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EXHIBIT 10.18
SINGLE TENANT INDUSTRIAL LEASE
This Indenture made as of the 27th day of July 1995.
BETWEEN:
LEHNDORFF MANAGEMENT LIMITED
in Its capacity as agent for the Owners
(hereinafter called the "Landlord")
-and-
XXXXXXXXX RESEARCH LIMITED
(hereinafter called the "Tenant")
Building: 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxx
Rentable Area: 28,380 square feet
Commencement
Date: September 1, 1995
Expiry Date: August 31, 2005
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INDEX
CLAUSE 1 PREMISES
CLAUSE 2 TERM
CLAUSE 3 POSSESSION OF PREMISES
CLAUSE 4 RENT AND SECURITY DEPOSIT
CLAUSE 5 RENT AND INTEREST & GOODS AND SERVICES TAX
CLAUSE 6 NET LEASE
CLAUSE 7 UTILITIES & OTHER SERVICES
CLAUSE 8 TAXES, ETC.
CLAUSE 9 INSURANCE
CLAUSE 10 SPUR TRACK
CLAUSE 11 OPERATING AND MAINTENANCE COSTS
CLAUSE 12 DELETED
CLAUSE 13 GOOD & SUBSTANTIAL REPAIR
CLAUSE 14 ENTRY TO INSPECT
CLAUSE 15 QUALITY OF REPAIR
CLAUSE 16 NUISANCE, WASTE, HAZARDOUS SUBSTANCES
CLAUSE 17 USE
CLAUSE 18 ORDINANCES & REGULATIONS
CLAUSE 19 ASSIGNMENT 7 SUB-LETTING
CLAUSE 20 INDEMNIFICATION
CLAUSE 21 TENANT'S INSURANCE
CLAUSE 22 DAMAGE
CLAUSE 23 QUIET POSSESSION
CLAUSE 24 LANDLORD'S REPAIRS
CLAUSE 25 LANDLORD'S INSURANCE
CLAUSE 26 TAXES
CLAUSE 27 DAMAGE & DESTRUCTION
CLAUSE 28 ALTERATIONS & IMPROVEMENTS
CLAUSE 29 SIGNS
CLAUSE 30 NO LIENS
CLAUSE 31 TIME FOR PAYMENT AND LEGAL COSTS
CLAUSE 32 DEFAULT
CLAUSE 33 CONSEQUENCES OF DEFAULT
CLAUSE 34 DISTRESS
CLAUSE 35 SURRENDER
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CLAUSE 36 RIGHT TO EXHIBIT PREMISES
CLAUSE 37 OVERHOLDING
CLAUSE 38 WAIVER BY THE LANDLORD
CLAUSE 39 NOTICES
CLAUSE 40 DELETED
CLAUSE 41 SUBORDINATION & ACKNOWLEDGEMENTS
CLAUSE 42 DELETED
CLAUSE 43 TIME OF ESSENCE
CLAUSE 44 HEADINGS
CLAUSE 45 INTERPRETATION
CLAUSE 46 ACCEPTANCE
CLAUSE 47 GOVERNING LAWS
CLAUSE 48 DELETED
CLAUSE 49 DELETED
CLAUSE 50 REPRESENTATIONS
CLAUSE 51 BINDING ON SUCCESSORS & APPROVED ASSIGNS
CLAUSE 52 SALE OR FINANCING OF LANDS OR ASSIGNMENT BY LANDLORD
CLAUSE 53 REGISTRATION
CLAUSE 54 LAND USE CAVEAT
CLAUSE 55 EXCLUSION OF LIABILITY
CLAUSE 56 LANDLORD'S RIGHT TO PERFORM
CLAUSE 57 EXPROPRIATION
CLAUSE 58 DELAY
CLAUSE 59 SCHEDULES
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THIS AGREEMENT made as of the 27th day of July 1995.
BETWEEN
LEHNDORFF MANAGEMENT LIMITED, successor by amalgamation to
Lehndorff Property Management Limited, a Corporation
incorporated under the laws of the Province of Ontario having
a local office at 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, in its
capacity as agent for the Owners,
(herein called "the Landlord")
OF THE FIRST PART
-and-
XXXXXXXXX RESEARCH LIMITED
(herein called "the Tenant")
OF THE SECOND PART
1. PREMISES
The Landlord is the manager of the building containing 28,380 square
feet, as outlined in red on Schedule "B", situate on the Lands (herein called
the "Building") known municipally as 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, and
described in Schedule "A".
NOW THEREFORE THIS AGREEMENT WITNESSETH that the Landlord, being the
duly authorized managing agent of the Owner of the Lands, in consideration of
the rents, covenants and agreements hereinafter reserved and contained on the
part of the Tenant to be paid, observed and performed does hereby Lease unto the
Tenant the Lands and Building, hereinafter called the "Demised Premises",
containing 28,380 square feet.
2. TERM
TO HAVE AND TO HOLD the Demised Premises for and during the Term of ten
(10) years commencing on the 1st day of September 1995, (the "Commencement
Date") and to be fully completed and ended on the 31st day of August 2005, (the
"Expiry Date") (herein called the "Term") unless this Lease is sooner terminated
as hereinafter provided.
3. POSSESSION OF PREMISES
Except (or Landlord's Work and repairs referred to in Schedule "G", "J"
and "N" attached hereto, which are to be completed by the Landlord, the Tenant
accepts the Demised Premises in an "as is" condition.
PROVIDED ALWAYS, that if the Demised Premises are not ready for
possession by the Tenant on the Rent Commencement Date for any reason
attributable to any failure or neglect of the Landlord, the Rent Commencement
Date shall be postponed until the Demised Premises are ready for possession by
the Tenant but the Expiry Date shall not be varied as a result thereof nor shall
the Tenant have any claim against the Landlord as a result of such postponement.
PROVIDED FURTHER, HOWEVER, that if the Demised Premises are not ready
for possession by the Tenant on the Rent Commencement Date set forth below due
to any act or failure to act on the part of the Tenant, then the Rent shall
commence on that date as though the Demised Premises were ready for possession
by the Tenant and all the provisions of this Lease shall apply.
For the purpose of this Lease, the Demised Premises shall be deemed to
be ready for possession by the Tenant when the Landlord's and the Tenant's
representatives acting reasonably certify in writing that the improvements, and
repairs, if any, being carried out by the Landlord to the Demised Premises, in
accordance with plans and specifications heretofore approved by the Tenant or as
otherwise determined pursuant to the terms and conditions of the Offer to Lease
on which this Lease is based and the Schedules attached hereto, have been
carried out to the extent necessary to permit the Demised Premises to be
utilized by the Tenant without undue interference.
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4. RENT & SECURITY DEPOSIT
YIELDING AND PAYING therefore unto the Landlord Basic Rent as follows:
For the period November 1, 1995 (the "Rent Commencement Date") to AUGUST
31, 2000, $8,514.00 per month (adjusted pro-rata if the Rent Commencement Date
is not the first day of a month) payable in advance on the Rent Commencement
Date and thereafter on the first day of each month throughout this period.
For the period SEPTEMBER 1, 2000 to AUGUST 31, 2005, $13,007.50 per
month in advance on the first day of each month throughout this period.
All of the amounts referred to above are called "Basic Rent" within this LEASE.
THE LANDLORD ACKNOWLEDGES THAT THE TENANT HAS DEPOSITED $20,497.46 WITH
THE LISTING BROKER, CB COMMERCIAL, IN TRUST TO BE APPLIED AS FIRST MONTHS NET
RENTAL PLUS LAST MONTHS NET RENTAL PLUS G.S.T.
5. RENT AND INTEREST AND GOODS AND SERVICES TAXES
The Tenant covenants and agrees to pay to the Landlord or its order in
lawful money of Canada, at the office of the Landlord hereinafter set forth, or
at such other place as the Landlord may in writing direct, without notice or
demand, except as otherwise specifically provided herein, and without deduction
or set-off for any reason whatsoever a Rent comprised of:
a) the Basic Rent hereby reserved in the manner herein provided;
and
b) all amounts which become due and payable to the Landlord from
time to time pursuant to the terms permitted in this Lease
within the time herein provided (the "Additional Rent");
all of which amounts shall be payable and recoverable as Rent.
The Tenant covenants and agrees to pay to the Landlord interest at a
rate equal to the prime bank lending rate from time to time charged by the
Landlord's bank on all arrears of Basic Rent or Additional Rent owing to the
Landlord and all other sums payable by the Tenant to the Landlord pursuant to
the terms hereof from the date of default in the payment thereof until payment
is received by the Landlord. Basic Rent and Additional Rent may be herein
referred to collectively as "Rent".
In addition to the Rent payable herein, the Tenant will pay to the
Landlord (acting as agent for the taxing authority if applicable) or directly to
the taxing authority (if required by the applicable legislation) in the manner
specified by the Landlord, the full amount of all goods and services taxes,
sales taxes, value-added taxes, multi-stage taxes, business transfer taxes and
any other taxes imposed on the Tenant in respect of the Rent payable by the
Tenant under this Lease or in respect of the rental of space by the Tenant under
this Lease (collectively and individually, "GST"). GST is payable by the Tenant
whether characterized as a goods and services tax, sales tax, value-added tax,
multi-stage tax, business transfer tax, or otherwise. GST so payable by the
Tenant will:
a) be calculated by the Landlord in accordance with the
applicable legislation;
b) be paid by the Tenant at the same time as the amounts to which
the GST applies 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); and
c) despite anything else in this Lease, be considered not to be
Rent, but the Landlord shall have all of the same remedies for
and rights of recovery with respect to such amounts as it has
for non-payment of Rent under this Lease or at law.
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6. NET LEASE
The Tenant covenants and agrees with the Landlord that this Lease is a
net Lease and the Basic Rent referred to above is to be received by the Landlord
free of all outgoings whatsoever except as otherwise herein specifically
provided and except for the Landlord's income taxes and for payments of any
financing respecting the Lands and the Building that may now or in the future
become due.
The Rent herein shall be a net rental to the Landlord, and in addition
to the Rent, the Tenant shall pay real estate taxes, local improvement charges,
if any, utility charges, water and telephone charges, outside maintenance
including driveways, trucking and parking areas, lawn and shrubbery maintenance,
snow removal and insurance premiums for the building, in accordance with the
Lease.
