the Premises and,
in particular, the Landlord shall not be liable for any damage to any such
property caused by steam, water, rain or snow which may leak into, issue or flow
from any part of the building or adjoining Premises or from the water, steam,
sprinkler or drainage pipes or plumbing works of the building or from any other
place or quarter or for any damage caused by or attributable to the condition or
arrangement or any electrical or other wiring.
-17-
7.00 - DEFAULT
--------------
.1 Right to Re-Enter
-----------------
If and whenever:
(a) the Tenant fails to pay any Base Rent or
Additional Rent or other sums due hereunder on the
day or dates appointed for the payment thereof
(provided the Landlord first gives five (5) days'
written notice to the Tenant of any such failure); or
(b) the Tenant fails to observe or perform any
other of the terms, covenants or conditions of this
Lease to be observed or performed by the Tenant
(other than the terms, covenants or conditions set
out in Sections 7.1(c) to (l), inclusive, for which
no notice shall be required), provided the Landlord
first gives the Tenant 15 days' (or such shorter
period of time as is otherwise provided herein)
written notice of any such failure to perform and the
Tenant within such period of 15 days fails to
commence diligently and, thereafter, to proceed
diligently to cure any such failure to perform; or
(c) the Tenant or any agent of the Tenant
falsifies any report or statement required to be
furnished to the Landlord pursuant to this Lease; or
(d) the Tenant or any guarantor of this Lease or
any person occupying the Premises or any part thereof
or any licensee, concessionaire or franchisee
operating business in the Premises becomes bankrupt
or insolvent or takes the benefit of any act now or
hereafter in force for bankrupt or insolvent debtors
or files any proposal or makes any assignment for the
benefit of creditors or any arrangement or
compromise; or
(e) a receiver or a receiver and manager is
appointed for all or a portion of the Tenant's
property or any such guarantor's, occupant's,
licensee's, concessionaire's or franchisee's
property; or
(f) any steps are taken or any action or
proceedings are instituted by the Tenant or by any
other party, including, without limitation, any court
or governmental body of competent jurisdiction for
the dissolution, winding-up or liquidation of the
Tenant or its assets; or
-18-
(g) the Tenant makes a sale in bulk of any of
its assets wherever situate (other than a bulk sale
made to an assignee or sublessee pursuant to a
permitted assignment or subletting hereunder and
pursuant to the Bulk Sales Act (Ontario)); or
(h) the Tenant abandons or attempts to abandon
the Premises or, other than in the ordinary course of
business, sells or disposes of the trade fixtures,
goods or chattels of the Tenant or remove them from
the Premises so that there would not, in the event of
such sale or disposal, be sufficient trade fixtures,
goods or chattels of the Tenant on the Premises
subject to distress to satisfy all rent due or
accruing hereunder for a period of at least 6 months;
or
(i) the Premises become and remain vacant for a
period of 7 consecutive days or are used by any
persons other than such as are entitled to use them
hereunder; or
(j) the Tenant assigns, transfers, encumbers,
sublets or, save and except with respect to an
affiliate (as that term is defined in the OBCA) with
prior written notice to the Landlord, permits the
occupation or use or the parting with or sharing
possession of all or any part of the Premises by
anyone, except in a manner permitted by this Lease;
or
(k) this Lease or any of the Tenant's assets are
taken under any writ of execution; or
(l) re-entry is permitted under any other terms
of this Lease,
then and in every such case the Landlord, in addition
to any other rights or remedies it has pursuant to this Lease or by law, has the
immediate right of re-entry upon the Premises and it may repossess the Premises
and enjoy them as of its former estate and may expel all persons and remove all
property from the Premises and such property may be removed and sold or disposed
of by the Landlord as it deems advisable or may be stored in a public warehouse
or elsewhere at the cost and for the account of the Tenant, all without service
of notice or resort to legal process and without the Landlord being considered
guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby.
