THIS INDENTURE MADE THE 15TH DAY OF FEBRUARY, 1994,
BETWEEN:
CARLVAD HOLDINGS INC.
A COMPANY INCORPORATED UNDER THE
LAWS OF THE PROVINCE OF ONTARIO
(Hereinafter called the "Landlord"),
OF THE FIRST PART;
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SIDUS SYSTEMS INC.
(Hereinafter called the "Tenant"),
OF THE SECOND PART;
ARTICLE I--DEMISE AND TERM
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PREMISES
1.01 WITNESSETH that in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord does demise and lease unto the Tenant and
the Tenant leases from the Landlord, the Leased Premises.
TERM
1.02 To have and to hold the Leased Premises for and during the term of ten
(10) years, one (1) month and seventeen (17) days commencing on the 15th day of
February, 1994 and ending on the 31st day of March, 2004. Notwithstanding the
commencement of the Term it is understood and agreed by the parties hereto that
only the warehouse portion of the Leased Premises ("Warehouse Area") shall be
available for possession by the Tenant on the commencement date of the Term and
that the balance of the Leased Premises ("Office Area") shall be ready for
occupation by the Tenant on the 1st day of April, 1994. If the Office Area is
not ready for occupation by the Tenant by the 10th day of April, 1994 Rent in
respect of the Office Area only shall xxxxx until such area is ready for
occupation by the Tenant and the Landlord shall credit the Tenant for the amount
of Rent paid by the Tenant in respect of the Office Area for the period
commencing April 1st, 1994. Any such abatement of Rent shall be accepted by the
Tenant in full settlement of all claims which the Tenant may have by reason of
portions of the Leased Premises not being vacant or ready for occupancy on the
dates hereinbefore set out.
"Ready for occupation" shall mean, in the case of the Warehouse Area, that
all furnishings, equipment, inventory and other chattels of the existing tenant
have been removed from the warehouse; and in respect of the Office Area shall
mean that the Landlord has substantially completed the Landlord's work as set
out in Schedule "D" hereto on or before April 1st, 1994.
ACCEPTANCE OF PREMISES
1.03 The Landlord shall, at its own expense, cause the existing tenant of the
Leased Premises, Wang Canada Inc., to deliver up vacant prossession of the
Warehouse Area to the Tenant not later than the 15th day of February, 1994 and
the Office Area not later than the 15th day of March, 1994. If either of these
covenants of the Landlord is performed late then, Rent shall be abated in
accordance with the provisions of Section 1.02. The Landlord shall, carry out
all of the work described in Schedule "D" hereto.
ARTICLE II--LANDLORD AND TENANT COVENANTS
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LANDLORD COVENANTS
2.01 If the Tenant pays the Rent hereby reserved and performs the covenants
herein on its part contained, the Tenant shall and may peaceably possess and
enjoy the Leased Premises for the Term hereby granted without any interruption
or disturbance from the Landlord or any other person or persons lawfully
claiming by, from or under the Landlord.
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TENANT COVENANTS
2.02 The Tenant covenants to pay Rent and all other charges provided for in
this Lease on their due dates and to observe and perform all of the covenants
and provisions of this Lease on its part to be observed and performed.
ARTICLE III--RENT
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INTENT OF LEASE
3.01 This is a carefree net lease to the Landlord, except as expressly
hereinafter set out and it is the mutual intention of the parties hereto that
the Basic Rent herein provided to be paid shall be net to the Landlord clear of
all taxes, costs and charges arising from or relating to the Leased Premises.
Charges of a kind personal to the Landlord such as taxes assessed on the income
of the Landlord, estate and inheritance tax and similar taxes and principal and
interest payments to be made by the Landlord in satisfaction of mortgages now or
hereinafter registered against the Leased Premises shall not be the
responsibility or obligation of the Tenant.
BASIC RENT
3.02 Yielding and paying therefor yearly and every year during the Term unto
the Landlord as Basic Rent for the Leased Premises in lawful money of Canada:
(a) During the first year, one (1) month and seventeen (17) days of the
Term, being from February 15, 1994 to and including March 31st, 1995,
the sum FOUR HUNDRED AND SIXTY THOUSAND FOUR HUNDRED DOLLARS AND FORTY
CENTS ($460,400.40) per annum to be paid in advance in equal
consecutive monthly installments of THIRTY EIGHT THOUSAND, THREE
HUNDRED AND SIXTY SIX DOLLARS AND SEVENTY CENTS ($38,366.70);
(b) During the next four (4) years of the Term, being from April 1, 1995
to and including March 31, 1999, the sum of FOUR HUNDRED AND EIGHTY
FOUR THOUSAND, SIX HUNDRED AND THIRTY TWO DOLLARS ($484,632.00) per
annum to be paid in advance in equal consecutive monthly installments
of FORTY THOUSAND, THREE HUNDRED AND EIGHTY SIX DOLLARS ($40,386.00);
and
(c) During the remaining five (5) years of the Term, being from April 1,
1999 to and including March 31, 2004 the sum of SIX HUNDRED AND SIXTY
SIX THOUSAND THREE HUNDRED AND SIXTY NINE DOLLARS ($666,369.00) per
annum to be paid in advance in equal consecutive monthly installments
of FIFTY FIVE THOUSAND FIVE HUNDRED AND THIRTY DOLLARS AND SEVENTY
FIVE CENTS ($55,530.75).
The aforesaid sums shall be paid in advance, on the first day of each and
every month during the Term to the Landlord, the first of such payments to be
made on the 15th day of February, 1994. If the Term commences on any day other
than the first or ends on any day other than the last day of a month, Basic Rent
and Additional Rent for the fractions of a month at the commencement and at the
end of the Term shall be adjusted pro rata on a per diem basis.
Notwithstanding the foregoing and subject to the provisions of Section 1.02
hereof, for the period from the 15th day of February, 1994 to the 31st day of
March, 1994 the Tenant shall pay a proportionate share only of the Basic Rent,
such proportionate share to be in the same ratio as the area of the Warehouse
Area is to the area of the entire Leased Premises. Basic Rent for the entire
Leased Premises shall commence on the 1st day of April, 1994, subject to the
provisions of Section 1.02 hereof.
CALCULATION OF BASIC RENT
3.03 The Basic Rent is calculated on the basis of the area of the Leased
Premises being 121,158 square feet multiplied by:
(a) $3.80 per square foot per annum for the first year, one (1) month and
seventeen (17) days of the Term;
(b) $4.00 per square foot per annum for the next four (4) years of the
Term; and
(c) $5.50 per square foot per annum for the remaining five (5) years of
the Term.
Prior to the commencement date of the Term, the Landlord shall deliver to the
Tenant a certificate of the Landlord's architect confirming the area of the
Leased Premises as aforesaid.
ADDITIONAL RENT
3.04 The Tenant shall pay Additional Rent due and owing to the Landlord
within ten (10) days of written demand therefor or otherwise hereinafter
expressly set out and all other Additional Rent on the due date thereof.
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Subject to Section 1.02 hereof, for the period commencing on the 15th day of
February, 1994 to and including the 31st day of March, 1994, the Tenant shall
pay a proportionate share only of Additional Rent, such proportionate share to
be in the same ratio as the area of the Warehouse Area is to the area of the
entire Leased Premises. Commencing on the 1st day of April, 1994, the Tenant
shall be responsible for the entire amount of Additional Rent, subject to the
provisions of Section 1.02 hereof.
DEPOSIT
3.05 The Landlord acknowledges receipt of:
(a) THIRTY EIGHT THOUSANDD THREE HUNDRED AND SIXTY SIX DOLLARS AND
SEVENTY CENTS ($38,366.70) to be held without interest by the
Landlord and to be applied on account of the Basic Rent for the
first month of the Term hereunder; and APR 1 to APR 30/94.
(b) FIFTY FIVE THOUSAND FIVE HUNDRED AND THIRTY DOLLARS AND SEVENTY FIVE
CENTS ($55,530.75) to be held by the Landlord as security for the
full and faithful performance by the Tenant of all the agreements,
terms, covenants and conditions herein set forth and applied against
expenses or other costs or damages incurred by the Landlord as a
result of default hereunder by the Tenant. In the event the Tenant
observes and performs the terms and conditions of this Lease, such
money shall be applied on account of Basic Rent for the last month
of the Term.
PAYMENTS TO LANDLORD
3.06 All payments to be made by the Tenant to the Landlord under this Lease
shall be made at the address hereinafter designated or, at such other place or
places as the Landlord may designatee in writing, and to the Landlord or to such
agent of the Landlord as the Landlord shall from time to time direct.
