Exhibit 10(g)(g)
INDUSTRIAL SINGLE TENANCY
THIS INDENTURE made the 9th day of April, 1996
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
BETWEEN:
ROLEX DEVELOPMENTS LIMITED
(herein called "Landlord")
OF THE FIRST PART
- and -
LIUSKI INTERNATIONAL TORONTO, INC.
(herein called "Tenant")
OF THE SECOND PART
1. DEMISE
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of the Tenant to be paid, observed and
performed, the Landlord hereby demises and leases to the Tenant, and the
Tenant rents from the Landlord, 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 and Province of Ontario
and being more particularly described in Schedule "A" annexed hereto, and
being municipally known as 0000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx,
together with all building(s) and improvements erected thereon and used in
connection therewith and all appurtenance thereto from time to time (the
"Building") (all of which are collectively hereinafter referred to as the
"Leased Premises").
2. TERM
(a) TO HAVE AND TO HOLD the Leased Premises, unless sooner terminated as
hereinafter provided, for and during the term (the "Term") of four (4)
years, to be computed from and inclusive of the 1st day of May, 1996,
(the "Commencement Date") and thenceforth next ensuing and to be fully
complete and ended on the 30th day of April, 2000.
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(b) Provided, and it is hereby agreed, that if due to the failure of the
Landlord for any reason whatsoever to complete the Landlord's work set
out in Schedule "C" attached or to make available the services which
the Landlord is hereby obligated to furnish, the Leased Premises or
any part thereof are not ready for occupancy by the Tenant on the
Commencement Date as set out in Paragraph 2(a) hereof, no part of the
rent or only a proportionate part thereof in the event that the Tenant
shall occupy a portion of the Leased Premises, shall be payable for
the period prior to the date when the Leased Premises are ready for
occupancy and the full rent shall accrue only after such
aforementioned date. The Tenant hereby agrees to accept such abatement
of rent in full settlement of any and all claims which the Tenant may
otherwise have by reason of the Leased Premises not being ready
occupancy on the Commencement Date, and in such event, the
commencement but not the expiration dates of the Term set out in
Paragraph 2(a) hereof shall be extended accordingly. Provided further,
that when the Landlord has substantially completed the Leased Premises
in accordance with the provisions of this Lease and The Construction
Lien Act, R.S.O. 1990 and amendments thereto, delivered possession of
the Leased Premises to the Tenant and made available the required
services, the Tenant shall not be entitled to any abatement of rent
for any delay in occupancy due to the Tenant's failure to complete all
installations or other work required to be completed by the Tenant in
accordance with the provisions of this Lease or for the purpose of
carrying on its business operations in the Leased Premises.
(c) The Tenant shall, upon request of the Landlord execute an
acknowledgement of the Commencement Date of the Term. Landlord
acknowledges that the Tenant will occupy and conduct business in and
from the Leased Premises commencing one month prior to the
Commencement Date.
3. USE OF PREMISES
The Tenant shall continuously, actively and diligently use and occupy the
Leased Premises only for office, warehouse and distribution of electronic
equipment and for no other purpose. Provided the Tenant, in the use and
occupation of the Leased Premises and in the prosecution or conduct of the
foregoing business therein, shall comply with the requirements of all laws,
ordinances, rules and regulations of the federal, provincial and municipal
authorities and with any direction or certificate of occupancy issued
pursuant to any laws by any public officer or officers. The Tenant shall
not use or permit to be used any part of the Leased Premises for any
dangerous, noxious, or offensive trade or business and will not cause or
maintain any nuisance in, at, or on the Leased Premises.
4. RENT
The Tenant shall pay from and after the Commencement Date and throughout
the Term, to the Landlord, in lawful money of Canada, without any prior
demand therefor, and without any deduction, abatement, set-off or
compensation whatsoever, as annual minimum Rent (the "Minimum Rent"), the
sum set out below, payable in equal consecutive monthly installments as set
out below, each in advance of the first day of each calendar month
throughout he Term. If the Term commences on any day other than the first
or ends on any day other than the last day of a calendar month all rent for
the fractions of a month at the commencement or expiration of the Term
shall be pro-rated on a per diem basis based on a period of three hundred
and sixty-five (365) days.
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The Minimum Rent is as follows:
Miminum Rent Minimum Rent
From To Per Month Per Annum
----------- -------------- ------------ ------------
May 1, 1996 April 30, 1997 $10,230.60 $122,767.20
May 1, 1997 April 30, 1998 $10,941.06 $131,292.70
May 1, 1998 April 30, 1999 $11,651.52 $139,818.20
May 1, 1999 April 30, 2000 $12,361.98 $148,343.70
5. PAYMENT
All payments required to be made by the Tenant under or in respect of this
Lease shall be made to the Landlord at the Landlord's office at 00 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0, c/o Rolex Developments Limited or to
such agent or agents of the Landlord or at such other place or address as
the Landlord shall hereafter from time to time direct in writing to the
Tenant.
6. DEPOSIT
The Landlord hereby acknowledges receipt from the Tenant of the sum of
Twenty-Two Thousand Eight Hundred and Fifty-Five Dollars and Eighty-Five
Cents ($22,855.85) (the "Deposit") to be applied by the Landlord in the
following manner: (i) first, the amount of Fifteen Thousand Three Hundred
and Fifty-Five Dollars and Eighty-Five Cents ($15,355.85) is to be applied
on account of all rentals, including all estimated additional rent and GST,
payable by the Tenant for the first month of the Term; and (ii) secondly,
the balance of such Deposit, namely the sum of Seven Thousand Five Hundred
Dollars ($7,500.00), is to be applied as security for the due performance
by the Tenant of all covenants and obligations on its part herein
contained. The Landlord shall be entitled, as its sole discretion, to apply
to amount of the balance of the Deposit as set out in the immediately
preceding Subparagraph (ii), to any damage resulting from any default by
the Tenant of the covenants and obligations hereunder or towards the
payment or reduction of any claim of the Landlord against the Tenant. Any
remaining balance of the Deposit shall be returned by the Landlord to the
Tenant when Tenant's obligations under this Lease have been fulfilled,
including at the time of early termination as described in Schedule "E"
attached hereto.
7. ADDITIONAL RENT
Any and all sums of money or charges required to be paid by the Tenant
under this Lease (except Minimum Rent), shall be deemed and paid as
additional rent, whether or not the same are designated as "additional
rent" hereunder, or whether or not the same are paid to the Landlord or
otherwise, and all such sums are to be payable in lawful money of Canada
without any deduction, set-off or abatement whatsoever. Additional rent is
due and payable with the next monthly installments of Minimum Rent, unless
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otherwise provided herein, but in any event, such additional rent is not
payable as part of Minimum Rent. Additional rent may be estimated by the
Landlord from time to time and such estimated amount is payable in monthly
installments in advance with annual adjustments, if necessary, and all
additional rent is deemed to be accruing due on a day to day basis. The
Additional Rent is estimated to be $1.45 per square foot per annum for the
1996 calendar year.
8. RENT AND ADDITIONAL PAST DUE
If the Tenant fails to pay, within ten (10) days of when the same is due
and payable, any rent or additional rent payable by the Tenant under this
Lease, such unpaid amount shall bear interest from the due date thereof to
the date of payment at the lesser of the rate of eighteen percent (18%) per
annum (one and one-half percent (1-1/2%) per month compounded annually), or
the maximum annual rate permitted by law.
9. TENANT'S COVENANTS
The Tenant covenants with the Landlord:
(a) Payment of Rent
---------------
To pay rent and additional rent in the manner of Rent and at the times
herein reserved.
(b) Business Taxes
--------------
That in each and every year during the Term, the Tenant shall pay as
additional rent and discharge within ten (10) days after the same
becomes due and payable, all taxes, rates, duties, assessments and
other charges that may be levied, rated, charged or assessed against
or in respect of all improvements, equipment and facilities on or in
the Leased Premises and every tax and licence fee in respect of any
and every business carried on thereon or therein or in respect of the
use or occupancy thereof by the Tenant and any and every permitted
occupant of the Leased Premises (other than corporate income, profits
or excess profits taxes assessed upon the income of the Landlord),
whether any such assessment tax, rate duty or licence fee is charged
by any federal, municipal, provincial, school or other bodies during
the Term. The Tenant will indemnify and keep indemnified the Landlord
for and against payment for all loss, costs, reasonable charges and
expenses, occasioned by or arising from any and all such taxes,
levies, rates, duties, assessments, licence fees (including all real
property taxes pursuant to Paragraph 9(c) hereof), and any and all
taxes which may in the failure be levied in lieu thereof. Any such
loss, costs, reasonable charges and expenses suffered by the Landlord
pursuant to this Paragraph 9(b) may be collected by the Landlord as
rent with all rights of distress and otherwise as reserved to the
Landlord in respect of rent in arrears. The Tenant further covenants
and agrees that upon the request of the Landlord, the Tenant will
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promptly deliver to the Landlord for inspection receipts for payment
of all taxes, rates, duties, assessments and other charges payable by
the Tenant pursuant to this Paragraph 9(b) which were due and payable
up to one month prior to such request and will furnish such other
information in connection therewith as the Landlord may reasonably
require. Provided further, if the Tenant or any permitted occupant of
the Leased Premises shall elect to have the Leased Premises or any
part thereof assessed for separate school taxes, the Tenant shall pay
to the Landlord as additional rent, as soon as the amount of such
separate school taxes is ascertained, any amount by which the amount
of separate school taxes exceeds the amount which would otherwise have
been payable for school taxes had such election not been made by the
Tenant or the permitted occupant of the Leased Premises.