.2 Right to Relet
--------------
(a) If the Landlord elects to re-enter the
Premises as herein provided or if it takes possession
pursuant to legal proceedings
-19-
or pursuant to any notice provided by law, it may
either terminate this Lease or it may from time to
time without terminating this Lease, make such
alterations and repairs as are necessary in order to
relet the Premises or any part thereof for such term
or terms (which may be for a term extending beyond
the Term) and at such rent and upon such other terms,
covenants and conditions as the Landlord, in its sole
discretion, considers advisable. Upon each such
reletting, all rent received by the Landlord from
such reletting shall be applied, first, to the
payment of any indebtedness other than rent or
Additional Rent due hereunder from the Tenant to the
Landlord; second, to the payment of any costs and
expenses of such reletting, including brokerage fees
and solicitor's fees and of costs of such alterations
and repairs; third, to the payment of rent and
Additional Rent due and unpaid hereunder; and the
residue, if any, shall be held by the Landlord and
applied in payment of future rent as the same becomes
due and payable hereunder. If such rent received from
such reletting during any month is less than that to
be paid during that month by the Tenant hereunder,
the Tenant shall pay any such deficiency which shall
be calculated and paid monthly in advance on or
before the first day of each and every month. No such
re-entry or taking possession of the Premises by the
Landlord shall be construed as an election on its
part to terminate this Lease, unless a written notice
of such intention is given to the Tenant.
Notwithstanding any such reletting without
termination, the Landlord may at any time thereafter
elect to terminate this Lease for such previous
breach.
(b) If the Landlord at any time terminates this
Lease for any breach in addition to any other
remedies it may have, it may recover from the Tenant
all damages it incurs by reason of such breach,
including the cost of recovering the Premises,
solicitor's fees (on a solicitor and his client
basis) and including the worth at the time of such
termination of the excess, if any, of the amount of
rent, Additional Rent and charges equivalent to the
rent, Additional Rent and other charges required to
be paid pursuant to this Lease for the remainder of
the Term over the then reasonable rental value of the
Premises for the remainder of the Term, all of which
amounts shall be immediately due and payable by the
Tenant to the Landlord. In any of the events referred
to in Section 7.2, in addition to any and all other
rights, including the rights referred to in this
Article and in Section
-20-
7.1, the full amount of the current month's
instalment of rent and of all Additional Rent
payments for the current month and any other payments
required to be made monthly hereunder, together with
the next three (3) months' instalments of Base Rent
and of all Additional Rent and such other payments
for the next 3 months, all of which shall be deemed
to be accruing due on a day-to-day basis, shall
immediately become due and payable as accelerated
rent, and the Landlord may immediately distrain for
the same, together with any arrears then unpaid.
.3 Expenses
--------
If legal action is brought for recovery of possession
of the Premises, for the recovery of Base Rent and Additional Rent or any other
amount due under this Lease, or because of the breach of any other terms,
covenants or conditions herein contained on the part of the Tenant to be kept or
performed, and a breach is established, the Tenant shall pay to the Landlord all
expenses incurred therefor, including a solicitor's fee (on a solicitor and his
client basis) unless a court shall otherwise award.
.4 Waiver of Exemption from Distress
---------------------------------
The Tenant hereby agrees with the Landlord that,
notwithstanding anything contained in section 30 of the Landlord and Tenant Act
(Ontario) (the "Act")or any Statute subsequently passed to take the place of or
amend the Act, none of the goods and chattels of the Tenant at any time during
the continuance of the Term on the Premises shall be exempt from levy by
distress for rent or Additional Rent in arrears by the Tenant as provided for by
any Sections of the Act or any amendments thereto, and that if any claim is made
for such exemption by the Tenant or if a distress is 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
as exempted in any sections of the Act or amendments thereto; the Tenant
waiving, as it hereby does, all and every benefit that could or might have
accrued to the Tenant under and by virtue of any sections of the Act or any
amendments thereto but for this covenant.