OVERDUE RENT
3.07 The Tenant shall pay the Landlord interest on all overdue Rent, all such
interest to be calculated from the date upon which the amount is first due
hereunder until actual payment thereof and at a rate being the lesser of three
percent (3%) per annum in excess of the minimum lending rate charged to prime
commercial borrowers by the Landlord's bank from time to time or the rate
permitted by law.
SET-OFF
3.08 All Rent payable by the Tenant to the Landlord shall be paid without
deduction, set-off or abatement except as hereinafter expressly provided.
ADJUSTMENTS
3.09 Upon the termination of this Lease other than by reason of default of
the Tenant, the Landlord and Tenant shall pro-rate, adjust, apportion and allow
between themselves all items of Taxes, insurance, water rates and other matters
of a similar nature, to the intent and purpose that the Tenant shall bear the
burden thereof until it shall deliver up possession on the termination of this
Lease or of any holding over hereunder and not afterwards.
ARTICLE IV--TAXES
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TAXES PAYABLE BY TENANT
4.01 The Tenant shall pay:
(a) the Taxes levied, rated, charged or assessed against or in respect
of the Leased Premises;
(b) all taxes, rates, duties, assessments and other charges that are
levied, rated, charged or assessed against or in respect of all
improvements, equipment and facilities of the Tenant on or in the
Leased Premises or any part thereof; and
(c) every tax and license fee which is levied, rated, charged or
assessed against or in respect of every business carried on in the
Leased Premises or in respect of the use or occupancy thereof or any
part of the Lands or the Building by the Tenant and every sub-tenant
or licencee of the Tenant or against the Landlord on account of its
interest in the Leased Premises, and whether in any case, any such
taxes, rates, duties, assessments or license fees are rated, charged
or assessed by any federal, provincial, municipal, school or other
body during the Term; and
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(d) the full amount of any taxes in the nature of a business transfer
tax, value added tax, sales tax or any other tax levied, rated,
charged or assessed against the Tenant in respect of the Rent
payable by the Tenant 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.
PAYMENT OF TAXES
4.02 (a) Taxes payable pursuant to Section 4.01(a) shall be paid by the
Tenant to the lawful taxing authority when due or, if directed in
writing by the Landlord, shall be paid to the Landlord within ten
(10) days written demand therefor;
(b) Taxes payable pursuant to Sections 4.01(b) and (c) shall be paid by
the Tenant to the lawful taxing authority when due;
(c) Taxes payable pursuant to Sections 4.01(d) shall be paid to the
Landlord at the time required by applicable law.
APPEAL OF ASSESSMENT
4.03 The Tenant shall have the right to contest at its own expense (and in the
name of the Landlord, if necessary) by appropriate legal proceedings the
validity of any Taxes and if the payment of such Taxes may legally be held in
abeyance without subjecting the Landlord to any liability of whatever nature for
failure to so pay, the Tenant may postpone such payment until the formal
determination of any such proceedings provided they be prosecuted with all due
diligence and dispatch. The Landlord shall execute all powers of attorney and
other documents or proceedings necessary or useful in order to permit the Tenant
to contest, at its own expense in its own name or in the Landlord's name, the
validity of any Taxes. Nothing herein shall oblige the Tenant or the Landlord to
contest the validity of such Taxes.
ARTICLE V--HEATING AND UTILITIES
UTILITY CHARGES
5.01 The Tenant shall pay to the suppliers thereof on the due dates, all
charges for telephone, electric current and all other utilities supplied to or
used in connection with the Leased Premises.
HEATING
5.02 The Tenant shall maintain the temperature in the Leased Premises at a
reasonable level to avoid damage occurring in or to the Leased Premises.
SERVICE CONTRACTS
5.03 The Tenant covenants and agrees to take out a standard servicing
contract with a capable company for the service and maintenance of heating units
and furnaces and air conditioning equipment in the Leased Premises, such
contract to include the monthly cleaning of exchangers and replacement of
filters, and to keep such contract in force for the Term of the within Lease or
any renewal thereof. The Tenant agrees to provide the Landlord with a copy of
the aforesaid servicing contract. In the event that during the first five (5)
years of the Term of the Leasee, any of the heating units, furnaces or air
conditioning equipment require repairs to the extent of more than $10,000.00 per
lease year or replacement, that portion of the repairs exceeding $10,000.00
shall be borne by the Landlord and any replacement shall be at the cost of the
Landlord provided that, in each case, such equipment has been maintained as
required hereunder, failing which the Tenant shall be responsible for the entire
cost of such repair or replacement. If, during the balance of the Term or any
renewal thereof any such equipment requires replacement, new units shall be
installed by the Landlord and the cost thereof shall be amortized over a period
of ten (10) years and the annual amortized portion of such costs shall be paid
by the Tenant annually for the balance of the Term and any renewal term.
ARTICLE VI--REPAIR AND ALTERATIONS
REPAIRS AND REPLACEMENTS
6.01 (a) Except for repairs and replacements which are the Landlord's
responsibility hereunder, the Tenant shall make all necessary
replacements to and repair the Leased Premises in all respects both
inside and outside including the drains and sanitary sewers, heating
and water apparatus, air conditioning and all fixtures and additions
thereto in a state of repair and condition to the same extent as
would a careful owner in occupation;
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(b) The Landlord shall, (i) repair, at its own expense, all defects or
deficiencies in the original construction of the Leased Premises or
any part thereof, (ii) repair (other than ordinary maintenance), and
replace, as required, at its own expense, the footings, foundations,
bearing walls and structural columns and beams, and, (iii) during
the first five (5) years of the Term, be responsible for the cost of
repairs to the roof to the extent such cost exceeds $5,000.00 in any
lease year and shall, at its own expense, replace, if necessary, the
roof (including the membrane thereof) provided such repairs and
replacement are not necessitated by the failure of the Tenant to
properly maintain the roof in which case the entire cost of any
repairs and replacement shall be borne by the Tenant. During the
balance of the Term the Landlord shall be responsible for any
replacement of the roof (including the membrane thereof) but the
cost of such replacement shall be amortized over a period of ten
(10) years and the annual amortized amount of such cost shall be
paid by the Tenant annually for the balance of the Term and any
renewal term.
MAINTENANCE
6.02 The Tenant shall at all times during the Term at its own cost and
expense keep or cause to be kept, the Leased Premises well maintained, clean and
tidy, including without limiting the generality of the foregoing, keeping the
Building properly painted and decorated and otherwise presentable and of good
apperance, the driveways and parking areas free and clear of snow and ice, and
the lawn, trees and shrubs in good order and condition, all to the standards of
a first class industrial building and in accordance with all the requirements of
this Lease and the reasonable requirements of the Landlord, its insurers and
governmental authorities having jurisdiction.
VIEW AND REPAIR
6.03 The Tenant shall allow the Landlord or its duly appointed agent and work
people at reasonable times on request to enter the Leased Premises and view the
state of repair and the Tenant shall repair as required hereunder according to
notice in writing, provided always that if the Tenant shall not within fifteen
(15) days after service of such notice, commence and proceed diligently with the
execution of the repairs and works mentioned in such notice, it shall be lawful
for the Landlord to enter upon the Leased Premises and execute such repairs and
works and to charge the cost thereof to the Tenant and the Tenant shall pay such
cost to the Landlord within ten (10) days of written demand therefor.
ALTERATIONS
6.04 The Tenant shall not, without the prior written approval of the Landlord
make any installations, alterations, additions, partitions, repairs or
improvements in or to the Leased Premises, which might affect the structural
portions of the Leased Premises or the electrical, lighting, heating,
ventilating, air-conditioning, sprinkler, fire protection or other systems
therein; the Tenant's request for approval shall be in writing and accompanied
by an adequate description of the contemplated work, and where appropriate,
working drawings and specifications therefor; the Landlord's costs of having its
architects, engineers or others examine such drawings and specifications shall
be payable by the Tenant upon demand as Additional Rent; the Landlord may
require that any or all such work to be done hereunder be done by the Landlord's
contractors or workmen or by contractors or workmen engaged by the Tenant but
first approved by the Landlord, and all work shall be subject to inspection by
and the reasonable supervision of the Landlord including a reasonable
supervision fee of the Landlord to be paid by the Tenant and shall be performed
in accordance with all laws and any reasonable conditions and regulations
imposed by the Landlord and shall be completed in a good and workmanlike manner
and with reasonable diligence in accordance with the approvals given by the
Landlord; any connections of apparatus to the base electrical, plumbing,
heating, ventilating or air-conditioning systems shall be deemed to be an
alteration within the meaning of this Section. The Tenant shall, at its own cost
and before commencement of any work, obtain all necessary building or other
permits and keep same in force.