7. UTILITIES & OTHER SERVICES
The Tenant covenants and agrees to pay and discharge as the same fall
due during the Term, without limitation, all charges for garbage removal,
janitorial services and maintenance respecting the Demised Premises and all
charges for utilities, including telephone installations, water, electrical
power, gas, and telephone charges metered separately or charged separately by
the authority providing the same to the Demised Premises, as well as any charges
of such authority based thereon for treatment or other facilities, and all like
charges or rates, goods and services taxes and business taxes, and all floor
space and personal property taxes, license fees, or other like taxes or fees
which may be imposed by any municipal, legislative or other authority upon or in
respect of any personal property of the Tenant situated thereon, as the same are
assessed and fall due.
8. TAXES, ETC.
See Rider Page 3A.
9. INSURANCE
The Tenant covenants and agrees to pay 100% per cent of the premiums for
the insurance carried by the Tenant on behalf of the Landlord during the Term of
this Lease for insurance against fire (and other coverages for perils and
liabilities related to the Lands or Building, which coverage shall be in the
Landlord's reasonable discretion) on the Building of which the Demised Premises
form a part, which insurance shall include coverage of the Tenant's trade
fixtures, merchandise, stock in trade, furniture or other property within, about
or adjacent to the Demised Premises or the Lands and Building. Premiums shall
include any costs incurred with respect to payment of any deductible amounts or
below deductible amounts payable pursuant to bona fide claims made on the
insurance policies.
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Rider 3A
8. Taxes, Etc.
In addition to the payment of Basic Rent hereunder, the Tenant shall promptly
discharge and pay when due (subject to the right of contestation as hereinafter
mentioned but including any fine, penalty, interest or cost which may be added
thereto) all taxes, rates, duties, assessments and other public charges which
during the Term may be levied, rated, charged or assessed against the Demised
Premises and the Building or any property owned or brought thereon by the
Tenant; and every tax, licence fee, business tax and other public charge
(except, however, any income, capital or profits taxes imposed on or against the
Landlord) together with interest and/or penalties thereon which, during the
Term, may be assessed, levied or charged in respect of the occupancy of the
Demised Premises and the Building by the Tenant, or any businesses carried on
therein by the Tenant, or the property of the Tenant thereon whether such taxes,
rates, assessments, licence fees and other public charges are assessed, levied
or charged by municipal, provincial, federal, school or other public body. If
the Tenant shall fail to pay any such amount or amounts when due, the Landlord
may, at its option, pay the same and an amount equal to the amount so paid,
together with interest thereon computed at the rate of interest set out in
paragraph 5 of this Lease from the date of payment by the Landlord, shall be
charged to and paid by the Tenant as Additional Rent. The Tenant shall,
forthwith after payment of the foregoing items and charges, produce to the
Landlord on request evidence satisfactory to the Landlord of the fact of such
payment; provided, however, that:
(a) if by law any tax, rate, duty, assessment, fee or charge, at
the option of the taxpayer, may be paid by instalments
(whether or not interest shall accrue on the unpaid balance
thereof), the Tenant may pay the sum in instalments as the
same respectively become due;
(b) the Tenant shall only be required to pay a proportionate part
of any such tax, rate, duty, assessment, fee or charge which
relates to a fiscal period of the taxing authority a part of
which period is included in a period prior to the commencement
or after the expiration of the Term;
(c) the Tenant may, upon written notice to the Landlord and after
paying such tax, rate, assessment or other public charge under
protest, contest the validity or the amount thereof (if
meanwhile such contestation will involve no forfeiture,
foreclosure, escheat, sale or termination of the Landlord's
title to the Demised Premises and the Building or any part
thereof), but upon a final determination of any such contest
the Tenant shall immediately pay and satisfy all proper costs,
penalties, interest or other charges payable in connection
therewith. The Landlord shall co-operate in the institution
and prosecution of any such proceedings and will execute any
documents required therefor, and the expense of such
proceedings including Landlord's costs shall be borne by the
Tenant and any refunds or rebates secured relative to the
period of occupancy shall belong to the Tenant.
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Tenant shall provide proof of payment in form satisfactory to the
Landlord, with certified copies of insurance policies required to be maintained
herein, at Landlord's request.
The Tenant covenants and agrees not to allow anything to be done, kept,
used or sold upon or about the Demised Premises which contravenes any of the
insurance policies or which would prevent the Landlord from procuring any such
policy with companies acceptable to the Landlord. If any insurance policy upon
the Building or any part thereof is cancelled or threatened by the insurer to be
cancelled, or the coverage thereunder reduced or threatened to be reduced by the
insurer, or if such insurance policy is not obtainable by reason of the use and
occupation of the Demised Premises or any part thereof by the Tenant or any
assignee or sub-tenant of the Tenant or by anyone permitted by the Tenant to be
upon the Demised Premises, the Tenant will promptly advise the Landlord of such
notice, and if the Tenant fails to remedy the condition giving rise to
cancellation, threatened cancellation, reduction or threatened reduction in
coverage or refusal to cover within 24 hours after notice thereof by the
Landlord, the Landlord may, without limiting any other remedies it may have
pursuant to this Lease or at law, enter the Demised Premises and remedy the
condition giving rise to the cancellation or reduction or threatened
cancellation or threatened reduction or refusal to cover and the Tenant will pay
to the Landlord the cost thereof upon demand and the Landlord shall not be
liable for any inconvenience, disturbance, loss of business or other damage
resulting from such entry and remedying.
10. SPUR TRACK
11. OPERATION AND MAINTENANCE COSTS
Except as otherwise provided in this Lease, the Tenant covenants and
agrees to operate, service, maintain, clean, supervise, police, replace and
repair, and keep in good order and safe condition the Demised Premises
including, without limiting the generality of the foregoing, all exterior
(including roof) maintenance and repairs, (excluding structural repairs and
maintenance to the Building and structural roof maintenance and repairs, which
are the responsibility of the Landlord,) landscaping, snow and ice removal and
to pay on demand to the Landlord reasonable management and administration
service charges pertaining to the Landlord's operation of the Demised Premises.
12. DELETED
13. GOOD & SUBSTANTIAL REPAIR
a) The Tenant covenants and agrees to keep, at the expense of the
Tenant, at all times during the said Term, the Demised
Premises in a clean and sanitary condition and in good and
substantial repair, and to replace any broken glass windows in
the Demised Premises and at the end or sooner termination of
the said Lease, to peaceably surrender and yield up the
Demised Premises in good and substantial repair and condition
(normal wear and tear and latent defect excepted) and, without
limiting the generality of the foregoing the Tenant will,
during the Term of the Lease, cause such good management and
care to be taken of the Demised Premises and the various parts
thereof, both interior and exterior, that no injury to the
same shall occur, and that the air conditioning equipment, if
any, heating apparatus, electric or other wires, pipes, pumps,
valves, reservoirs, sinks, baths, plumbing apparatus, gas keys
and fastenings of all kinds on the said Demised Premises shall
be kept during the said Term in a state of efficient and good
working order, and that all heating apparatus, water closets,
sinks, baths and accessories thereto on the Demised Premises
shall be protected from frost and kept at all times free from
any uncleanliness or obstruction that would prevent their
efficient working and that repairs needful or expedient to
keep them in efficient working order during the said Term will
be borne by the Tenant. And the Tenant shall be directly
responsible for all of the above repairs, maintenance and
decoration with respect to the Demised Premises and will
promptly, at its expense, carry out any and all repairs
required thereto. The Tenant shall be responsible for
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all janitorial services respecting the Demised Premises,
including the washing of windows therein both inside and
outside.
b) The Tenant covenants and agrees without limiting the
generality of the within clause or derogating from the
provisions thereof, to maintain in good condition to the
satisfaction of the Landlord, the heating system and air
conditioning system, if any, in the Demised Premises and to
operate, repair and replace, all subject to exceptions of the
within clause hereof, the system and all parts when necessary
throughout the Term of the Lease.
The Tenant covenants and agrees that it will at all times, with respect
to those matters of which the Tenant shall have knowledge, give the Landlord
prompt written notice of any accident or defect to or in the water pipes, gas
pipes, air conditioning equipment, if any, heating apparatus, electric or other
wires, or plumbing fixtures in the Demised Premises.
PROVIDED HOWEVER, that the Landlord may at its sole option from time to
time, elect by written notice to the Tenant to carry out at the expense and in
the name of the Tenant the Tenant's obligations pursuant to this clause for such
periods of time as the Landlord may determine, and the cost thereof shall be
payable to the Landlord by the Tenant forthwith as Rent on demand together with
interest thereon at the aforesaid rate from the date of the expenditure of such
monies by the Landlord until paid by the Tenant. The Landlord in doing so shall
not be liable for inconvenience, disturbance, loss of business or other damage
resulting therefrom.
14. ENTRY TO INSPECT
The Tenant covenants and agrees to permit the Landlord and its agents
and employees at all reasonable times to enter the Demised Premises to view the
state of repair and the Tenant shall forthwith, after the receipt of written
notice thereof, at the Tenant's expense, commence and diligently proceed to make
such repairs and replacements as the Tenant may be obligated to make and in the
event of the Tenant's failure or neglect so to do, the Landlord and its agents
and employees may enter the Demised Premises and, at the Tenant's expense,
perform and carry out such repairs or replacements and the Landlord in so doing
shall not be liable for inconvenience, disturbance, loss of business or other
damage resulting therefrom and in the event the Landlord expends any monies
pursuant to this clause the Tenant will pay the same on demand together with
interest thereon at the aforesaid rate from the date of the expenditure of such
monies by the Landlord until paid by the Tenant as Additional Rent on the first
day of the next month next following said payment by the Landlord.
15. QUALITY OF REPAIR
The Tenant covenants and agrees that all repairs and replacements made
by the Tenant to the Demised Premises shall be of a quality and class at least
equal to the original and shall become the property of the Landlord absolutely
and a part of the Demised Premises.
16. NUISANCE, WASTE, HAZARDOUS SUBSTANCES
The Tenant shall not keep or permit on the Leased Premises any toxic or
dangerous or hazardous waste, substance or material, asbestos, polychlorinated
biphenals, special nuclear or byproduct material, heavy metals, radioactive
materials, (hereinafter collectively referred to as "prohibited substances").