(c) Realty Taxes
------------
(i) That the Tenant will, as additional rent, in each and every year
during the Term and within the time or times hereinafter
provided, pay directly to the Landlord or to the taxing authority
as the Landlord may direct from time to time, and discharge all
real property taxes (including local improvement rates, impost
charges or levies), rates, duties and assessments of any nature
or kind that may be levied, rated, charged or assessed on the
basis of a separate real property tax xxxx and separate real
property assessment notice against the Leased Premises or any
part thereof, from time to time by any taxing authority, whether
federal, provincial, municipal, school or otherwise, and
including, but without limitation, any such taxes payable by the
Landlord which are imposed in lieu of or as a substitute for such
real property taxes or on account or the Landlord's ownership of
the Building, whether of the foregoing character or whether same
existed at the commencement of the Term. The Tenant agrees to
provide the Landlord within ten (10) days after demand therefor
by the Landlord with a copy or any separate real property tax
bills and separate real property assessment notices for the
Leased Premises. The Tenant will, upon request, promptly deliver
to the Landlord receipts for payment or all such real property
taxes paid to any such taxing authorities, as aforesaid, and will
furnish and deliver all such other information in connection
therewith as the Landlord may reasonably require.
(ii) The amount payable by the Tenant pursuant to Paragraph 9(c)(i)
may be estimated by the Landlord and shall be payable by the
Tenant for the period covering the first nine (9) months of each
calendar year throughout the Term 'or as may be estimated by the
Landlord for such other period or periods as the Landlord may
determine from time to time upon receipt of written notification
from the landlord, the Tenant shall pay to the Landlord the
amount so estimated all monthly installments in advance on the
first day of each calendar month during such period, together
with all other rental payments provided for in this Lease.
Notwithstanding anything hereinbefore contained, if the Landlord
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decides to be responsible in the first instance for the payment
or real property taxes in respect of the Leased Premises in
accordance with the provisions of this Paragraph 9(c) and if at
any time when payment by the Landlord of the real property taxes
(including local improvement rates), whether interim, instalment
or final is due, the Landlord shall not have on deposit a
sufficient sum to pay the full amount of such real property
taxes, the Tenant shall forthwith, upon demand, pay, as
additional rent, the amount, determined as aforesaid, of any such
deficiency to the Landlord. When the final real property tax xxxx
in any year has been received, which relates to the period for
which such estimated payments have been made by the Tenant, as
aforesaid, the parties hereto agree to adjust all payments made
by the Tenant on account of real property taxes in accordance
with such final real property tax xxxx. The Tenant shall pay any
and all costs and expenses incurred by the Tenant in respect of
any appeal or contestation conducted by the Landlord or the
Tenant (with the prior consent of the Landlord) of the real
property taxes levied or assessed against the Leased Premises.
(d) Utilities
---------
That the Tenant shall be solely responsible for and shall
promptly pay all charges for water, gas, electricity, telephone
and any and all other utilities used or consumed in, or, any
other charges levied or assessed on or in respect to, the Leased
Premises, and for all fittings, machines, apparatus or other
things leased in respect thereof, and for all work or services
performed by any corporation or commission in connection with
such public or private utilities. In no event shall the Landlord
be liable for, nor have any obligation with respect to, any
interruption or cessation of, or any failure in the supply of any
such utilities, services or systems, including, without
limitation, the water and sewage systems, to the Building or to
the Leased Premises, whether or not supplied by the Landlord or
others, unless such interruption, cessation or failure is due to
the negligence of the Landlord, its agents or employees.
(e) Repairs
-------
That the Tenant shall, at its sole cost and expense and at all
times, keep and maintain the whole of the Leased Premises and
every part thereof (including, without limitation, all entrances,
glass, doors, fixtures, equipment and appurtenances thereof and
improvements thereto) in good order and condition and shall
promptly make all needed repairs and replacements therein and
thereto and, without limiting the generality of the foregoing,
the Tenant shall keep the Leased Premises well painted, clean and
h~ a tidy condition, all as a careful owner would do.
Notwithstanding the foregoing, if any repairs or replacements to
the Leased Premises or to any of the improvements therein relate
to or affect the exterior, grounds or structure of the Leased
Premises, all work in respect thereof shall be performed only by
the Landlord, at the Tenant's sole cost and expense. Upon
completion thereof the Tenant shall pay to the Landlord, upon
demand, the Landlord's reasonable cost relating to any such
repairs or replacements.
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(f) Entry by Landlord
-----------------
That it shall be lawful for the Landlord and its agent(s) at all
reasonable times during the Term, upon two (2) hours notice to
the Tenant, to enter the Leased Premises to inspect the condition
thereof. Where an inspection reveals that repairs or replacements
are necessary, the Landlord shall give to the Tenant notice in
writing, and immediately thereafter the Tenant will forthwith
proceed to make all necessary repairs or replacements in a good
and workmanlike manner and to the satisfaction of the Landlord,
so as to complete same within the reasonable time or times
provided for in the notice delivered by the Landlord as
aforesaid. The failure by the Landlord to give notice shall not
relieve the Tenant from any of its obligations to repair or
replace in accordance with the provisions hereof. Provided
further, that if the Tenant refuses or neglects to repair
promptly and to the reasonable satisfaction of the Landlord as
required pursuant to the provisions Of Paragraph 9(e) hereof or
in accordance with any notice received from the Landlord pursuant
to the provisions of this Paragraph 9(f), the Landlord may, but
shall not be obligated to, make such repairs or replacements
without liability to the Tenant for any loss or damage which may
occur to the Tenant's property or to the Tenant's business by
reason thereof and upon completion, the Tenant shall forthwith
pay upon demand the Landlord's cost for making any such repair or
replacements. The Tenant agrees that the making of any repairs or
replacements by the Landlord pursuant to this paragraph 9(f) is
not a re-entry or a breach of any covenant for quiet enjoyment
contained in this Lease.
(g) Surrender of Premises
---------------------
That, at the expiration or sooner termination of the Term the
Tenant shall peaceably surrender and yield up vacant possession
of the Leased Premises to the Landlord in as good condition and
repair as the Tenant is required to maintain the Leased Premises
throughout the Term. The Tenant shall surrender all keys For the
Leased Premises to the Landlord at the place then fixed for the
payment of Minimum Rent and shall inform the Landlord of all
combinations of all locks, safes and vaults of any kind in the
Leased Premises. The Tenant shall, however, if requested by the
Landlord, remove at its sole cost and expense all improvements,
erections, alterations, fixtures or other appurtenances made,
placed or erected at any time or times prior to or during the
Term by the Tenant or the Tenant's contractors in or on the
Leased Premises and shall repair, at its sole cost and expense,
all damage to the Leased Premises caused by their installation
anti/or removal. The Tenant's obligation to observe and perform
the covenant contained in this Paragraph 9(g) shall survive the
expiration or sooner termination of' the Term.
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(h) Heat
----
To heat, at its own expense, from heating equipment originally
supplied by the Landlord, the Leased Premises to a degree
sufficient to protect the Leased Premises and their contents from
damage by cold or frost, and to operate, maintain, repair or, if
necessary, replace, at its own expense, such heating and other
mechanical equipment originally installed by the Landlord.
Further, the Tenant will, at the expiration or sooner termination
of the Term, peacefully yield up unto the Landlord such heating
equipment and all other equipment and appurtenances thereto in
good and substantial repair and condition. The Landlord assumes
the obligation to contract with a third party for the
preventative maintenance on the heating and air-conditioning
system at the Leased Premises. The cost of such contract to be
included in the Additional Rent contemplated in this Lease.
(i) Public Others
-------------
That the Tenant shall, at its sole cost and expense, comply with
all provisions of law, including without limiting file generality
of the foregoing, the requirements of all federal, provincial and
municipal legislative enactments, bylaws or regulations now or
hereafter in force which relate to the Leased Premises and the
conduct of business therein, or to the making of any repairs,
replacements, alterations, additions, changes, substitutions or
improvements of or to the Leased Premises. The Tenant will
further comply with all police, fire, health and sanitary
regulations imposed by any governmental authorities or made by
fire insurance underwriters. The Landlord acknowledges that, as
of the Commencement Date, the Leased Premises comply with all
provisions of law, but nothing herein is a representation to the
Tenant that its use of the Leased Premises is lawful.
(j) Assignment and Subletting
-------------------------
(i) That the Tenant will not assign this Lease in whole or in
part, nor sublet all or any part of the Leased Premises nor
mortgage or encumber this Lease or rite Leased Premises or
any part thereof, nor suffer or permit the occupation of, or
part with or share possession of, all or any part of the
Leased Premises by any other person, firm or corporation
(all of rite foregoing being hereinafter referred to as a
"transfer") without xxx xxxxx consent of the Landlord in
each instance, which consent shall not be unreasonably
withheld, subject to the provisions of subparagraph (it) of
tilts Paragraph 90). The consent by the Landlord to any
transfer, if granted, shall not constitute a waiver of the
necessity for such consent to any subsequent transfer. This
prohibition against a transfer is construed so as to include
a prohibition against any transfer by operation of law and
no transfer shall take place by reason of a failure by rite
Landlord to reply to a request by the Tenant for consent to
a transfer. If there is a permitted transfer of this Lease,
the Landlord may collect rent from the assignee, subtenant
or occupant (all of the foregoing being hereinafter
collectively referred to as the "transferee"), and apply the
net amount collected to the Minimum Rent required to be paid
pursuant to this Lease, but no acceptance by the Landlord of
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of any payments by a transferee shall be deemed a waiver of
this covenant or the acceptance of rite transferee as Tenant
or a release or rite Tenant for the further performance by
the Tenant of rite covenants or obligations on the part of
the Tenant herein contained. Any document evidencing the
Landlord's consent to a transfer of this Lease, if permited
or consented to by the Landlord shall be prepared by the
Landlord's solicitors, and all reasonable legal fees with
respect thereto shall be paid by the Tenant to the Landlord
forthwith upon demand. Any consent by the Landlord shall be
subject to the Tenant causing any such transferee to
promptly execute an agreement directly with the Landlord
agreeing to be bound by all of the terms, covenants and
conditions contained in this Lease as if such transferee had
originally executed this Lease as Tenant. Notwithstanding
that any such transfer is permitted or consented to by the
Landlord, the Tenant shall be jointly and severally liable
with the transferee upon this Lease and shall not be
released performing any or the terms, covenants and
conditions contained in this Lease.
