EXHIBIT 3.2
LEASE dated as of the 1st day of November, 1995.
BETWEEN:
THE CARRIER DRIVE DEVELOPMENT LTD.
(hereinafter called "Landlord")
OF THE FIRST PART;
- and -
CANTECH INVESTMENTS LTD.
(hereinafter called "Tenant")
OF THE SECOND PART;
ARTICLE I
1.00 - LEASE SUMMARY
1.01 Lease Summary
The following is a summary of some of the basic terms of this Lease. For details
of the terms referred to below, recourse should be had to the balance of this
Lease. This Section 1.01 is for convenience and if a conflict occurs between the
provisions of this Section 1.01 and any other provisions of this Lease, the
other provisions of this Lease shall govern.
(a) Premises: a free standing building and adjacent lands described as the Lands
and Building Municipally known as 00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx
(b) Term:Five (5) years
(c) Commencement Date: November 1, 1995
(d) Expiry Date: October 31, 2000
(e) Basic Rent:
Year Basic Rent Monthly Basic Annual Basic
Per square foot Rent Rent
1 $1.25 $ 6,845.31 $82,143.75
2 $1.25 $ 6,845.31 $ 82,143.75
3 $2.35 $12,869.19 $154,430.25
4 $2.50 $13,690.63 $164,287.50
5 $2.65 $14,512.06 $174,144.75
(f) Option to Renew: For further five (5) year period
(g) Use of Premises: manufacturing/warehousing of wood and
related bi-products and general
offices
(h) Security Deposit letter of Credit for $42,000 for a
minimum term of two (2) years as per
Clause 22 - Offer to Lease.
(i) Option to Purchase $2,102,880.00 ($32.00 per square foot)
ARTICLE II
2.00 - DEFINITIONS
2.01 Definitions
Where used in this Lease, the following words of phrases shall have the
meanings set forth in the balance of this Article.
2.02 "Additional Rent" shall have the meaning ascribed to it in Section 5.03.
2.03 "Building" means the building located on the Lands and forming part of the
Premises and containing approximately 65,715 square feet of area.
2.04 "Commencement Date" shall have the meaning ascribed to it in Section 1.01.
2.05 "Lands" means the lands more particularly described in Schedule "A" hereto.
2.06 "Laws" means all statutes, regulations, bylaws, orders, rules, requirements
and directions of all federal, provincial, municipal and other
governmental authorities having jurisdiction.
2.07 "Lease" means this Lease including all of the schedules attached hereto.
2.08 "Premises" means the Lands and the Building.
2.09 "Realty Taxes" means all taxes, rates, duties, levies, fees, charges,
local improvement rates, imposed charges, levies and assessments whatever
(including school taxes, water and sewer taxes, extraordinary and special
assessments andall rates, charges, excises or levies, whether or not of
the foregoing nature), and whether municipal, provincial, federal or
otherwise, which may be levied, confirmed, imposed, assessed, charged or
rated against the Premises or any part thereof or any furniture, futures,
equipment or improvements herein, or against Landlord in respect of any of
the same or in respect of any rental or other compensation receivable by
Landlord in respect of the same, excluding only Landlord's income taxes
thereon, but including all of such taxes which may be incurred by or
imposed upon Landlord in lieu of or in addition to the foregoing.
2.10 "Rent" shall have the meaning ascribed to it in Section 5.01 hereof.
2.11 "Rental Year" means a period of twelve (12) consecutive calendar months.
2.12 "Term" shall have the meaning ascribed to it in Section 4.02.
ARTICLE III
3.00 - INTENT OF LEASE
3.01 Net Lease
It is the intent of the parties hereto that this Lease be a lease that is
absolutely net to Landlord, and that, except as expressly herein set out,
Landlord shall not be responsible for any expenses or obligations of any
kind whatsoever in respect of or attributable to the Premises.
ARTICLE IV
4.00 - LEASE OF PREMISES
4.01 Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises.
4.02 Terms
The Term of the Lease shall be for the period described as the Term in
Section 1.01 hereof, commencing on the Commencement date and to be fully
completed and ended on the date described as the Expiry Date in Section
1.01 hereof.
4.03 Quiet Enjoyment
Subject to all of the terms of this Lease and object to Tenant's paying
all Rent and performing all obligations whatsoever as and when the same
are due to be paid and performed by Tenant, Tenant may peaceably possess
and enjoy the Premises for the Term without interruption by Landlord or
any person claiming by, from or under Landlord.
ARTICLE V
5.00 - RENT
5.01 Tenant to Pay
Tenant shall pay in lawful money of Canada at par at such address as
shall be designated from time to time by Landlord, Basic Rent and
Additional Rent (all of which are collectively herein sometimes referred
to as "Rent") as herein provided without any deduction, set-off or
abatement whatsoever, Tenant hereby agreeing to wave any rights it may
have pursuant to the provisions of Section 35 of the Landlord and Tenant
Act R.S.O. 1980 or any other statutory provision to the same or similar
effect and any other rights it may have at law to set-off.
5.02 Basic Rent
Commencing on the Commencement Date, Tenant shall pay to Landlord a fixed
minimum annual rent ("Basic Rent") in the amount described as Basic Rent
in Section 1.01(e) hereof, to be paid in equal monthly instalments in
advance on the first day of each month during the Term.
If the first day upon which Rent is payable is other than the first day
of a calendar month, the Tenant shall pay upon such date Rent from such
date to the end of such month calculated at a daily rate of 1/365th of
the annual Basic Rent.
5.03 Additional Rent
In addition to Basic Rent, Tenant shall pay to Landlord all other amounts
as and when the same shall be due and payable pursuant to the provisions
of this Lease all of which shall be deemed to accrue on a per diem basis.
5.04 Deemed Rent and Allocation
If Tenant defaults in payment of any Rent (whether to Landlord or
otherwise) as and when the same is due and payable hereunder, Landlord
shall have the same rights and remedies against Tenant (including rights
of distress) upon such default as if such sum or sums were rent in
arrears under this Lease. All Rent shall, as between the parties hereto,
be deemed to be rent due on the date upon which such sum or sums were
originally payable pursuant to this Lease and shall be paid in accordance
with this Lease without any deduction, abatement or set-off whatsoever.
Landlord may, at its option, from time to time, apply or allocate or
re-apply or re-allocate any sums received from or payable by Tenant to
Landlord on account of any amounts payable by Tenant hereunder in such
manner as Landlord determines in its sole and absolute discretion,
without regard to and notwithstanding any instructions given by or
allocations in respect of such amounts made by Tenant.
No payment by Tenant or acceptance of payment by Landlord of any amount
less than the full amount payable to Landlord, and no endorsement,
direction or note on any cheque or other written instruction or statement
respecting any payment by Tenant shall be deemed to constitute payment in
full or an accord and satisfaction of any obligation of Tenant and
Landlord may receive any such lesser amount and any such endorsement,
direction, note, instruction or statement without prejudice to any of
Landlord's other rights under this Lease or at law, whether or not
Landlord notifies Tenant of any disagreement with or non-acceptance of
any amount laid or any endorsement, direction, note, instruction or
statement received.
5.05 Monthly Payments of Additional Rent
Landlord may from time to time estimate any amount(s) payable; by Tenant
pursuant to any provisions of this Lease for the then current or the next
following fiscal period or, if applicable, any broken portion thereof and
may notify Tenant in writing of the estimated amounts thus payable by
Tenant. The amounts so estimated shall be payable by Tenant in advance in
equal monthly instalments over the fiscal period or broken portion
thereof, such monthly instalments being payable on the same day as the
monthly payments of Basic Rent. Landlord may, from time to time,
designate or alter the fiscal period selected in each case. As soon as
practicable after the expiration of each fiscal period, Landlord shall
furnish to Tenant a statement of the actual expenses it has incurred
which are the Tenant's responsibility for such fiscal period and shall
make a final determination of the amounts payable by Tenant. If the
amount determined to be payable by Tenant as aforesaid shall be greater
or less than the payments on account thereof made by Tenant prior to the
date of such determination, then the appropriate adjustments will be made
and Tenant shall pay any deficiency to Landlord within thirty (30) days
after delivery of such statement and final determination and if Tenant is
not in default under the terms of the Lease, the amount of any
overpayment shall be paid to or credited to the account of Tenant within
thirty (30) days after the delivery of such statement.
Notices by Landlord stating the amount of any estimate or re-estimate of
any amount(s) payable hereunder need not include particulars of any of
such amounts.
ARTICLE VI
6.00 - TAXES
6.01 Payment of Taxes
Landlord shall have the right to require Tenant to pay such Realty Taxes
and any other taxes which are Tenant's responsibility as set out herein
to the relevant taxing authority or Landlord shall have the right to pay
any such Realty Taxes or other taxes directly to such taxing authority
without thereby affecting Tenant's obligation to pay or contribute to
such Realty Taxes or other taxes. To the extent of Realty Taxes received
by Landlord from Tenant, Landlord shall pay same to the relevant taxing
authority.
6.02 Taxes Payable by Tenant
Commencing on the Commencement date and thereafter at all time throughout
the Term, Tenant shall pay to the City of Etobicoke or the relevant
taxing authority, as required by Landlord, not later than the time when
they fall due all Realty Taxes and other taxes, if any.
6.03 Business Taxes
Tenant shall pay as and when the same are due and payable all business
taxes including all taxes charged in respect of any business conducted on
the Premises or in respect of any use or occupancy of the Premises,
whether or not charged against Landlord o r the Premises. In the event
that the Tenant is not assessed for business taxes as a result of its
being business tax exempt but the Landlord is assessed for business taxes
for the business carried by the Tenant in the Premises, the Tenant shall
pay to the Landlord forthwith upon demand all such business taxes
assessed against the Landlord in respect of the Tenant" use of the
Premises.
6.04 Tax Bills and Assessment Notices
Tenant shall promptly deliver to Landlord forthwith upon Tenant's
receiving the same:
(a) copies of all assessment notices, tax bills and any other
documents received by Tenant related to Realty taxes
chargeable against or in respect of the Premises; and
(b) receipts for payment of Realty Taxes and business taxes
payable by Tenant pursuant hereto.
On or before the expiry of each calendar year, Tenant shall provide to
Landlord evidence satisfactory to Landlord that all Realty Taxes and
business taxes payable by Tenant pursuant to the terms hereof up to the
expiry of such calendar year, including all penalties and interest
resulting from the payment of Realty Taxes and business taxes, have been
duly paid.
6.05 Contest of Realty Taxes
Realty Taxes, or the assessments in respect of Realty Taxes which are the
subject of any contest by Landlord or Tenant shall nonetheless be payable
in accordance with the foregoing provisions hereof provided, however,
that in the event Tenant shall have paid any amount in respect of Realty
Taxes in excess of the amount ultimately found payable as a result of the
disposition of any such contest, and Landlord receives a refund in
respect thereof, if Tenant is not in default hereunder the appropriate
amount of such refund shall be refunded to or, at the option of Landlord,
credited to the account of Tenant.