Any other substances declared to be hazardous or toxic or dangerous under any
law or regulation now or hereafter enacted or promulgated by any government
authority having jurisdiction, pollutant, contaminant or petroleum (shall be
cumulatively referred to as "noxious substances"). If the Tenant discovers the
existence of any noxious substances on the Leased Premises, the Tenant shall
promptly report such information to the Landlord. The Tenant shall not disclose
such information to any government agencies, officials or other persons unless
required to do so by applicable law. The Tenant shall at its sole cost and
expense comply with all applicable environmental laws, regulations, rulings or
orders, ordinances and occupational safety and health laws, rules, regulations,
requirements or permits, including, without limitation, any laws requiring the
filing of reports and notices relating to any noxious substances on the Leased
Premises (cumulatively referred to as "environmental and health laws"). In the
event of a violation of any environmental or health laws, or of a release of a
noxious substance from the Leased Premises, or of the discovery of environmental
contamination requiring remediation which violation, release or environmental
contamination is attributable to the acts, omission or negligence of the Tenant,
its agents, employees or invitees, the Tenant shall provide at its sole cost and
expense all bonds and other security required by governmental authorities having
jurisdiction and the Landlord shall have the right but shall not be obliged to
enter the Leased Premises and to supervise and approve any actions taken by the
Tenant to address the violation, release or environmental contamination, and in
the event that the Tenant fails to promptly address such violation, release or
environmental contamination then the Landlord shall have the right but shall not
be obliged to perform, at the Tenant's sole cost and expense, any actions
necessary or appropriate to address the violation, release or environmental
contamination. The Tenant hereby indemnifies, protects and holds harmless the
Landlord, its successors and assigns, its property manager and those for whom in
law the Landlord is responsible from and against all claims, demands, actions,
suits, fines, penalties, costs, expenses, damages and obligations of any nature
arising from any violation of any environmental or health laws or any other
environmental, health or safety matter including, without limitation, nuisance
or toxic tort claims, caused by the acts, omissions or negligence of the Tenant,
its agents, employees or invitees. The Tenant hereby
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authorizes the Landlord to make enquiries from time to time of any governmental
authority having jurisdiction with respect to the Tenant's compliance with
environmental and health laws, and the Tenant agrees from time to time to
provide such written authorization as the Landlord may reasonably require in
order to facilitate the obtaining of such information. The Tenant shall permit
the Landlord and its lenders and agents to conduct inspections and appraisals
from time to time of the Tenant's records, and physical Inspection of the
Tenant's operations, business and assets respecting compliance with
environmental and health laws and all matters pertaining to noxious substances.
The Tenant shall forthwith notify the Landlord in writing upon being advised of
any alleged violation or infringement of environmental and health laws or any
intended enforcement action pertaining thereto. If the Tenant shall keep or
permit any noxious substances upon the Leased Premises then such noxious
substances shall be and remain the sole and exclusive property of the Tenant and
shall not become the property of the Landlord notwithstanding any other
provision of this Lease or any rule of law or any degree of affixation of the
noxious substance or the goods containing the noxious substance to the Leased
Premises or the Property and notwithstanding the expiry or earlier termination
of this Lease. The obligations of the Tenant hereunder relating to noxious
substances and environmental and health laws shall survive the expiry or earlier
termination of this Lease.
See Rider 6A.
17. USE
The Tenant covenants and agrees that it will use the Demised Premises
for the purpose of research laboratories, general office use and light assembly
and the Tenant shall not use or permit, or suffer the use of any part or parts
thereof for any other business or purpose whatsoever unless the Landlord gives
its written consent to such change in use, not to be unreasonably withheld, and
provided that any such use shall be in compliance with all zoning regulations
and other legislation applicable the Demised Premises and the Building and shall
not be in breach of any other provision of this Lease.
18. ORDINANCES & REGULATIONS
Notwithstanding the use of the Demised Premises permitted in this Lease
hereof, the Tenant covenants and agrees to observe and fulfil the provisions and
requirements of all statutes, orders-in-council, by-laws, rules and regulations,
municipal, legislative, parliamentary or by other lawful authority, relating to
the use of the Demised Premises by the Tenant and, without limitation thereto,
to comply with any applicable lawful regulation or order of The Canadian
Underwriters Association or any body having similar functions or any liability
or fire insurance company by which the Landlord or Tenant may be insured, and
that all fines, charges, costs, damages, or other expenses resulting from the
default of infringement of, or changes in the Demised Premises required as a
result of the Tenant's use of the Demised Premises to comply with, the above
mentioned shall be borne by the Tenant.
See Rider 6A.
19. ASSIGNMENT & SUB-LETTING
The Tenant covenants that it will not assign this Lease nor sub-let the
Demised Premises in whole or in part without the prior written consent of the
Landlord, which consent the Landlord covenants not to withhold unreasonably:
- as to any assignee or sub-lessee who is in a financial
condition satisfactory to the Landlord, agrees to use the
Demised Premises for those purposes permitted hereunder, and
is otherwise satisfactory to the Landlord, acting reasonably,
and
- as to any portion of the Demised Premises which, in the
Landlord's sole judgment, is a proper and rational division of
the Demised Premises, subject to the Landlord's right of
termination arising under this clause. Without limitation, the
Tenant shall for the purpose of this clause be considered to
assign or sub-let in any case where it permits the Demised
Premises or any portion thereof to be occupied by persons
other than the Tenant, its agents and employees and others
engaged in carrying on the business of the Tenant, whether
pursuant to assignment, sub-letting, license or other right,
or where any of the foregoing occurs by operation of law.
The Tenant shall not assign this Lease or sub-let the whole or any part
of the Demised Premises unless:
- it shall have received or procured a bona fide written offer
to take an assignment or sub-Lease which is not inconsistent
with this Lease, and the acceptance of which would not breach
any provision of this Lease if this clause is being complied
with, and
- it shall have first requested and obtained the consent in
writing of the Landlord thereto.
Any request for consent shall be in writing and accompanied by a copy of
the offer certified by the Tenant to be true and complete, and the Tenant shall
furnish to the Landlord all information available to the Tenant and requested by
the Landlord as to the responsibility, financial standing and business of the
proposed assignee or sub-lessee. Notwithstanding the provisions herein, within
30 days after the receipt by the Landlord
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RIDER 6A
16. Nuisance, Waste, Hazardous Substances (cont.)
Notwithstanding the provision of Clause 16, the Landlord acknowledges
that the Tenant is required to use small quantities of certain noxious
substances, including without limitation, radioactive materials, chemicals and
explosives, in the course of its business activities and that such substances
will from time to time be stored on the Demised Premises, always in compliance
with the Atomic Energy control Board Radio-Isotope Licensing Requirements
governing the use, storage and transportation of radioactive materials and
Energy Mines & Resources License for a Temporary Magazine governing the use and
storage of explosives, or such other requirements which may from time to time be
applicable to such substances.
The Tenant covenants to provide the Landlord with copies of all licenses
and renewals thereto so the Landlord is kept current of the licensing
requirements.
Provided, however, that nothing in this Lease shall make the Tenant
liable for any environmental contamination which existed on the Demised Premises
prior to the date of this Lease, or which cannot be shown to have been caused in
whole or in part by the Tenant.
The Landlord represents to the best of its knowledge that there is no
environmental contamination currently in existence on the Demised Premises.
The Landlord agrees that it shall reimburse the Tenant for half of the
cost of a Phase I environmental assessment of the Demised Premises which the
Tenant shall cause to be conducted prior to its occupancy of the Demised
Premises.
18. Ordinances & Regulations (cont.)
Notwithstanding the foregoing, any non-observance by the Tenant of any
governmental or municipal regulations or other requirements governing the
conduct of any business by the Tenant in the Demised Premises shall not be
deemed a breach of covenant under the terms of this Lease if such non-observance
in no way raises any risk of penalty, damage or loss whatsoever to the Landlord,
its agents and mortgagees. Provided that the foregoing obligations of the Tenant
shall be subject to the Tenant being entitled to contest in good faith and in an
expeditious and diligent manner, any such governmental or municipal regulations
or other requirements.
12
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of such request for consent and of all information which the Landlord shall have
requested herein, the Landlord shall have the right upon written notice of
termination submitted to the Tenant, if the request is to assign this Lease or
sub-let the whole or part of the Demised Premises, to cancel and terminate this
Lease with respect to such part, in each case as of a termination date to be
stipulated in the notice of termination which shall be not less than 30 days
following the giving of such notice. In such event the Tenant shall surrender
the whole or part, as the case may be, of the Demised Premises in accordance
with such notice of termination and Basic Rent and Additional Rent shall be
apportioned and paid to the date of surrender and, if a part only of the Demised
Premises is surrendered, Basic Rent and Additional Rent shall after the date of
surrender xxxxx proportionately. If such consent shall be given the Tenant shall
assign or sub-let, as the case may be, only upon the terms set out in the offer
submitted to the Landlord as aforesaid and not otherwise.
No assignment or sub-letting of this Lease shall be effective unless the
assignee or sub-lessee shall execute an assumption agreement on the Landlord's
form, assuming all the obligations of the Tenant hereunder, and shall pay to the
Landlord its reasonable fee for processing the assignment or sub-letting such
fee not to exceed $500.00.
The Tenant agrees that in the event the Landlord consents to the
sub-letting in whole or in part of the Demised Premises on terms under which the
sub-lessee is required to make any payment of Rent to the Tenant in excess of
those payable by the Tenant pursuant to this Lease, the Tenant shall, upon any
excess payments becoming due to the Tenant, pay such excess payments to the
Landlord.
Notwithstanding any of the foregoing, it is agreed that the Tenant shall
be allowed to assign this Lease or to sublet all or part of the Demised Premises
to a related company of the Tenant without the Landlord's prior written consent.
The Tenant agrees that any consent to an assignment or sub-letting of
this Lease or Demised Premises, shall not thereby release the Tenant of its
obligations hereunder.
The Landlord's consent to any assignment, subletting, change of control,
parting with or sharing possession does not imply any further consent to do so
without the Tenant in each instance complying with the terms of this Lease.
20. INDEMNIFICATION
The Tenant covenants and agrees notwithstanding any other provisions of
this Lease to the contrary, to indemnify and save harmless the Landlord from any
and all liabilities, damages, costs, claims, suits or actions resulting from:
a) any breach, violation or non-performance of any covenant,
condition or agreement in this Lease set forth and contained
on the part of the Tenant to be fulfilled, kept, observed and
performed;
b) any damage to property, including property of the Landlord,
occasioned by the operations of the Tenant's business on, or
the Tenant's occupation of the Demised Premises;
c) any injury to person or persons, including death, resulting at
any time therefrom, occasioned by the operation of the
Tenant's business on, or the Tenant's occupation of, the
Demised Premises;
See Rider 7A.
21. TENANT'S INSURANCE
See Rider 7A.
13
Rider 7A.
20. Indemnification (cont.)
Provided, however, that the foregoing indemnity shall not apply where
any injury, loss or damage is due to the sole negligence of the Landlord or
those for whom the Landlord is in law responsible, or due to any breach by the
Landlord of any provision of this Lease.