REMOVAL OF FIXTURES AND IMPROVEMENTS
6.05 Leasehold Improvements shall immediately become the property of the
Landlord upon affixation or installation without compensation therefor to the
Tenant but the Landlord is under no obligation to repair, maintain or insure
such Leasehold Improvements. Such Leasehold Improvements shall not be removed
from the Leased Premises either during or at the expiration or earlier
termination of the Term, except that the Tenant shall, at the end of the Term
remove such Leaseholdd Improvements installed or constructed after the
commencement of the Term as the Landlord may require to be removed. The Tenant
may, during the Term, remove its trade fixtures provided that the Tenant is not
in default under this Lease and such trade fixtures are immediately replaced by
trade fixtures of equal or better value. Any removal of such Leasehold
Improvements and the Tenant's trade fixtures shall be done at the Tenant's sole
cost and expense and the Tenant shall make good any damage caused to the Leased
Premises or any part thereof by the installation or removal of such Leasehold
Improvements and trade fixtures. If the Tenant does not remove its trade
fixtures at the expiration or earlier termination of the Term the trade fixtures
shall, at the option of the Landlord, become the propoerty of the Landlord and
may be removed from the Leased Premises and sold or disposed of by the Landlord
in such manner as it deems advisable. For greater certainty, the Tenant's trade
fixtures shall not include any heating, ventilating and air-conditioning
equipment or other building services or floor covering affixed to the floor of
the Leased Premises. The obligations of the Tenant set forth herein shall
survive the expiry or other termination of the Term.
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CONSTRUCTION LIENS
6.06 The Tenant covenants to do any and all things necessary to minimize the
possibility of a lien attaching to the Leased Premises or to any part of the
Building or the Lands and, should any such lien be made or filed, the Tenant
shall discharge the same forthwith (after notice thereof is given to the Tenant)
at the Tenant's expense. In the event the Tenant shall fail to cause any such
lien to be discharged as aforesaid, then, in addition to any other right or
remedy of the Landlord, the Landlord may, but it shall not be so obligated,
discharge same by paying the amount claimed to be due into Court and the amount
so paid by the Landlord and all costs and expenses including solicitors fees (on
a solicitor and his client basis), incurred herein for the discharge of such
lien shall be due and payable by the Tenant to the Landlord as Additional Rent
on demand.
REPAIRS ON TERMINATION, ETC.
6.07 At the expiration or sooner termination of the Term the Tenant shall,
at its own expense:
(a) deliver up possession of the Leased Premises to the Landlord in the
same condition in which the Tenant is required hereunder to repair
and maintain the Leased Premises, together with all Leasehold
Improvements which the Tenant is required or permitted to leave
therein or thereon free and clear of all encumbrances and in a clean
and tidy condition and free of all rubbish and to deliver to the
Landlord all keys and security devices;
(b) remove any materials which may be deemed by any applicable
legislation as contaminated or hazardous and which have been brought
on to the Leased Premises by the Tenant or which are a result of the
Tenant's use or occupation of the Leased Premises; and
(c) remove any storage and/or holding tanks whether above ground or
below ground and all pits from the Leased Premises, at the option of
the Landlord, which have been installed on the Leased Premises by
the Tenant.
These covenants shall survive the expiry or other termination of the Term.
ARTICLE VII--ASSIGNING AND SUBLETTING
ASSIGNING OR SUBLETTING
7.01 (a) The Tenant shall not assign this Lease or sublet or franchise,
license, grant concessions in, or otherwise part with or share
possession of the Leased Premises, or any part thereof, without the
prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed; at the time the Tenant requests
such consent the Tenant shall deliver to the Landlord such
information in writing (the "required information") as the Landlord
may reasonably require, including a copy of the proposed offer or
agreement, if any, to assign or sublet or otherwise and the name,
address and nature of business and evidence as to the financial
strength of the proposed assignee or subtenant. In no event shall
any assignment of the Lease release the Tenant from its obligations
fully to perform all the terms, conditions and covenants of this
Lease.
PROVIDED however, and it is made a condition to the giving of such
consent that:
(i) The proposed assignee or sublessee of this Lease shall agree
in writing to assume and perform all of the terms, covenants,
conditions and agreements by this Lease imposed upon the
Tenant herein in a form to be approved by the solicitor for
the Landlord;
(ii) The Tenant shall pay the Landlord all reasonable legal fees in
connection with the assignment;
(iii) The consent of the Landlord is not a waiver of the requirement
of the Landlord's consent for subsequent assignments of the
Lease or subletting of the Leased Premises;
(iv) The acceptance by the Landlord of Rent from an assignee or
sublessee without the Landlord's consent shall not constitute
a waiver of the requirement of such consent nor an acceptance
of such party as the Tenant;
(v) The Landlord may, at its option, cancel any options to renew
and any rights of first refusal or first opportunity on
additional space;
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(vi) If the assignment of Lease or subletting of the Leased
Premises does not take place within sixty (60) days of the
giving of consent by the Landlord the consent shall expire and
become null and void; and
(vii) If the Lease is disaffirmed, disclaimed or terminated by any
trustee in bankruptcy of an assignee or subleasee, the
original Tenant named in this Lease will be deemed on notice
from the Landlord given within sixty (60) days from the date
of such disaffirmation, disclaimer or termination to have
entered into a Lease with the Landlord containing the same
terms and conditions as in this Lease.
(b) If an assignment or subletting occurs without the consent of the
Landlord when required, the Landlord may collect Rent from the party
in whose favour the assignment or subletting was made and apply the
net amount collected to the Rent herein reserved but no such
assignment or subletting will be considered a waiver of this
covenant or the acceptance of the person in whose favour the
assignment or subletting was made as a tenant hereunder.
CHANGE OF CONTROL
7.02 If the Tenant is a private corporation and any part or all of the
corporate shares shall be transferred by sale, assignment, operation of law or
other disposition or dispositions so as to result in a change in the control of
the corporation, such change of control shall be considered an assignment of
this Lease and shall be subject to the provisions of Section 7.01 hereof. The
Tenant shall make available to the Landlord upon its request for inspection and
copying, all books and records of the Tenant, any assignee or subtenant and
their respective shareholders which, alone or with other data, may show the
applicability or inapplicability of this Section.
EXCESS RENT
7.03 In the event that the Basic rent payable under any sublease or assignment
is in excess of the Basic Rent reserved hereunder or is in excess of the
prportionate Basic Rent reserved in the event of a sublease of part of the
Leased Premises, whether the excess be in the form of cash, goods or services
from the subtenant or assignee or anyone acting on its behalf, the Tenant shall
pay fifty percent (50%) of such excess to the Landlord immediately upon receipt
thereof; in the event that such excess is repre sented by goods or services
rendered to the Tenant or its nominee, the value of those goods or services
shall be determined by the Landlord and Tenant and fifty percent (50) of that
value shall be paid in cash to the Landlord immediately upon such determination.
MORTGAGE OF LEASEHOLD
7.04 The Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
all or any portion of the Tenant's interest in this Lease or its Leasehold
Improvements, without the Landlord's consent, such consent not to be
unreasonably withheld and on condition that:
(a) such mortgagee or other encumbrancer is an institutional lender (the
"Lender"); and
(b) the Lender, at the time of the Landlord giving its consent hereunder,
agrees in writing with the Landlord that if the Lender enforces its
security under its mortgage, charge, debenture or other encumbrance
and/or takes possession of the Leased Premises either personally or by
its receiver or receiver/manager, the Lender shall bring the Lease into
good standing and observe and be bound by all of the terms of the Lease
(including the payment of Rent) for as long as it is in possession of the
Leased Premises either personally or by its receiver or receiver/manager.
ADVERTISING PREMISES
7.05 The Tenant shall not advertise or allow the Leased Premises or a portion
thereof to be advertised as being available for assignment, sublease or
otherwise without the prior written approval of the Landlord of the form and
content of such advertisement, which approval shall not be unreasonably
withheld, provided that no such advertising shall contain any reference to the
Rent for the Leased Premises.
DISPOSITION BY LANDLORD
7.06 If the Landlord sells or leases the Lands, the Building or any part
thereof, or assigns this Lease, and to the extent that the covenants and
obligations of the Landlord hereunder are assumed by the purchaser, lessee or
assignee, the Landlord, without further written agreement, will be discharged
and relieved of liability under the said covenants and obligations.
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ARTICLE VIII--USE
USE OF LEASED PREMISES
8.01 The Tenant shall not use the Leased Premises nor allow the Leased
Premises to be used for any purpose other than light manufacturing, warehousing,
assembly and associated office uses.