.5 Landlord May Cure Tenant's Default or Perform
-----------------------------------------------------
Tenant's Covenants
------------------
If the Tenant fails to pay when due any amounts or
charges required to be paid pursuant to this Lease, the Landlord after giving 5
days' notice in writing to the Tenant may, but shall not be obligated to, pay
all or any part of the same. If the Tenant is in default in the performance of
any of its covenants or obligations hereunder
-21-
(other than the payment of rent, Additional Rent or other sums required to be
paid pursuant to this Lease), the Landlord may, but shall not be obligated to,
from time to time after giving such notice as it considers sufficient (or
without notice in the case of an emergency) having regard to the circumstances
applicable, 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 required, including, without limitation, entering upon the Premises and doing
such things upon or in respect of the Premises or any part thereof as the
Landlord reasonably considers requisite or necessary. All expenses incurred and
expenditures made pursuant to this Section 7.5, plus a sum equal to 10% thereof
representing the Landlord's overhead, shall be paid by the Tenant as Additional
Rent forthwith upon demand. Except for Landlord's gross negligence or wilful
conduct, the Landlord shall have no liability to the Tenant for any loss or
damages resulting from any such action or entry by the Landlord upon the
Premises under Articles 7.00 and 8.00 and same is not a re-entry or breach of
any covenant for quiet enjoyment contained in this Lease or implied by law.
.6 [Intentionally Deleted]
-----------------------
-22-
.7 Additional Rent
---------------
If the Tenant is in default in the payment of any
amounts or charges required to be paid pursuant to this Lease, they shall, if
not paid when due, be collectible as Additional Rent forthwith on demand, but
nothing herein contained is deemed to suspend or delay the payment of any amount
of money at the time it becomes due and payable hereunder, or limit any other
remedy of the Landlord. The Tenant agrees that the Landlord may, at its option,
apply or allocate any sums received from or due to the Tenant against any
amounts due and payable hereunder in such manner as the Landlord sees fit. All
such moneys payable to the Landlord hereunder shall bear interest at the Prime
Rate per annum from the time such sums become due until paid to the Landlord.
.8 Remedies Generally
------------------
Mention in this Lease of any particular remedy of the
Landlord in respect of the default by the Tenant does not preclude the Landlord
from any other remedy in respect thereof, whether available at law or in equity
or by statute or expressly provided for in this Lease. No remedy shall be
exclusive or dependent upon any other remedy, but the Landlord may from time to
time exercise any one or more of such remedies generally or in combination, such
remedies being cumulative and not alternative. In the event of a breach or
threatened breach by the Tenant of any of the covenants, provisions or terms
hereof, the Landlord shall have the right to invoke any remedy allowed at law or
in equity (including injunction) as if re-entry and other remedies were not
provided for herein.
.9 Holding Over
------------
If the Tenant shall hold over after the original Term
or any extended term hereof, such holding over shall be construed to be a
tenancy from month to month only and shall have no greater effect, any custom,
statute, law or ordinance to the contrary notwithstanding. Such month-to-month
tenancy shall be governed by the terms and conditions hereof, notwithstanding
any statutory provision or rule of law to the contrary; provided, however, that
during any such period of holding over, the Tenant shall be required to pay the
monthly Base Rent payable during the month immediately preceding the expiration
or termination of this Lease plus all Additional Rent payable hereunder.
.10 No Waiver
---------
The failure of the Landlord to insist upon a strict
performance of any of the covenants and provisions herein contained shall not be
deemed a waiver of any
-23-
rights or remedies that the Landlord may have and shall not be deemed a waiver
of any subsequent breach or default in the covenants and provisions herein
contained, and it is expressly agreed that the rights and remedies of the
Landlord hereunder or otherwise available to it at law may be exercised and
enforced either concurrently or successively.