20.2 The Landlord covenants and agrees notwithstanding any other provisions
of this Lease to the contrary, to indemnify and save harmless the Tenant from
any and all liabilities, damages, costs, claims, suits or actions resulting
from:
(a) any breach, violation or non-performance of any covenant, condition
or agreement in this Lease set forth and contained on the part of the
Landlord to be fulfilled, kept, observed and performed;
(b) any damage to property, including property of the Tenant, or any
injury to person(s), including death, resulting at any time therefrom,
occasioned by any structural flaw or failure of the Building other than
insurable losses or from any negligence, act, omission, fault or
default of the Landlord or those for whom it is in law responsible.
Provided, however, that the foregoing indemnity shall not apply where
any injury, loss or damage is due to the negligence of the Tenant or those for
whom the Tenant is in law responsible or due to any peril against which the
Tenant is or ought to have been insured, or due to any breach by the Tenant of
any provision of this Lease.
21. Tenant's Insurance
a) The Tenant shall, at its sole cost and expense, take out and keep in
full force and effect and in the names of the Tenant, the Landlord, the
Landlord's Mortgagees, trustees, holding companies, and as otherwise designated
from time to time by the Landlord, as their respective interest may appear, the
following insurance:
(i) All Risks Form Insurance upon property of every description
and kind including, without limitation, the building,
stock-in-trade, furniture, alterations, additions, partitions,
fixtures and anything in the nature of a leasehold
improvement, in an amount of not less than full replacement
cost thereof, against, at least all perils normally covered
under an all risks broad form policy including fire,
lightning, windstorm, hail, by-laws, sprinkler leakage, flood,
earthquake and collapse. The amount of insurance carried shall
not be subject to a percentage co-insurance clause. In the
event that there shall be a dispute as to the amount of full
replacement cost, the decision of an arbitrator selected in
accordance with the provisions of the Arbitration Act
(Ontario) shall be conclusive;
(ii) where applicable, Comprehensive Broad Form Boiler and
Machinery Insurance on a blanket repair and replacement basis
with limits for each accident for at least the full building
replacement costs as well as all leasehold improvements, such
insurance to include a joint loss agreement endorsement;
(iii) Business Interruption Insurance in an amount that will
reimburse the Lessee for direct or indirect loss of earnings
including prevention of access and Rental Loss Insurance for a
minimum twelve (12) month period of indemnity which limits
shall include all Rent (Basic Rent and realty taxes) set out
in this Lease; Landlord must be shown as Loss Payee with
respect to loss of rentals;
.../continue
14
Rider 7A.
21. Tenant's Insurance (cont.)
(iv) broad form Commercial General Liability Insurance written on
an occurrence form including, without limitation, personal
injury and property damage insurance, contractual liability,
non-owned automobile liability, operations and completed
operations coverage (where applicable), owners' and
contractors' protective insurance coverage including
activities and operations conducted by the Tenant and any
other persons on the Premises and by the Tenant and any other
persons performing work on the Premises and those for whom the
Tenant is in law, responsible for. Such policies will be
written on a broad form comprehensive basis including limits
of at least three million dollars ($3,000,000.00) for bodily
injury for any one or more persons, or property damage (but
the Landlord, acting responsibly, or the mortgagee, may
require higher limits from time to time);
(v) standard Owner's Form Automobile Insurance providing third
party liability insurance with one million dollars
($1,000,000.00) inclusive limits, and accident benefits
insurance, covering all licensed vehicles owned or operated by
or on behalf of the Tenant;
(vii) any other form or forms of insurance as the Tenant and or the
Landlord or its Mortgagees may reasonably require from time to
time, in amounts and for insurance risks against which a
prudent Tenant or Landlord would insure.
b) All Property Damage Policies written on behalf of the Tenant shall contain
the Mortgagee's standard mortgage clause.
c) All policies will (i) be taken out with insurers acceptable to the Landlord
or the Mortgagees acting reasonably (ii) be in a form satisfactory to the
Landlord or its Mortgagees acting reasonably (iii) will be primary and not
excess to any other insurance available to all and any of the Landlord and
Mortgagee; (vi) contain a Cross Liability and Severability of Interest clause;
(vii) contain an undertaking by the insurers to notify the landlord and the
Mortgagee in writing not less than thirty (30) days before any cancellation, or
termination.
d) The Tenant will deliver as directed to the Landlord and to its Mortgagees (if
requested) duly executed by the Tenant's insurers certified copies of each
insurance policy as soon as possible after the placing of the insurance and
proof of payment in form satisfactory to the Landlord, no review or approval of
any insurance certificate or insurance policy by the Landlord derogates from or
diminishes the Landlord's rights under this Lease.
15
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In case of loss or damage, the proceeds of insurance for the
Building and Tenant's improvements shall be and are hereby assigned and made
payable to the Landlord and to the extent that such proceeds of insurance have
been paid to the Landlord, they shall be released to the Tenant (provided the
Tenant is not in default) upon the Tenant's written request, in progress
payments, at stages determined by a certificate of the Landlord's architect,
stating that repairs to each such stage have been satisfactorily completed free
of liens by the Tenant. In the event the Tenant defaults in making such repairs,
the Landlord may perform the repairs and the proceeds may be applied by the
Landlord to the cost thereof.
The Tenant agrees that if the Tenant fails to take out or keep
in force any such insurance referred to in this clause, or should any such
insurance not be approved by either the Landlord or its mortgagees (including
trustee for bondholders) and should the Tenant not rectify the situation within
48 hours after written notice by the Landlord to the Tenant (stating if the
Landlord or its mortgagees (including trustee for bondholders) do not approve of
such insurance, the reasons therefore) the Landlord shall have the right without
assuming any obligation in connection therewith, to effect such insurance at the
sole cost of the Tenant and all outlays by the Landlord shall be immediately
payable by the Tenant to the Landlord as Additional Rent and shall be due on the
first day of the next month following said payment by the Landlord without
prejudice to any other rights and remedies of the Landlord under this Lease.
The Tenant shall not do or permit anything to be done upon the
Demised Premises which shall cause the rate of insurance on the Lands and
Building to be increased and if the rate of insurance on the Lands and Building
shall be increased by reason of any use made of the Demised Premises or by
reason of anything done or omitted or permitted to be done by the Tenant or by
anyone permitted by the Tenant to be upon the Demised Premises, the Tenant shall
on demand pay to the Landlord the amount of such increase, and if any insurance
on the Lands and Building or any part thereof or on any building connected to
Lands and Building shall be cancelled by the insurer by reason of the use or
occupation of the Demised Premises or any part thereof by the Tenant or by any
assignee or sub-lessee of the Tenant or by anyone permitted by the Tenant to be
upon the Demised Premises the Landlord may, at its option, in addition to any
other remedy it may have, forthwith terminate this Lease by notice in writing to
the Tenant and thereupon Rent and any other payments for which the Tenant is
liable under this Lease shall be apportioned and paid in full to the date of
such termination and the Tenant shall immediately deliver up possession of the
Demised Premises to the Landlord and the Landlord may re-enter and take
possession of the same.
The Tenant covenants and agrees that the Landlord shall not be
liable or responsible in any way for any loss of or damage or injury to any
property belonging to the Tenant or to employees of the Tenant or to any other
person while such property is on the Demised Premises or in the Lands and
Building whether or not such property has been entrusted to employees or agents
of the Landlord and without limiting the generality of the foregoing the
Landlord shall not be liable for any damage to any such property caused by
steam, water, rain or snow which may leak into, issue or flow from any part of
the Lands or Building or from the water, steam or drainage pipes or plumbing
works of the Lands and Building or from any other place or quarter or for any
16
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damage caused by or attributable to the condition or arrangement of any electric
or other wiring or for any damage caused by anything done or omitted by the
Landlord or by any other Tenant of the Lands and Building.
The Tenant covenants and agrees that it will indemnify the
Landlord and save it harmless from and against any and all loss, claims,
actions, damages, liability and expense in connection with loss of life,
personal injury or damage to property arising from any occurrence on the Demised
Premises, or the Lands and Building, or the occupancy or use by the Tenant of
the Demised Premises or occasioned wholly or in part by any act or omission of
the Tenant, its agents, contractors, employees, servants, licensees or
concessionaires or by anyone permitted by the Tenant to be in the Demised
Premises or on the Lands and Building. In case the Landlord, without actual
fault on its part, is made a party to any litigation commenced by or against the
Tenant, the Tenant shall protect and hold the Landlord harmless and shall pay
all costs, expenses and legal fees (on a solicitor and his client basis)
incurred or paid by the Landlord in enforcing this Lease.
The requirements imposed on the Tenant in this clause respecting
the obtaining and maintaining of insurance shall not in any manner limit or
derogate from any other obligations imposed on the Tenant pursuant to this Lease
or at law.
22. DAMAGE
The Tenant covenants and agrees that it will not bring upon the
Demised Premises, the Building, the Lands, or any part thereof any vehicles,
machinery, equipment, safes, articles or things that by reason of their weight,
site or use might damage the floors or other improvements of the Demised
Premises, the Building or the Lands and that if any damage is caused to the
Demised Premises, the Building or the Lands by any such vehicle, machinery,
equipment, article or thing, or by such overloading or by any act, neglect or
misuse on the part of the Tenant or any of its servants, agents or employees or
any person having business with the Tenant, will at the election of the Landlord
either forthwith at its sole cost repair such damage to the satisfaction of the
Landlord or pay the cost of repair as determined by the Landlord, to the
Landlord.
23. QUIET POSSESSION
The Landlord covenants with the Tenant that upon the Tenant
paying the Rent hereby reserved and all other charges herein provided and
observing, performing and keeping the covenants and agreements herein contained,
the Tenant shall and may peaceably possess and enjoy the said Demised Premises
for the Term hereby granted without any interruption or disturbance from the
Landlord.
24. LANDLORD'S REPAIRS
The Landlord covenants and agrees that notwithstanding the
provisions permitted in this Lease, it shall at its sole cost during the Term
hereof carry out as soon as possible in the circumstances after receipt of
notice thereof in writing from the Tenant, structural repairs to footings,
structural columns, foundation, exterior walls, and metal roof decks, unless
necessitated as the result of normal wear and tear, and damages recoverable
under insurance policies. PROVIDED HOWEVER, that if such repairs are
necessitated by the negligence or misconduct of the Tenant, its servants,
agents, contractors, licensees, employees, visitors or others for whom in law
the Tenant is responsible, the Tenant shall pay to the Landlord on demand the
cost of such repairs as Additional Rent on the first day of the next month next
following said payment by the Landlord and interest thereon from the date of
expenditure thereof by the Landlord until paid by the Tenant to the extent the
cost thereof is not recoverable from insurance. PROVIDED that the Landlord shall
not be responsible for any damages, loss or injuries sustained by the Tenant, or
any persons claiming through or under it, by reason of such defects or the
consequences thereof, including the inconvenience occasioned to the Tenant by
the entry of the Landlord or its agents and employees on the Demised Premises to
effect such repairs.