Landlord's Option
-----------------
(ii) If the Tenant intends to effect a transfer of all or any
part of the Leased Premises or this Lease, in whole or in
part, or of any estate or interest hereunder, then and so
often as such event shall occur, the Tenant shall give prior
written notice to the Landlord of such intent, specifying
therein the name of the proposed transferee and shall
provide such information with respect thereto, including,
without limitation, information concerning the principals
thereof and as to any credit, financial or business
information relating to the proposed transferee as the
Landlord requires, and the Landlord shall, within fifteen
(15) days thereafter, notify the Tenant in writing either,
that (a) it consents or does not consent to the transfer, or
(b) it elects to cancel this Lease in preference to rite
giving of such consent. If the Landlord elects to cancel
this Lease, as aforesaid, the Tenant shall notify the
Landlord in writing within fifteen (15) days thereafter of
the Tenant's intention either to refrain from such transfer
or to accept the cancellation of this Lease. If the Tenant
fails to deliver such notice within such period of fifteen
(15) days, this Lease will thereby be terminated on a date
sixty (60) days from the expiration of the said fifteen (15)
day period. If the Tenant advises the Landlord it intends to
refrain flora such transfer, then, the Landlord's right to
cancel this Lease as aforesaid shall become null and void in
such instance.
Advertisement
-------------
(iii)The Tenant shall not print, publish or display any notice
or advertisement advertising the whole or ally part of the
Leased Premises for the purposes of assignment or subletting
without the prior approval by the Landlord of the complete
text or format of any such notice or advertisement.
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(k) Nuisance
--------
That the Tenant will not do or omit to do or permit to be done or
omitted anything upon or in respect of the Leased Premises, the
doing or omission of which, as the case may be, shall be or
result in any nuisance or menace to the Landlord and including
without limitation, the Tenant shall not keep in, on or around
the Leased Premises any animals, birds or other pets; and that no
machinery shall be used on the Leased Premises which shall cause
any undue vibration in or to the Leased Premises, and if the
Landlord or any neighboring land owners or tenants shall complain
that any machinery or operation thereof in or on the Leased
Premises is a nuisance to it or them, as the case may be, upon
receiving notice thereof, the Tenant will immediately cease such
nuisance.
(l) Goods and Services Taxes
------------------------
The Tenant shall pay to the Landlord all "Sales Taxes" as
hereinafter defined which are imposed on the Landlord with
respect to the amounts due to the Landlord hereunder or in
respect of the rental under this Lease and the Landlord shall be
entitled to collect same monthly with the payment of rent
hereunder.
For the purposes hereof "Sales Taxes" means all business
transfer, multi-stage sales, sales, use, consumption, value-added
or other similar taxes including and without limiting the
generality of the foregoing taxes levied under The Excise Tax Act
known as the Goods and Services 'Fax, as imposed by the
government of Canada or any provincial or local government upon
the Landlord or the Tenant or in respect of this Lease or the
payments made by the Tenant hereunder or the goods and services
provided by the Landlord hereunder, including, without
limitation, the rental of the Leased Premises and the provision
of administrative services to the Tenant hereunder.
(m) Environment
-----------
The Tenant hereby covenants that it will not bring upon the Lands
ally Hazardous Material (as hereinafter defined) nor will it
cause nor permit to be caused any Hazardous Material to be
placed, held, located or disposed of on, under or at the Leased
Premises and that its business and assets will at all time during
the term hereof operate in compliance with applicable laws
an(cent)l guidelines intended to protect the environment
(including without limitation, laws respecting the discharge,
emission, spill or disposal of any Hazardous Material) and that
it will not do or omit to be done anything that will cause any
enforcement actions in respect thereof to be instituted by any
relevant authority. In this regard the Tenant covenants that it
will permit the Landlord or those dryly authorized by the
Landlord, at Landlord's expense, to collect tests, inspections,
and appraisals of the Leased Premises, and to remove samples from
the Leased Premises and any part of the Leased Premises and any
records, business and assets insofar as they relate to the Leased
Premises at any time and from time to time to ensure such
compliance.
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The Tenant hereby indemnifies the Landlord and agrees to hold it
harmless from and against any and all losses, liabilities,
damages, reasonable costs, reasonable expenses and claims of any
and every kind whatsoever which at any time or from time to time
may be paid, incurred or asserted against the Landlord with
respect to, or as a direct result of, the presence on or under,
or the discharge, emission, spill or disposal from, the Leased
Premises or into or upon any land, the atmosphere, or any water
course, body of water or wet land, (the "Discharge") of any
Hazardous Material where it has been proven 'that a) the
Discharge occurred during the term hereof or after the term
hereof but as a result of the breach of Paragraph 9 (m)(i) hereof
and b) the source of the Hazardous Material is of the Leased
Premises (but not any hazardous material utilize(cent)l in the
construction or present in the Leased Premises as of the
Commencement Date) or the Tenant or those for whom the Tenant is,
at law, liable (including, without limitation:
(i) the reasonable costs of defending and/or counter-claiming or
claiming over against third parties with respect of any
action or matter; and
(ii) any reasonable cost, liability or damage arising out of a
settlement of any action entered into by the Landlord with
the consent of the Tenant); provided that the Landlord may
settle any such action without the consent of the Tenant if
it acts reasonably and if it has first notified the Tenant
of the circumstances of the action and the proposed
settlement.
and provisions of and undertakings and indemnifications set out
in this paragraph shall survive the termination of the Lease, and
any extensions, by reason of eflluxion of time or otherwise. For
the purposes of this Section "Hazardous Material" means any
contaminant or pollutant and means any substance that when
released into the natural environment is likely to cause, at some
immediate or future time, material harm or degradation to the
natural environment or material risk to human health and without
restricting the generality of the foregoing, Hazardous Material
includes any pollutant, waste, hazardous waste or dangerous good
as defined by applicable federal, provincial or municipal laws or
guidelines for the protection of the natural environment or human
health.
10. INSURANCE
(a) Landlord's Insurance
(i) Subject to the provisions of paragraph 11 hereof, the Landlord
shall, at all times throughout the Term of this Lease, take out
and maintain insurance covering:
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(1) the Building and the machinery, boilers and equipment
contained therein and owned by the Landlord (specially
excluding any property with respect to which the Tenant and
the other tenants of the Building are obliged to insure
pursuant to paragraph 10(b) hereof or similar sections in
their respective leases) against damage by fire and extended
perils coverage including (where applicable) sprinkler
leakage, earthquake, flood and collapse in an amount of not
less than the full replacement cost thereof, and with such
reasonable deductions as would be carried by a prudent owner
of similar building, having regard to the size, age and
location of the Building;
(2) to the extent applicable, the repair and replacement of
heating and air-conditioning equipment and miscellaneous
electrical apparatus on a broad form blanket coverage basis;
(3) loss of insurable gross profits attributable to all perils
insured against by the Landlord or commonly insured against
by prudent landlords, including loss of all rentals
receivable from tenants in the Building in accordance with
the provisions of their respective leases, including Minimum
rent and additional rent in such amount as the Landlord or
the Landlord's mortgagee from time to time requires;
(4) public liability and property damage including the exposure
of personal injury, bodily injury, property damage
occurrence, in such reasonable amounts and with such
reasonable deductions as would be carried by a prudent owner
of a similar building, having regard to the size, age and
location of the Building; and
(5) any other form of insurance which the landlord or the
Landlord's mortgagee reasonably require from time to time
for insurable risk and in amounts against which a prudent
landlord would insure.
(ii) Notwithstanding any contribution by the Tenant to the
cost of insurance premiums in respect of the insurance
maintained by the Landlord For the Building as herein
provided, the Tenant acknowledges and agrees that no
insurable interest is conferred upon the Tenant under
any policies of insurance carried by the Landlord and
the Tenant has no right to receive any proceeds of any
insurance policies carried by the Landlord.
(b) Tenant's Insurance
(i) The Tenant shall, throughout the Term of the Lease, at its
sole cost and expense, take out and keep in full force and
effect in the names of the Tenant, the Landlord and the
Landlord's mortgagee, as their respective interests may
appear, the Following insurance:
12
(1) insurance upon property of every description and kind
owned by the Tenant or For which the Tenant is legally
liable or installed by or on behalf of the Tenant and
which is located within the Building, including,
without limitation, stock in trade, furniture,
fittings, installations, alterations, additions,
partitions, fixtures and anything in the nature of a
leasehold improvement in an amount of not less than one
hundred percent (100%) of full replacement cost
thereof, with coverage against, at least the perils of
fire and standard extended coverage, including
sprinkler leakages (where applicable), earthquake,
flood and collapse;
(2) broad form boiler and machinery insurance on a blanket
repair and replacement basis with limits for each
accident in an amount not less than the replacement
cost of all leasehold improvements and of all boilers,
pressure vessels, and miscellaneous electrical
apparatus owned or operated by the Tenant or by others
(other than the Landlord) on behalf of the Tenant in
the Leased Premises or relating to or serving the
Leased Premises;
(3) business interruption insurance in such amounts as will
reimburse the Tenant for direct or indirect loss of
earnings attributable to all perils insured against in
subparagraphs (1) and (2) of this Paragraph 10(b), and
in any other perils commonly insured against by a
prudent tenant or attributable to prevention of access
to the Leased Premises or the Building as a result of
such peril;
(4) public liability and property damage insurance
including personal injury liability, contractual
liability, non-owned automobile liability and owners'
and contractors' protective insurance coverage with
respect to the Leased Premises, coverage to include the
activities and operations conducted by the Tenant and
any other parties on the Leased Premises and by the
Tenant and any other parties performing work on behalf
of the Tenant and those for whom the Tenant is in law
responsible in any other part of the Building. Such
policies shall be written on a comprehensive basis with
inclusive limits of not less titan Two Million Dollars
($2,000,000) for bodily injury to any one or more
persons or property damage, and such bigger limits as
the Landlord or the Landlord's mortgagee reasonably
requires from time to time, and shall not be
invalidated as respects the interests of the Landlord
and the Landlord's mortgagee by reason of any breach or
violation of any warranties, representations,
13
declarations or conditions contained in the policies.