8.00 - DAMAGE AND DESTRUCTION
-----------------------------
.1 Destruction
-----------
Provided, and it is hereby expressly agreed, that if
and whenever during the Term the Premises shall be destroyed or damaged by fire,
lightning, tempest or by any of the perils insured against, then and in every
such event:
(a) if the damage or destruction is such that
the Premises are rendered wholly unfit for occupancy
or it is impossible or unsafe to use and occupy them
and if in either event the damage, in the reasonable
opinion of the architect/engineer of the Landlord,
acting independently, to be given to the Tenant
within 30 days of the happening of such damage or
destruction, cannot be repaired with reasonable
diligence within 180 days from the date such
architect/engineer has given its opinion, then the
Landlord or the Tenant may within 5 days next
succeeding the giving of the opinion as aforesaid
terminate this Lease by giving to the other notice in
writing of such termination, in which event this
Lease and the Term shall cease and be at an end as of
the date of such destruction or damage and the rent
and all other payments for which the Tenant is liable
under the terms of this Lease shall be apportioned
and paid in full to the date of such destruction or
damage; in the event that either the Landlord or the
Tenant does not so terminate this Lease, then, to the
extent that insurance proceeds are available, the
Landlord shall repair the Premises with all
reasonable speed and the Base Rent hereby reserved
shall xxxxx from the date of the happening of the
damage until the damage shall be made good to the
extent of enabling the Tenant to use and occupy the
Premises;
(b) if the damage be such that the Premises are
wholly unfit for occupancy or if it is impossible or
unsafe to use or occupy them, but if in either event
the damage, in the reasonable opinion of the
architect/engineer of the Landlord, acting
-24-
independently, to be given to the Tenant within 30
days from the happening of such damage, can be
repaired with reasonable diligence within 180 days
from the date such architect/engineer has given its
opinion, then the Base Rent hereby reserved shall
xxxxx from the date of the happening of such damage
until the damage shall be made good to the extent of
enabling the Tenant to use and occupy the Premises
and the Landlord shall repair the damage with all
reasonable speed, to the extent that insurance
proceeds are available; if in the reasonable opinion
of the Landlord the damage can be made good as
aforesaid within 180 days from the date the
architect/engineer of the Landlord, acting
independently, has given its opinion and the damage
is such that the Premises are capable of being
partially used for the purposes for which they are
hereby demised, then until such damage has been
repaired the Base Rent shall xxxxx in the proportion
that the part of the Premises which is rendered unfit
for occupancy bears to the whole of the Premises, and
the Landlord shall repair the damage with all
reasonable speed, to the extent that insurance
proceeds are available.
9.00 - RIGHT OF RENEWAL
-----------------------
.1 Provided that the Tenant shall have given to the Landlord 6 months'
notice in writing before the expiration of the Term of its desire to renew,
subject to what is set out herein, it is mutually agreed and understood that if
the Tenant duly and regularly pays the Base Rent and Additional Rent and
performs all of the provisions and agreements contained herein on the part of
the Tenant to be performed, and provided further that the Tenant is not
habitually (which means, for purposes of Sections 9.1 and 9.2 hereof, on more
than two (2) occasions in any consecutive twelve (12) month period) in default
under the terms of this Lease and is not in default at the time of the exercise
of the option herein, then the Landlord shall at the expiration of the Term,
upon written request of the Tenant, grant to the Tenant a renewal of this Lease
for a further five (5) year term (the "First Renewal Term") upon the same terms
and conditions as contained herein, save as to the rental rate. The Base Rent
for the First Renewal Term shall be at the then current market rate at the
expiration of the Term and as mutually agreed between the Landlord and the
Tenant. In the event that the Landlord and the Tenant are unable to agree upon
the Base Rent for the First Renewal Term, the matter shall be submitted to
arbitration, pursuant to the Arbitrations Act (Ontario).
If the award of the arbitrators is not given before
the commencement date of the First Renewal Term, then the Tenant shall commence
paying Base Rent at
-25-
the same rate paid during the Term, which shall be adjusted forthwith after the
award of the arbitrators has become final and binding, to be calculated from the
commencement date of the First Renewal Term.