OBSERVANCE OF LAW
8.02 The Tenant shall comply promptly with and conform to the requirements of
all applicable statutes, by-laws, laws, regulations, ordinances and orders from
time to time or at any time in force during the Term of this Lease and affecting
the condition, equipment, maintenance, use or occupation of the Leased Premises
and with every applicable regulation, order and requirement of the Canadian Fire
Underwriters Association or any body having similar functions or of any
liability or fire insurance company by which the Landlord and the Tenant or
either of them may be insured at any time during the Term hereof, and, in the
event of the default of the Tenant under the provisions of this Section, the
Landlord may itself comply with any such requirements as aforesaid and the
Tenant will forthwith pay all costs and expenses incurred by the Landlord in
this regard and the Tenant agrees that all such costs and expenses shall be
recoverable by the Landlord as if the same were Additional Rent reserved and in
arrears under this Lease.
WASTE AND NUISANCE
8.03 The Tenant shall not do or suffer any waste, damage, disfiguration or
injury to the Leased Premises or the fixtures and equipment thereof and shall
not use or permit to be used any part of the Leased Premises for any dangerous
noxious or offensive trade or business, nor keep, sell or handle and dispose of
any goods or things which may be objectionable nor cause or maintain any
nuisance in at or on the Leased Premises nor cause any annoyance, nuisance or
disturbance to the occupiers or owners of any adjoining lands and/or premises
and shall keep the Leased Premises free of hazardous waste and contaimination.
SIGNS
8.04 The Tenant may affix a sign or signs to the Building, subject to the
approval of the Landlord which shall not be unreasonably withheld or delayed and
subject to municipal and other governmental regulations in that respect and the
Tenant shall remove the same on the expiration of the Term of this Lease, or
sooner termination thereof, provided the Tenant at its expense shall forthwith
make good all damages which may be caused or occasioned by such removal and this
covenant shall survive the expiry or other termination of the Term.
OUTSIDE STORAGE
8.05 The Tenant shall not store any goods or matter of any kind outside the
Building without the written consent of the Landlord.
OVERLOADING FLOORS
8.06 The Tenant covenants that it will not bring upon the Leased Premises or
any part thereof any machinery, equipment, article or thing that, by reason of
its weight, size or operation, might damage the Leased Premises and will not at
any time overload the floors of the Leased Premises. The Tenant shall remove any
such machinery, equipment, article or thing within five (5) days written notice
thereof and if any damage is caused to the Leased Premises by any machinery,
equipment, article or thing or by overloading, the Tenant shall forthwith repair
such damage at its own expense.
ARTICLE IX--INSURANCE AND INDEMNITY
TENANT'S INSURANCE
9.01 The Tenant shall, at its expense, maintain in force during the Term and
any renewals thereof in the names of the Tenant, the Landlord and the Landlord's
mortgagee, if any, the following insurance:
(a) comprehensive general liability insurance against claims for
personal injury, death or property damage arising out of all
operations of the Tenant, (including tenants' legal liability,
personal liability, property damage and contractual liability to
cover all indemnities and repair obligations) with respect to the
business carried, on in and from the Leased Premises, in amounts
required by the Landlord and any mortgagee of the Building or any
part thereof from time to time but in no event less than Five
Million Dollars ($5,000,000.00) per occurrence;
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(b) property insurance covering all property owned by the Tenant, or for
which the Tenant is responsible pursuant to this Lease, or which has
been installed by or on behalf of the Tenant including without
limitation all chattels, equipment, machinery, furniture, inventory,
all Leasehold Improvements and all other contents of the Leased
Premises, in an amount equal to the full replacement value thereof;
and
(c) such other forms of insurance as may be reasonably required by the
Landlord and its mortgagee from time to time.
Any policy written pursuant to paragraph (a) hereof shall contain a
severability of interest clause and cross liability clause. All policies shall
contain an undertaking by the insurers to notify the Landlord and its mortgagee,
if any, in writing not less than thirty (30) days prior to any material change,
cancellation or termination thereof.
The Tenant agrees to furnish upon request from the Landlord verification of
compliance with the provisions of this Section 9.01.
LANDLORD'S INSURANCE
9.02 The Landlord shall, throughout the Term, keep at the sole cost and
expense of the Tenant, the Building and appurtenances thereto, insured to the
following extent:
(a) against such loss or damage as are customarily insured against under
a policy of insurance commonly known as a Multi-Peril or All-Risk
policy;
(b) blanket broad boilder and pressure vessel insurance including repair
or replacement;
(c) rental income protection insurance with respect to fire and other
usual perils for which such insurance is customarily issued for a
period (as selected by the Landlord) of not less than six (6) months
and not more than twelve (12) months for the Basic Rent and other
sums payable as Additional Rent under this Lease;
(d) other casualties as are customarily insured against under insurance
contracts normally entered into from time to time during the Term by
owners of buildings in the area of a character similar to the Leased
Premises for such an amount as in the reasonable opinion of the
Landlord is necessary to protect the Landlord against loss or
damage.
Notwithstanding anything herein provided, including the covenant of the
Landlord to take out the aforesaid insurance or the contribution of the Tenant
to the cost of such insurance, nothing herein shall confer any insurable
interest on the Tenant in respect of such insurance and the Tenant acknowledges
that it has no right to receive the proceeds or any part thereof from such
insurance policies.
LIMIT OF LANDLORD'S LIABILITY
9.03 The Landlord shall not be responsible in any way for any injury to any
person (including death) or for any loss of or damage to any property belonging
to the Tenant or to other occupants of the Leased Premises or to their
respective employees, agents, invitees, licensees or other persons from time to
time attending at the Leased Premises while such person or property is in or
about the Leased Premises, including without limiting the foregoing, any loss of
or damage to any property caused by theft or breakage, or by steam, water, rain
or snow or for any loss or damage caused by or attributable to the condition or
arrangements of any electric or other wiring or for any damage caused by smoke
or for any loss whatsoever with respect to the Leased Premises, goods placed
therein or any business carried on therein.
LIMIT OF TENANT'S LIABILITY
9.04 The Tenant shall not be liable to the Landlord for any direct injury,
loss or damage required to be insured by the Landlord pursuant to Section
paragraphs (a) or (b) of Section 9.02 to the extent of the proceeds actually
recovered by the Landlord under such policies of insurance or which would have
been recoverable if the Landlord had complied with its obligation under Section
9.02 hereof.
INDEMNITY
9.05 The Tenant shall promptly indemnify and save harmless the Landlord from
any and all liabilities, damages, costs, claims, suits or actions arising out of
any breach, violation or non-observance by the Tenant of any of its covenants
and obligations under the Lease; from any damage to property while such property
shall be in or about the Leased Premises including the systems, furnishings and
amenities thereof, as a result of the wilful or negligent act or omission of the
Tenant, its employees, agents, invitees or licensees; and from any injury to any
employee, agent, invitee or licensee, of the Tenant, including death resulting
at any time therefrom, occurring on or about the Leased Premises.
Notwithstanding anything else herein contained, this indemnity shall survive the
expiry or earlier termination of this Lease, in respect of any of the foregoing
circumstances during the Term.
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ARTICLE X--DAMAGE AND DESTRUCTION
ABATEMENT OF RENT
10.01 If the Building or any portion thereof is damaged or destroyed by fire
or by other casualty against which the Landlord is required to insure for
hereunder, Rent shall xxxxx in proportion to the area of that portion of the
Building which, in the reasonable opinion of the Landlord, is thereby rendered
unfit for the purposes of the Tenant bears to the area of the entire Building
until the Building is repaired and rebuilt as certified by the Landlord's
architect and the Landlord agrees that it will, with reasonable diligence,
repair, restore and rebuild the Building. The Landlord's obligation to rebuild
and restore the Building shall not include the obligation to rebuild, restore,
replace or repair any chattel, fixture, Leasehold Improvement or any other thing
that is the property of the Tenant and/or for which the Tenant is to maintain
insurance under Section 9.01(b), (in this Section collectively called "Tenant's
Improvements"); the Building shall be deemed restored and rebuilt when the
Landlord's Architect certifies that the Building has been substantially restored
and rebuilt to the state where the Tenant could occupy it for the purpose of
rebuilding, restoring, replacing or repairing the Tenant's Improvements. The
issuance of the Architect's certificate shall not relieve the Landlord of its
obligation to complete the rebuilding and restoration as aforesaid, but the
Tenant shall forthwith after issuance of the certificate proceed to rebuild,
restore, replace and repair the Tenant's Improvements, and the provisions of
Section 6.04 shall apply to such work, mutatis mutandis.