Landlord may contest any Realty Taxes and appeal any assessments related
thereto and may withdraw any such contest or appeal or may agree with the
relevant authorities on any settlement, compromise or conclusion in
respect thereof and Tenant consents to Landlord's so doing. Tenant shall
co-operate with landlord in respect of any such contest and appeal and
shall make available to Landlord such information in respect thereof as
Landlord requests. Tenant will execute forthwith on request all consents,
authorizations or other documents as Landlord request to give full effect
to the foregoing.
Tenant shall not contest any Realty Taxes or appeal any assessments
related thereto without first notifying Landlord in writing.
Tenant shall pay to Landlord forthwith upon demand all costs and expenses
of any kind incurred by Landlord bona fide and acting reasonably in
obtaining or attempting to obtain information in respect of or a
reduction in respect of Realty Taxes and any assessments related thereto
including, with limitation, legal, appraisal, administration and overhead
costs.
6.06 Adjustments
Any amounts payable by Tenant on account of Realty Taxes shall be
adjusted on a per diem basis in respect of any period not falling wholly
within the Term, for which Realty Taxes are payable.
ARTICLE VII
7.00 - OPERATION OF PREMISES
7.01 Operation of Premises by Tenant
The Tenant at its own expense shall maintain, manage and operate the
Premises in the same manner as a reasonable and prudent owner and tenant
of same would do in a first, class and reputable manner befitting the
Premises and in conformity with all present and future requirements of
every governmental or other authority having jurisdiction and shall act
diligently and use all proper and reasonable efforts consistent with good
business practice.
7.02 Landlord May Perform or Pay
In the event that Tenant fails to pay any cost or expense associated with
or arising in connection with its use and operation, maintenance and
repair of the Premises and including any and every obligation contained
in this Lease or in the event Tenant fails to perform or fulfil any of
its obligations hereunder, Landlord may pay or perform the same and shall
be entitled to charge all of its costs and expenses together with an
administrative charge of twenty (20^) percent in connection therewith to
the Tenant as Additional Rent who shall pay them forthwith on demand.
Landlord without prejudice and in addition to any other rights shall have
the same remedies and may take the same steps for the recovery of all
such sums as Landlord might have taken for the recovery of rent in
arrears hereunder.
ARTICLE VIII
8.00 - USE OF PREMISES
8.01 Use of Premises
Tenant convenants that it shall not use and shall not cause, suffer or
permit the Premises to be used for any purpose other than as described as
Use of Premises in Section 1.01(f) hereof without Landlord's prior
written consent which may be withheld in Landlord's sole and absolute
discretion.
8.02 Conduct of Business
At all times throughout the Term, Tenant shall continuously, actively and
diligently conduct its business in the whole of the Premises in a first
class and reputable manner.
8.03 Tenant's Fixtures
Tenant shall install and maintain at al times during the Term in the
Premises first-class trade fixtures including furnishings and equipment
adequate and appropriate for the business to be conducted on the Premises
and of no less a quality or quantity than whatever is usual for such type
of business, all of which shall be kept in good order and conditions.
Tenant may not remove any trade fixtures of the Premises therefrom other
than in the ordinary course of business except that, with the prior
written consent of Landlord, Tenant may remove such trade fixtures
provided that Tenant provides evidence satisfactory to Landlord that it
is substituting therefor trade fixtures at least equal in value and
function to those being removed.
8.04 Signs
The Tenant shall have the right to erect signs on or about the Premises
(except on or from the roof) advertising its business provided that such
signs are approved in writing by the Landlord and such signs shall:
(a) comply with all applicable bylaws and regulations;
(b) be maintained in good repair by the Tenant and
(c) not be erected if to do the same would weaken or impair the
structural strength of the Building;
(d) at Landlord's request be removed on termination of the Lease.
The Tenant shall upon removal of such signs repair any damage caused by
their installation or removal.
8.05 Waste Removal
Tenant shall not allow any refuse, garbage or any loose or objectionable
material to accumulate in or about the Premises and will at all times
keep the Premises in a clean and neat condition. Tenant shall comply with
Landlord's regulations respecting the removal of waste and Tenant shall
at its own expense remove all waste from the Premises. Until removed from
the Premises, all waste from the Premises shall be kept in appropriate
containers.
8.06 Pest Control
Tenant shall be responsible for pest extermination in respect of the
Premises and shall engage, for such purpose, such contractors and at such
intervals as Landlord shall require.
8.07 Waste and Nuisance
(a) Tenant shall not cause, suffer of permit any waste or damage
to the Premises or leasehold improvements, fixtures or
equipment therein nor permit any overloading of the floors
thereof and shall not use or permit to be used any part of the
Premises for any dangerous, noxious or offensive activity or
goods and shall not do anything or permit anything to be done
upon or about the Premises nor anything to be brought thereon
which Landlord may reasonable deem to be hazardous or a
nuisance or annoyance. Tenant shall take every reasonable
precaution to protect the Premises from risk of damage by
fire, water or the elements or any other cause.
(b) Tenant shall not use any advertising transmitting or other
media or transmissions of any kind, or other devices in a
manner which can be heard, seen, or received outside the
Premises, or which would in any way interfere with any
communications or other systems outside of the Premises.
8.08 Compliance with Law
(a) Tenant shall be solely responsible for obtaining from all
authorities having jurisdiction all necessary permits,
licences and approvals as may be necessary to permit Tenant to
hold this Lease and to occupy the Premises and conduct its
business thereon, as required by al applicable laws,
including, without limiting the generality of the foregoing,
any necessary extra provincial licence, any necessary licence
and any necessary approvals under the Foreign Investment
Review Act (Canada). Tenant shall be responsible for and shall
comply at its own expense with all applicable Laws respecting
the use, condition and occupation of the Premises, and all
leasehold improvements, trade fixtures, furniture, fixtures,
equipment and contents thereof (collectively called
"Contents") and Tenant shall promptly perform all necessary
repairs, alterations, changes and improvements to the Premises
and Tenant's business, use, or occupancy thereon and the
Contents in order to comply with all of such laws. Landlord
covenants to Tenant that the Premises comply with all Laws as
at the Commencement Date.
(b) Tenant shall provide Landlord on request with evidence
satisfactory to Landlord acting reasonably that Tenant has
obtained and is complying with the terms of all applicable
licences, approvals and permits from time to time.
8.09 Prohibited Uses
If, in the opinion of Landlord, Tenant is in breach of any of the
provisions of this Article, Tenant shall immediately discontinue such use
upon Landlord's written request.
ARTICLE IX
9.00 - SERVICES AND UTILITIES
9.01 Utilities
(a) Tenant shall be solely responsible for supplying all
utilities, heating and air-conditioning equipment in such a
manner as a reasonable and prudent owner of the Premises would
do and in any event in such a manner so as to prevent damage
to the Building from the elements. Tenant shall promptly pay
for, as and when they fall due, all costs of supplying hot and
cold water, electricity, fuel, gas, steam, sewer charges and
other utilities, forms of energy, or other services to or used
in respect of the Premises including, without limitation, the
cost of such utilities consumed in or with respect to the
Premises. Tenant shall further be responsible for the
maintenance, repair and replacement of all utilities systems
and equipment serving the Premises.
(b) Tenant's use of any such utilities shall not exceed the
available capacity of the existing systems from time to time.
If Tenant desires at any time to obtain any such utilities in
excess of such available capacity, Tenant may supply and
install at its expense any special wires, conducts or other
equipment necessary to provide such additional capacity
subject to the prior written consent of Landlord.
9.02 Non-Liability of Landlord
Landlord shall not be liable for any damages, direct or indirect,
resulting from or contributed to by any interruption or cessation of or
failure in supply of any utilities, or any heating or air-conditioning
equipment or any other systems or equipment on the Premises. Without
limiting the generality of the foregoing, Landlord shall not be liable
for and Tenant shall indemnify Landlord and save Landlord harmless from
and against any and all indirect or consequential damages or damages for
personal discomfort or illness of Tenant or any persons permitted by it
to be on the Premises by reason of the suspension, non-operation, or
failure for any period of time of any utilities, heating or
air-conditioning equipment or any other systems or equipment on the
Premises.
9.03 Landlord's Suspension of Utilities, etc.
Should Landlord at any time wish to effect or make any inspection
regarding any maintenance, repairs, replacements, alterations or
improvements to any utilities, heating or air-conditioning equipment or
systems (notwithstanding that Landlord has no obligation to do so),
Landlord shall have the right, on at least 4 day's written notice to the
Tenant except in an emergency, without any liability and without thereby
constituting an interference with Tenant's rights under this Lease or a
breach by landlord of this Lease, and without thereby entitling Tenant to
any rights in respect thereof, to discontinue, suspend or modify any
utilities, heating, air-conditioning and other systems at such time or
times and from time to time as Landlord shall deem desirable. In such
circumstances the Landlord shall use its best efforts to minimize any
adverse impact on Tenant" business operations or quiet enjoyment of the
Premises. The costs incurred by the Landlord in connection with any of
the above shall be payable by Tenant forthwith on demand therefore and
shall be recoverable by Landlord as Additional Rent.
ARTICLE X
10.00 - MAINTENANCE, REPAIRS AND ALTERATIONS
10.01 Maintenance and Repairs of Premises
(a) At all times throughout the Term the Tenant at its sole
expense shall perform or cause to be performed maintenance,
decoration, repairs and replacements to keep the Premises and
all the contents thereof and all services, equipment and
systems located in or serving the Premises, at all times in
first-class appearance and condition, and in accordance with
all Laws.
(b) The Landlord shall be responsible at its sole cost for
structural repairs to the building including those for
structural defect or weakness of the leased Premises
including, without limitation, the foundations, exterior wall
assemblies including weather walls, subfloors, roof
replacement, structural columns, beams and elements of the
Leased Premises; any loss, injury or damage caused by any
peril against which the Landlord is, or ought to have been
insured as required by the Lease, or the use of defective or
faulty material in the original construction of the Leased
Premises by the Landlord or its contractors, or those for whom
the Landlord is in law responsible, or change in governmental
requirement which affect the Leased Premises, if not
occasioned by the fault of the Tenant or those for whom the
Tenant is responsible.
(c) Not withstanding anything contained in this Lease the Landlord
warrants and represents that prior to October 31, 1996, it
shall be responsible for damage caused by any roof leak and
shall indemnify the Tenant against all expenses related to
such roof leak during the first year of the Term. From
November 1, 1996, for the balance of the Term and any renewal,
the Tenant shall be responsible for all roof repairs to an
annual maximum of Ten Thousand ($10,000) Dollars. In the event
such repairs exceed Ten Thousand ($10,000) Dollars in any
given Lease Year, the Landlord, upon presentation of evidence
of such expenditure shall reimburse the Tenant within fifteen
(15) working days.