.2 Provided that the Tenant shall have given to the Landlord 6 months'
notice in writing before the expiration of the First Renewal Term of its desire
to renew, subject to what is set out herein, it is mutually agreed and
understood that if the Tenant duly and regularly pays the Base Rent and
Additional Rent and performs all of the provisions and agreements contained
herein on the part of the Tenant to be performed, and provided further that the
Tenant is not habitually in default under the terms of this Lease and is not in
default at the time of the exercise of the option herein, then the Landlord
shall at the expiration of the First Renewal Term, upon written request of the
Tenant, grant to the Tenant a renewal of this Lease for a further five (5) year
term (the "Second Renewal Term") upon the same terms and conditions as contained
herein, save as to the rental rate and save as to any further right of renewal.
The Base Rent for the Second Renewal Term shall be at the then current market
rate at the expiration of the First Renewal Term and as mutually agreed between
the Landlord and the Tenant. In the event that the Landlord and the Tenant are
unable to agree upon the Base Rent for the Second Renewal Term, the matter shall
be submitted to arbitration, pursuant to the Arbitrations Act (Ontario).
If the award of the arbitrators is not given before
the commencement date of the Second Renewal Term, then the Tenant shall commence
paying Base Rent at the same rate paid during the First Renewal Term, which
shall be adjusted forthwith after the award of the arbitrators has become final
and binding, to be calculated from the commencement date of the Second Renewal
Term.
10.00 - GENERAL
---------------
.1 Acknowledgement by Tenant
-------------------------
The Tenant further acknowledges that its interest
under this Lease is subject to:
(a) covenants, restrictions, easements,
agreements and reservations of record, provided same
does not interfere with the Tenant's intended use of
the Premises as described in Section 3.12;
(b) all laws, by-laws, ordinances, regulations
and orders of the Town of Pickering, the Regional
Municipality of Durham, the Province of Ontario, the
Government of Canada and of all
-25-
statutory commissions, boards and bodies having
jurisdiction over the Premises;
(c) the condition of the Landlord's title
existing at the date hereof; and
(d) municipal realty taxes, local improvement
rates, duties, assessments, water and sewer rates and
other impositions accrued or unaccrued.
.2 Registration
------------
(a) Neither the Tenant nor anyone on the
Tenant's behalf or claiming under the Tenant shall
register this Lease or any assignment or sublease of
this Lease or any document evidencing any interest of
the Tenant in this Lease or the Premises. If either
party intends to register a document for the purpose
only of giving notice of this Lease or of any
assignment or sublease of this Lease, then upon
request of such party both parties shall join in the
execution of a short form or notice of this Lease
(the "Short Form") solely for the purpose of
supporting an application for registration of notice
of this Lease or of any assignment or sublease
against the interests of the Landlord or any part
thereof in the Premises. The form of the Short Form
and of the application to register notice of this
Lease or of any assignment or sublease shall:
(i) be prepared by the Tenant or its
solicitors at the Tenant's expense;
(ii) include therein a provision for,
and require consent to, such registration by
or on behalf of the Landlord; and
(iii) only describe the parties, the
Premises and the Commencement Date and the
expiration date of the Term.
(b) The Short Form shall contain a provision
whereby the Tenant constitutes and appoints the
Landlord and its nominee as the agent and attorney of
the Tenant for the purpose of executing any
instruments in writing required from the Tenant to
give effect to the provisions of Section 10.4 of this
Lease,
-27-
including the right to make application at any time
and from time to time to register postponements of
this Lease or the Short Form in favour of any
mortgage pursuant to Section 10.4. The Landlord
agrees not to register a subordination unless the
mortgagee or encumbrancer has provided the
non-disturbance agreement provided in Section 10.4.
All costs, expenses and taxes necessary to register
or file the application to register notice of this
Lease or of any assignment or sublease shall be the
sole responsibility of the Tenant and the Tenant will
complete any necessary affidavits required for
registration purposes, including affidavits necessary
to register the power of attorney contained in the
Short Form. As requested by the Landlord, the Tenant
shall execute promptly a power of attorney at any
time and from time to time as may be required to give
effect to this Section 10.2(b).