The Landlord and Tenant shall, throughout the Term of this
Lease, at their respective expense, comply with all provisions of law,
including, without limiting the generality of the foregoing:
(i) all requirements of all federal, provincial and municipal
legislative enactments, by-laws, and other governmental or municipal
regulations now or hereafter in force which relate to each of their
responsibilities in respect of the Lands, the Building and the Demised
Premises, or to the making of any repairs, replacements, alterations,
additions, changes, substitutions or improvements thereto which are
their responsibility under this Lease; and
(ii) all police, fire, building and sanitary regulations imposed by any
governmental, provincial and municipal authorities or made by fire
insurance underwriters relating to each of their obligations in respect
of the Lands, the Building and the Demised Premises.
Notwithstanding the foregoing, any non-observance by either party of
any governmental or municipal regulations or other requirements governing their
obligations shall not be deemed a breach of covenant under the terms of this
Lease if such non-observance in no way disturbs, xxxxx or poses a threat to the
Tenant's use and occupation of the Demised Premises or in no way raises any risk
of penalty, damage or loss to the Tenant or the Landlord. Provided that the
foregoing obligations of the Landlord and the Tenant shall be subject to the
Landlord or the Tenant, as the case may be, being entitled to contest in good
faith and in an expeditious and diligent manner, any such governmental or
municipal regulations or other requirements.
25. LANDLORD'S INSURANCE
26. TAXES
The Landlord covenants and agrees that it will, from time to
time, pay or cause to be paid the taxes (including local improvement charges),
assessments and other outgoings permitted in this Lease, PROVIDED
17
10
HOWEVER, that nothing contained in this clause shall derogate from the Tenant's
covenant permitted in this Lease.
27. DAMAGE & DESTRUCTION
It is agreed between the Landlord and the Tenant that:
(a) In the event of damage to the Lands and Building or to any
part thereof, if the damage is such that the Demised Premises
or any substantial part thereof is rendered not reasonably
capable of use and occupancy by the Tenant for the purposes of
its business for any period of time in excess of 10 days,
then:
(i) unless the damage was caused by the fault or negligence of
the Tenant or its employees, agents, invitees or others under
its control, from the date of occurrence of the damage and
until the Demised Premises are again reasonably capable for
use and occupancy as aforesaid, the Basic Rent payable
pursuant to this Lease shall xxxxx from time to time in
proportion to the part or parts of the Demised Premises not
reasonably capable of such use and occupancy; and
(ii) unless this Lease is terminated as hereinafter provided,
the Landlord or the Tenant as the case may be (according to
the nature of the damage and their respective obligations to
repair as provided herein) shall repair such damage with all
reasonable diligence, but to the extent that any part of the
Demised Premises is not reasonably capable of such use and
occupancy by reason of damage which the Tenant would otherwise
be entitled hereunder shall not extend later than the time by
which, in the reasonable opinion of the Landlord, repairs by
the Tenant ought to have been completed with reasonable
diligence; and
(b) If the Demised Premises are substantially damaged or destroyed
by any cause and if in the reasonable opinion of the Landlord
given in writing within 30 days of the occurrence the damage
cannot reasonably be repaired within 180 days after the
occurrence thereof, then at the option of the Landlord or the
Tenant, this Lease shall terminate, in which event neither the
Landlord nor the Tenant shall be bound to repair as provided
herein, and the Tenant shall instead deliver up possession of
the Demised Premises to the Landlord with reasonable
expedition and Rent shall be apportioned and paid to the date
of the occurrence; and
(c) If the premises whether of the Tenant or other lessees of the
Lands and Building comprising in the aggregate half or more of
the total number of square feet of rentable area in the
Building (as determined by the Landlord) or portions of the
Building which affect access or services essential thereto,
are substantially damaged or destroyed by any cause and if in
the reasonable opinion of the Landlord the damage cannot
reasonably be repaired within 180 days after the occurrence
thereof, the Landlord or the Tenant may, by written notice to
the other given within 30 days after the occurrence of such
damage or destruction, terminate this Lease, in which event
neither the Landlord nor the Tenant shall be bound to repair
as provided herein and the Tenant shall instead deliver up
possession of the Demised Premises to the Landlord with
reasonable expedition but in any event within 60 days after
delivery of such notice of termination, and Rent shall be
apportioned and paid to the date upon which possession is so
delivered up (but subject to any abatement to which the Tenant
may be entitled to herein.
28. ALTERATIONS & IMPROVEMENTS
Should the Tenant require any alterations, improvements, partitions, or
changes of whatsoever kind to or in the Demised Premises after the Tenant has
taken possession thereof, the Tenant will make and install the same at its own
expense and risk; PROVIDED HOWEVER, that no repairs, alterations, improvements,
partitions, or changes of whatsoever kind shall be made without the Tenant
having first obtained all permits and authorizations required by all authorities
having jurisdiction and a copy of said permits and authorizations having been
delivered to the Landlord and further without the written consent of the
Landlord first had and obtained, such consent not to be unreasonably withheld;
PROVIDED FURTHER, that any such repairs, alterations, improvements, partitions,
or changes of whatsoever kind shall be made in a good and workmanlike manner
with new, first-class materials and shall be carried out and the plans relating
thereto shall be prepared by qualified tradesmen, engineers or consultants. All
alterations, improvements, partitions and changes made in or to the Demised
Premises at any time before or after the taking of possession by the Tenant, by
the Tenant or the Landlord, shall immediately become the property of the
Landlord and form part of the Demised Premises and the Lands and Building and
shall remain upon the Demised Premises. PROVIDED ALWAYS that the Landlord may at
the expiration or sooner termination of this Lease for any reason whatsoever
require that the Tenant restore the Demised Premises in whole or in part to the
same condition in which they were at the time of the entering into of this
Lease, the exceptions to the Tenant's repair obligations only excepted.
Notwithstanding any of the foregoing, it is understood that the Tenant's
obligation to restore the Demised Premises shall not include the restoration of
any alterations or improvements which have been made to the Demised Premises by
either the Landlord or the Tenant under the Offer to Lease or under this Lease
in anticipation of or in connection with the Tenant's occupation of the Demised
Premises.
Notwithstanding any of the foregoing provisions of this clause to the
contrary all trade fixtures installed in the Demised Premises by the Tenant and
all other property not attached or affixed to the Demised Premises other than by
its own weight and installed in the Demised Premises by the Tenant shall remain
the property of the Tenant and shall not form a part of the Demised Premises
during the Term of this Lease PROVIDED that no such trade fixtures which are
attached or affixed to the Demised Premises other than by their own weight
18
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shall be removed from the Demised Premises during the Term unless replaced by
trade fixtures of comparable value. At the expiration or sooner termination of
the Term of this Lease all trade fixtures attached or affixed to the Demised
Premises other than by their own weight (excluding such trade fixtures,
equipment machinery and shelving which must be attached to prevent movement or
vibration or for safety purposes) and other than for those excepted fixtures
with respect to which the Landlord, prior to their installation, granted in
writing to the Tenant a right of removal at the expiration or sooner termination
of the Lease, shall become the sole property of the Landlord; PROVIDED HOWEVER,
that the Landlord may at the expiration or sooner termination of this Lease for
any reason whatsoever require that the Tenant remove any such fixtures and
restore the Demised Premises in whole or in part to the same condition in which
they were at the time of the entering into of this Lease, the exceptions to the
Tenant's repair obligations only excepted.
29. SIGNS
No signs shall be installed in or on the Demised Premises or the
Building or the Lands without the prior written consent of the Landlord. All
such signs shall conform to all applicable codes or statutes and the building
standard as determined by the Landlord from time to time as to size, design and
location. At the termination of this Lease, any of the Tenant's signs shall be
removed by the Tenant and any damage caused by such removal shall be repaired,
all at the expense of the Tenant.
NOTWITHSTANDING THE FOREGOING, THE TENANT SHALL HAVE THE RIGHT TO ERECT
A SIGN(S) ON THE EXTERIOR OF THE BUILDING AND ON THE LANDS DENOTING ITS TENANCY
THEREIN PROVIDED SUCH SIGN(S) CONFORMS WITH MUNICIPAL BY-LAWS AND OWNER'S
REGULATIONS GOVERNING SIGNS.
30. NO LIENS
At no time during the Term shall the Tenant permit any Construction lien
or similar lien to stand against the Demised Premises for any labour or
materials furnished to, or with the consent of, the Tenant, its agents or
contractors, in connection with work of any character (including all work which
the Tenant is obliged to do hereunder) performed or claimed to have been
performed on the Demised Premises by or at the direction or sufferance of the
Tenant. The Tenant shall cause all registrations of claims for such liens,
and/or certificates of action under any applicable legislation to be discharged,
released or vacated, as the case may be, within thirty (30) days of such
registration, or, in the event that such lien is being disputed by the Tenant,
the Tenant shall have commenced such action as may be required in order to
dispute such lien, all without cost or expense to the Landlord; provided further
that if the Tenant shall fail to remove, release or vacate any such lien as
required hereunder, the Landlord at its option may pay and discharge such lien,
and all amounts paid by or on behalf of the Landlord together with all expenses
incurred in connection therewith shall be charged to and paid by the Tenant as
Additional Rent.
31. TIME FOR PAYMENT AND LEGAL COSTS
All amounts (other than Rent) required to be paid by the Tenant to the
Landlord pursuant to this Lease shall, unless otherwise specified herein, be
payable at the place designated by the Landlord for payment of Rent and on
demand and if not so paid within 15 days of such demand be treated as Rent in
arrears and the Landlord may, in addition to any other remedy and it may have
for the recovery of the same, distrain for the amount thereof as Rent in
arrears.
In the event that the Tenant shall make default in payment of any sums
required to be paid by it under this Lease (other than payments to the
Landlord), the Landlord may pay the same.
Unless otherwise expressly provided herein all sums referred to in the
preceding clause of this clause and all reasonable costs paid by the Landlord on
account of any default by the Tenant under this Lease, shall be payable by the
Tenant to the Landlord as Additional Rent on the first day of the next month
next following said payment by the Landlord. The Landlord may, by notice to the
Tenant, demand payment thereof and if not paid by the Tenant within 15 days of
such notice, the amount thereof shall be deemed to be Rent in arrears and the
Landlord may, in addition to any other remedy it may have for the recovery of
the same, distrain for the amount thereof as Rent in arrears.
Wherever in this Lease the Landlord has made a payment which is subsequently
charged to the Tenant for payment, the Landlord shall first provide the Tenant
with evidence showing that such payment was made by the Landlord.