All such policies must contain a severability of
interests clause, a cross liability clause and shall be
primary and shall not call into contribution any other
insurance available to the Landlord or to the
Landlord's mortgagee;
(5) tenants' legal liability insurance for the full
replacement cost of the Leased Premises; and
(6) any other form of insurance as the Tenant or the
Landlord or the Landlord's mortgagee reasonably
requires from time to time, in form, in amounts and for
insurance risks against which a prudent tenant would
insure.
(ii) All policies required to be written on behalf of the Tenant
pursuant to subparagraphs (1), (2) and (3) of this Paragraph
10(b) shall contain the standard mortgage clause of the
Landlord's mortgagee and shall contain a waiver of any
subrogation rights which the Tenant's insurers have against
the Landlord and against those for whom the Landlord is in
law responsible, whether such damage is caused by the act,
omission or negligence of the Landlord or those for whom the
Landlord is in law responsible.
(iii)All insurance policies of the Tenant shall be taken out
with insurers acceptable to the Landlord and shall be in a
form satisfactory from lime to time to the Landlord. The
Tenant agrees that certificates of insurance or, if required
by the Landlord or the Landlord's mortgagee, certified
copies of each such insurance policy, will be delivered to
the Landlord as soon as practicable after the placing of the
required insurance. All such policies shall contain an
undertaking by the insurers to notify the Landlord and the
Landlord's mortgagee in writing not less than thirty (30)
days prior to any material change, cancellation, failure to
renew, or termination thereof.
(iv) The Tenant agrees that if the Tenant fails to take out or to
keep in force any such insurance referred to in this
Paragraph 10(b)(i), or should any such insurance not be
approved by either the Landlord or the Landlord's mortgagee,
and should the Tenant not rectify the situation within five
(5) days after written notice by the Landlord to the Tenant
(stating if the Landlord or the Landlord's mortgagee does
not approve of such insurance, the reasons therefor), the
Landlord has the right without assuming any obligation in
connection therewith, to effect such insurance at the sole
cost and expense of the Tenant and all outlays by the
Landlord shall be immediately paid by the Tenant to the
Landlord as additional rent on the first clay of the next
month following such payment by the Landlord, without
prejudice to any other rights and remedies of the Landlord
under this Lease.
14
(v) If the occupancy of the Leased Premises, the conduct of
business in the Leased Premises, or any acts or omissions of
the Tenant in the Building or any part thereof; causes or
results in any increase in premiums for the insurance
carried from lime to time by the Landlord with respect to
the Building, the Tenant shall pay any such increase in
premiums, as additional rent, forthwith after invoices for
such additional premiums are rendered by the Landlord. In
determining whether increased premiums are caused by or
result from the use and occupancy of the Leased Premises, a
schedule issued by the organization computing the insurance
rate on tile Building showing the various components of such
rate shall be conclusive evidence of the several items anti
charges which make up such rate. The Tenant shall comply
promptly with all requirements of the Insurer's Advisory
Organization (or any successor thereof or of any insurer now
or hereafter in effect, pertaining to or affecting the
Leased Premises.
(vi) If any insurance policy upon the Building or any part
thereof shall be cancelled or shall be threatened by the
insurer to be cancelled, or the coverage thereunder reduced
in any way by the insurer by reason of the use and
occupation of the Leased Premises or any part thereof by the
Tenant or by any assignee or sub-tenant of the Tenant, or by
anyone permitted by the Tenant to be upon the Leased
Premises, and if the Tenant fails to remedy the condition
giving rise to the cancellation, threatened cancellation or
reduction of coverage within forty-eight (48) hours after
notice thereof by the Landlord, the Landlord may, at its
option, either (a) re-enter and take possession of the
Leased Premises forthwith by leaving upon the Leased
Premises a notice in writing of its intention so to do anti
thereupon the Landlord shall have the same rights and
remedies as contained in paragraph 14 hereof, or, (b) enter
upon the Leased Premises and remedy the conditions giving
rise to such cancellation, threatened cancellation or
reduction, and the Tenant shall forthwith pay the cost
thereof to the Landlord, which cost may be collected by the
Landlord as additional rent and the Landlord shall not be
liable for any damage or injury caused to any property of
the Tenant or of others located on the Leased Premises as a
result of such entry. The Tenant agrees that any such entry
by the Landlord is not a re-entry or a breach of any
covenant for quiet enjoyment contained in this Lease.
11. OPERATING COSTS
(a) In each year of the Term, the Tenant will pay to the Landlord in
addition to the Minimum Rent specified in Paragraph 4 hereof, as
further additional rent, the Landlord's cost and expenses of
maintaining, operating, insuring, repairing, restoring, supervising
and administering the Building such costs and expenses to include,
without limitation (i) the total costs and expenses incurred by the
Landlord in insuring the Building pursuant to Paragraph 10(a)(i)
15
hereof, (ii) the total cost of operating, maintaining, lighting,
cleaning (including snow and ice removal and clearance), supervising,
policing, landscaping, H.V.A.C. preventative maintenance, repairing
all areas of the Building which are not otherwise the responsibility
of the Tenant in this Lease, including, without limitation, all monies
paid to persons, firms or corporations employed by the Landlord to
perform same; and (iii) all expenses incurred or paid by the Landlord
in connection with the maintenance, repair, restoration, operation,
management, supervision and administration of the Building and all
services connection therewith, together with an administrative fee of
seven and one half percent (7.5%) of such total annual costs and
expenses, including, without limitation, all such costs and expenses
referred to in the immediately preceding subparagraphs (i) to (iii)
inclusive of this paragraph II(a) and taxes paid by the Landlord
pursuant to paragraph 9(c).
(b) The amounts payable by the Tenant pursuant to this paragraph 11 may be
estimated by the Landlord for such period or periods as the Landlord
may determine from time to time, and the Tenant shall pay to the
Landlord the estimated of such amounts in monthly installments in
advance during such period together with all other rental payments
provided for in the Lease. Notwithstanding anything contained in this
subparagraph (b) to the contrary, at such time as the Landlord expends
any money or incurs any charges or expenses in respect of the cost of
maintaining, operating, repairing, or administrating the Building,
pursuant to paragraph 11(a) hereof, or, as soon as bills for all or
any portion of the amounts so estimated by the Landlord, as aforesaid,
are received, the Landlord may thereafter xxxx the Tenant for same
(less all amounts previously paid by the Tenant on the basis of the
Landlord's estimate aforesaid, which have not already been so applied)
and the Tenant shall forthwith pay to the Landlord upon demand such
amounts so expended or billed, as additional rent. At the end of the
period for which such estimated payments have been made, the Landlord
shall deliver to the Tenant a statement of the actual amounts and
costs referred to in this paragraph 11, and if necessary, an
adjustment shall be made between the parties hereto. If the Tenant
shall have paid in excess of such actual amounts, the excess shall be
refunded by the Landlord within fifteen (15) days after delivery of
the said statement. If the amount the Tenant has paid is less than
such actual amounts, the Tenant agrees to pay to the Landlord any such
extra amount or amounts within fifteen (15) days after delivery of
said statement.
12. MUTUAL COVENANTS
Provided, and it is expressly agreed:
(a) Seizure and Bankruptcy
----------------------
That, in case, without the written consent of the Landlord, the Leased
Premises shall become and remain vacant or not used for a period often
(10) days while the same is suitable for use by the Tenant, or shall
16
used by any person other than the Tenant, or in case the Term or any
of the goods and chattels of the Tenant shall be at any time seized or
taken in execution or in attachment by any creditor of the Tenant, or
if the Tenant shall make any assignment for the benefit of creditors
or give any xxxx of sale without complying with The Bulk Sales Act
(Ontario) or becomes bankrupt or insolvent, or take the benefit of any
Act now or hereafter in force for bankrupt or insolvent debtors or
files any proposal or makes an assignment for the benefit of creditors
or if a receiver is appointed for all or a portion of the Tenant's
property of if any order is made for the winding up of the Tenant, or
if the Tenant shall make a sale in bulk, or, if the Tenant abandons or
attempts to abandon the Leased Premises or to sell or dispose of any
of the goods and chattels of the Tenant or to remove them from the
Leased Premises so that there would not in the event of such sale or
disposal be sufficient goods on the Leased Premises subject to
distress to satisfy all rentals due or accruing hereunder, or if the
Tenant shall fail to pay any rent or other sums due hereunder on the
day or dates appointed for payment thereof, or, if the Tenant shall
fail to perform any other of the terms, conditions or covenants of
this Lease to be observed or performed by the Tenant, or if re-entry
is permitted under any other terms of this Lease, then, and in every
such case, the then current month's rent and the next ensuing three
months rent and additional rent shall immediately become due and
payable as accelerated rent, and, at the option of the Landlord this
lease shall cease and determine and the Term hereby demised shall
immediately become forfeited and void, in which event the Landlord may
re-enter and take possession of the Leased Premises as though the
Tenant or any occupant or occupants of the Leased Premises was or were
holding over after the expiration of the Term without any rights
whatsoever.