.3 Status Statement
----------------
Within 10 days after written request therefor by the
Landlord or if upon any sale, assignment, lease or mortgage of the Premises by
the Landlord a status statement is required from the Tenant, the Tenant shall
deliver in a form supplied by the Landlord a status statement or a certificate
to any proposed mortgagee or proposed purchaser or to the Landlord stating (if
such is the case):
(a) that this Lease is unmodified and in full
force and effect (or if there have been
modifications, that this Lease is in full force and
effect as modified and identifying the modification
agreements) or if this Lease is not in full force and
effect, the certificate shall so state;
(b) the Commencement Date;
(c) the date to which Base Rent and Additional
Rent have been paid under this Lease;
(d) whether or not there is any existing default
by the Tenant in the payment of any rent or other sum
of money under this Lease and whether or not there is
any other existing or alleged default by either party
under this Lease with respect to which a notice of
default has been served and if there is any such
default, specifying the nature and extent thereof;
and
-28-
(e) whether there are any defences or
counterclaims against enforcement of the obligations
to be performed by the Tenant under this Lease.
.4 Subordination and Attornment
----------------------------
It is a condition of this Lease and the Tenant's
rights granted hereunder that this Lease and all of the rights of the Tenant
hereunder are and shall at all times be subject and subordinate to any and all
mortgages, trust deeds or the charge or lien resulting from, or any instruments
of, any financing, refinancing or collateral financing or any renewals or
extensions thereof from time to time in existence against the lands or the
Premises. Upon request and provided any mortgagee or encumbrancer agrees to
enter a non-disturbance agreement in a form acceptable to the Tenant, acting
reasonably, the Tenant shall subordinate this Lease and all of its rights
hereunder in such form as the Landlord requires to any and all mortgages, trust
deeds or the charge or lien resulting from or any instruments of any financing,
refinancing or collateral financing and to all advances made or hereafter to be
made upon the security thereof and, if requested, the Tenant shall attorn to the
holder thereof.
.5 Attorney
--------
The Tenant shall upon request of the Landlord or the
mortgagee or any other person having an interest in the lands, execute and
deliver promptly such instruments and certificates to carry out the intent of
Sections 10.3 and 10.4 as are requested by the Landlord. If 10 days after the
date of a request by the Landlord to execute and deliver any such instruments
and certificates the Tenant has not executed and delivered the same, the Tenant
hereby irrevocably appoints the Landlord as the Tenant's attorney with full
power and authority to execute and deliver in the name of the Tenant any such
instruments or certificates or the Landlord may at its option terminate this
Lease without incurring any liability on account thereof and the Term is
expressly limited accordingly.
11.00 - ENVIRONMENTAL MATTERS
-----------------------------
.1 The Tenant covenants with the Landlord that the Tenant will not bring
upon, permit or use any substance, defined or designated as a hazardous or toxic
waste, hazardous or toxic material, a hazardous, toxic or radioactive substance
or other similar term, by any applicable federal, provincial, municipal or local
statute, regulation, by-law or ordinance now or hereafter in effect (the
"Environmental Laws"), or any substance or material, the use or disposition of
which is regulated by any such Environmental Laws (hereinafter called "Hazardous
Substances") in, on or under the Premises except for de minimis amounts used in
the ordinary course of the Tenant's business (as contemplated in Section 3.12)
and, in any event, in compliance with Environmental Laws, and the Tenant will
promptly comply with all statutes, regulations, by-laws and ordinances and with
all orders, decrees or judgements of
-29-
governmental authorities or courts having jurisdiction, relating to the use,
collection, storage, treatment, control, removal or cleanup of Hazardous
Substances in, on, or under the Premises if the Premises become contaminated
with Hazardous Substances as a result of operations or activities of the Tenant
or any of its agents, contractors or employees or those for whom it is at law
responsible on the Premises, or incorporated in any Tenant's improvements
thereon during the Term or any renewal. The Tenant covenants and agrees to
indemnify and hold the Landlord harmless against any and all losses, damages,
costs, expenses and liabilities suffered or incurred by the Landlord:
(i) by reason of a breach of any of the
covenants aforesaid; or
(ii) arising out of the actual, alleged or
threatened discharge, disbursal, release or escape of
Hazardous Substances at or from the Premises by of
the Tenant, or any of its agents, contractors or
employees, or those for whom it is in law
responsible; or
(iii) the removal from the Premises at the
expiration of the Term of this Lease of all Hazardous
Substances brought onto the Premises by the Tenant or
any of its agents, contractors or employees or those
for whom it is in law responsible,
which indemnity shall survive the expiration or any
surrender or termination of this Lease.