10.02 Approval of Repairs and Alterations
(a) Tenant shall not make any repairs, replacements, changes, additions,
improvements or alterations (hereinafter in this Article X referred to as
"Alterations") to the Premises without Landlord's prior written consent,
which consent shall not be unreasonably withheld unless such proposed
Alterations might; (I) in any way affect the structure of the Premises or
the coverage of the Lands for zoning purposes; or (ii) in the opinion of
the Landlord, detrimentally affect the appearance or equality of the
Premises, or impair the value or usefulness of the Premises, in either of
which events such consent may be unreasonably withheld in Landlord's sole
discretion.
(b) With its request for Landlord's consent, Tenant shall submit to Landlord
details of the proposed Alterations including plans and specification in
respect thereof prepared by qualified architects or engineers, and which
alterations shall be completed in accordance with the plans and
specifications approved in writing by Landlord. Unless expressly
authorized in writing by Landlord to the contrary, all Alterations which
might cost in excess of Ten thousand ($10,000) dollars to complete or
which might affect the structure or mechanical or electrical systems of
the Premises, shall be conducted under the supervision of a qualified
architect or engineer approved by Landlord, such approval not to be
unreasonably withheld.
(c) All Alterations shall be planned and completed in compliance with all
Laws and Tenant shall, prior to commencing any Alterations, obtain, at
its expense, all necessary permits and licences and provide evidence
thereof satisfactory to Landlord.
(d) Tenant shall, prior to the commencement of any such Alterations furnish
to Landlord at Tenant's expense such evidence as reasonable required by
Landlord of the projected cost of Alterations together with such
indemnification against costs, liens and damages as Landlord shall
reasonably require including, if required by Landlord, a performance bond
in such terms and issued by such company as shall be acceptable to
Landlord in its sole discretion in an amount at least equal to the
estimated cost of such Alterations, guaranteeing completion within a
reasonable time of such Alterations free and clear of any liens or
encumbrances.
(e) All Alterations shall be performed promptly and in a good and workmanlike
manner and in compliance with landlord's rules and regulations by
competent contractors or workmen who shall be designated or approved by
Landlord.
(f) If Tenant performs any such Alterations without compliance with all of
the foregoing provisions of this Article X, Landlord, without prejudice
to and without limiting Landlord's other rights
pursuant to this Lease and at law, shall have the right to require Tenant
to remove such Alterations forthwith.
(g) The Landlord acknowledges that the Tenant may, at its own expense,
install four (4) to six (6) silos on the east side of the building for
purposes of sawdust collection.
10.03 Repair According to Landlord's Notice
Landlord or any persons designated by it shall have the right to enter
the Premises at any time upon reasonable prior notice to view the state
of repair, condition and use thereof and Tenant shall promptly perform
any maintenance, decoration, repairs, replacements or Alterations
according to written notice from Landlord. In the event that the Tenant
shall refuse or neglect to make forthwith the repairs referred to in any
such notice, the Lessor may make the same and the costs thereto shall be
paid forthwith by the Tenant as additional rent.
10.04 Notice by Tenant
Tenant shall give immediate written notice to Landlord of any accident,
defect, damage or deficiency in any part of the Premises, which comes to
the attention of Tenant or any of its employees or contractors
notwithstanding the fact that Landlord has no obligation in respect of
the same. The provisions of this Section 10.04 shall not be interpreted
so as to imply or impose any obligation whatsoever upon Landlord. Tenant
shall exercise all due diligence to become aware of any such situation.
10.05 Ownership of Leasehold Improvements
All leasehold improvements installed in the Premises shall forthwith upon
the installation thereof become the absolute property of Landlord without
compensation therefor but without Landlord's having or thereby accepting
any responsibility in respect of the maintenance, repair of replacement
thereof, all of which shall be Tenant's responsibility. The expression
"Leasehold improvements" where used in this Lease includes, without
limitation, all fixtures, improvements, installations, alterations and
additions from time to time made, erected or installed in or about the
Premises, and includes all the following, whether or not easily
disconnected and moveable: doors partitions and hardware, mechanical,
electrical and utility installations, carpeting, drapes, other floor and
window coverings, and drapery hardware, and decorations of any kind,
heating, ventilating, air conditioning and humidity control equipment,
lighting fixtures, built-in furniture and furnishings, all counters in
any way connected to the Premises or to any utility services located
therein.
The only exclusions from "Leasehold improvements" are free-standing
furniture, trade fixtures and equipment not in any way connected to the
Premises or to any utility systems located therein.
10.06 Construction Liens
Tenant shall make all payments and take all steps necessary to ensure
that no lien or other charge is registered against the Premises or any
portion thereof or against either Landlord's or Tenant's interest therein
as a result of any work done or material implied to Tenant or the
Premises. Tenant shall cause any such registrations to be discharged or
vacated immediately after notice from Landlord, or within ten (10) days
after registration, whichever is earlier. Tenant shall indemnify and save
harmless Landlord from and against any liabilities, claims, damages,
costs or expenses, including legal expenses, arising in connection with
any work done or materials supplied in respect of the Premises.
If Tenant permits there to be registered or fails to cause any such
registration to be discharged or vacated as aforesaid, then, in addition
to any other rights of Landlord, Landlord may, but shall not be obliged
to, discharge or vacate the same by paying the amount claimed to be due
together with any other amounts into court or otherwise as Landlord
determines, including legal fees and disbursements, in this arranging for
the discharging or vacating of any such liens or certificates of action
and all amounts so paid by Landlord shall be paid by Tenant to Landlord
forthwith
upon demand together with reasonable compensation to Landlord for
administration in respect thereof.
ARTICLE XI
11.01 11.01 Vacating of Possession
Forthwith upon the expiry or earlier termination of the Term, Tenant
shall peaceable deliver to Landlord vacant possession of the Premises in
such condition in which Tenant is required to maintain and keep the
Premises during the Term pursuant hereto and shall leave the Premises in
a neat, clean and broom-swept condition and Tenant shall deliver all keys
for the Premises and all key or combinations to locks on doors, safes or
vaults within the Premises.
11.02 Removal of Trade Fixtures
Provided that Tenant has paid all Rent to the date of expiry or earlier
termination of the Term and any and all damages and other amounts payable
by Tenant to Landlord for any reason whatever and provided Tenant is not
otherwise in default hereunder, or if otherwise authorized or requested
by the Landlord, Tenant shall at the expiry or earlier termination of the
Term from the installation or removal of such trade fixtures. Other than
as provided above, tenant shall not remove trade fixtures from the
Premises.
If at the expiry or earlier termination of the Term, Tenant does not
remove its trade fixtures or any of its other property on the Premises,
Landlord shall have no obligation in respect of any such trade fixtures
or property and may sell or destroy the same or have them removed or
stored at the expense of Tenant or dispose of them in any other manner
whatsoever as may be determined by Landlord in its sole discretion; at
the option of Landlord, such trade fixtures or property not removed at
the expiry or earlier termination of the Term shall become the absolute
property of Landlord without payment of any compensation therefor to
Tenant and may be dealt with by Landlord in such manner as it determines.
11.03 Removal of Leasehold Improvements
Notwithstanding that the leasehold improvements become the absolute
property of Landlord upon installation, at the expiry or earlier
termination of the Term, Tenant shall remove any or all of such leasehold
improvements as required by Landlord and in so doing, shall repair any
damage caused as a result of the installation or removal of the same.
11.04 Overholding by Tenant
If Tenant remains in possession of all or any part of the Premises after
the expiry of the Term with the consent of Landlord and without any
further written agreement, this Lease shall not be deemed thereby to have
been renewed and Tenant shall be deemed conclusively to be occupying the
Premises as a monthly tenant on the same terms as set forth in this Lease
so far as they are applicable to a monthly tenancy except the monthly
Rent shall be 200% of an amount determined by taking 1/12 of the Rent
payable for the period of the last twelve months of the Term.
ARTICLE XII
12.00 - DAMAGE AND DESTRUCTION
12.01 Termination of Lease
If any part of the Premises is damaged or destroyed and either
(a) in the opinion of Landlord acting reasonably, the damage or
destruction cannot be repaired or rebuilt within one hundred and
eighty (180) days after the damage or destruction; or
(b) such damage or destruction is caused by an occurrence against which
Landlord is not insured or required to insure or the cost of repairs
of which would be in excess of the amount which Landlord is required
to insure pursuant hereto or is otherwise insured; or
(c) such damage or destruction occurs within two (2) years prior to the
expiry of the Term and either there are no remaining rights in
Landlord or Tenant to extend or renew this Lease or Landlord or
Tenant, having the right to renew or extend this Lease, fails to do
so within fifteen (15) days after such occurrence;
Landlord may, at its option to be exercised by written notice given to
Tenant within sixty (60) days after such occurrence, terminate this Lease
whereupon Tenant will immediately surrender the Premises and all its interest
therein to Landlord and Basic Rent and all other payments for which Tenant is
liable pursuant to this Lease shall be apportioned to the effective date of
termination (but subject to any abatement to which the Tenant may be entitled
under Section 12.03 of this Lease by reason of the Premises having been rendered
in whole or in part not reasonably capable of use or occupancy). Tenant will
remain liable to Landlord for all sums accrued due under this Lease to the date
of termination, and Landlord may re-enter and repossess the Premises discharged
of this Lease.
12.02 Repair and Rebuilding
If this lease is not terminated pursuant to this Article XII:
(a) Landlord, to the extent of insurance proceeds which Landlord receives
or would have received if it had maintained such insurance as is
required to be maintained by the Landlord hereunder, and to the
extent that any mortgagee entitled to be paid such insurance proceeds
consents to the use of same for repair of such damage or destruction,
shall diligently proceed to perform such repairs to the Premises to
the extent of insurance proceeds being available. Within thirty (30)
days after Landlord has completed its repairs, Tenant shall complete
any necessary repairs to the Premises to render the Premises usable
for Tenant's purposes and shall fully fixture, stock and staff the
Premises and recommence the operation of Tenant's business.
(b) Landlord, in performing its repairs to the Premises or the Common
Facilities as required hereby shall not be obliged to repair or
rebuild in accordance with plans or specifications for the Premises
as they existed prior to such damage or destruction, but Landlord may
repair or rebuild the same in accordance with any plans and
specifications chosen by Landlord in its sole and absolute discretion
provided that Tenant's use and occupancy of and access to the
Premises and the general overall ability of the Premises are not
materially detrimentally affected by any difference in plans,
specifications, or form of the Premises or from such plans,
specifications and form as the same existed immediately prior to the
occurrence of such damage or destruction.