(b) Public Liability
----------------
That the Landlord shall not be liable for any injury arising from or
out of any death or occurrence in, upon, at or relating to the
Building, or damage to property of the Tenant or of others located on
the Leased Premises, nor shall the Landlord be responsible for any
loss of or damage to any property of the Tenant or others from any
cause whatsoever, unless any such death, injury, loss or damage
results from the negligence of the Landlord, its agents, servants,
employees or any other parties for whom it may be in law responsible.
Without limiting the generality of the foregoing, the Landlord shall
not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, snow or leaks from any part of the Leased
Premises or from the pipes, appliances, plumbing works, roof, or
subsurface of any floor or ceiling or from the street or any other
place or by dampness or by any cause of whatsoever nature, unless such
injury or damage results from the negligence of the Landlord, its
agents, servants, employees or any other parties for whom it may be in
law responsible. With the exception of all parties for whom the
Landlord may be in law responsible, the Landlord shall not be liable
for any such damage caused by other tenants or persons in the Building
or by occupants of adjacent property or the public, or caused by
17
construction or by any private, public or quasi-public work. All
property of tile Tenant kept or stolen on the Leased Premises shall be
so kept or stored at tile risk of the Tenant only and the Tenant shall
hold the Landlord harmless from and against any claims arising out of
damages to the same, including subrogation claims by the Tenant's
insurers.
(c) Holding Over
------------
That if the Tenant shall continue to occupy the Leased Premises at the
expiration of this Lease with the consent of the Landlord, and without
any further written agreement, the Tenant shall be a monthly tenant at
the monthly rental herein reserved and otherwise on the terms and
conditions herein set forth, except as to the length of tenancy.
(d) Over-loading
------------
That the Tenant will not bring upon the Leased Premises or any part
thereof, any machinery, equipment, article or thing that by reason of
its weight, size, or use might, in the opinion of the Landlord, damage
the Leased Premises and will not at any time overload the floors of
the Leased Premises, and that if any damage is caused to the Leased
Premises by any machinery, equipment, article or thing or by
overloading, or by any act, neglect or misuse on the part of the
Tenant, or any of its servants, agents or employees, or by any person
having business with the Tenant, the Tenant shall forthwith repair the
same or pay to the Landlord the cost of making good the same.
(e) Tenant not to Overload Facilities
---------------------------------
That the Tenant will not install any equipment which would exceed or
overload the capacity of the utility facilities in the Leased Premises
and agrees that any equipment installed by the Tenant shall require
additional utility facilities, same shall be installed, if available,
and subject to the Landlord's prior written approval thereto (which
approval may not be unreasonably withheld), at the Tenant's sole cost
and expense in accordance with plans and specifications to be approved
in advance by the Landlord, in writing.
(f) Plumbing Facilities
-------------------
That the plumbing facilities (if any) in tile Leased Premises shall
not be used for any other purpose than that for which they are
constructed, and no foreign substance of any kind shall be thrown
therein and tile expense of any breakage, stoppage or damage resulting
from a violation of this provision shall be borne by the Tenant, as
additional rent, payable forthwith on demand.
18
(g) Indemnification
---------------
That, notwithstanding any other terms, covenants and conditions
contained in this Lease, including, without limitation, the Landlord's
obligation to take out insurance as set out in Paragraph 10(a)(i)
hereof, and the Tenant's obligation to pay tile cost of insurance in
accordance with the provisions of Paragraph 11 hereof, the Tenant
shall indemnify the Landlord and save it harmless from and against any
and all loss (including loss of all rentals payable by the Tenant
pursuant to this Lease) claims, action, damages, liability and expense
in connection with loss of life, personal injury, damage to property
or any other loss or injury whatsoever arising from or out of this
Lease or any occurrence in, upon or at the Leased Premises, or the
occupancy or use by the Tenant of the Leased Premises or any part
thereof, or occasioned wholly or in part by any act or omission of the
Tenant or by anyone permitted to be on the Leased Premises by the
Tenant provided however, that the Tenant shall not indemnify the
Landlord for any loss, claim, action, damage, liability or expense
arising from or out of a negligent act or omission of the Landlord,
its agents, servants, employees or any other parties for whom it may
be in law responsible. If the Landlord shall, without fault on its
part, be made a party to any litigation commenced by or against the
Tenant, then, the Tenant shall protect, indemnify and hold the
Landlord harmless and shall pay all costs, expenses and reasonable
legal fees incurred or paid by the Landlord in connection with any
such litigation. The prevailing party shall pay all costs, expenses
and legal fees (on a solicitor and his client basis) that may he
incurred or paid by the prevailing party in enforcing the terms,
covenants and conditions in this Lease, unless a Court shall decide
otherwise.
(h) Repair Where Tenant at Fault
----------------------------
That, notwithstanding any other terms, covenants and conditions
contained in this Lease, including, without limitation, the Tenant's
obligation to pay the costs of insurance in accordance with Paragraph
11 hereof, in the event the Leased Premises, or any equipment,
machinery facilities or improvements contained therein or made thereto
or the roof or the outside walls of the Building, or any other
structural portions thereof require repair or become damaged or
destroyed through file negligence, carelessness or misuse of the
Tenant, its servants, agents, employees, contractors, or through it or
them in any way, stopping up or injuring the heating apparatus, water
pipes, drainage pipes or oilier equipment or facilities or parts of
the Building, the expense of all such necessary repairs, replacements
or alterations, shall be borne by the Tenant who will pay the same to
the Landlord forthwith upon presentation of an account of such
expenses incurred by the Landlord as aforesaid.
(i) Refuse
------
That the Tenant will not use ally outside garbage or other containers
or allow ally ashes, refiles, garbage or other loose or objectionable
material to accumulate in or about the Leased Premises, and will at
all times keep the Leased Premises in a clean and tidy condition and
19
shall immediately before the termination of the Term, wash the floors,
windows, doors and woodwork of the Leased Premises. Provided further
the Tenant will not store or cause to be stored outside of the Leased
Premises, any of its inventory, stock-in-trade, or raw materials.
(j) Leased Premises
---------------
That, whenever in this Lease reference is made to the Leased Premises,
it shall include, without limitation, all structural portions,
improvements, equipment, systems and erections, in or upon the Leased
Premises or any part thereof from time to time.
(k) Evidence of Payments by Tenant
------------------------------
That the Tenant shall from time to time at the request of the Landlord
produce to the Landlord satisfactory evidence of the due payment by
the Tenant of all amounts required to be made by the Tenant under this
Lease.
(l) Adjustment of Taxes
-------------------
That the taxes and local improvement rates and, where necessary, all
other charges payable by the Tenant hereunder in respect of the first
and last years of the Term shall be adjusted between the Landlord and
the Tenant accordingly.
(m) Tenant Shall Discharge All Liens
--------------------------------
That the Tenant shall promptly pay all its Contractors, suppliers and
materialmen and shall do any and all things necessary to minimize the
possibility of a lien attaching to the Leased Premises or to any part
of the Building and should any such lien be made or filed, the Tenant
shall discharge the same forthwith (after notice thereof is given to
the Tenant) at the Tenant's expense. In the event the Tenant shall
fail to cause any such lien to be discharged, as aforesaid, then, in
addition to any other right or remedy of the Landlord, the Landlord
may, but it shall not be so obligated, discharge same by paying the
amount claimed to be due into Court or directly to any such lien
claimant and the amount so paid by the Landlord and all costs and
expenses including solicitors' fees (on a solicitor and his client
basis) incurred herein for the discharge of such lien shall be due and
payable by the Tenant to the Landlord as additional rent on demand.
13. FIXTURES AND REMOVAL AND RESTORATION BY TENANT
----------------------------------------------
All alterations, decorations, additions and improvements made by the Tenant
or made by the Landlord on the Tenant's behalf (other than the Tenant's
trade fixtures) shall immediately become the property of the Landlord
without compensation therefor to the Tenant. Such alterations, decorations,
additions or improvements shall not be removed from the Leased Premises
either during or at the expiration of the Term or sooner determination of
the Lease, except that:
20
(i) The Tenant may at the end of the Term, if not in default, remove
its trade fixtures, including without limitation racking
equipment;
(ii) The Tenant shall at the end or the Term and at its own cost
remove all alterations, decorations, additions or improvements in
or on the Leased Premises as the Landlord shall at its option
require to be removed; and
(iii)The Tenant may remove its trade fixtures at the end of the Term
and also during the Term in the usual and normal course of its
business or if such trade fixtures become excess for the Tenants
purpose, or if the Tenant is substituting therefor new and
similar trade fixtures, provided the Tenant is not in default and
provided the Tenant first notifies the Landlord thereof.
If the Tenant does not remove its trade fixtures at the
expiration or earlier termination of the Term, such trade
fixtures, at the option of the Landlord, are to become the
Landlord's property and shay be removed from the Leased Premises
and sold or otherwise disposed of by the Landlord. For greater
certainty, the term "Tenant's trade fixtures" shall not include
any (i) heating or ventilating equipment (ii) floor coverings
affixed to the floor of the Leased Premises or (iii) light
fixtures.
The Tenant shall, in the case of every such installation or
removal either during or at the end of the Term, make good any
damage caused to the Leased Premises or to the Building by the
installation or removal of any such alterations, decorations,
additions or improvements.