12.00 - GENERAL
---------------
.1 Amendments
----------
This Lease shall not be modified or amended except by
an instrument in writing of equal formality herewith and signed by the parties
hereto or by their successors or assigns.
.2 Notice
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Any demand notice or other communication (the
"Communication") to be given in connection with this Lease shall be given in
writing and shall be given by personal delivery, telecopier transmission or by
mailing by registered mail with postage thereon, fully prepaid in a sealed
envelope addressed to the intended recipient as follows:
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(a) to the Landlord, at:
Toronto Medical Corp.
0000 Xxx Xxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX
X0X 0X0
Attention: X.X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx
Barristers and Solicitors
Xxxxx 000, Xxx 00
00 Xxxxx Xxxxxx Xxxx
Xxxxxxx, XX
X0X 0X0
Attention: Xxxxxx Xxxxx
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Facsimile No: (000) 000-0000
(b) to the Tenant, at the Premises
Attention: President
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with a copy to:
Stikeman, Xxxxxxx
Barristers & Solicitors
Suite 0000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, XX
X0X 0X0
Attention: Xxxxx XxXxxxxx
--------------------------
Facsimile No: (000) 000-0000
or to such other addresses, telecopier number or
individual as may be designated by a Communication given by a party to the other
parties as aforesaid. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof, if
given by registered mail on the 3rd business day following the deposit thereof
in the mail and if given
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by telecopier transmission, on the business day following the day on which it
was transmitted. If the party giving any Communication knows or reasonably knows
of any difficulties with the postal system which might effect the delivery of
mail, any such Communication shall not be mailed but shall be given by personal
delivery or by telecopier transmission.
For the purposes of this Lease, a "business day"
shall mean any day other than a Saturday, Sunday or statutory holiday in the
Province of Ontario.
.3 Time
----
Time shall in all respects be of the essence of this
Lease.
.4 Prime Rate
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For the purpose of this Lease "Prime Rate" shall mean
the prime commercial lending rate charged by the Canadian Imperial Bank of
Commerce from time to time on demand in Canadian funds (any change in such rate
of interest to be effective from the day that a change in such prime commercial
lending rate becomes effective) at its head office in Toronto, Ontario to its
largest and most credit-worthy commercial borrowers and excludes the rate of
interest charged for small business loans referred to as "Prime Small Business
Loan Interest Rate".
.5 Successors
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All rights and liabilities herein granted to or
imposed upon the respective parties hereto extend to and bind the successors and
assigns of the Landlord and the heirs, executors, administrators and permitted
successors and assigns of the Tenant, as the case may be. No rights, however,
shall endure to the benefit of any assignee of the Tenant unless the assignment
to such assignee has been approved by the Landlord in writing in accordance with
Article 4.00 hereof. If there is more than one Tenant, they are all bound
jointly and severally by the terms, covenants and conditions herein.
.6 Governing Law
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This Lease shall be construed and governed by the
Laws of the Province of Ontario.
.7 Headings
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The Section and Article numbers and headings
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of such Sections or
Articles of this Lease nor in any way affect this Lease.
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.8 Entire Agreement
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This Lease and the schedules attached hereto and
forming a part hereof set forth all the covenants, promises, agreements,
conditions and understandings between the 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 are herein
set forth. All agreements and promises contained herein on behalf of the Tenant
shall be construed as covenants. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon the Landlord or Tenant unless reduced to writing and signed by
them.