12.03 Abatement
(a) If the damage or destruction in such as to render the whole or any
part of the Premises unusable for the purpose of Tenant's use as
permitted hereby, then Rent shall xxxxx from the date of the damage
or destruction until the Premises are again usable by Tenant for the
purpose intended. Rent shall xxxxx to the extent that Tenants use and
occupancy of the Premises is in fact diminished, which determination
shall be made by landlord in its sole discretion acting reasonably.
The abatement will diminish proportionately as repairs are made and
more of the Premises is returned to a usable state.
(b) Notwithstanding any other provision of this Section 12.03:
(i) if the necessary repairs have been made within fifteen (15) days
after the date of the damage or destruction, there will be no
abatement of Rent;
(ii) to the extent that any part of the Premises remains unusable
because Tenant's repairs have not been completed, no abatement of
Rent will extend beyond the date by which, in the opinion of
Landlord arrived at on a reasonable basis, Tenant's repairs would
have been completed had Tenant exercised reasonable diligence.
12.04 Determination of Matters
For the purposes of this Article XII, all matters requiring determination
such as, without limitation, the extent to which any area(s) of the
Premises are damaged, or are not capable of being used, or the times
within which repairs may be made shall be determined by Landlord acting
reasonably, such determination to be final and binding on the parties.
ARTICLE XIII
13.00 - INSURANCE AND INDEMNITY
13.01 Landlord's Insurance
Landlord shall obtain in full force and effect during the Term with
respect to the Premises insurance against such occurrences and in such
amounts and on such terms and conditions and with such deductible(s) as
Landlord may determine from time to time, it being agreed that landlord
need not communicate any determination to Tenant, Unless and until
otherwise determined by Landlord, such insurance shall include, without
limitation:
(a) insurance on the building and improvements and equipment
contained therein owned or leased by Landlord or which
Landlord desires to insure, for full replacement cost, against
damage by fire, lightning, explosion, sprinkler leakage and
other risks contained in fire insurance policies with
endorsements generally known as extended coverage and riot
vandalism and malicious acts, endorsements or, at Landlord's
option, all risks insurance;
(b) boiler and machinery insurance on such insurable objects as
Landlord may elect to insure;
(c) rental income insurance covering such occurrences, in such
form, and with such period of indemnity as Landlord may
determine;
(d) public liability insurance; and
(e) such other insurance and insurance in such amounts and on such
terms as Landlord, in its discretion, may determine.
Notwithstanding that Tenant shall be contributing to or paying for
Landlord's costs and premiums respecting such insurance pursuant tot he
terms of this Lease, Tenant shall not have any insurable or other
interest in any of Landlord's insurance other than the rights, if any,
expressly set forth in this Lease or in any policy of insurance obtained
by Landlord, and, in any event, Tenant shall not have any interest in or
any right to recover any proceeds under any of Landlord's insurance
policies. Landlord shall use reasonable efforts to obtain in its property
insurance policies upon Tenant's request a waiver of subrogation against
Tenant, if same can be obtained from Landlord's insurer on such terms and
with such limits and deductibles as Landlord shall determine.
13.02 Commencing on the Commencement Date and thereafter at all times
throughout the term, Tenant shall pay to Landlord or as the Landlord may
direct not later than the time when they shall fall due, all premiums and
costs payable by the Landlord to obtain the Landlord's Insurance.
13.03 Tenant's Effect on Other Insurance
(a) Tenant shall not do and shall not cause, suffer or permit to be done
or omitted to be done by any of its servants, agents, contractors, or
person; for whom Tenant is in law responsible anywhere on the
Premises or by any person in, on or about the Premises and shall not
permit there to be on the Premises anything which might:
(i) result in any increase in the cost of any insurance policies
of Landlord;
(ii) result in an actual or threatened cancellation of or adverse
change in any policy of insurance of Landlord; or
(iii) be prohibited by any policy or insurance of Landlord in
force from time to time in respect of the Premises or any
part of contents thereof.
(b) If the cost of any insurance policies of Landlord on or related to
the Premises or any part of contents thereof shall be increased as a
result of:
(i) the use of occupancy of the Premises by Tenant or any other
person on the Premises;
(ii) anything kept or permitted to be kept by Tenant or by any
person anywhere in the Premises; or
(iii) any act or omission of Tenant or any person in the Premises.
Tenant shall pay the full amount of such increase in cost to Landlord
forthwith upon demand.
In determining Tenant's responsibility for any increased cost of
insurance as aforesaid, a statement issued by the organization, company or
insurer establishing the insurance premiums or rates
for the relevant policy shall be conclusive evidence of the various components
of such premiums of rates and the factors giving rise to any increase therein.
(c) In the event of an actual or threatened cancellation of or adverse
change in any policy of insurance of Landlord on or related to the
Premises or any part of contents thereof by reason of:
(i) the use of occupancy of the Premises by tenant or any other
person permitted by Tenant on the Premises; or
(ii) anything placed on or permitted by Tenant or any person in the
Premises and if Tenant fails to remedy the situation, condition,
use, occupancy or other factor giving rise to such actual or
threatened cancellation or change within twenty-four (24) hours
after notice thereof by Landlord,
Landlord may, at its option, either:
(i) terminate this Lease forthwith by written notice; or
(ii) remedy the situation, condition, use, occupancy or other factor
giving rise to such actual or threatened cancellation or change,
all at the cost of Tenant to be paid to Landlord forthwith upon
demand; for any or all of such purposes as set forth in this
subsection (ii) Landlord shall have the right to enter upon the
Premises without further notice.
13.04 Tenant's Insurance
The Tenant shall maintain during the Term (i) all risks insurance upon
property owned by the Tenant or for which it is liable (including glass)
and which is located on the Premises including, without limitation,
furniture, fitting, installations, alterations, additions, partitions and
fixtures or anything in the nature of a leasehold improvement made or
installed by or on behalf of the Tenant in an amount equal to the full
replacement cost thereof; (ii) comprehensive general liability insurance
against claims for death, personal injury and property damage in or about
the Premises in amounts satisfactory from time to time to the Landlord
acting reasonably but in any event in an amount not less than
$2,000,000.00 per occurrence for personal injury and property damage;
(iii) tenant's legal liability insurance for limits satisfactory from
time to time to the Landlord acting reasonably; (iv) Business
interruption insurance; and (v) such other insurance as Landlord may from
time to time require. Each such policy shall be in form and with insurers
acceptable to the Landlord. The insurance described in parts (1) and (ii)
shall name the Landlord and anyone designated in writing by the Landlord
as Mortgagee as additional insureds as their interests may appear. All
property damage and public liability insurance shall contain a provision
for cross-liability or severability of interest as between the Landlord
and the Tenant. The Tenant hereby releases the Landlord from any
liability for loss to the extent of all insurance proceeds paid under
policies of insurance carried by the Tenant or which would have been paid
if the Tenant had maintained the insurance it is required to maintain
under this Lease. Such policies shall contain an endorsement requiring
the insurers under such policies to notify the Landlord in writing at
least thirty (30) days prior to any material change or cancellation
thereof. The Tenant shall furnish to the Landlord certified copies of all
such policies for its acceptance, as aforesaid, and shall provide written
evidence of the continuation of such policies not less than ten days
prior to their respective expiry dates. The cost or premium for each and
every such policy shall be paid by the Tenant. If the Tenant fails to
maintain such insurance, the Landlord shall have the right, but not the
obligation of any liability to do so, to pay the cost or premium
therefor, and in such event the Tenant shall repay to the Landlord, as
Additional Rent, forthwith on demand the amount so paid.
13.5 Landlord's Non-Liability
Tenant agrees that Landlord shall not be liable or responsible in any way
for any injury or death to any person or for any loss or damage to any
property at any time, in, on or about the Premises, no matter how the
same shall be caused and unless any such death, injury, loss or damage is
caused or attributed to the gross negligence of the Landlord, its
servants, agents, employees, contractors or persons for whom Landlord is
in law responsible in performing any of
its obligations hereunder. Without limiting the generality of the
foregoing, Landlord shall not be liable or responsible for any injury,
death, loss or damage to any persons or property caused or contributed to
by any of the following: fire, explosion, steam, water, rain, snow,
electricity, gas, or falling plaster; or by dampness or leaks from any
pipes, appliances, plumbing works, roof, exterior walls or any other
source whatsoever. All property kept or stored in or about the Premises
shall be at the sole risk of Tenant and Tenant shall indemnify Landlord
and save it harmless in respect of the same. Without in any way limiting
or affecting the generality or interpretation of the foregoing provisions
of this Section 13.05, it is agreed that Landlord shall in no event be
liable for any indirect or consequential damages suffered by Tenant or
any person arising therefrom except if arising from the Landlord's gross
negligence in performing any of its obligations hereunder.
13.06 Indemnity of Landlord
Tenant shall indemnify Landlord and all of its servants, agents,
employees, contractors and persons for whom Landlord is in law
responsible and shall hold them and each of them harmless from and
against any and all liability, claims, damages, losses and expenses,
including all legal fees and disbursements, due to, arising from or to
the extent contributed to by:
(a) any breach by Tenant of any of the provisions of this Lease;
(b) any act or omission of any person on the Premises or any use of
occupancy of or any articles in the Premises;
(c) any act or omission of Tenant or any of its servants, agents,
employees, invitees, licensees, sub-tenants, concessionaires,
contractors or persons for whom Tenant is in law responsible on the
Premises;
(d) any injury, death or damage to persons or property of Tenant of its
servants, agents, employees, customers, contractors or any other
persons on the Premises by or with the invitation, licence or consent
of Tenant.
(e) Any damage, destruction or need of repair to any part of the Premises
caused by any act or omission of Tenant or its servants, agents,
employees, customers, contractors, or persons for whom Tenant is in
law responsible, notwithstanding any other provisions of this Lease
including Landlord's repair obligations under Section 10.07 above.
13.07 Landlord's Employees
It is agreed that every indemnity, exclusion or release of liability and
waiver of subrogation herein contained for the benefit of Landlord shall
extend to and benefit all of Landlord's servants, agents, employees, and
those for whom Landlord is in law responsible (collectively referred to
in this Section 13.07 as "Employees"); solely for such purpose, and to
the extent that Landlord expressly chooses to enforce the benefits of the
Section 13.07 for its Employees, it is agreed that Landlord is the agent
or trustee for its Employees.