32. DEFAULT
If and whenever:
a) the Rent hereby reserved, or any part thereof, be not paid
when due, or there is non-payment of any other sum which the
Tenant is obligated to pay under any provisions hereof, and
such default shall continue for 5 days after notice by the
Landlord requiring the Tenant to rectify the same; or
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b) the Term hereby granted, or any goods, chattels or equipment of
the Tenant, shall be taken or be exigible in execution or in
attachment or if a writ of execution shall issue against the
Tenant; or
c) the Tenant shall become insolvent or commit an act of bankruptcy
or become bankrupt or take the benefit of any Act that may be in
force for bankrupt or insolvent debtors or become involved in a
winding-up proceeding, voluntary or otherwise, or if a receiver
shall be appointed for the business, property, affairs or
revenues of the Tenant, or if any governmental authority shall
take possession of the business or property of the Tenant; or
d) the Tenant shall make a bulk sale of its goods or move or
commence, attempt or threaten to move its goods, chattels and
equipment out of the Demised Premises (other than in the routine
course of its business) or shall abandon or vacate the Demised
Premises for a period of 15 consecutive days (without written
consent of the Landlord), or fail to conduct business from or
occupy the Demised Premises; or
e) the Tenant shall purport to assign, transfer, sub-let, or grant
a license with respect to any portion or all of the Term or the
Demised Premises without the written consent of the Landlord; or
f) the Tenant fails to remedy any condition giving rise to
cancellation, threatened cancellation, reduction or threatened
reduction of any insurance policy on the Building or any part
thereof within 24 hours after notice thereof by the Landlord; or
g) the Tenant shall not observe, perform and keep any other of the
covenants, agreements, provisions, stipulations and conditions
herein to be observed, performed and kept by the Tenant and
shall persist in such failure for 10 days after notice by the
Landlord requiring that the Tenant remedy, correct, desist or
comply (or in the case of any such breach which reasonably would
require more than 10 days to rectify unless the Tenant shall
commence rectification within the said 10 day period and
thereafter promptly and diligently and continuously proceed with
the rectification of the breach);
then and in any of such cases at the option of the Landlord, the full amount of
the current month's and next ensuing 3 months' installments of Rent shall
immediately become due and payable and the Landlord may immediately distrain for
the same, together with any arrears then unpaid; and the Landlord may without
notice or any form of legal process forthwith re-enter upon and take possession
of the Demised Premises or any part thereof in the name of the whole and remove
and sell the Tenant's goods, chattels and equipment therefrom, any rule of law
or equity to the contrary notwithstanding; and the Landlord may seize and sell
such goods, chattels, and equipment of the Tenant as are in the Demised Premises
or at any place at which the Landlord or any other person may have removed them
in the same manner as if they had remained and been distrained upon the Demised
Premises; and such sale may be effected in the discretion of the Landlord either
by public action or by private treaty, and either in bulk or by individual
item, or partly by one means and partly by another, all as the Landlord in its
entire discretion may decide.
33. CONSEQUENCES OF DEFAULT
If and whenever the Landlord is entitled to re-enter the Demised
Premises, or does re-enter the Demised Premises, the Landlord may either
terminate this Lease by giving written notice of termination to the Tenant, or
by posting notice of termination in the Demised Premises, and in such event the
Tenant will forthwith vacate and surrender the Demised Premises or
alternatively, the Landlord may from time to time without terminating the
Tenant's obligations under this Lease, make alterations and repairs considered
by the Landlord necessary to facilitate a sub-letting and sub-let the Demised
Premises or any part thereof as agent of the Tenant for such term or terms and
at such rent or rents and upon such other terms and conditions as the Landlord
in its reasonable discretion considers advisable. Upon each sub-letting all Rent
and other monies received by the Landlord from the sub-letting will be applied
first to the payment of indebtedness other than Rent due hereunder from the
Tenant to the Landlord, second to the payment of costs and expenses of the
sub-letting including brokerage fees and solicitors' fees and costs of the
alteration and repairs, and third to the payment of Rent due and unpaid
hereunder. The residue, if any, will be held by the Landlord and applied in
payment of future Rent as it becomes due and payable. If the Rent received from
the sub-letting during a month is less than the Rent to be paid during that
month by the Tenant, the Tenant will pay the deficiency to the Landlord. The
deficiency will be calculated and paid monthly. No re-entry by the Landlord will
be construed as an election on its part to terminate this Lease unless a written
notice of that intention is given to the Tenant or posted as aforesaid. Despite
a sub-letting without termination, the Landlord may elect at any time to
terminate this Lease for a previous breach. If the Landlord terminates this
Lease for any breach, the Tenant will pay to the Landlord on demand therefore;
a) both Basic Rent and Additional Rent, up to the time of re-entry
or termination, whichever is later, plus accelerated Rent as
provided for in this Lease;
b) all reasonable costs payable by the Tenant pursuant to the
provisions hereof up until the date of re-entry or termination,
whichever is later;
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c) such reasonable expenses as the Landlord may incur or has
incurred in connection with re-entering or terminating and
reletting, or collecting sums due or payable by the Tenant or
realizing upon assets seized including brokerage expense, legal
fees and disbursements and including the expense of keeping the
Demised Premises in good order and repairing or maintaining the
same or preparing the Demised Premises for re-leasing; and
d) as liquidated damages for the loss of Rent and other income of
the Landlord expected to be derived from this Lease during the
period which would have constituted the unexpired portion of the
Term had it not been terminated, the amount, if any, by which
the rental value of the Demised Premises for such period
established by reference to the terms and provisions of this
Lease, exceeds the rental value of the Demised Premises for such
period established by reference to the terms and provisions upon
which the Landlord re-lets them, if such re-leasing is
accomplished within a reasonable time after termination of this
Lease, and otherwise with reference to all market and other
relevant circumstances. Rental value is to be computed in each
case by reducing the present worth at an assumed interest rate
of 10% per cent per annum all Rent and other amounts to become
payable for such period and where the ascertainment of amounts
to become payable requires it, the Landlord may make estimates
and assumptions of fact which will govern unless shown to be
unreasonable or erroneous.
34. DISTRESS
The Tenant waives and renounces the benefit of any present or future
statute or any amendments thereto taking away or limiting the Landlord's right
of distress and agrees with the Landlord that, notwithstanding any such
enactment, all goods and chattels of the Tenant from time to time on the Demised
Premises shall be subject to distress for arrears of Rent, subject always to the
rights of prior secured parties.
35. SURRENDER
The Tenant shall, subject to any provisions permitted in this Lease to
the contrary, at the expiration of or sooner termination for any reason
whatsoever of this Lease, peacefully surrender and yield up to the Landlord all
and every part of the Demised Premises together with all Buildings, structures,
and fixtures including all appurtenances, alterations, repairs, additions and
replacements thereto all in good order, condition and repair, the exceptions to
the Tenant's repair obligations only excepted. PROVIDED ALWAYS, that the Tenant
shall on the expiration or sooner termination of this Lease sever and remove any
and all fixtures which are not or have not become the property of the Landlord
and the Tenant shall forthwith restore and repair the Demised Premises and any
damage caused as a result of such severance or removal. If the Tenant does not
so sever and remove in the time hereinbefore limited, the Landlord at its option
may do so at the expense of the Tenant and the Tenant will have no interest
whatsoever therein. PROVIDED ALWAYS, that no such fixtures and no goods and
chattels of any kind will, except in the ordinary course of business, be removed
from the Demised Premises during the Term or at any time thereafter without the
written consent of the Landlord first had and obtained, until all Rent in
arrears has been fully paid.
36. RIGHT TO EXHIBIT PREMISES
The Landlord and its agents and employees may at all reasonable times
enter the Demised Premises to exhibit the same for purposes of sale and may at
all reasonable times enter the Demised Premises to exhibit the same for purposes
of re-leasing and, in addition thereto, may display the usual "For Sale" and
"For Lease" signs thereon, provided that the Landlord shall not display "For
Lease" signs until it has received notice from the Tenant that this Lease will
not be renewed.
37. OVERHOLDING
If, at the expiration of the Term or sooner termination hereof, the
Tenant shall remain in possession without any further written agreement or in
circumstances where a tenancy would thereby be created by implication of law or
otherwise, a tenancy from year to year shall not be created by implication of
law or otherwise, but the Tenant shall be deemed to be a monthly tenant only, at
the greater of the then fair market rent for similar space or double Basic Rent
payable monthly in advance plus Additional Rent and otherwise upon and subject
to the same terms and conditions as herein contained, excepting provisions for
renewal (if any) and leasehold improvement allowance (if any), contained herein,
and nothing including the acceptance of any Rent by the Landlord, for periods
other than monthly periods, shall extend this Lease to the contrary except an
agreement in writing between the Landlord and the Tenant and the Tenant hereby
authorizes the Landlord to apply any monies received from the Tenant in payment
of such monthly Rent.
38. WAIVER BY THE LANDLORD
The failure of the Landlord to insist in any one or more cases upon the
strict performance of any of the covenants of this Lease or to exercise any
option herein contained shall not be construed as a waiver or a relinquishment
for the future of such covenant or option and the acceptance of rental by the
Landlord with knowledge of the breach by the Tenant of any covenants or
conditions of this Lease shall not be deemed a waiver of such breach and no
waiver by the Landlord of any provisions of the Lease shall be deemed to have
been made unless expressed in writing and signed by the Landlord.
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39. NOTICES
Any notice, advice, document or writing required or contemplated by any
provision thereof shall be given in writing and if to the Landlord, either
delivered personally to an officer of the Landlord or mailed by prepaid mail
addressed to the Landlord at the said local office address of the Landlord shown
above, or sent by facsimile or similar means of electronic communication and if
to the Tenant, either delivered personally to the Tenant (or to an officer of
the Tenant, if a corporation) or mailed by prepaid mail address to the Tenant at
the Demised Premises, or if an address of the Tenant is shown in the description
of the Tenant above, to such address or if sent by facsimile or similar means of
electronic communication to the number notified by either party to the other.
Every such notice, advice, document or writing shall be deemed to have been
given when delivered personally, of if mailed as aforesaid, upon the fifth day
after being mailed or if sent by facsimile or similar means of electronic
communication on the day following the date of transmission. The Landlord may
from time to time by notice in writing to the Tenant designate another address
as the address to which notices are to be mailed to it, or specify with greater
particularity the address and persona to which such notices are to be mailed and
may require that copies of notices be sent to an agent designated by it. The
Tenant may, if an address of the Tenant is shown in the description of the
Tenant above, from time to time by notice in writing to the Landlord, designate
another address as the address to which the notices are to be mailed to it, or
specify with greater particularity the address to which such notices are to be
mailed.