TERMINATION
10.02 Notwithstanding the provisions of Section 10.01 hereof, if:
(i) the Building or any substantial portion thereof is damaged or
destroyed by any cause whatsoever and cannot in the reasonable
opinion of the Landlord be rebuilt or made fit for the purposes
of the Tenant as aforesaid within one hundred and eighty(180)
days from the date of damage or destruction, or,
(ii) the Building is damaged or destroyed by a peril against which
the Landlord is not required to insure for hereunder,
the Landlord in respect of both paragraphs (i) and (ii) above and the
Tenant in respect of paragraph (i) above only may, at their option,
terminate this Lease by giving to the other within forty-five (45) days
after the date of such damage or destruction, notice of termination and
thereupon Rent shall be apportioned and paid to the date of such damage
or destruction and the Tenant shall immediately deliver up possession of
the Leased Premises to the Landlord. If the Landlord does not elect to
terminate the Lease it shall repair and rebuild the Building and Rent
shall xxxxx in accordance with the provisions of Section 10.01 hereof.
ARTICLE XI--DEFAULT
EVENTS OF DEFAULT
11.01 An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any part
thereof on the day appointed for payment thereof, and does not
cure such default within five (5) days after receipt of written
notice thereof from the Landlord;
(b) the Tenant shall have breached or failed to comply with any of
its covenants and agreements contained in this Lease (save for
non-payment of Rent) and shall have failed to remedy such breach
or non-compliance within fifteen (15) days (or such longer period
as the Landlord may reasonably determine, having regard to the
nature of the default) after written notice thereof given by the
Landlord to the Tenant;
(c) the Tenant shall make any assignment for the benefit of creditors
or become bankrupt or insolvent or take the benefit of any act
now or hereinafter in force for bankrupt or insolvent debtors;
(d) the Tenant is a corporation and any order shall be made for the
winding up of the Tenant or other termination of the corporate
existence of the Tenant;
(e) the Tenant makes or attempts to make a bulk sale of any of its
assets regardless of where they are situated (other than as part
of an assignment consented to by the Landlord under Section 7.01
hereof);
(f) a trustee, receiver, interim receiver, receiver and manager,
custodian or liquidator is appointed for the business, property,
affairs or revenue of the Tenant;
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(g) this Lease or any of the Tenant's assets on the Leased Premises
are taken or seized under writ of execution, an assignment,
pledge, charge, debenture or other security instrument;
(h) the Tenant abandons or attempts to abandon the Leased Premises;
(i) the Leased Premises shall be used by any person other than the
Tenant, the Tenant's permitted assignees or for any purposed
other than that for which the Leased Premises were let;
(j) any insurance policy on the Building or any part thereof shall be
cancelled or the coverage thereunder reduced in any way by the
insurer by reason of the used or occupation of the Leased
Premises or any part thereof by the Tenant and the Tenant shall
have failed to remedy the condition giving rise to cancellation,
threatened cancellation or reduction of coverage within
forty-eight (48) hours written notice given by the Landlord to
the Tenant;
(k) the Tenant sells or disposes of the goods, chattels or equipment
in the Leased Premises or removes, commences or threatens to
remove them from the Leased Premises so that in the opinion of
the Landlord there would not, in the event of such sale, disposal
or removal, be sufficient goods on the Leased Premises subject to
distress which would satisfy all Rent due or accruing hereunder
for a period of six (6) months;
(l) the Leased Premises are vacant for any period in excess of
fifteen (15) days other than during repairs or renovations unless
the tenant shall have arrange for regular inspections of the
Leased Premises in accordance with the requirements of the
Landlord's insurer.
Upon the occurrence of an Event of Default, the then current month's
Rent and next ensuing three (3) month's rent shall immediately become
due and be paid by the Tenant to the Landlord as accelerated Rent and
the Landlord may immediately distrain for the same together with any
Rent arrears then unpaid.
RIGHT OF RE-ENTRY
11.02
(a) Upon the occurrence of an Event of Default, the Landlord may at
any time thereafter, without notice of the Tenant, re-enter the
Leased Premises or any part thereof in the name of the whole and
terminate this Lease and all the rights of the Tenant thereunder.
(b) If and whenever the Landlord exercises its option to re-enter the
Leased Premises and terminate this Lease pursuant to paragraph
(a) of this Section 11.02:
(i) the Tenant shall immediately vacate the Leased Premises and
the Landlord may remove or cause to be removed from the
Leased Premises the Tenant or any other occupant or
occupants thereof and may remove all property therefrom and
sell or dispose of it as the Landlord considers appropriate
without liability for loss or damage and without prejudice
to the rights of the Landlord to recover arrears of Rent or
damages incurred by the Landlord;
(ii) the Landlord shall be immediately entitled to the payment or
Rent up to the date of termination together with all
expenses incurred by the Landlord in such termination.
RELETTING
11.03 At any time when the Landlord is entitled to re-enter the Leased
Premises or terminate this Lease, the Landlord may without notice to the Tenant
and without terminating the Lease enter upon and take custody of the Leased
Premises in the name of and as agent of the Tenant, together with all the
Tenants' improvements, fixtures and furnishings, and sublet the Leased Premises
in the name of and as the agent of the Tenant on whatever terms the Landlord may
deem appropriate but no such action by the Landlord shall waive any of the
obligations of the Tenant or the subsequent exercise of any of the Landlord's
remedies for default. If the Landlord shall sublet the Leased Premises as
aforesaid, the Landlord shall be entitled to receive all sublease rent and apply
the same in its discretion to any indebtedness of the Tenant to the Landlord
hereunder, and the payment of any costs and expenses of retelling, and the
Landlord shall be liable to account to the Tenant only for the excess, if any,
of monies actually received by it. If the sublease rent is less than is
necessary to apply and discharge all the then existing and continuing
obligations of the Tenant hereunder, the Tenant shall pay such deficiency from
time to time upon demand to the Landlord. Notwithstanding any such re-entry and
subletting without termination, the Landlord may at any time thereafter
terminate this Lease by reason of the previous or any other default under the
Lease and the provisions of Section 11.02 shall apply.
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DISTRESS
11.04 The Tenant waives and renounces the benefit of any present or future
statute taking away or limiting the Landlord's right of distress, and covenants
and agrees that notwithstanding any such statute none of the goods and chattels
of the Tenant on the Leased Premises at any time during the Term shall be exempt
from levy by distress for rent in arrears.
RIGHT OF LANDLORD TO CURE DEFAULTS
11.05 If the Tenant fails to perform or cause to be performed any of the
covenants or obligations the Tenant herein, the Landlord shall have the right
(but shall no be obligated) to perform or cause to be performed and to do or
cause to be done such things as may be necessary or incidental thereto
(including without limiting the foregoing, the right to make repairs,
installations, erections and expend monies) and all payments, expenses, charges,
fees and disbursements incurred or paid by or on behalf of the Landlord in
respect thereof shall be paid by the Tenant to the Landlord within ten (10) days
written demand therefor together with reasonable administrative costs of the
Landlord in respect thereof.
REMEDIES NOT EXCLUSIVE
11.06 Mention in this Lease of any particular remedy or remedies in respect
of any default or threatened default by the Tenant in the performance of its
obligations shall not preclude the Landlord from exercising, or limit the extent
of, any other remedy in respect thereof, whether at law, in equity or pursuant
to any express provision hereof. No remedy shall be interpreted as exclusive or
dependent upon any other remedy, but the Landlord may from time to time exercise
any one or more of such remedies independently or in combination.
NON-WAIVER
11.07 No condoning, excusing or overlooking by the Landlord or any default,
breach or non-observance by the Tenant at any time or times in respect of any
covenant, proviso or condition herein contained shall operate as a waiver of the
Landlord's rights hereunder in respect of any continuing or subsequent default,
breach or non-observance, or so as to defeat or affect in any way the rights of
the Landlord herein in respect of any such continuing or subsequent default or
breach, and no waiver shall be inferred from or implied by anything done or
omitted by the Landlord save only express waiver in writing.
RECOVERY OF ADJUSTMENTS
11.08 The Landlord shall have (in addition to any other right or remedy of
the Landlord) the same rights and remedies in the event of default by the Tenant
in payment of any amount payable by the Tenant hereunder as the Landlord would
have in the case of default in payment of Rent.