ARTICLE XIV
14.00 - ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
14.01 Consent Required
This Lease is personal to Tenant only and therefore Tenant shall not
assign this Lease in whole or in part and shall not sublet or part with
or share possession of all or any part of the Premises without the
written consent of the Landlord, which written consent is to be obtained
in advance from the Landlord such consent not to be unreasonably or
arbitrarily delayed or withheld, and shall not grant any concessions,
franchises, licences or other rights to others to use any portion of the
Premises without Landlord's prior consent as aforesaid (all of the
foregoing being hereinafter individually or collectively referred to as
"Transfer"). If the Tenant has entered into a bona fide arm's length
agreement to sell the business conducted at the Premises, Tenant may
transfer this Lease to the purchases thereunder but only with the prior
written consent of
Landlord in each instance, which consent may not be unreasonably or
arbitrarily delayed or withheld.
Notwithstanding and without in any way affecting or limiting the
interpretation of the foregoing, it is agreed that it shall be reasonable
for Landlord to withhold its consent to a Transfer unless it is shown to
the Landlord's satisfaction that:
(h) the proposed Transferee has a good business and personal reputation;
(i) The proposed Transferee has not been bankrupt or the holder of twenty
(20%) percent or more of the issued shares of any class of shares of a
corporation or of an interest in a partnership, either of which has been
bankrupt in the ten (10) years preceding the date of the proposed
Transfer;
No transfer may be made other than pursuant to an agreement in writing of
which a copy is given to Landlord together with the request for consent.
The provisions of this Article XIV shall apply to any transfer which
might occur by inheritance or operation of law.
14.02 Obtaining Consent
All requests to Landlord for consent to any Transfer shall be made to
Landlord in writing together with a copy of the agreement pursuant to
which the proposed Transfer will be made and a copy of the agreement of
purchase and sale in respect of the business. All costs incurred by
Landlord, in respect of any such request for consent, including legal
costs and Landlord's administrative fee, shall be the responsibility of
and shall be paid by Tenant forthwith upon demand, whether or not
Landlord grants its consent to any proposed Transfer.
All such requests to Landlord for consent to any Transfer shall be
accompanied by such information in writing as a Landlord might reasonably
require respecting a proposed Transferee and which might be required to
provide Landlord with all the information necessary to determine whether
the aforementioned factors are satisfied, and which information shall
include, without limitation, the name, business and home addresses and
telephone numbers, business experience, credit information and rating,
financing position and banking and personal references of such proposed
Transferee.
14.03 Terms of Consent
If Landlord consents to a Transfer, or a consent to such Transfer is
obtained by the order of a court of competent jurisdiction, or if a
Transfer occurs as a result of operation of law not requiring Landlord's
consent (notwithstanding the express agreement between the parties hereto
that any Transfer by operation of law shall in any event be subject to
the consent of landlord and all of the other provisions as contained in
this Article XIV), Landlord shall have the following rights, in default
of any of which no such Transfer shall occur or be effective:
(a) to collect a deposit or further deposit to be held as a security
deposit for the prompt performance by the Transferee of all of the
terms, covenants, conditions and provisions of this Lease such that a
security deposit held by Landlord shall be equivalent to at least,
two (2) months' Rent payable in respect of the Transferred Premises;
(b) to require Tenant and the transferee and any indemnifier in respect
of Tenant's or Transferee's obligations hereunder to enter into an
agreement in writing and under seal to implement any amendments to
this Lease to give effect to Landlord's exercise of any of its rights
hereunder;
(c) to require the Transferee to enter into an agreement with Landlord in
writing and under seal to be bound by all of Tenant's obligations
under this Lease amended as herein provided;
(d) to require the Transferee to waive any rights pursuant to subsection
39(2) of the Landlord and Tenant Act (Ontario) and any amendments
thereto and any other statutory provisions of the same of similar
effect, to pay any Rent less than the amount payable hereunder;
(e) to require, if the Transfer is a sublease or other transaction not
including an assignment, that all amounts payable by the Transferee
to the Tenant be paid directly to Landlord who shall apply the same
on account of Tenant's obligations under this Lease;
(f) to require if the Transfer provides for a rental, a bonus, key money,
a lump sum payment or any consideration incidental thereto which is
in excess of the Rent or that portion of Rent attributable to a
portion of the Premises transferred, then the excess shall be paid by
Tenant to Landlord as Additional Rent, it being acknowledged by
Tenant that it is not permitted to profit in any way from
Transferring this Lease or parting with any portion of the Premises
and that all additional payments in excess of the Rent and Additional
Rent provided herein shall also be paid to Landlord as Additional
Rent.
14.04 Effect of Transfer
(a) No consent of Landlord to a Transfer shall be effective unless given
in writing an executed by Landlord under seal and no such consent
shall be deemed or presumed by any act or omission of Landlord or by
Landlord's failure to respond to any request for consent or by
Landlord's accepting any payment of any amount payable hereunder from
any party other than Tenant. Without limiting the generality of the
foregoing, Landlord may collect rent and any other amounts from any
Transferee and apply the net amount collect to any Rent and the
collection or acceptance of any Rent shall not be deemed to be a
waiver of Landlord's rights under this section nor any acceptance of
or consent to any such Transfer or a release of any of Tenant's
obligations under this Lease. No Transfer and no consent by Landlord
to any Transfer shall constitute a waiver of the necessity to obtain
Landlord's consent to any subsequent or other Transfer.
(b) In the event of any Transfer or any consent by Landlord to any
Transfer, Tenant shall not thereby be released from any of its
obligations hereunder but shall remain bound by all such obligations
pursuant to this Lease for the balance of the Term. Tenant hereby
consents to any amendments of this Lease which may be made between
the Transferee and Landlord without the further consent or agreement
of Tenant ("Amendments") and Tenant also consents to all Alterations
as referred to in Section 10.02 above after any such Transfer. Tenant
shall continue to be bound by all of its obligations pursuant hereto
notwithstanding any such Amendments or Alterations, to the extent of
what would have been Tenant's obligations pursuant hereto had such
Amendments or Alterations not been made.
(c) Every Transferee shall be obliged to comply with all of the
obligations of Tenant under this Lease. Tenant shall enforce all of
such obligations against each Transferee. Any default of any
Transferee shall also constitute a default of Tenant hereunder.
(d) Tenant agrees that if this Lease is ever disclaimed or terminated by
a trustee in bankruptcy of a Transferee or, if Landlord terminates
this Lease as a result of the bankruptcy, insolvency or any act or
default of any Transferee, Tenant shall, upon Landlord's request,
enter into a new lease of the Premises on the identical terms hereof
subject to such amendments hereto which had been agreed upon prior to
such disclaimer or termination, with the exception only of the length
of the Term which shall commence on the date upon which Landlord
exercises its right to require Tenant to enter into such new lease
and shall expire on the date upon which the Term would have expired
but for such disclaimer or termination by such trustee in bankruptcy
or such termination by Landlord, and with the exception that Tenant
will accept the Premises in an "as is" condition, as of such date
upon which Landlord exercises its right to require Tenant to enter
into such new lease.
14.05 No Advertising of Premises
Tenant shall not advertise this Lease or all or any part of the Premises
or the business or fixtures or contents therein for sale without
Landlord's prior written consent, which consent Landlord shall not
unreasonably withhold subject to the other provisions hereof.
14.06 Mortgage of Lease
The restrictions on Transfer as aforesaid shall apply, mutatis mutandis,
to any assigning, subletting, mortgaging, charging or otherwise
transferring of the Premises or this Lease for the purpose of securing
any loan or the repayment thereof by Tenant.
14.07 Corporate Tenant
If Tenant or any occupant of the Premises at any time is a corporation,
it is acknowledged and agreed that the transfer of the majority of the
issued shares in the capital stock or any transfer, issuance or division
of any shares of the corporation or of any affiliated corporation of the
corporation sufficient to transfer control to others than the then
present shareholders of the corporation shall be deemed for all purposes
of this Article XIV to be a Transfer and, according, a breach of this
Article XIV, and it is agreed that the parties hereto shall have all of
the same rights and obligations in respect thereof as are applicable to a
Transfer. Landlord shall have access at all times to the corporate books
and records of Tenant, which Tenant agrees will be located at such place
in Canada of which Landlord shall at all times be kept notified by Tenant
in writing, and Tenant shall make the same available to Landlord and its
representatives upon request, for inspection at all times in order to
ascertain whether or not there has at any time during the Term been a
transfer, issuing or division of shares sufficient to constitute a change
in control of Tenant corporation as aforesaid. This Section 14.07 shall
not apply to Tenant if and as long as Tenant is in occupancy of the
Premises and is a corporation whose shares are listed and traded on any
recognized public stock exchange in Canada or the United States.
14.08 Assignment by Landlord
Landlord shall have the right to sell, lease, convey or otherwise dispose
of the Premises and to assign this Lease and any interest of Landlord
pursuant to this Lease without restriction. If Landlord shall sell,
lease, convey or otherwise dispose of the Premises or shall assign this
Lease or any interest of Landlord pursuant to this Lease, then, to the
extent that the purchaser or assignee agrees with landlord to assume the
covenants and obligations of Landlord hereunder, Landlord shall thereupon
and without further agreement be release of all liability pursuant to the
terms of this Lease.
ARTICLE XV
15.00 - STATUS AND SUBORDINATION OF LEASE
15.01 Status Statement
Tenant shall, within ten (10) days' after written request from Landlord,
execute and deliver to Landlord, or to any actual or proposed lender,
purchaser or assignee of Landlord, a statement or certificate in such
form as requested by Landlord stating with reasonable particularity (if
such is the case or stating with reasonable particularity the manner in
which such may not be the case):
(a) that this Lease is unmodified and in full force and effect, or
particulars of any such modifications or stating that this Lease is
not in full force and effect if such is the case;
(b) the date of commencement and expiry of the Term and the dates to
which Basic Rent and any other Rent, including any prepaid rent have
been paid;
(c) whether or not there is any existing default by either party under
this Lease and, if so, specifying such default;
(d) that there is reason why the obligations of Tenant under this Lease
may not be fully enforced in accordance with their terms and that
there are no defences, counter-claims or rights of set-off in respect
of any of the same; and
(e) full details of the financial and credit standing and details of the
corporate organization of Tenant and the Indemnifier, if any, it
being intended that any such statement delivered pursuant hereto may
be relied upon by an actual or prospective lender, purchaser and
assignee of any interest of Landlord under this Lease or in the
Premises.
15.02 Subordination
This Lease and the rights of Tenant hereunder are and shall be subject
and subordinate to any and all mortgages, trust deeds, and charges (any
of which are herein called "Mortgage" or "Mortgages"" on or in the
future, including all renewals, extensions, modifications and
replacements of any Mortgages from time to time. Tenant shall at any time
on notice from Landlord or a holder of Mortgage attorn to and become a
tenant of the holder of any of such Mortgages upon the same terms and
conditions as set forth herein and shall execute promptly on request by
Landlord any certificates, agreements, instruments of postponement or
attornment or other such instruments or agreements as requested from time
to time to postpone or subordinate this Lease and all of Tenant's rights
hereunder to any of such Mortgages or to otherwise give full effect to
any of the provisions of this Article XV.