40. DELETED
41. SUBORDINATION & ACKNOWLEDGEMENTS
In the event of registration of this Lease (or a caveat based thereon)
in the Lands Titles Office by the Tenant, and in the further event of a mortgage
or mortgages being registered against the said Lands and Building, such mortgage
or mortgages shall take priority over this Lease in every respect and the Tenant
shall within 10 days of the request of the Landlord execute and deliver to the
Landlord any and all documents required to give effect to the foregoing,
including postponements under the appropriate Land Titles Act for the Province
of Ontario dealing with such matters provided that the mortgagee shall deliver
to the Tenant an agreement which shall permit the Tenant to continue in quiet
possession of the Demised Premises in accordance with the terms of this Lease as
long as the Tenant is not in default hereunder, whether such mortgage is in good
standing or not.
The Tenant covenants and agrees to promptly execute and deliver to the
Landlord and, if required by the Landlord, to any mortgagee (including any
trustee under a deed of trust and mortgage) designated by the Landlord, a
certificate in writing as to the then status of this Lease, including whether it
is in full force and effect, as modified or unmodified, confirming the Rent
payable hereunder and the state of accounts between the Landlord and the Tenant
and the existence or non-existence of defaults and any other matters pertaining
to the Lease as to which the Landlord shall request of such certificate.
PROVIDED FURTHER, that the Tenant, whenever requested by any mortgagee
(including any trustee under a deed of trust and mortgage), shall attorn to such
mortgagee as a Tenant upon all terms and conditions of this Lease and shall
execute promptly whenever requested by the Landlord or by such mortgagee an
instrument of attornment.
42. DELETED
43. TIME OF ESSENCE
Time shall be of the essence hereof.
44. HEADINGS
The Landlord and the Tenant hereto agree that the headings form no part
of this Lease and shall be deemed to have been inserted for the convenience of
reference only.
45. INTERPRETATION
Where the singular and masculine or neuter are used throughout this
Lease they shall be construed as if the plural and feminine had been used where
the context of the party or parties hereto so requires and the rest of the
sentence shall be construed as if the necessary grammatical and terminological
changes thereby rendered necessary had been made.
46. ACCEPTANCE
The Tenant does hereby accepts this Lease of the herein described
Demised Premises to be held by it as Tenant and subject to the conditions,
restrictions and covenants herein set forth.
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47. GOVERNING LAWS
This Lease and any rules and regulations adopted hereunder shall be
governed by the laws of the Province of Ontario. Should any provision of this
Lease and/or its conditions be illegal or not enforceable under the laws of the
Province of Ontario, it or they shall be considered severable, and this Lease
and its conditions shall remain in force and be binding upon the parties as
though the provision or provisions had never been included.
48. DELETED
49. DELETED
50. REPRESENTATIONS
The Tenant hereby acknowledges that the Demised Premises are taken
without representation of any kind on the part of the Landlord or its agent
other than as set forth herein. It is understood and agreed that no
representative or agent of the Landlord or Tenant is or shall be authorized or
permitted to make any representation with reference thereto, or to vary or
modify this agreement in any way, and that this Lease contains all of the
agreements and conditions made between the parties hereto respecting the Demised
Premises and that any addition to or alteration of or changes in this Lease or
other agreements hereafter made or conditions created to be binding, must be
made in writing and signed by both parties.
51. BINDING ON SUCCESSORS & APPROVED ASSIGNS
This indenture and everything herein contained shall enure to the
benefit of and be binding upon the parties hereto, the successors and assigns of
the Landlord and the approved successors and assigns of the Tenant.
52. SALE OR FINANCING OF LANDS OR ASSIGNMENT BY LANDLORD
The Tenant acknowledges that the rights of the Landlord under this
Lease may be mortgaged, charged, transferred or assigned to a purchaser or to a
mortgagee or trustee. The Tenant further acknowledges that in the event of the
sale or lease by the Landlord of the Lands or a portion thereof containing the
Demised Premises or the assignment by the Landlord of this Lease or of any
interest of the Landlord hereunder, and to the extent that such purchaser or
assignee, has assumed the covenants and obligations of the Landlord hereunder,
the Landlord shall, without further written agreement, be freed and relieved of
liability upon such covenants and obligations.
53. REGISTRATION
The Tenant covenants and agrees with the Landlord not to register this
Lease in any Land Registration Office in the Province of Ontario without the
prior written consent of the Landlord. If such consent is provided such notice
of Lease or caveat shall be in such form as the Landlord shall have approved in
writing and upon payment by the Tenant of the Landlord's reasonable fee (not to
exceed $250.00) for same and all applicable transfer or recording taxes or
charges. The Tenant shall remove and discharge at the Tenant's expense
registration of such a notice or caveat at the expiry or earlier termination of
the Term, and in the event of the Tenant's failure to so remove or discharge
such notice or caveat after 10 days written notice by the Landlord to the
Tenant, the Landlord may in the name and on behalf of the Tenant execute a
discharge of such a notice or caveat in order to remove and discharge such
notice of caveat and for the purpose thereof the Tenant hereby irrevocably
constitutes and appoints any officer of the Landlord the true and lawful
attorney of the Tenant. The Tenant will forthwith, upon demand, reimburse the
Landlord for the costs of any such action.
54. LAND USE CAVEAT
The Tenant covenants and agrees that it will not do or cause to be done
any act or make or cause to be made any omission which will result in a breach
or contravention of any land use caveats, development control caveats,
restrictive covenants or similar instruments presently registered against title
to the Lands, provided that the Tenant has been given prior notice of such
caveats, restrictive covenants or similar instruments by the Landlord.
Registration of such caveats, restrictive covenants or similar documents on
title to the Lands shall not constitute notification of the Tenant under this
paragraph.
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55. EXCLUSION OF LIABILITY
Except as otherwise provided in this Lease, it is agreed between the
Landlord and the Tenant that:
(a) The Landlord, its agents, servants and employees shall not be
liable for damage or injury to any property of the Tenant which
is entrusted to the care or control of the Landlord, its agents,
servants or employees.
(b) The Landlord, its agents, servants and employees, shall not be
liable nor responsible in any way for any personal or
consequential injury of any nature whatsoever that may be
suffered or sustained by the Tenant or any employee, agent,
customer, invitee or licensee of the Tenant or any other person
who may be upon the Demised Premises or for any loss of or
damage or injury to any property belonging to the Tenant or to
its employees or to any other person while such property is on
(he Demised Premises and, in particular (but without limiting
the generality of the foregoing), the Landlord shall not be
liable for any damage or damages of any nature whatsoever to any
such property or persons caused by the failure, by reason of a
breakdown of any apparatus or part thereof or other cause, to
supply adequate drainage, snow or ice removal, heating, air
conditioning, or electricity, or by reason of the interruption
of any public utility or service or in the event of steam,
water, rain, or snow which may leak into, issue, or flow from
any part of the Building or from the water, steam, sprinkler, or
drainage pipes or plumbing works of the same, or from any other
place or quarter or for any damage caused by anything done or
omitted by any lessee. The Tenant shall not be entitled to any
abatement of Rent in respect of any such condition, failure or
interruption of service.
(c) The Landlord, its agents, servants, employees or contractors
shall not be liable for any damage suffered to the Demised
Premises or the contents thereof by reason of the Landlord, its
agents, servants, employees or contractors, entering upon the
Demised Premises as herein provided to undertake any examination
thereof or any work therein or in the case of an emergency.
56. LANDLORD'S RIGHT TO PERFORM
If the Tenant falls to perform any of the covenants or obligations of
the Tenant under or in respect of this Lease, the Landlord may from time to time
at its discretion perform or cause to be performed any of such covenants or
obligations or any part thereof and for such purpose as may be requisite and may
enter upon the Demised Premises to do such things, and all expenses incurred and
expenditures made by or on behalf of the Landlord shall be paid by the Tenant as
Additional Rent on the first day of the next month next following the payment by
the Landlord, and if the Tenant fails to pay the same the Landlord may add the
same to the Rent and recover the same by all remedies available to the Landlord
for recovery of Rent in arrears; PROVIDED HOWEVER, that if the Landlord
commences and completes either the performance of any such covenants or
obligations or any part thereof, the Landlord shall not be obliged to complete
such performance or be later obliged to act in like fashion.
57. EXPROPRIATION
The Landlord and the Tenant shall co-operate, each with the other, in
respect of any public taking of the Demised Premises or any part thereof so that
the Tenant may receive the maximum award to which it is entitled in law for
relocation costs and business interruption and so that the Landlord may receive
the maximum award for all other compensation arising from or relating to such
public taking including all compensation for the value of the Tenant's leasehold
interest subject to the public taking) which shall be the property of the
Landlord, and the Tenant's rights to such compensation are hereby assigned to
the Landlord. If the whole or any part of the Demised Premises is publicly
taken, as between the parties hereto, their respective rights and obligations
under this Lease shall continue until the day on which the public taking
authority takes possession thereof. If the whole or any part of the Demised
Premises is publicly taken, the Landlord shall have the option, to be exercised
by written notice to the Tenant, to terminate this Lease and such termination
shall be effective on the day the public taking authority takes possession of
the whole or the portion of the Lands and Building publicly taken. Rent and all
other payments shall be adjusted as of the date of such termination and the
Tenant shall, on the date of such public taking, vacate the Demised Premises and
surrender the same to the Landlord, with the Landlord having the right to
re-enter and re-possess the Demised Premises discharged of this Lease and to
remove all persons therefrom. In this clause, the words "public taking" shall
include expropriation and condemnation and shall include a sale by the Landlord
to an authority with powers of expropriation, condemnation or taking, in lieu of
or under threat of expropriation or taking and "publicly taken' shall have a
corresponding meaning.
58. DELAY
Except as herein otherwise expressly provided, if and whenever and to
the extent that either the Landlord or the Tenant shall be prevented, delayed or
restricted in the fulfillment of any obligation hereunder in respect of the
supply or provision of any service or utility, the making of any repair, the
doing of any work or any other thing (other than the payment of monies required
to be paid by the Tenant to the Landlord hereunder) by reason of:
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(a) strikes or work stoppages;
(b) being unable to obtain any material, service, utility or labour
required to fulfil such obligation;
(c) any statute, law or regulation of, or inability to obtain any
permission from any government authority having lawful
jurisdiction preventing, delaying or restricting such
fulfillment; or
(d) other unavoidable occurrence,
the time for fulfillment of such obligation shall be extended during the period
in which such circumstance operates to prevent, delay or restrict the
fulfillment thereof, and the other party to this Lease shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned;
provided that nevertheless the Landlord will use reasonable efforts to maintain
services essential to the use and enjoyment of the Demised Premises and provided
further that if the Landlord shall be prevented, delayed or restricted in the
fulfillment of any such obligation hereunder by reason of any of the
circumstances set out herein and to fulfil such obligation could not, in the
reasonable opinion of the Landlord, be completed without substantial additions
to or renovations of the Lands and Building, the Landlord may on 60 days written
notice to the Tenant terminate this Lease.