ARTICLE XII--SUBORDINATION AND ACKNOWLEDGMENTS
MORTGAGES
12.01 At the option of the Landlord, this Lease shall be subject and
subordinate to any and all mortgages, charges and deeds of trust, which may now
or at any time hereafter affect the Leased Premises in whole or in part, or the
Lands, or the Building whether or not any such mortgage, charge or deed of trust
affects only the Leased Premises or the Lands or the Building or affects other
premises as well. On request at any time and from time to time of the Landlord
or the mortgagee, chargee or trustee under any such mortgage, charge or deed of
trust, the Tenant shall promptly, at no cost to the Landlord or mortgage,
chargee or trustee:
(a) attorn to such mortgagee, chargee or trustee and become its tenant
of the Leased Premises or the tenant of the Leased Premises of any
purchaser from such mortgagee, chargee or trustee in the event of an
exercise of any permitted power of sale contained in any such
mortgage, charge or deed of trust for the then unexpired residue of
the Term on the terms herein contained; and/or
(b) postpone and subordinate the Lease to such mortgage, charge or deed
of trust to the intent that this Lease and all right, title and
interest of the Tenant in the Leased Premises shall be subject to
the rights of such mortgagee, chargee or trustee as fully as if such
mortgage, charge or deed of trust had been executed and registered
and the money thereby secured had been advanced before the execution
of the Lease (and notwithstanding any authority or consent of such
mortgagee, trustee, express or implied, to the making of this
Lease).
Any such attornment or postponement and subordination shall extend to all
renewals, modifications, consolidations, replacements and extension of any such
mortgage, charge or deed of trust and every instrument supplemental or ancillary
thereto or in implementation thereof. The Tenant shall forthwith execute any
instruments of attornment or postponement and subordination which may be so
requested to give effect to this Section.
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The Landlord shall obtain from the holder of each such mortgage, charge and
deed of trust, an agreement with the Tenant pursuant to which such holder agrees
that the Tenant may continue to use, occupy and enjoy the Leased Premises in
accordance with the provisions of this Lease, notwithstanding any default any
default under such mortgage, charge or deed of trust. Notwithstanding the
foregoing provisions of this Section 12.01, the Tenant shall not be required to
postpone or subordinate this Lease to any such mortgage, charge or deed of trust
where the holder thereof has not so agreed the Tenant.
CERTIFICATES
12.02 Each of the Landlord and the Tenant shall execute and deliver to the
other at any time and from time to time at no cost to the other and upon not
less than ten (10) days' prior notice, a statement in writing certifying that
this Lease in unmodified and in full force and effect (or if modified, stating
the modifications and that the Lease is in full force and effect as modified),
the amount of the annual Basic Rent then being paid hereunder, the dates to
which the same, by installment or otherwise, and other charges hereunder have
been paid, whether or not there is any existing default on the part of the
Landlord or the Tenant of which the other has notice, any other information
reasonably required.
ARTICLE XIII--ACCESS BY LANDLORD
ENTRY BY LANDLORD
13.01 The Tenant shall permit the Landlord and its agents employees or
workmen to enter upon the Leased Premises at any time and from time to time for
the purpose of inspecting and (where permitted herein) making repairs,
alterations or improvements to the Leased Premises and the Tenant shall not be
entitled to any compensation for any inconvenience, nuisance or discomfort
occasioned thereby.
EXHIBITING LEASED PREMISES
13.02 The Tenant shall permit the Landlord or its agents to exhibit the
Leased Premises to prospective tenants during the last six (6) months of the
Term or any renewal thereof.
ARTICLE XIV--REPRESENATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF TITLE
14.01 The Landlord represents and warrants that it has or will have, at the
commencement of the Term of this Lease, a good and marketable title to the
Lands, subject only the following, (none of which will interfere with the
development situate on the Lands or4 that contemplated by the plans and
specifications approved by the parties hereto):
(a) Any rights of way and/or easements for the benefit of the Landlord
and Tenant in common with others to serve the Leased Premises and/or
adjoining or surrounding lands for the free and unobstructed ingress
and egress of vehicular traffic and for the installation, repair and
replacement of underground services including hydro, telephone,
sanitary and storm sewers, natural gas and water lines;
(b) Service easements in favour of Xxxx Telephone, Hydro Electric Power
Commission, Town of Richmond Hill, in the Regional Municipality of
Your, and easements for sewer or water easement for serving the
Lands or adjoining lands;
(c) Private deed restrictions (if any) which will have been complied
with prior to the commencement of the Term herein and none of which
adversely affects the use, occupation and enjoyment of the Leased
Premises by the Tenant for the purposes set out in Section 8.01
hereof;
(d) The financial agreement and/or subdivision agreement between the
developer and the Town of Richmond Hill, and/or the Regional
Municipality of York, (the provisions of which will have been
complied with the developer and/or the Landlord prior to the
commencement of the Term, including the installation of all services
and the discharge of all financial obligations thereunder,it being
intended that the Tenant shall not be required to pay for aor
perform any part of any of the said agreements);
(e) The Toronto Airport zoning regulations (if applicable); and
(f) Any mortgage or charge entered into form time to time by the
Landlord.
The Tenant acknowledges that some or all of the foregoing encumbrances may
not have been registered as of the commencement of the Term and agrees to
postpone its leasehold interest herein and/or to execute such consents and/or
postponements as may be necessary to give effect to the provisions of this
Section 14.01.
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ENVIRONMENTAL MATTERS
14.02 The Landlord represents and warrants that it does not have in its
possession or control any reports, audits, studies or other materials or
information relating to the environmental status of the Leased Premises or to
the compliance or non-compliance of the Leased Premises or any part thereof with
statutes, regulations or other requirements of law relating to environmental,
health or safety matters. The Landlord also represents and warrants that, to its
best knowledge and belief and without inquiry in respect thereof, there is no
hazardous waste, material or substance located on, under or about the Leased
Premises, and the Leased Premises are currently in compliance with all statutes,
regulations and other applicable requirements of law relating to environmental,
health or safety matters.
ARTICLE XVI--MISCELLANEOUS
NOTICE
15.01 (a) Any notice, request, statement or other writing pursuant to this
Lease shall be deemed to have been given if sent by registered
prepaid post as follows:
To: CARLVAD HOLDINGS INC.
0000 Xxxxxxx Xx.,
Xxxxxxxxxxx, Xxxxxxx, X0X IE3
or such other address as the Landlord shall notify the Tenant in
writing any time or from time to time;
TO: THE TENANT
at the Leased Premises
and such notice shall be deemed to have been received by the
Landlord or the Tenant as the case may be, on the third business
day after the date on which it shall have been so mailed (in the
event that there is an interruption).
(b) Notice shall also be sufficiently given if and when the same
shall be delivered, in the case of notice to the Landlord, to an
executive officer of the Landlord, and in the case of notice to
the Tenant to him personally or to an executive officer of the
Tenant if the Tenant is a corporation. Such notice, if delivered,
shall be conclusively deemed to have been given and received at
the time of such delivery.
If in this Lease two or more persons are named as Tenant, such
notice shall also be sufficiently given if any when the same
shall be delivered personally to any one of such persons.
Provided that either party may, by notice to the other, from time
to time designate another address in Canada to which notices
mailed more than ten (10) days thereafter shall be addressed.
REGISTRATION
15.02 The Tenant covenants and agrees with the Landlord that the Tenant will
not register or record this Lease against the title to the Lands except by way
of notice with shall be subject to the approval of the Landlord (such approval
not to be unreasonably withheld or delayed) and which shall only describe dthe
parties, the Leased Premises, the Term and any renewals or options. The Landlord
covenants to execute a short form of Lease prepared by and at the expense of the
Tenant setting out the aforesaid details within ten (10) days of written request
therefor.
PLANNING ACT
15.03 Where applicable, this Lease shall be subject to the condition that it
is effective only if The Planning Act is complied with. Pending such compliance,
the Term and any renewal periods shall be deemed to be for a total period of one
(1) day less than the maximum lease term permitted by law without such
compliance.
INTERPRETATION OF LEASE
15.04 All of the provisions contained in this Lease are to be construed as
covenants and agreements and, if any provision is illegal or unenforceable, it
shall be considered separate and severable from the remaining provisions which
shall remain in force and be binding upon the Landlord and the Tenant.
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OVERHOLDING
15.05 If the Tenant shall continue to occupy all or part of the Leased
Premises after the expiration of this Lease with the consent of the Landlord,
and without any further written agreement, the Tenant shall be a monthly tenant
at one hundred and fifty percent (150%) of the monthly Basic Rent payable during
the last year of this Lease and otherwise on the terms and conditions herein set
out except as to length of tenancy.
TENANT INDUCEMENT
15.06 In consideration of the Tenant entering into the Lease, the Landlord
agrees to pay to the Tenant as an inducement, the sum of Three Hundred and Fifty
Thousand Dollars ($350,000.00) plus goods and services tax thereon, said amount
to be credited by the Landlord to the cost of the work set out in Schedule "D"
hereto.
TIME OF ESSENCE
15.07 Time shall be of the essence of this Lease.
LAW
15.08 This lease shall be governed by and construed in accordance with the
laws of the Province of Ontario.