Tenant agrees to attorn to and become the tenant of any party whose title
to the Premises is superior to that of Landlord or to any assignee from
Landlord of landlord's interest under this Lease upon the same terms and
conditions as are set forth in this Lease and shall execute promptly on
request any agreements or instruments of attornment to give effect to
such attornment as shall be requested by Landlord at any time and from
time to time.
Provided Tenant is not in default hereunder, Landlord shall use
reasonable best efforts to obtain from the holder of any Mortgage, in
respect of which Tenant has executed and delivered an instrument of
postponement, subordination or attornment as required hereby, its
agreement to permit Tenant to continue in occupation of the Premises in
accordance with and subject to the terms of this Lease.
15.03 Tenant's Failure to Comply
If Tenant fails to execute any certificate, agreement, instrument, or
other document as required by the foregoing provisions of this Article XV
within ten (10) days after request by Landlord, then Landlord shall have
the right to:
(a) execute any such certificate, agreement, instrument or document for
and on behalf of Tenant and in Tenant's name, Tenant hereby agreeing
to be bound by the same, and for such purpose Tenant hereby
irrevocably appoints Landlord as Tenant's attorney for and on behalf
of Tenant pursuant to the Powers of Attorney Act (Ontario) and which
appointment shall survive the death or incapacity of Tenant.
15.04 Registration
Tenant shall not register this Lease or any short form or notice hereof
except in Landlord's form prepared by landlord on Tenant's request or in
such form as has been approved by Landlord in writing. The cost of
preparation, approval, execution and registration of any notice or short
form of this Lease or other document to be registered by Tenant shall be
borne by Tenant and shall be paid by Tenant forthwith upon demand. If
Tenant registers or causes or permits there to be registered against the
title to the Lands any short form or notice of this Lease or other
document, Tenant shall forthwith provide to the Landlord details of such
registration and a duplicate registered copy of the registered document.
Any lease or notice or short form of this Lease registered by or at the
request of Tenant shall contain an irrevocable power of attorney by
Tenant in favour of Landlord, which power of attorney is also hereby
irrevocably granted by Tenant to Landlord under the Powers of Attorney
Act (Ontario) and which power of attorney shall survive the death or
incapacity of Tenant, authorizing Landlord to execute on behalf of and in
the name of Tenant such notices, agreements and documents as shall be
required or desired by Landlord to expunge or discharge from the register
of the title of the lands any interest of Tenant therein after the expiry
or earlier termination of this Lease.
ARTICLE XVI
16.00 - DEFAULT AND REMEDIES
16.01 Default and Remedies
If any of the following shall occur:
(a) Tenant shall fail, for any reason, to make any payment of Rent as and
when the same is due to be paid hereunder and such default shall
continue for fifteen (15) days after such payment was due, whether or
not notice is given to Tenant;
(b) Tenant shall fail, for any reason, to perform any other covenant,
condition, agreement or other obligation on the part of Tenant to be
observed or performed pursuant to this Lease (other than the payment
of any Rent) and such default shall continue for fifteen (15) days
after written notice thereof or such shorter period as expressly
provided herein;
(c) Any of the policies of Landlord's insurance on the Premises or any
part or contents thereof shall be actually or threatened to be
cancelled or adversely changed as a result of any use of occupancy of
or contents in the Premises;
(d) Tenant shall purport to make a Transfer affecting the Premises, or
the Premises shall be used by any person or for any purpose, other
than in compliance with and as expressly authorized by this Lease;
(e) Tenant or any other person occupying any portion of the Premises
shall make an assignment for the benefit of creditors or become
bankrupt or insolvent or take the benefit of any statute for bankrupt
or insolvent debtors or make any proposal, assignment, arrangement or
compromise with its creditors or, if any steps are taken or action or
proceedings commenced by any person for the dissolution, winding-up
or other termination of Tenant's existence or liquidation of its
assets;
(f) A trustee, receiver, receiver-manager, agent or other like person
shall be appointed in respect of the assets or business of Tenant or
any other occupant of the Premises;
(g) Tenant attempts to or does abandon the Premises or remove or dispose
of any goods and chattels from the Premises so that there would not,
in the event of such removal or dispose, be sufficient goods of
Tenant on the Premises subject to distress to satisfy all arrears of
Rent payable under this Lease and all Rent payable hereunder for a
further period of at least twelve (12) months, or if the Premises
shall be vacant or unoccupied for a period of five (5) consecutive
days or more without the prior written consent of Landlord;
(h) Tenant makes any sale in bulk affecting any property on the Premises
(other than in conjunction with a Transfer approved in writing by
Landlord and made pursuant to all applicable legislation);
(i) This Lease or any goods or other property of Tenant shall at any time
be sized or taken in execution or attachment which remains
unsatisfied for a period of five (5) days or more; and
(j) Termination or re-entry by Landlord is permitted under any provision
of this Lease or at law;
Then, without prejudice to and in addition to any other rights and
remedies to which Landlord is entitled pursuant hereto or at law, the
then current and the next three (3) months' Rent shall be forthwith due
and payable and Landlord shall have the following rights and remedies,
all of which are cumulative and not alternative, to:
(a) terminate this Lease in respect of the whole or any part of the
Premises by written notice to Tenant; if this Lease is terminated in
respect of part of the Premises, this Lease shall be deemed to be
amended by the appropriate amendments, and proportionate adjustments
in respect of Rent and any other appropriate adjustments shall be
made in such manner as shall be determined by Landlord;
(b) enter the Premises as agent of Tenant and as such agent to relet them
for whatever term (which may be for a term extending beyond the Term)
and on whatever terms and conditions as Landlord in its sole
discretion may determine and to receive the rent therefor and, as the
agent of Tenant, to take possession of any furniture, fixtures,
equipment, stock or
other property thereon and, upon giving written notice to Tenant, to
store the same at the expense and risk of Tenant or to sell or
otherwise dispose of the same at public or private sale without
further notice, and to make such alterations to the Premises in order
to facilitate their reletting as Landlord shall determine, and to
apply the net proceeds of the sale of any furniture, fixtures,
equipment, stock or other property or from the reletting of the
Premises, less all expenses incurred by Landlord in making the
Premises ready for reletting and in reletting the Premises, on
account of the Rent due and to become due under Lease and Tenant
shall be liable to Landlord for any deficiency and for all such
expense incurred by Landlord as aforesaid; no such entry or taking
possession of or performing alterations to or reletting of the
Premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such
intention or termination is given by Landlord to Tenant;
(c) remedy or attempt to remedy any default of Tenant in performing any
repairs, work or other covenants of Tenant hereunder and, in so
doing, to make any payments due or claimed to be due by Tenant to
third parties and to enter upon the Premises, without any liability
to Tenant therefor or for any damages resulting thereby, and without
constituting a re-entry of the Premises or termination of this Lease,
and without being in breach of any of Landlord's covenants hereunder
and without thereby being deemed to infringe upon any of Tenant's
rights pursuant hereto, and, in such case, Tenant shall pay to
Landlord forthwith upon demand all amounts paid by Landlord to third
parties in respect of such default and all reasonable costs of
Landlord in remedying or attempting to remedy any such default plus
ten (10%) percent of the amount of such costs of Landlord" inspection
and supervision plus a further ten (10%) percent for overhead and
profit;
(d) obtain damages from Tenant including, without limitation, if this
Lease is terminated by Landlord, all deficiencies between all amounts
which would have been payable by Tenant for what would have been the
balance of the Term, but for such termination, and all net amounts
actually received by Landlord for such period of time; and
16.02 Interest
All mounts of Rent shall bear interest from their respective due dates
until the actual dates of payment at a rate of which shall be the greater
of (I) three (3%) percent per annum in excess of the prime commercial
rate of interest charged by Landlord's bank in Ontario for loans to its
most favoured commercial customers from time to time; and (ii) the rate
expressly agreed by Tenant in writing to be paid in respect of any
amount(s) from time to time.
16.03 Costs
Tenant shall be responsible for and pay to Landlord forthwith upon demand
all costs incurred by Landlord, including, without limitation, reasonable
compensation for all time expended by Landlord's own personnel, legal
costs on a solicitor and his own client basis, and all other costs of any
kind whatsoever, arising from or incurred as a result of any default of
Tenant or any enforcement by Landlord of any of Tenant's obligations
under this Lease or any other agreement or obligation of Tenant to
Landlord, whether or not related to the Premises.
16.04 Allocation of Payments
Tenant agrees that Landlord may, at its option to be exercised by written
notice to Tenant at any time, apply all sums received by Landlord from
Tenant or any other persons in respect of any Rent to any amounts
whatsoever payable by Tenant and it is further agreed that any allocation
made by Landlord, on its books and records or by written notice to Tenant
or otherwise, may subsequently be re-allocated by Landlord as it may
determine in its sole discretion, and any such allocation and
re-allocation from time to time shall be final and binding on Tenant
unless and to the extent subsequently re-allocated by Landlord.
16.05 Security Deposit
Within forty-eight (48) hours after acceptance of the Offer to Lease, and
execution of the Lease Agreement, the Tenant agrees to provide the
Landlord with a Letter of Credit in the amount of Forty-two Thousand
($42,000) Dollars for a minimum term of two (2) years. This Letter of
Credit shall expire upon the following two (2) conditions being
fulfilled:
(a) the Tenant remains a tenant in good standing, i.e. all realty taxes
and net rent are up to date; and
(b) the Tenant provides the Landlord with financial statements showing
that his net worth in Cantech Investments Ltd. is over One Million
($1,000,000) Dollars.
It is furthermore agreed that this Letter of Credit may be drawn down
should the Tenant become delinquent in its rental and/or realty tax
payments. The Landlord shall not draw on the Letter of Credit without
first giving the Tenant thirty (30) days notice to cure the default. When
the Letter of Credit has been discharged/expired, the Tenant shall pay
the last month's net rent, plus GST as a further deposit.
16.06 Remedies to Subsist
(a) No waiver of any of Tenant's obligations under this Lease and no
waiver of any of Landlord's rights hereunder in respect of any
default by Tenant hereunder shall be deemed to have occupied or be
given as a result of any condoning, excusing, overlooking or delay in
acting upon by Landlord in respect of any default by Tenant or by any
other act or omission of Landlord including, without limitation, the
acceptance of any Rent less than the full amount thereof, the
acceptance of any Rent after the occurrence of any default by Tenant,
or any verbal or written statements or agreements made by any
employee of Landlord other than an agreement in writing duly executed
on behalf of Landlord by one of its personnel with ostensible
authority to do so. No waiver of any of Tenant's obligations or any
of Landlord's rights hereunder shall be effective except and only to
the extent of any express waiver in writing duly executed on behalf
of Landlord by one of its personnel with ostensible authority to do
so. The waiver by Landlord of any default of Tenant or of any rights
of Landlord shall not be deemed to be a waiver of any term, covenant
or condition in respect of which such default or right has been
waived and shall not be deemed to be a waiver of any subsequent
default of Tenant or right of Landlord.