.9 Severability
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If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby and each
term, covenant or condition of this Lease shall be valid and enforced to the
fullest extent permitted by law.
.10 No Option
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The submission of this Lease for examination does not
constitute a reservation of or option for the Premises and this Lease becomes
effective as a lease only upon execution and delivery thereof by Landlord and
Tenant.
.11 Premises
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Each obligation or agreement of the Landlord or
Tenant expressed in this Lease, even though not expressed as a covenant, is to
be considered to be a covenant for all purposes.
.12 [Intentionally Deleted]
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.00 Xxxxx for Payments
------------------
All payments required to be made by the Tenant herein
shall be made to the Landlord at the Landlord's office in Toronto or to such
agent or agents of the Landlord or at such other place as the Landlord shall
hereafter from time to time direct in writing.
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.14 Extended Meanings
-----------------
The words "hereof", "herein", "hereunder" and similar
expressions used in any section or subsection of this Lease relate to the whole
of this Lease and not to that section or subsection only, unless otherwise
expressly provided. The use of the neuter singular pronoun to refer to the
Landlord or the Tenant is deemed a proper reference, even though the Landlord or
the Tenant is an individual, a partnership, a corporation or a group of two or
more individuals, partnerships or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural sense
where there is more than one Landlord or Tenant and to either corporations,
associations, partnerships or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
.15 No Partnership or Agency
------------------------
The Landlord does not in any way or for any purpose
become a partner of the Tenant in the conduct of its business or otherwise or a
joint venturer or a member of a joint enterprise with the Tenant, nor is the
relationship of principal and agent created.
.16 Force Majeure
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Notwithstanding anything to the contrary contained in
this Lease, if either party hereto is bona fide delayed or hindered in or
prevented from the performance of any term, covenant or act required hereunder
by reason of strikes, labour troubles; inability to procure materials or
services; power failure; restrictive governmental laws or regulations; riots;
insurrection; sabotage; rebellion; war; act of God; or other reason whether of a
like nature or not which is not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then performance of
such term, covenant or act is excused for the period of the delay and the party
so delayed shall be entitled to perform such term, covenant or act within the
appropriate time period after the expiration of the period of such delay.
However, the provisions of this Section do not operate to excuse the Tenant from
the prompt payment of rent, Additional Rent or any other payments required by
this Lease.
.17 Accrual of Rent and Additional Rent
-----------------------------------
Rent and Additional Rent shall be considered as
annual and accruing from day to day and when it becomes necessary for any reason
to calculate such rent for an irregular period of less than one year, an
appropriate apportionment and adjustment shall be made. Whenever the calculation
of any Additional Rent is not made until after the termination of this Lease,
the obligation of the Tenant to pay such
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Additional Rent shall survive the termination of this Lease and such amounts
shall be payable by the Tenant to the Landlord within five (5) days after
demand.
.18 Accord and Satisfaction
-----------------------
No payment by the Tenant or receipt by the Landlord
of a lesser amount than the monthly payment of rent herein stipulated is deemed
to be other than on account of the earliest stipulated rent, nor is any
endorsement or statement on any cheque or any letter accompanying any cheque or
payment as rent deemed an acknowledgement of full payment or an accord and
satisfaction, and the Landlord may accept and cash such cheque or payment
without prejudice to the Landlord's right to recover the balance of such rent or
pursue any other remedy provided in this Lease.
IN WITNESS WHEREOF the parties hereto have hereunto
caused these presents to be executed the day, month and year first above
written.
TORONTO MEDICAL CORP.
Per:
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(Authorized Signing Officer)
Per:
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(Authorized Signing Officer)
TORONTO MEDICAL ORTHOPAEDICS LTD.
Per:
--------------------------------------
(Authorized Signing Officer)
Per:
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(Authorized Signing Officer)
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SCHEDULE "A"
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