CAPTIONS
15.09 The captions appearing in the margin of this Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit or
enlarge the scope of meaning of this Lease nor any of the provision hereof.
JOINT AND SEVERAL LIABILITY
15.10 If the Tenant shall be comprised of more than one (1) person, the
liability of each such person under this Lease shall be joint and several.
TENANT PARTNERSHIP
15.11 If the Tenant shall be a partnership, each person who shall be a member
of such partnership or successor thereof shall be and continue to be jointly and
severally liable for the performance and observance of all covenants,
obligations and agreements of the Tenant under this Lease even if such person
ceases to be a member of such partnership or successor thereof.
UNAVOIDABLE DELAYS
15.12 Whenever and to the extent the Landlord or the Tenant is unable to
fulfill or shall be delayed or restricted in the fulfillment of any obligation
hereunder by reason of being unable to obtain the material, goods, equipment,
service, utility or labour required to enable it to fulfill such obligation or
by reason of any statute, law, regulation, by-law or order or by reason of any
other cause beyond its reasonable control, whether of the same nature as the
foregoing or not, it shall be relieved from the fulfillment of such obligation
and the other not be entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned. There shall be no deduction from the rent or
other monies payable hereunder by reason of any such failure or cause.
EVIDENCE OF PAYMENTS
15.13 The Tenant shall produce to the Landlord upon request, satisfactory
evidence of due payment by the Tenant of all payments required to be made by the
Tenant under this Lease.
ENTIRE AGREEMENT
15.14 The Tenant acknowledges that there have been no representations made by
the Landlord which are not set out in the Lease. The Tenant further acknowledges
that the Lease constitutes the entire agreement between the Landlord and the
Tenant and may not be modified expect as herein explicitly provide or except by
subsequent agreement in writing duly signed by the Landlord and the Tenant.
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EFFECT OF LEASE
15.15 This indenture and everything herein contained shall extend to and bind
and may be taken advantage of by the respective heirs, executors,
administrators, successors and assigns, as the case may be, of each and every of
the parties hereto, subject to the granting of consent by the Landlord as
provided herein to any assignment or sublease, and where there is more than one
tenant or there is a female party or a corporation, the provisions hereof shall
be read with all grammatical changes thereby rendered necessary and all
covenants shall be deemed joint and several.
IN WITNESS WHEREOF the parties hereto have executed this lease.
LANDLORD: CARLVAD HOLDINGS INC.
Per:
--------------------------------
Authorized Signing Officer
Name:
Position:
Per:
--------------------------------
Authorized Signing Officer
Name:
Position:
WE HAVE AUTHORITY OF BIND THE CORPORATION.
TENANT: SIDUS SYSTEMS INC.
Per: /s/ Xxxxx Xxxxxxx
--------------------------------
Authorized Signing Office
Name: Xxxxx Xxxxxxx
Position: President
Per:
--------------------------------
Authorized Signing Officer
Name:
Positoin:
WE HAVE AUTHORITY TO BIND THE CORPORATION.
SCHEDULE "B"
ATTACHED TO AND FORMING
PART OF A LEASE BETWEEN
CARLVAD HOLDINGS INC.
AS LANDLORD, AND
SIDUS SYSTEMS INC.
AS TENANT
ALL AND SINGULAR that certain parcel of land and premises situate, lying and
being in the Town of Richmond Hill, in the Regional Municipality of York, and
being composed of part of Block 8 on Registered Plan 65M-2202, and being more
particularly described as Part 2 on a Reference Plan of Survey of Record
deposited in the Land Registry Office for the Land Titles Division (No. 65) as
Plan 65R-8889.
SCHEDULE "C"
DEFINITIONS
For the purpose of this Lease:
(a) "Additional Rent" means all amounts payable by the Tenant under the terms
of this Lease, whether payable to the Landlord or otherwise, over and above
Basic Rent.
(b) "Basic Rent" means those amounts set out as Basic Rent in Section 3.02 of
this Lease.
(c) "Building" means the building erected on the Lands and municipally known as
00 Xxxx Xxxxxxxx, Xxxx of Richmond Hill, in the Regional Municipality of
York.
(d) "Lands" means the parcel of land described in Schedule "B" hereto.
(e) "Lease" means the Lease and any schedules annexed hereto and any amendments
from time to time made to this Lease in accordance with the provisions
herein set out.
(f) "Leased Premises" means the Lands and Building.
(g) "Leasehold Improvements" means all fixtures (save for trade fixtures),
installations, additions, improvements and alterations made, erected or
installed on the Leased Premises by or on behalf of the Tenant.
(h) "Rent" means Basic Rent and Additional Rent.
(i) "Taxes" means all taxes, rates, duties, levies and assessments whatsoever
whether municipal, parliamentary or otherwise, levied, charged or assessed
upon the Lands and Building or upon any part or parts thereof and all
improvements now or hereafter erected or placed on the lands, or charged
against the Landlord on account thereof, including local improvement
charges but excluding any taxes which are personal to the Landlord, such as
taxes assessed on the income of the Landlord. In addition to the foregoing,
Taxes shall include any and all taxes, charges, levies or assessments which
may in the future be levied, charged or assessed in lieu thereof. Taxes
shall also include all costs and expenses incurred by the Landlord or the
Tenant in obtaining or attempting to obtain a reduction or prevent an
increase in the amount of such Taxes and the cost of all consultants
retained by the Landlord or the Tenant in connection therewith.
(k) "Term" means that period of time set out in Section 1.02 of this Lease.
-2-
(j) All buildings on the Lands and all other things being purchased shall
remain until completion at the risk of the Landlord. Pending completion,
the Landlord shall hold all insuracne policies and the proceeds thereof in
trust for the parties as their interest may appear and in the event of
substantial damage, the Tenant may either terminate this Agreement and have
all monies theretofore paid returned without interest or deduction or else
take the proceeds of any insurance and complete the purchase.
(k) Provided that this Agreement shall be effective to create an interest in
the Property only if the subdivision control provisions of the Planning Act
are complied with by the Landlord on or before completion and the Landlord
hereby covenants to proceeds diligently, at its expense, to obtain any
necessary consent on or before completion.
(l) Any rents, Operating Costs, realty taxes, local improvement charges, water
and unmetered utility charges and the costs of fuel, as applicable, shall
be apportioned and allowed to the day of completion (the day itself to be
apportioned to the Tenant).
(m) The Transfer/Deed shall, save for the Land Transfer Tax Affidavits, be
prepared in registrable form at the expense of the Landlord. If requested
by the Tenant, the Landlord convenants that the transfer/Deed to be
delivered on completion shall contain the statements contemplated by
clauses 50(22)(a) and (b) of the Planning Act (Ontario).
(n) Time shall, in all respects, be of the essence hereof provided that the
time for doing or completing of any matter provided for herein may be
extended or abridged by an agreement in writing signed by the Landlord and
Tenant or by their respective solicitors who are hereby expressly appointed
in this regard.
(o) Any tender of documents or money hereunder may be made upon the Landlord or
Tenant or their respective solicitors on the day for completion of this
Agreement. Money may be tendered by bank draft or cheque certified by a
chartered bank, trust company or Province of Ontario Savings Office.
(p) This Agreement including nay schedules attached hereto shall constitute the
entire agreement between the Landlord and the Tenant. There is no
representation, warranty, collateral agreement or condition, whether
director collateral, or express or implied, which induced any party hereto
to enter into this Agreement or on which reliance is placed by any such
party, or which affects this Agreement or the Property or supported hereby
other than as expressed herein. This Agreement shall be read with all
changes of gender or number required by the context.
(q) No insurance shall be transferred on completion.
(r) Provided that if the Tenant exercises its Option to purchase the Property
as hereinbefore set out, this Lease shall be terminated as of the closing
of the sale of the Tenant without cost or penalty to either party.
SCHEDULE "D"
------------
ORLANDO CORPORATION
0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx X0X0X0 Telephone (000) 000-0000
Fax: (000) 000-0000
February 15, 1994
Sidus Systems Inc.
00 Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx. Xxxxxx Xxxxxxx
Corporate Design
Subject: Renovations to new office facility
00 Xxxx Xxxxxxxx
Dear Xxxxxx,
We are pleased to provide you with an updated quotation to carry out the
renovations at 00 Xxxx Xxxxxxxx. This quotation is based upon the following:
i) Architectural drawings marked up and reviewed at February 2, 1994 meeting
at Sidus Systems Inc.
ii) Revisions to scope made February 14, 1994.
iii) Items clarified February 15, 1994.
Total cost of the work: $525,000.00 + G.S.T.