(b) All rights and remedies of Landlord under this Lease and at law,
shall be cumulative and not alternative, and the exercise by Landlord
of any of its rights pursuant to this Lease or at law shall at all
times be without prejudice to any other rights of Landlord, whether
or not the are expressly reserved.
(c) If Landlord assigns this Lease to a mortgagee or holder of other
security on the Premises or any part thereof or to any other person
whatsoever, landlord shall nonetheless be entitled to exercise all
rights and remedies available to it pursuant to this Lease and at law
without providing evidence of the approval or consent of such
mortgagee, holder of other security or other person whatsoever.
(d) All Rent shall be paid by Tenant to landlord without deduction,
abatement or set-off whatsoever, except as and to the extent
expressly permitted pursuant to the terms of this Lease, and Tenant
hereby waives any rights of deduction, abatement or set-off available
to it now or at any time in the future, including any right to
deduction, abatement or set-off contained in any statute.
16.07 Impossibility of Performance
If and to the extent that either Landlord or Tenant shall be unable to
fulfil or shall be delayed or restricted in the fulfilment of any
obligation under this Lease, other than the payment by Tenant of any
Rent, by reason of unavailability of material, equipment utilities,
services or labour required to enable it to fulfil such obligation or by
reason of any laws, or by reason of its not being able to obtain any
permission or authority required pursuant to any applicable laws or by
reason of any other such cause beyond its control and not the fault of
the party being delayed and not avoidable by the exercise of reasonable
foresight (excluding the inability to pay for the performance of such
obligation), then the party being delayed shall be entitled to extend the
time for fulfilment of such obligation by a time equal to the duration of
such delay or restriction, and the other party shall not be entitled to
any compensation for any loss, inconvenience, nuisance or discomfort
occasioned thereby. The party delayed will, however, use its best efforts
to fulfil the obligation in question as soon as is reasonably practicable
by arranging an alternate method of providing the work, services or
materials being delayed subject, in the case of performance by Tenant, to
the approval of Landlord in its sole and absolute discretion. In any
event, the provisions of this Section 16.07 shall not apply to permit any
delay in any payment by Tenant of any Rent.
ARTICLE XVII
17.00 - CONTROL OF PREMISES
17.01 Rules and Regulations
Landlord may, from time to time, make and amend such rules and
regulations for the management and operation of the Premises as Landlord
shall determine and Tenant and all persons under its control shall be
bound by and shall comply with all of such rules and regulations of which
notice is given to Tenant from time to time and all of such rules and
regulations shall be deemed to be incorporated into and form a part of
this Lease. Without limiting the generality of the foregoing, Tenant
shall comply with all rules and regulations made by Landlord respecting
security and respecting shipping, receiving, loading and unloading of
merchandise, supplies, materials, garbage and all other things
whatsoever, all of which shall be made only at such times and from, over
or by means of such access routes, driveways, doors, loading areas,
stairs and other areas or passages whatsoever as Landlord shall determine
in writing from time to time. Landlord shall not make any rules or
regulations which conflict with any express provision of this Lease
unless and only to the extent required by any applicable laws or unless
Tenant consents thereto. Landlord shall act reasonably in enforcing such
rules and regulations but the imposition of any rules and regulations
shall not create or imply any obligation of Landlord to enforce them or
create any liability of Landlord for their non-enforcement or otherwise.
17.02 Access to Premises
(a) Landlord (including its agents, employees, contractors or
representatives), without limiting any other rights Landlord may have
pursuant hereto or at law, shall have the right, but not the
obligation, to enter the Premises at any time upon reasonable prior
notice and for any of the following purposes:
(i) to examine the Premises and to perform any maintenance,
repairs and alterations to the same or any part thereof as may be
required or permitted by this Lease and to perform any
maintenance, repairs and alterations to any mechanical,
electrical, heating, ventilating, air-conditioning and humidity
control equipment and services located therein serving the
Premises or any part thereof, and for all of such purposes,
Landlord may take such material and equipment into the Premises as
Landlord may require;
(ii) to protect the Premises in respect of any construction or
other work being performed in premises adjoining or in the
vicinity of the Premises;
(iii) for any purposes as determined by Landlord in cases of
emergency;
(iv) to read any utility or other similar meters located in the
Premises
(v) during the last twelve (12) months of the Term to show the
Premises to prospective tenants, and to permit prospective tenants
to make inspections, measurements, and plans;
(vi) at any time during the Term, to show the Premises to
prospective purchasers, mortgagees or lenders; and
(vii) to exercise any of the rights available to Landlord pursuant
to this Lease.
(b) Landlord shall have the right to run through the Premises conduits,
wires, pipes, ducts and other elements of any systems for utilities,
heating, ventilating, air-conditioning and humidity control,
telephone and other communications systems and any other such systems
to serve the Premises or any parts thereof and landlord shall have
access for itself and those designated by it to the Premises for the
purpose of inspecting, maintaining, repairing, replacing, and
altering any services in respect of any of the same. In such
circumstances the Landlord shall use its best efforts to minimize any
adverse impact on Tenant's business operations or quiet enjoyment of
the Premises. Notwithstanding the foregoing, the Rent shall not be
reduced or otherwise affected as a result of any of such systems
being located on or running through the Premises.
(c) Landlord shall exercise its rights pursuant to this Section 17.02 in
such manner and at such times as Landlord, acting reasonably but in
its sole discretion, shall determine; at any time that entry by
landlord is desired in case of emergency, and if no personnel of
Tenant are known by landlord to be present on the Premises of if such
personnel fail for any reason to provide Landlord immediate access at
the time such entry is desired, Landlord may forceable enter the
Premises without liability for damage caused thereby.
ARTICLE XVIII
18.00 - EXPROPRIATION
18.01 Expropriation
If the whole or any part of the Premises shall be expropriated (which
term shall for the purposes of this Article XVII include expropriation,
condemnation or sale by landlord to an authority with the power to expropriate,
condemn or take) by any competent authority then:
(a) Landlord and Tenant shall co-operate with each other in respect of
such expropriation so that each may receive the maximum award to
which it may be entitled in law for such expropriation;
(b) Landlord shall have the option, to be exercised by written notice
to Tenant, to terminate this Lease, such termination to be
effective on the date the expropriating authority takes possession
of the whole or substantial portion of the Premises; and
(c) This lease shall continue in full force and effect in accordance
with its terms until the date on which this Lease is terminated in
accordance with the provisions of this Article XVIII, if
terminated in accordance with the express provisions hereof and,
if terminated, Rent and all other obligations under this Lease
shall be adjusted as of the date of such termination.
ARTICLE XIX
19.00 - MISCELLANEOUS
19.01 Notices
All notices, demands, requests or other instruments ("Notices") which
may be or are required to be given under this Lease shall be in writing
and shall be delivered in person or sent by prepaid registered Canadian
mail or by CN/CP Telegram addressed:
To the Tenant:
Cantech Investments ltd.
At the Premises
To the Landlord:
The Carrier Drive Development Limited
00 Xxx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxx
X0X 0X0
All such notices shall be conclusively deemed to have been given upon
the day the same is personally delivered or, if mailed as aforesaid,
four (4) business days (excluding Saturdays,
Sundays, holidays and days upon which regular postal service is
interrupted or unavailable for any reason) after the same is mailed as
aforesaid, or if forwarded by CN/CP telegrams as aforesaid, two (2)
business days (excluding Saturdays, Sundays, holidays and days upon
which regular telegram service is interrupted or unavailable for any
reason) after the same is delivered to CP/CP telegram office in Canada
for transmitting, as the case may be. Any party may at any time by
notice in writing to the other, change its address for service of
Notices.
19.02 Planning Act
This Lease is entered into subject to the provisions of and compliance
with the provisions of all applicable legislation dealing with planning
restrictions including the Planning Act R.S.O. 1990 and amendments.
19.03 Complete Agreement
It is understood and agreed that other than and to the extent that any
other written agreement between Landlord and Tenant respecting the
Premises remains in force, this Lease constitutes the complete
agreement between the parties and that there are no covenants,
representations, agreements, warranties or conditions in any way
relating to the subject matter of this Lease or the tenancy created
hereby, expressed or implied, collateral or otherwise, except as
expressly set forth herein. Tenant acknowledges that no representatives
of Landlord are authorized to make on Landlord's behalf any covenants,
representations, agreements, warranties or conditions of any kind or in
any manner whatsoever other than as expressly set forth in writing in
this Lease in the form in which it is executed by Landlord under seal.
No amendment to this Lease shall be binding upon Landlord unless the
same is in writing and executed by landlord under seal.
19.04 Use Prior to Commencement Date
If Tenant uses or occupies the whole or any part of the Premises in any
way prior to the Commencement date without entering into a lease with
landlord in respect of such use or occupancy, then during the period of
such use or occupancy, Tenant shall be a tenant of Landlord subject to
all the terms and conditions as contained in this Lease which shall
apply to such tenancy mutatis mutandis; the inclusion of this paragraph
shall not be deemed to authorize or permit Tenant to use or occupy the
whole or any portion of the Premises in any way prior to the
Commencement Date.
19.05 Acceptance of Premises
Tenant accepts the Premises in the state and condition in which they
are received from Landlord and, Tenant's entering into possession of
all or any part of the Premises shall be conclusive evidence of the
acceptance by Tenant of the condition and state of repair of the
Premises. The Lessor warrants that all heating, ventilation, air
conditioning (HVAC System), electrical, mechanical (including dock
levellers), plumbing and sprinkler systems will be in good working
condition at the date of official commencement of the Lease Term
(November 1, 1995) by the Lessee and will continue to be guaranteed
until June 15, 1996. Furthermore, the Lessor warrants that the current
sprinkler system conforms to all building codes/fire regulations, as
pertaining to all applicable municipal and governmental authorities.
The Lessor further agrees to deliver the premises in a clean and
orderly condition.
19.06 Time of the Essence
Time is of the essence of this Lease and all parts hereof.
19.07 Applicable Law
This Lease shall be governed by and interpreted in accordance with the
laws of the Province of Ontario. The parties agree that the Courts of
Ontario shall have jurisdiction to determine any matters arising
hereunder, except to the extent, if any, expressly provided to the
contrary herein, and the parties hereby attorn to the jurisdiction of
the Courts of Ontario.
19.08 Severability
If any provision of this Lease of any portion thereof or the
application of any of the same is illegal, unenforceable or invalid, it
shall be considered separate and severable from this Lease and all of
the remaining provisions hereof shall remain in full force and effect
as though any such provision of this Lease or any portion thereof had
not be included in this Lease but such provision of this Lease or
portion hereof shall nonetheless continue to be enforeceable to the
full extent permitted by law. Neither party is obliged to enforce this
Lease to the extent that by so doing they would be contravening any
applicable laws.