14. RE-ENTRY
--------
Provision for re-entry by the Landlord on non-payment of rent or
non-performance of covenants. If the Landlord elects to re-enter, as herein
provided, or if it takes possession pursuant to legal proceedings or
pursuant to any notice provided for by law, it may either terminate this
Lease or it may from time to time without terminating this Lease, make such
alterations and repairs as may be necessary, in order to relet the Leased
Premises, or any part thereof for such term or terms (which may be for a
term or terms extending beyond the Term of this Lease) and at such rental
or rentals and upon such other terms and conditions as the Landlord in its
sole discretion may deem advisable. Upon each such reletting all rentals
received by the Landlord from such letting shall be applied, first, to file
payment of any indebtedness, other than rent due hereunder, owing by the
Tenant to the Landlord; second, to the payment of any costs and expenses of
such reletting, including reasonable brokerage fees, reasonable solicitor's
fees and the costs of such alterations and repairs; third, to the payment
of all rentals due and unpaid hereunder, and the residue, if any, shall be
21
held by the Landlord and applied in payment of fixture rent as the same may
become due and payable hereunder. If the rentals received from such
reletting during any month shall be less than that to be paid during that
month by the Tenant hereunder, the Tenant shall pay any such deficiency to
the Landlord. Such deficiency shall be calculated and paid monthly. No such
re-entry or taking possession of the Leased Premises by the Landlord shall
be construed as an election on its part to terminate this Lease unless a
written notice of such intention is given to the Tenant. Notwithstanding
any such reletting without termination, the Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Should
the Landlord at any time terminate this Lease for any breach, in addition
to any remedies it may have, it may recover from the Tenant all damages it
has incurred or may incur by reason of such breach, including the cost of
recovering file Leased Premises, reasonable solicitor's fees, and including
the worth at the time of such termination of the excess, if any, of the
amount of rent and charges equivalent to the rent reserved in this Lease
for the remainder of the stated Term over the then reasonable rental value
as determined by the Landlord for the remainder of the stated Term, all of
which amounts shall be immediately due and payable from the Tenant to the
Landlord.
15. EXPENSES AND REMOVAL OF CHATTELS
--------------------------------
In case suit shall be brought for recovery of possession of the Leased
Premises, or, for the recovery of rent or any other amounts due under the
provisions of this Lease, or because of the breach of any other covenants
herein contained on the part of the Tenant to be kept or performed, and a
breach shall be established, the Tenant shall pay to the Landlord all
expenses incurred therefor, including a reasonable solicitor's fee.
16. LANDLORD MAY CURE TENANTS DEFAULT
---------------------------------
If the Tenant shall fail to pay, when due, any amounts or charges required
to be paid pursuant to this Lease, the Landlord, after giving ten (10)
days' notice in writing to the Tenant, may, but shall not be obligated to,
pay all or any part of the same. If the Tenant is in default in the
performance of any of its covenants or obligations hereunder, (other than
payment of Minimum Rent or other sums required to be paid pursuant to the
terms of this Lease), the Landlord may from time to time after the giving
of reasonable notice, having regard to the circumstances applicable (or no
notice in the case of an emergency or apprehended emergency) perform or
caused to be performed any of such covenants or obligations or any part
thereof, and for such purpose may do such things as may be requisite,
including without limitation, entering upon the Leased Premises and doing
such things upon or in respect of the Leased Premises or any part thereof
as the Landlord may reasonably consider requisite or necessary. All
expenses incurred and expenditures made by or on behalf of the Landlord
under this Paragraph 16, shall be additional rent hereunder and shall be
paid by the Tenant upon demand. The Landlord shall have no liability to the
Tenant for any loss or damage resulting from any such action by the
Landlord, and any entry by the Landlord under the provisions of this
Paragraph 16 shall not constitute a breach of the covenant for quiet
enjoyment or an eviction.
22
17. ADDITIONAL RENT
If the Tenant shall be in default in the payment of any amounts or charges
required to be paid pursuant to the terms of this Lease, they shall, if not
paid when due, be collectible as rent with the next monthly installment of
Minimum Rent thereafter falling due hereunder, but nothing herein contained
shall be deemed to suspend or delay the payment of any amount, money or
charge at the time same becomes due and payable hereunder, or limit any
other remedy of the Landlord. The Tenant covenants and agrees that the
Landlord may, at its option, apply or allocate any sums received from or
due to the Tenant against any amounts due and payable hereunder in such
manner as the Landlord, in its sole discretion, sees fit.
18. NET LEASE
The Tenant acknowledges and agrees that it is intended that this Lease is a
completely carefree net lease to the Landlord, and, except, except as
expressly herein set out, that the Landlord is not responsible during the
Term of the Lease for any costs, charges, expenses and outlays of any
nature whatsoever arising from or relating to the Leased Premises or the
use and occupancy thereof or to the contents thereof, or the business
carried on therein, and the Tenant shall pay all charges, impositions,
costs and expenses of any nature or kind relating to the Leased Premises,
except as expressly herein set out.
19. QUIET ENJOYMENT
Upon the payment by the Tenant of the rents herein provided and upon the
observance and performance of all covenants, terms and conditions on the
Tenant's part to be observed and performed, the Tenant shall peaceably and
quietly hold and enjoy the Leased Premises for the Term hereby demised
without hindrance or interruption by the landlord, or any other person or
persons lawfully claiming by, through or under the Landlord subject,
nevertheless, to the terms and conditions of this Lease.
20. RIGHT OF ENTRY
The Landlord or its agents shall have the right, upon giving reasonable
notice to the Tenant, to enter the Leased Premises at all times (i) to
examine the same, (ii) to show them to prospective purchasers, lessees or
mortgagees, and, (iii) without any obligation upon the Landlord to do so,
to make such repairs, alterations, improvements or additions to the Leased
Premises or the Building as the Landlord may deem necessary or desirable;
provided that such entry shall not unreasonably disrupt the business
operations of the Tenant. The Landlord shall be allowed to take all
material into and upon the Leased Premises which may be required therefor
without the same constituting an eviction of the Tenant in whole or in
part, and the rent reserved hereunder shall not xxxxx while such repairs,
alterations, improvements or additions are being made due to any loss or
interruption of the business of the Tenant or otherwise. The Landlord shall
not be liable for any damage, injury or death caused to any person or
property of the Tenant or of others located on the Leased Premises as a
23
result of such entry, unless such damage, injury or death is due to the
acts or omissions of the Landlord, its agents, servants, employees, or
other parties for whom it may be in law responsible. During the six months
prior to the expiration of the Term the Landlord may exhibit the Leased
Premises to prospective tenants and place upon the Leased Premises its
usual notice "To Let" which notice the Tenant shall permit to remain
thereon without molestation. If, after receiving reasonable notice, the
Tenant shall not be personally present to open and permit an entry into the
Leased Premises at any time when for any reason entry therein shall be
necessary or permissible, the Landlord or its agents may enter the same by
a master key or may forcibly enter the same, without rendering the Landlord
or such agents liable therefor, and without in any manner affecting the
obligations and covenants of the Lease. Nothing herein contained, however,
shall be deemed or construed to impose upon the Landlord any obligation,
responsibility or liability whatsoever for the care, maintenance or repair
of the premises or any part thereof except as otherwise herein specifically
provided.
21. IMPROVEMENTS
The Tenant will not make any repairs, alterations, replacements,
decorations or improvements to any part of the Leased Premises without
first obtaining the Landlord's prior written approval. The Tenant shall
submit to the Landlord details of the proposed work, such indemnification
against liens, costs, damages and expenses as the Landlord shall reasonably
require and evidence satisfactory to the Landlord that the Tenant has
obtained, at its sole expense, all necessary consents, licenses and
approvals from all governmental authorities having jurisdiction. All such
repairs, replacements, alterations, decorations or improvements by the
Tenant to the Leased Premises approved of by the Landlord shall be at the
sole cost of the Tenant, shall be performed by competent workmen in a good
and workmanlike manner and shall be subject to the reasonable supervision
of the Landlord. Any such repairs, replacements, alterations, decorations
or improvements made by the Tenant without the prior written consent of the
Landlord, or, which are not in accordance with the drawings and
specifications approved by the Landlord, as aforesaid, shall, if requested
by the Landlord, be promptly removed by the Tenant at its expense and the
Leased Premises restored to their previous condition. Provided,
notwithstanding anything herein contained, no repair, replacement,
alteration, addition or improvement to the Leased Premises by or on behalf
of the Tenant shall be permitted which may weaken or endanger the structure
or adversely affect the condition or operation of the Leased Premises or
diminish the value thereof, or restrict or reduce the Landlord's coverage
for zoning purposes. Any and all repairs, replacements, alterations,
additions or improvements to the Leased Premises which may affect the
structure of the Leased Premises or any part of the Building or which are
to, shall be performed only by the Landlord at the Tenant's sole cost and
expense.
22. FIRE
(a) If the Leased Premises are at any time damaged or destroyed as a
result of fire, the elements, accident or other perils as are insured
against from time to time pursuant to Paragraph 10 hereof, and if as a
24
result of such occurrences (i) fifty percent (50%) or more of the
Leased Premises are rendered wholly unfit for occupancy; or (ii) the
cost of repairing or rebuilding the Leased Premises exceeds
twenty-five percent (25%) or more of the replacement cost thereof, or
(iii) in the opinion of the Landlord's architect or engineer, to be
given as soon as reasonably possible after the occurrence of such
damage or destruction, the Leased Premises cannot be repaired with
reasonable diligence within one hundred and twenty (120) days of the
happening of such damage or destruction, then, in each case, the
Landlord may, at its option, let migrate the Lease by giving to the
Tenant notice in writing of the Landlord's intention to terminate the
Lease. In the event of such termination, the Lease and the Term hereby
demised shall cease and be at an end as of the date of such damage or
destruction and the Minimum Rent and all other additional rent for
which the Tenant is liable under the terms of this Lease shall be
apportioned and paid in full to the date of such destruction or
damage.