We have included the following scope of work: enducement (350,000.00)
------------
$175,000.00 Net Leasehold
===========
GROUND FLOOR
------------
1. DEMOLITION:
----------
- Remove existing raised computer floors in M.I.S. and production
areas, construct bulkheads to accommodate difference in ceiling heights.
- Computer room near washrooms; existing raised floor to be removed,
relocate existing glazed partition to expediting/purchasing area, fill
in with drywall.
- Remove partitions as noted on plan.
- Remove existing carpet.
- Remove mail slots in expediting/purchasing area.
- Allow for garbage boxes and dumping charges.
-2-
2. PARTITIONS:
----------
- Provide drywall partitioning as shown on plan. - Reinstall 16 wood
doors in hollow metal frames. - Provide 2 hollow metal doors in hollow
metal frames. - Provide 16 hollow metal sidelights, 2 ft. wide, 8 ft.
high with 4 panels. - Re-use existing finishing hardware where
possible.
- Paint all new and existing walls, doors and frames.
- Provide insulation to walls of classroom, demo room, cafeteria and
engineer dept.
- Existing T-bar acoustic ceiling to be repaired where necessary.
3. FLOORING:
--------
- Provide new 28 oz/yd2 level loop 100% nylon carpet with carpet base.
- Provide ceramic tile to match existing throughout lobby, coffee
station adjacent to lobby and corridor to RMA department.
- Remove ceramic tile in expanded cafeteria, replace with new vinyl tile
to match existing vinyl tile.
- Existing vinyl tile in engineer department and RMA department to
remain. Allowance made for clean-up and re-wax.
- Carpet in three offices to north-east corner of production area to
remain.
- Provide urethane flooring to production room.
4. MISCELLANEOUS:
--------------
- All fixtures, vanities and accessories in washrooms to remain.
Washrooms to receive painting only.
WAREHOUSE
---------
- Remove fencing adjacent to RMA dept.
- Construct new customer pick-up room complete with drywall strapping on
warehouse wall, new T-bar acoustic ceiling, new vinyl tile floor and 2
ft. sidelight.
- Construct overhead xxxx enclosure: - 8" concret block to 8 ft. high,
drywall from top of masonry to underside of deck.
- Provide three pairs of 3'6" x 8'2" hollow metal doors complete with
rubber strip bumper.
- Overhead doors, dock levellers, door seals to be serviced (landlord's
work).
- Repair and service HVAC system (landlord's work).
- Remove and dispose of the UPS storage room (landlord's work).
- Repair existing lights including ballasts and fluorescent tubes
(landlord's work).
- Create one 12 ft. wide doorway to burn-in room.
-3-
SECOND FLOOR
------------
1. DEMOLITION:
----------
- Remove partitions as noted.
- Remove existing carpet.
- Allow for garbage boxes and dumping charges.
2. PARTITIONS:
-----------
- Provide drywall partitioning as shown on plan.
- Provide sound insulation to 5 meeting rooms, 1 boardroom and 4
executive offices.
- Re-install 15 wood doors in hollow metal frames.
- Provide 10 wood doors in hollow metal frames.
- Provide 23 hollow metal sidelights, 2 ft. wide, 8 ft. high with 4
panels each.
- Provide 3 sets of hollow metal sidelights, 8 ft. high with 4 panels
each. Sidelight widths to be 2, 3 and 4 lites respectively.
- Provide hollow metal framed window complete with fire shutter to view
warehouse.
- Provide drywall baffle above ceiling for 5 meeting rooms, 1 boardroom
and 1 executive office.
- Paint all new and existing walls, doors and frames.
- Provide double-wall lighting detail to one meeting room.
3. CEILINGS:
---------
- Provide new T-bar acoustic ceiling to executive area defined by
colum lines H and Dy.
- Remainder of existing T-bar acoustic ceiling to be repaired where
necessary.
- Provide bulkheads for 3 meeting rooms and 1 boardroom.
- Provide drywall ceiling detail to design office.
4. FLOORING:
- Provide 28 oz/yd2 level loop 100% nylon carpet with carpet base to
carpeted areas.
- Existing vinyl tile in file room to remain.
- Provide ceramic floor to executive washroom and shower.
- Existing carpet to remain on second floor defined by grid lines 6x-10.
-4-
5. MISCELLANEOUS:
-------------
- Provide hat shelf and coat rod for closet.
WAREHOUSE ELECTRICAL:
--------------------
SCOPE OF WORK: Based upon drawing marked up January 31, 1994.
--------------
1. Burn-in room:
- Provide 12 - 110v/15A receptacles, wall mounted.
- Provide 40 - 110v/15A dedicated outlets, cabtire drop.
- Provide 60 ct. panel complete with 45 KVA transformer.
2. Plant area:
- Provide one new 42 circuit panel complete with 30 KVA transformer.
- Provide 4 - 110v/15A duplex outlets at repair area A.
- Provide 4 - 110v/15A duplex outlets at drives area.
- Provide 2 - 110v/15A duplex outlets at copier/pre-packing area.
- Provide 1 - 220v outlet at skin machine.
- Provide 8 - 110v/15A duplex outlets at large assembly and packing
area.
- Provide 4 - 110v/15A duplex receptacles at south-west corner of plant.
3. Production area:
- Provide one new 60 circuit panel complete with 45 KVA transformer.
- Provide 4 - 110v/15A duplex outlets at repair area 2.
- Provide 8 - 110v/15A dedicated outlets along north wall.
- Provide 28 - 110v/15A dedicated outlets at 7 columns.
- Provide 8 - 110v/15A duplex outlets at assembly line.
- Provide 8 - 110v/15A duplex outlets at spare station.
OFFICE ELECTRICAL:
-----------------
SCOPE OF WORK:
-------------
- Perform all electrical work involved with demolition.
- Re-install fixtures in areas where T-bar acoustic ceiling is lowered.
- Relocate/add 2' x 4' fluorescent light fixtures to suit new partition
layout.
- Provide 70 - 110v/15A receptacles for office areas.
- Provide 30 telephone outlet boxes for office areas.
- Modify existing emergency, exit lighting, fire alarm system to suit
new layout.
- Remove all existing communication cable left in ceiling.
- Provide all power wiring to new mechanical equipment.
- Allow for 22 potlights in executive area.
- Provide 8 isolated ground receptacles for computer room.
- Provide 4 dedicated receptacles for demo room.
-5-
MECHANICAL SCOPE:
----------------
- Provide exhaust fans for 5 meeting rooms and 1 boardroom.
- Provide 3 exhaust fans ducted to outside for 3 smoking areas.
- Provide one V.A.V. box, associated ducting and controls for each of
three areas: expanded cafeteria, demo room and classroom.
- Add new duct system and VAV boxes to existing roof top unit to
accommodate change of existing computer room to production area.
- Provide one exhaust fan for new washroom and shower in executive area.
- Relocate existing diffusers and thermostats to suit revised partition
layout.
- Expediting/purchasing area to remain as is.
- Burn-in room in plan to remain as is, i.e. no heating, cooling or
ventilation.
- Cafeteria equipment to be serviced (landlord's work).
- H.V.A.C. system to be serviced and left in proper working condition
(landlord's work).
PLUMBING SCOPE:
--------------
- Provide one shower and 2-piece washroom complete with hot water tank
to executive area.
- All coffee stations to remain as is.
SPRINKLER SCOPE:
---------------
- Relocate/add sprinkler heads to suit revised layout where necessary.
- No alterations to existing warehouse sprinker system included.
We have included all design, engineering, permits and supervision.
PAYMENT SCHEDULE:
----------------
As per the Lease Agreement, Orlando's contribution towards Leasehold
Improvements is $350,000.00. We anticipate the work to be substantially complete
by the end of March.
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You will be billed $35,000.00 weekly, for a period of five weeks
commencing, February 28, 1994 as follows:
$525,000.00
-350,000.00
-----------
$175,000.00
+ 5 weeks
-----------
$ 35,000.00
No extras will be undertaken until Orlando receives a signed work order.
All invoices are due upon receipt.
Please sign and return one copy indicating your authorization to proceed.
*
Should you have any questions, please do not hesitate to call.
Yours truly,
ORLANDO CORPORATION
cc: Xxxxx Xxxxxxx Sidus
Xx Xxxxx Sidus
Xxxxx Xxxxxx Orlando
Xxx Xxxxxx Orlando
Xxxxx Xxxxxxxxx, P.Eng. Xxxx Xxxxxxxxx Xxxxxxxx & Page
Project Co-ordinator
dw/mc
ACCEPTED
---------------------------------
SIDUS SYSTEM INC.
* All payments hereunder are subject to the hold back requirements of the
Construction Lien Act (Ontario).