19.09 Option to Purchase
The Tenant, if not in default under the Lease and with thirty (30) days
written notice to the Landlord, shall have the Option to purchase the
land, building and all improvements thereon during the lease term at
the purchase price of Two Million One Hundred and Two Thousand Eight
Hundred and Eighty ($2,102,880.00) Dollars, based on Xxxxxx-two
($32.00) Dollars per square foot. The remaining terms and conditions of
the option to purchase shall be mutually agreed upon between the
Landlord and the Tenant within fifteen (15) business days of the
exercising of this option by the Tenant. The closing date of the
purchase shall occur as quickly as reasonably possible thereafter,
which closing date shall be mutually agreed upon by the Landlord and
the Tenant.
19.10 Option to Renew
As long as Tenant is not in default of any of the terms of this Lease
and shall have regularly, diligently and punctually paid Rent as and
when due and duly and regularly performed its other covenants under the
Lease through the Term, Tenant shall have the right to renew this Lease
from its Expiry Date for a further term of Five (5) years provided that
Tenant has notified Landlord in writing of its intention to exercise
its option to renew not less than Six (6) months prior to the
expiration of the Term. In the event of failure to give written notice
within the time or in the manner prescribed, this option shall be null
and void. In the event that the exercise of this option shall be duly
and properly completed by Tenant, then all of the terms of this Lease
shall apply during the renewal term except:
(a) there shall be not further right of renewal unless agreed upon in
writing at the time of renewal, if any of this Lease; and
(b) Basic Rent shall be agreed upon between Landlord and Tenant
negotiating in good faith and shall be based upon the prevailing
rental rates for substantially similar Industrial/Office space in a
substantially similar area.
Should Landlord and Tenant fail to agree as to the amount of Basic Rent
to be paid during the renewal term by the SIXTIETH (60th) day preceding
the Commencement of the Renewal Term, such amount shall be determined
by binding arbitration to be conducted pursuant to the relevant
provisions of the Ontario Arbitration's Act, R.S.O. 1990 and amendments
thereto with the intention that Basic Rent shall be based on the
prevailing rental rates for substantially similar space in a
substantially similar area. Should the arbitration continue past the
Commencement Date of the Renewal Term, Tenant shall nevertheless pay
Basic Rent during the renewal term, until the Basic Rent is determined,
at a Basic Rent rate of Two Dollars and Sixty-five Cents ($2.65) per
square foot, per annum, plus all Additional Rent specified under this
Lease.
19.11 Environmental Practices
(a) In this Lease:
(i) "Environmental Audit" shall mean a complete review of the
Premises and the environmental practices of the Tenant
thereon by the Landlord, its employees or agents and shall
include such visual inspections, interviews with the
Tenant, its employees, servants, or agents, and such soil,
air, or other tests as the Landlord shall in its sole
discretion deem to be necessary.
(ii) "Hazardous Substance" means any contaminant, pollutant or
hazardous substance that is likely to cause immediately or
at some future time, harm or degradation to the
environment or risk to human health or safety, and without
restricting the generality of the foregoing, includes
without limitation any pollutant, contaminant, waste,
hazardous waste, toxic substance or dangerous good which
is defined or identified in any municipal, provincial or
federal environmental legislation.
(b) The Tenant shall at all times use the Premises so as to comply
with all municipal, provincial and federal environmental
legislation in keeping with first class environmental protection
practices.
(c) The Landlord shall have the right to conduct an Environmental
Audit of the Premises at any time and from time to time throughout
the term and any renewal thereof. Such Environmental Audit shall
be at the landlord's sole expense.
(d) In the event that the Environmental Audit reveals that the Tenant
is storing, handling, transporting, manufacturing, processing or
otherwise dealing with any hazardous Substances in the Premises,
the Landlord shall give the Tenant ninety (90) days within which
to amend if required by municipal, provincial or federal
environmental legislation its manner of storing, handling,
transporting, manufacturing, processing or otherwise dealing with
such Hazardous Substances to comply with municipal, provincial or
federal governmental legislation. The Tenant shall, at its
expense, further forthwith carry out such procedures including a
clean up of any Hazardous Substances released by the Tenant onto
the Premises (but expressly excluding any other Hazardous
Substances) so as to be in compliance with applicable municipal,
provincial and federal environmental legislation, and to forestall
any damage to the Premises which in the opinion of the Landlord
may be created by the unsatisfactory storing, handling,
transporting, manufacturing, processing or otherwise dealing with
any hazardous Substances.
(e) In the event that the Tenant shall be in default of the provisions
hereof and shall fail to amend its practices or take such
corrective measures as are required pursuant to subparagraph (d)
hereof within the aforesaid ninety (90) day period the Landlord
shall have the right to enter upon the Premises and carry out such
procedures as are, in the sole opinion of the Landlord, necessary
to correct any damage which may have been done to the Premises or
to forestall any damage to the Premises which in the opinion of
the Landlord may be created by the unsatisfactory storing,
handling, transporting, manufacturing, processing or otherwise
dealing with such Hazardous Substances and the Tenant shall pay to
the Landlord on demand, as Additional Rent, all costs and expenses
of carrying out such procedures.
(f) Any entry on the Premises of the Tenant by the landlord pursuant
to the terms of the Lease shall not constitute a breach of the
Landlord's covenant of Quiet Enjoyment.
19.12 Goods and Services Tax
Goods and Services Tax means any and all goods and services taxes,
sales taxes, value added taxes, business transfer taxes, or any other
taxes imposed on the Landlord with respect to the Rent payable by the
Tenant to the Landlord under this Lease, or in respect of the rental of
space under this Lease, whether characterized as a goods and services
tax, sales tax, value added tax, business transfer tax or otherwise.
Notwithstanding anything to the contrary contained herein, the Tenant
shall pay to the Landlord an amount equal to the Landlord's liability
(pursuant to the applicable legislation) for any and all Goods and
Services Tax, levied, rated, charged or assessed in connection with
this Lease, it being the intention of the parties that the Landlord
shall be fully reimbursed by the Tenant with respect to all Goods and
Services Tax payable or collectible by the landlord in respect of Rent
or the rental of space under this Lease. The amount of Goods and
Services Tax so payable by the Tenant shall be calculated by the
Landlord in accordance with the applicable legislation and shall be
paid to the Landlord at the same time as the amounts to which the Goods
and Services Tax are payable to the Landlord under the terms of this
Lease or upon demand at such other time or times as the Landlord from
time to time determines. Despite any other paragraph or clause of this
Lease, the amount payable by the Tenant under this paragraph shall be
deemed to be a tax and not Rent but the Landlord shall have all of the
same remedies for and rights of recovery of such amount as it has for
recovery of Rent under this Lease and may require it to be paid in the
same manner as Additional Rent for purposes of collection.
19.13 Section Numbers and Headings
The table of contents of this Lease and all section numbers and all
headings are inserted as a matter of convenience only and shall in no
way limit or affect the interpretation of this Lease.
19.14 Interpretation
Whenever a word importing singular or plural is used in this Lease such
word shall include the plural and singular respectively. Where any
party is comprised of more than one entity, the obligations of each of
such entities shall be joint and several. Words importing either gender
of firms or corporations shall include persons of the other gender and
firms or corporations as applicable. Subject to the express provisions
contained in this Lease, words such as "hereof", "herein", "hereby",
"hereinafter", and "hereunder" and all similar words or expressions
shall refer to this Lease as a whole and not to any particular section,
or portion thereof being less that the whole.
19.15 Successors
This Lease and all portions hereof shall enure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrator, successors, assigns and other legal representatives
excepting only that this Lease shall not enure to the benefit of any
such parties unless and only to the extent expressly permitted pursuant
to the provisions of this Lease.
19.16 Reasonability Clause
Despite anything contained in this Lease to the contrary, 9a) any
allocations of any cost, charge or expense which is to be determined by
Landlord under his Lease shall be done on a reasonable and equitable
basis, (b) whenever in this Lease landlord's consent, permission or
approval is required, such consent, permission or approval shall not be
unreasonably withheld or delayed, but if Landlord does not respond
within fifteen 915) days to Tenant's request for such consent,
permission or approval, then Landlord's consent, permission or approval
shall be deemed to be given to Tenants request, and (c) in exercising
any of its rights under this Lease, landlord shall act reasonably and
as a prudent owner of a similar Premises having regard to size, age,
and location.
IN WITNESS WHEREOF this Lease has been executed by the parties hereto
under their respective corporate seals and under the and of their duly
authorized officer in that behalf, as of the day and year first written
above.
SIGNED, SEALED AND DELIVERED ) THE CARRIER DRIVE DEVELOPMENT LTD.
)
in the presence of: ) per: ___________________________
)
)
)
) CANTECH INVESTMENTS LTD.
)
) per: ___________________________
SCHEDULE "A"
Parcel 36-36, Section E-24, being part of Lot 36, Concession 3 Fronting the
Humber, designated as PART 1 on Plan 66R-8320, city of Etobicoke (formerly the
Borough of Etobicoke), Municipality of Metropolitan Toronto.
SCHEDULE "B"
LANDLORD'S WORK
The Landlord, at its own expense, shall complete the following work in a good
and workmanlike manner, prior to September, 1, 1995:
Office Area
o Replace any damaged/soiled/missing ceiling tiles, lighting covers and
floor tiles.
o Steam clean entire office area carpet; however, re-carpet certain
office areas. The areas to be re-carpeted shall be agreed upon between
the Landlord and the Tenant before installation, including the type,
style and colour of the carpet from the Landlord's standard selection
available.
o Paint the entire office area; the colour to be agreed upon between the
Landlord and the Tenant prior to the commencement of such work.
o Leave existing security system in place. (It is acknowledged by both
parties that as the security system is a leased system and not owned by
the Landlord, that the security company may remove the system at any
time prior to a new Lease being entered into).
WarehouseArea
o Fix and ensure that all shipping doors (truck level and drive in) are
in good working order and sealed properly including holes, gaps, et
cetera.
o Fix and ensure all exit signs and emergency lighting is in proper
working order.
o Fix and seal all cracks/separations in the block walls throughout
warehouse area. Ensure all bolts in the floor are removed properly and
that the floor is in good condition
o Replace the missing washroom ceiling tiles, fix the door handles, paint
the walls and ensure all plumbing is working properly. This work is to
be agreed upon between the Landlord and the Tenant prior to the
commencement of this work.
o Ensure that there is 400 amps. 600 volts of electrical power into the
building.
Outside Area
o Fix the asphalt area around the west side shipping area sewer to ensure
proper drainage and safety.