59. SCHEDULES
The provisions of the following Schedules attached hereto shall form
part of this Lease as if the same were embodied herein.
Schedule "A" - Legal Description of Property
Schedule "B" - Outlined of Demised Premises
Schedule "C" - Rules and Regulations
Schedule "D" - Option to Renew
Schedule "E" - Alteration and Installations
Schedule "F" - Structural Maintenance
Schedule "G" - Mechanical Maintenance
Schedule "H" - Basic Rent Free Period
Schedule "I" - Vacant Possession
Schedule "J" - Landlord's Work
Schedule "K" - Space Planner
Schedule "L" - Right of First Refusal - Purchase
Schedule "M" - Cash Allowance
Schedule "N" - Occupancy
IN WITNESS WHEREOF the parties hereto have executed this agreement by
their respective duly authorized officers in that behalf, as of the day and year
first above written.
XXXXXXXXX RESEARCH LIMITED
Per: /s/ (President)
---------------------------------
/s/ Per: /s/ (VP Operations)
------------------------------ ---------------------------------
Witness as to
Signing by Tenant
of officer(s) of Tenant
LEHNDORFF MANAGEMENT LIMITED
in its capacity as agent for the Owners
Per: /s/ Xxxxxx Mostowich
---------------------------------
Title: Senior Vice President
Illegible
------------------------------ Per: /s/ Xxxxxx Xxxxxxx-Navona
Witness as to ---------------------------------
Signing by Landlord Title:
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SCHEDULE A
LEGAL DESCRIPTION OF LANDS
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the City of Mississauga, in the Regional Municipality of Peel
(formerly in the Town of Mississauga, in the County of Peel), and being composed
of Part Blocks J and I, Plan 928 and designated as Parts 1 and 3 on a reference
plan of survey deposited in the Land Registry Office of the Registry Division of
Peel (No. 43) as Plan 43R-1619.
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SCHEDULE B
OUTLINED OF DEMISED PREMISES
[SURVEYORS CERTIFICATE]
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SCHEDULE C
RULES AND REGULATIONS
1. The Tenant shall not perform any act or carry on any practice which may
injure or detrimentally affect the use of any common areas and facilities
or be a nuisance to any other tenants.
2. The Tenant shall not burn any trash or garbage in or about the demised
premises.
3. The Tenant shall not keep, display or store any merchandise on, or
otherwise obstruct common areas and roadways adjacent to the demised
premises.
4. The Tenant shall not keep, place or store any garbage or waste containers
outside of the demised premises, other than a waste bin to be located in
the rear parking.
5. No dangerous or explosive materials shall be kept or permitted to be kept
in the Leased Premises except as is stated in Rider 6A governing the
quantities and compliance required for use in the Tenant's operations.
6. The Tenant shall give the Landlord prompt notice of any accident to or any
defect in the plumbing, heating, air-conditioning, ventilating, mechanical
or electrical apparatus or any other part of the Building.
7. If the Tenant desires any electrical or communications wiring, the
Landlord reserves the right to direct qualified persons as to where and
how the wires are to be introduced, and without such directions no borings
or cutting for wires shall take place. No other wires or pipes of any kind
shall be introduced without the prior written consent of the Landlord.
8. The Tenant shall permit the periodic closing of lanes, driveways and
passages for the purpose of preserving the Landlord's rights over such
lanes, driveways and passages.
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SCHEDULE "D"
Option to Renew (Negotiated)
(a) The Landlord covenants with the Tenant that if the Tenant duly and regularly
pays the Rent and any and all amounts required to be paid pursuant to this Lease
and performs each and every covenant, proviso and agreement on the part of the
Tenant to be paid, rendered, observed and performed herein, the Landlord will at
the expiration of the then expiring term on written notice by the Tenant to the
Landlord given by the Tenant not less than six (6) months prior to the
expiration of the then expiring term grant to the Tenant a five (5) year renewal
of lease of the Demised Premises (the "Renewal Term") on the same terms and
conditions as in the standard lease agreement then, at the commencement of the
Renewal Term, being used by the Landlord for the Building save and except the
right of further renewal, Landlord's Work (if any), Basic Rent, the tenant
improvement allowance (if any) and Basic Rent Free Period (if any).
(b) The Basic Rent for the Renewal Term shall be determined by reference to
prevailing rental rates for similar space in a similar area in which the Demised
Premises are situate, and if the Landlord and Tenant are unable to agree on
prevailing rental rates then the rental shall be determined by arbitration
conducted in accordance with the provisions of the Arbitration Act.
(c) Notwithstanding the above, if the Tenant does not exercise the Option to
Renew in accordance with Schedule "D" then this Option to Renew is null and
void.
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SCHEDULE "E"
ALTERATION AND INSTALLATIONS
The Tenant shall have the right to make alterations and installations at its own
expense, from time to time during the lease term or any renewal thereof,
provided it has the prior written consent of the Landlord, which is not to be
unreasonably withheld and further provided that it agrees to restore the
premises to their original condition at the expiration of the lease term,
reasonable wear and tear excepted, at the Landlord's option.
The Tenant's obligation to restore the Demised Premises shall not, however,
apply to any alterations or improvements which have been made to the Demised
Premises by either the Landlord or the Tenant under the Offer to Lease or under
this Lease in anticipation of or in connection with the Tenant's occupation of
the Demised Premises.
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SCHEDULE "F"
STRUCTURAL MAINTENANCE
The Landlord shall be responsible for all structural repairs including the roof
if not occasioned by the fault of the Tenant or those for whom the Tenant is
responsible, or repairs recoverable through insurance policies.
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SCHEDULE "G"
MECHANICAL MAINTENANCE
During the Term of this Lease, the Tenant shall be responsible for the
maintenance and servicing of all mechanical systems including but not limited to
the HVAC, plumbing and electrical systems.
Prior to occupancy by the Tenant, the Landlord shall cause the HVAC
systems, roof deck and membrane and electrical wiring to be inspected by the
Landlord's engineers. All repairs or replacements recommended by the Landlord's
engineers shall be carried out by the Landlord at the Landlord's sole expense.
The Landlord shall, prior to occupancy, provide the Tenant with written
engineering reports with respect to the condition of the roof deck and membrane,
the HVAC systems and electrical wiring and with a complete report setting out
all repairs or replacements made hereunder.
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SCHEDULE "H"
BASIC RENT FREE PERIOD
The Tenant shall not be required to pay Basic Rent for the first two (2) months
of the Term of this Lease (herein called the "Basic Rent Free Period").
All other terms and provisions of this Lease shall, however, remain in full
force and effect during the Basic Rent Free Period and thereafter including
without limitation the payment of Additional Rent.
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SCHEDULE "I"
VACANT POSSESSION
Provided the Lease has been executed, the Landlord shall provide vacant
possession of the Premises on July 1, 1995 in order that the Tenant or Landlord
may complete any work required prior to the Lease commencement date. This vacant
possession period from July 1, 1995 to August 31, 1995 shall be on a total rent
free basis. Tenant agrees to carry appropriate liability insurance during this
period. All terms of the Lease shall apply during this period except payment of
rent, taxes, utilities and maintenance.
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SCHEDULE "J"
LANDLORD'S WORK
The Landlord shall, prior to September 1, 1995 complete the following work at
its own expense using quality materials and workmanship. All work shall be
completed in accordance with all applicable codes governing such work:
i) re-coat and reline currently paved parking area with a proper asphalt
coating;
ii) ensure that all mechanical systems including but not limited to HVAC,
electrical, plumbing and hardware systems have been properly serviced and
are in good working order;
iii) construct a dropped T-bar ceiling complete with adequate lighting,
heating and air-conditioning for the warehouse area shown shaded on the
attached Schedule "B". T-bar ceiling shall be at a height of 12' above
warehouse floor.
(iv) repair concrete slab adjacent to front entrance;
v) carry out additional repairs specified in Tenant's letter to Landlord
dated June 13, 1995.
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SCHEDULE "K"
SPACE PLANNER
The Landlord agrees to furnish Tenant with a space planner in order to price and
design modifications to the building that are necessary to the Tenant's
operation. The cost of the space planner's feasibility drawings shall be borne
by the Landlord. All working drawings are the responsibility of the Tenant.
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SCHEDULE "L"
RIGHT OF FIRST REFUSAL - PURCHASE
The Tenant shall have the Right of First Refusal to purchase the said property
at any time or times during its lease term or renewal thereof if and when the
property becomes available for sale. Pursuant to this Right of First Refusal,
the Landlord agrees to notify the Tenant when it has received a bona fide offer
to purchase the property from a third party arms length purchaser which the
Landlord is prepared to accept. Upon receipt of written notice and a copy of
said offer, the Tenant shall have a period of 72 hours to match the terms of the
offer which the Landlord must accept.
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SCHEDULE "M"
CASH ALLOWANCE
Provided the Lease has been executed by both parties, the Landlord agrees to
provide the Tenant with a cash allowance of One Hundred and Fifty Thousand
Dollars ($150,000.00) CDN payable by certified cheque unless otherwise mutually
agreed upon, in accordance with the following payment schedule set forth below.
This cash allowance will be applied against moving expenses and other costs
necessary to the operation of the Tenant's business.
a) Fifty Thousand Dollars ($50,000.00) CDN payable within seven (7) days of
signing of the Lease by both parties and occupancy of the Premises.
b) Fifty Thousand Dollars ($50,000.00) CDN payable on August 1, 1995
provided the Tenant has delivered satisfactory proof of expenditure of
the initial Fifty Thousand Dollars ($50,000.00) CDN.
c) Fifty Thousand Dollars ($50,000.00) CDN payable on the Lease commencement
date provided the Tenant has delivered satisfactory proof of expenditure
of the previous Fifty Thousand Dollars CDN.
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SCHEDULE "N"
OCCUPANCY
The Premises shall be given to the Tenant in a clean and broom swept condition
free of any refuse or debris. Any damage caused by the vacating of the Premises
by the existing tenant shall be repaired at the cost of the existing tenant
(Savin Canada Inc.) or the Landlord.
The Premises shall be repaired as required by the letter from the Tenant to the
Landlord dated June 13, 1995.