(b) If the Landlord does not elect to terminate the Lease in accordance
with Subparagraph (a) of this Paragraph 22, then, the Landlord shall
commence with all reasonable diligence to reconstruct, rebuild or
repair the Leased Premises to the extent only of its obligations in
respect of the construction of the Leased Premises and exclusive of
any work performed in and to the Leased Premises by the Tenant (the
"Landlord's Work of Reconstruction"). From the date of the happening
of such damage or destruction and until the completion of the
Landlord's Work of Reconstruction, the Minimum Rent shall xxxxx (i) in
its entirety if, in the opinion of the Landlord's architect or
engineer, the Leased Premises are rendered wholly untenantable or (ii)
proportionately, (to the portion of the Leased Premises rendered
untenantable), if in the opinion office Landlord's architect or
engineer, the Leased Premises are rendered untenantable only in part.
(c) If the Landlord shall elect to repair, reconstruct or rebuild the
Leased Premises in accordance with the provisions of this Paragraph
22, the Landlord shall be entitled to use plans and specifications and
working drawings in connection therewith other than those used in the
original construction of the Leased Premises.
(d) The decision of the Landlord's architect or engineer as to (i) the
time within which the Leased Premises can or cannot be repaired, (ii)
the extent of the damage or destruction to the Leased Premises, (iii)
the cost of repairing or rebuilding the Leased Premises, (iv) the date
on which the Landlord's Work of Reconstruction is completed, shall, in
each case, be final and binding upon the parties hereto. For the
purposes of this Lease the Landlord's architect and engineer shall be
Xxxxxx Xxxxxx Associates Inc., or such other architect or engineer
named by the Landlord who is arm's length and of a similar stature.
25
23. ASSIGNMENT BY LANDLORD
The Landlord declares that it may assign its rights under this Lease to a
lending institution as collateral security for a loan to the Landlord and
in the event that such an assignment is given and executed by the Landlord,
and notification thereof is given to the Tenant by or on behalf of the
Landlord, it is expressly agreed between the Landlord and the Tenant that
this Lease shall not be cancelled or modified for any reason whatsoever
except as provided for, anticipated or permitted by the terms of this Lease
or by law, without the consent in writing of such lending institution. The
Tenant covenants and agrees with the Landlord that it will, if and whenever
reasonably required by the Landlord, consent to and become a party to any
reasonable instrument relating to this Lease which may be required by or on
behalf of any purchaser, lender or mortgagee from time to time of the
Leased Premises.
24. LIMITATION OF LANDLORD'S LIABILITY
The term "Landlord" as used in this Lease shall, so far as the covenants
and obligations on the part of the Landlord are concerned, be limited to
mean and include only the owner or owners at the time in question of the
Building and in the event of any conveyance or transfer of ownership, by
the Landlord herein named, and in the case of any subsequent transfer or
conveyances, the then vendor or transferor shall be automatically freed and
relieved, from and after the date of such transfer or conveyance, of all
personal liability in respect of the performance of any covenants or
obligations on the part of the Landlord contained in the Lease thereafter
to be performed, provided that:
(a) any funds in the hands of the Landlord or the then vendor or
transferor at the time of such transfer, in which the Tenant has an
interest, shall be turned over to the purchaser or transferee and any
amount then date and payable to the Tenant by the Landlord, or the
then vendor or transferor under any provision of this Lease shall be
paid to the Tenant; and,
(b) upon any such transfer or conveyance, the purchaser or transferee
shall be deemed to have assumed, subject to the limitations of this
paragraph, all of the terms, covenants and conditions contained in
this Lease to be performed on the part of the Landlord. It is the
intention of the parties pursuant to this Paragraph 25 that the
covenants and obligations contained in this Lease on the part of the
Landlord shall, subject as aforesaid, be binding upon the Landlord,
its successors and assigns, only during and in respect of their
respective periods of ownership.
25. SIGNS
The Tenant will not paint, fix, display, or cause to be painted, fixed or
displayed, any sign, picture, advertisement notice, lettering or decoration
on any part of the exterior or the interior of the Leased Premises without,
in each instance, the prior written approval of the Landlord. Any such
signs or other advertising material, as aforesaid, shall be removed by the
Tenant at the expiration or earlier termination of this Leasee and the
Tenant shall promptly repair any and all damage caused by such installation
or removal.
26
26. WAIVER OF BREACH
The waiver by the Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant
or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by the Landlord shall not be deemed to be a waiver of any
preceding breach by the Tenant of any term, covenant or condition of this
lease, regardless of the Landlord's knowledge of such preceding breach at
the time of acceptance of such rent. No covenant, term or condition of this
Lease shall be deemed to have been waived by tile Landlord unless such
waiver is in writing and signed by the Landlord.
27. NOTICES
Any notice, demand, request or other instrument which may be or is required
to be given under this Lease shall be delivered in person or sent by
registered mail, postage prepaid, and shall be addressed (a) if to the
Landlord at 00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx, X0X 0XX at such other
address as the Landlord designates by written notice, and (b) if to the
Tenant, at the Leased Premises with a copy to Liuski International Inc.,
0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, 00000, U.S.A, Att: General Counsel.
Any such notice, demand, request or consent is conclusively deemed to be
given or made on the date upon which such notice, demand, request or
consent is delivered, or if mailed, then four (4) days following the date
of mailing as the case may be, and the time period referred to therein
commences to run from the time of delivery or four (4) days following the
date of mailing as the case may be. Either party may at any time give
notice in writing to the other of any change of address of the party giving
such notice and from or after time giving of such notice, the address
therein specified is deemed to be the address of such party for the giving
of notices hereunder. Provided, however, if the postal service is
interrupted or substantially delayed for any reason whatsoever, then, any
notice, demand, request or other instrument shall be delivered in person
only.
28. STATUS STATEMENT
Within ten (10) days after written request therefor by the Landlord, or in
tile event that upon any sale, assignment, lease or mortgage of the Leased
Premises or the lands thereunder by the Landlord, a reasonable status
statement shall be required from the Tenant, the Tenant hereby agrees to
deliver in the form supplied by the Landlord a certificate to any proposed
mortgagee or purchaser or to the Landlord, stating (if such be the case)
that:
(a) this Lease is modified and in full force and effect (or if there have
been any modifications, that this Lease is in full force and effect as
modified and identify the modification agreements, if any) or if this
Lease is not in full force and effect, the certificate shall so state;
27
(b) the date of the commencement of the Term;
(c) the date to which the Minimum Rent has been paid under this Lease;
and,
(d) whether or not there is any existing default by the Tenant in the
payment of Minimum Rent or other sum of money under this Lease, and
whether or not there is any other existing default by either party
under this Lease with respect to which a notice of default has been
served and if there is any such default, specifying the nature and
extent thereof.
29. SUBORDINATION
This Lease and all of the rights of the Tenant hereunder are, and shall at
all times, be subject and subordinate to any and all mortgages, trust deeds
or the charge or lien resulting from any other method of financing or
refinancing or any renewals, or extensions thereof, now or hereafter in
force against the lands, buildings and improvements comprising the
Building. Upon the request of the Landlord, the Tenant will subordinate
this Lease and all of its rights hereunder in such form or forms as the
Landlord may reasonably require to any such mortgage, trust deeds or the
charge or lien resulting from any other method of financing or refinancing
and to all advances made or entitled to be made upon the security thereof,
and will, if requested, attorn to the holder thereof. No subordination by
the Tenant shall have the effect of permitting the holder of any mortgage
or charge or other security to disturb the occupation and possession by the
Tenant of the Leased Premises, so long as the Tenant shall perform all of
the terms, covenants, conditions, agreements and provisions contained in
this Lease and so long as the Tenant executes contemporaneously, a document
of attornment required by any such mortgagee or other encumbrancer. If
within twenty (20) days after the date of the Tenant's receipt of any
request in respect thereof, the Tenant has not executed and delivered to
the Landlord any instruments or certificates required pursuant to the
provisions of this Paragraph 29 or Paragraph 28 hereof, and has not
objected in writing to any of the provisions therein, then, the Tenant
hereby irrevocably appoints the Landlord as the Tenant's attorney with full
power and authority to execute and deliver in the name of the Tenant any
such instruments or certificates.
30. IMPOSSIBILITY OF PERFORMANCE
Notwithstanding anything to the contrary contained in this Lease, if either
party hereto is bona fide delayed or hindered in or prevented from the
performance of any term, covenant or act required hereunder by reason of
strikes, labour troubles, inability to procure materials or services, power
failure, restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, acts of God, or other reasons whether of a like
nature or not, which is not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then, the
performance of such term, covenant or act is excused for the period of the
delay and the party so delayed shall be entitled to perform such term,
covenant or act within the appropriate time period after the expiration of
the period of such delay.
28
However, the provisions of this Paragraph 30 shall not in any way operate
to excuse the Tenant from the prompt payment of Minimum Rent and additional
rent or any of the payments required by the terms of this Lease.
31. MISCELLANEOUS
The Landlord and Tenant agree that:
(a) Successors and Assigns
----------------------
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several
respective permitted heirs, executors, administrators, successors and
assigns of the said parties, and if there shall be more than one
Tenant, they shall be bound jointly and severally by the terms,
covenants and agreements contained herein. No rights, however, shall
entire to the benefit of any assignee of the Tenant unless the
assignment to such assignee has been approved by the Landlord in
writing as provided in Paragraph 9(j) hereof;
(b) Accord and Satisfaction
-----------------------
No payment by the Tenant or receipt by the Landlord of a lesser amount
than the monthly Minimum Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any
endorsement or statement or any cheque or any letter accompanying any
cheque or payment as rent be deemed an accord and satisfaction, and
the Landlord may accept such cheque or payment without prejudice to
the Landlord's right to recover the balance of such rent or pursue any
other remedy in this Lease provided, unless the Landlord and the
Tenant shall agree otherwise.
(c) Entire Agreement
----------------
This Lease and the Schedules "A", "B", "C", "D" and "E" attached
hereto and forming a part hereof, together with the rules and
regulations promulgated by the Landlord from time to time set forth
all the covenants, promises, agreements conditions and undertakings
between the Landlord and the Tenant concerning the Leased Premises and
there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than are
herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be
binding upon the Landlord or the Tenant unless in writing and signed
by each of them.
29
(d) Captions and Section Numbers
----------------------------
The captions, section numbers, article numbers, and index appearing in
this Lease are inserted only as a matter of convenience and in no way
define, limit, construe or describe the scope or intent of such
sections or articles of this Lease, nor in any way affect this Lease.
(e) Extended Meanings
-----------------
The word "Tenant" shall be deemed to include the word "lessee" and
shall mean each and every person or party mentioned as a tenant
herein, be the same one or more, and if there shall be more than one
Tenant, any notice required or permitted by the terms of this Lease
may be given by or to any one thereof, and shall have the same force
and effect as if given by or to all thereof. Any reference to "Tenant"
shall include, where the context allows, the servants, employees,
agents, and invitees of the Tenant and all others over whom the Tenant
exercises control. Wherever the word Landlord is used in this Lease,
it shall be deemed to include the word "lessor" and to include the
Landlord and its duly authorized representatives. The words "hereof",
"herein", "hereunder" and similar expressions used in any section or
subsection relate to the whole of this Lease, and not to that section
or that subsection only, unless of otherwise expressly provided. The
use of the neuter singular pronoun to refer to the Landlord or the
Tenant shall be deemed a proper reference even though the Landlord or
the Tenant may be an individual, a partnership, a corporation, or a
group of two or more individuals or corporations. The necessary
grammatical changes required to make the provisions of this Lease
apply in the plural sense where there is more than one Landlord or
Tenant and to either corporations, associations, partnerships, or
individuals, (males or females), shall in all instances be assumed as
though in each case fully expressed.
(f) Partial Invalidity
------------------
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent be invalid
or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not
be affected thereby and each term, covenant or condition of this Lease
shall be valid and enforced to the fullest extent permitted by law.
(g) Registration
------------
The Tenant shall not register this Lease.
30
(h) Governing Law
-------------
This Lease shall be construed in accordance with, and governed by, the
laws of the Province of Ontario.
(i) Time of the Essence
-------------------
Time shall be of the essence of this Lease and of every part hereof.
(j) Notice by Tenant
----------------
The Tenant shall, when it becomes aware of same, or when the Tenant,
acting reasonably, should have become aware of same, notify the
Landlord of any damage to, or deficiency or defect in any part of the
Building, including the Leased Premises and any equipment or utility
systems, or any installation located therein, notwithstanding the fact
that the Landlord may have no obligation with respect to same.
31
SIGNED, SEALED AND DELIVERED in the presence of:
ROLEX DEVELOPMENTS LIMITED
Per:
----------------------------------------
(Landlord)
LIUSKI INTERNATIONAL TORONTO, INC.
Per:
----------------------------------------
(Tenant)
LIUSKI INTERNATIONAL, INC.
Per:
----------------------------------------
(Indemnifier)
32
SCHEDULE "A"
------------
(attached hereto and forming part of this Agreement to Lease)
Legal Description of 0000 Xxxxxxx Xxxxx, Xxxxxxxxxxx
----------------------------------------------------
Parcel Block 1-1, in the Register for Section 43M-733, being the whole of Block
1, Plan 43M- 733, in the City of Mississauga, in the Regional Municipality of
Peel.
[THIS REPLACES A GRAPHIC DRAWING]
33
SCHEDULE "B"
------------
(attached hereto and forming part of this Lease)
INDEMNITY AGREEMENT
THIS AGREEMENT dated the day of , 1996.
----- ----------
BETWEEN:
ROLEX DEVELOPMENTS LIMITED
(herein called "Landlord")
OF THE FIRST PART
- and -
LIUSKI INTERNATIONAL INC.
(herein called "Indemnifier")
OF THE SECOND PART
In order to induce the Landlord to enter into the lease (the "Lease") dated the
day of 1996, and made between the Landlord and Liuski
------ ------------
International Toronto, Inc., as Tenant and for other good and valuable
consideration, the receipt whereof is hereby acknowledged, the Indemnifier
hereby makes the Following indemnity and agreement ("Indemnity") with and in
favor of the Landlord:
1. The Indemnifier hereby agrees with the Landlord that at all times during
the Term and any extension it will (a) make due and punctual payment of all
rent, monies, charges and other amounts of any kind whatsoever payable
under the Lease whether to the Landlord or otherwise upon notice from the
Landlord that the Tenant has failed to make such payment; (b) effect prompt
and complete performance of all and singular the terms, covenants and
conditions contained in the Lease on the part of the Tenant to be kept,
observed and performed upon notice from the Landlord that the Tenant has
failed to effect such performance; and (c) indemnify and save harmless the
Landlord from any loss, costs or damages arising out of any failure by the
Tenant to pay the aforesaid rent, money, charges and other amounts and any
failure to observe or perform any of the terms, covenants and conditions in
the Lease.
2. This Indemnity is absolute and unconditional and the obligations of the
Indemnifier shall not be released, discharged, mitigated, impaired or
affected by (a) any extensions of time, indulgences or modifications which
the Landlord extends to or makes with Tenant in respect of the performance
of any of the obligations of the Tenant under the Lease; (b) any waiver by
or failure of the Landlord to enforce any of the terms, covenants and
conditions of the Lease; (c) any assignment of the Lease by the Tenant or
34
by any Trustee, receiver or liquidator; (d) any consent which the Landlord
gives to any such assignment; or (e) any amendment to the Lease or any
waiver by the Tenant of any of its rights under the Lease.
3. The Indemnifier hereby expressly waives notice of the acceptance of this
Agreement and all notice of non-performance, non-payment or non-observance
on the part of the Tenant of the terms, covenants and conditions in the
Lease. Without limiting the generality of the foregoing any notice which
the Landlord desires to serve upon the Indemnifier shall be sufficiently
given if served personally upon the Indemnifier, or mailed by prepaid
registered or certified post addressed to the Indemnifier at the Leased
Premises, and every such notice is deemed to have been given upon the day
it was served personally, or if mailed, upon the second business day after
it was mailed. The Indemnifier may designate by notice in writing a
substitute address for that set forth above and thereafter notice shall be
directed to such substitute address. If two or more Persons are named as
Indemnifier, such notice shall be sufficiently given if and when the same
is served personally or mailed in the foregoing manner to any one of such
Persons.
4. In the event of a default under the Lease or under this Agreement, the
Indemnifier waives any right to require the Landlord 10 (a) proceed against
the Tenant or pursue any rights or remedies with respect to the Lease, (b)
proceed against or exhaust any security of the Tenant held by the Landlord
or (c) pursue any other remedy whatsoever in the Landlord's power. The
Landlord has the right to enforce this indemnity regardless of the
acceptance of additional security from the Tenant and regardless of the
release or discharge of the Tenant by the Landlord or by others or by
operation of any law.
5. Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity is not deemed to have been waived,
released, discharge, impaired or affected by reason of the release or this
charge of the Tenant in any receivership, bankruptcy, winding-up or other
creditor's proceedings or the rejection, disaffirmance or disclaimer or the
Lease in any proceeding and shall continue with respect to the periods
prior thereto and thereafter, for and with respect to the Term. The
liability of the Indemnifier shall not be affected by any repossession of
the Leased Premises by the Landlord, provided, however, that the net
payments received by the Landlord after deducting all costs and expenses of
repossessing and reletting the same shall be credited from time to time by
the Landlord to the account of the Indemnifier and the Indemnifier shall
pay any balance owing to the Landlord from time to time immediately upon
demand.
6. No action or proceedings brought or instituted under this Indemnity and no
recovery in pursuance thereof shall be a bar or defence to any further
action or proceedings which may be brought under this Indemnity by reason
of any further default or defaults hereunder or in the performance and
observance of the terms, covenants and conditions in the Lease.
35
7. No modification of this Indemnity shall be effective unless same is in
writing and is executed or initialled by both the Indemnifier and the
Landlord.
8. The Indemnifier shall, without limiting the generality of the foregoing be
bound by this Indemnity in the same manner as though the Indemnifier were
the Tenant named in the Lease.
9. If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof execute this
Indemnity as Indemnifier, the liability of each such individual,
corporation, partnership or other business association hereunder is joint
and several. In like manner, if the Indemnifier named in the Indemnity is a
partnership or other business association the members of which are by
virtue of statute or general law, subject to personal liability, the
liability of each such member is joint and several.
10. All of the terms, covenants and conditions of this Indemnity extend to are
binding upon the lndemnifier, his or its heirs, executors, administrators,
successors and assigns, as the case may be, and any mortgagee, chargee,
trustee under a deed of trust or other encumbrance of all or any part of
the Building.
11. The expressions "Landlord", "Tenant", "Rent", "Term", and "Leased Premises"
and other terms or expressions where used in this Indemnity, respectively,
have the same meaning as in the Lease.
12. This Agreement shall be construed in accordance with the laws of the
Province of Ontario.
13. Wherever in this Indemnity reference is made to either the Landlord or the
Tenant, the reference is deemed to apply also to the respective heirs,
executors, administrators, successors and assigns and permitted assigns,
respectively, of the Landlord and the Tenant, as the case may be, named in
the Lease. Any assignment by the Landlord of any of its interests in the
Lease operates automatically as an assignment to such assignee of the
benefit of this Indemnity.
IN WITNESS WHEREOF the Landlord and the Indemnifier have signed and sealed this
Indemnity as of the day and year first above written.
36
SIGNED SEALED AND DELIVERED ROLEX DEVELOPMENTS LIMITED
in the presence of:
Per:
--------------------------- -----------------------------
(Landlord)
LIUSKI INTERNATIONAL, INC.
Per:
--------------------------- -----------------------------
(Indemnifier)
37
SCHEDULE "C"
(attached hereto and forming part of this Agreement to Lease)
Landlord's Work
---------------
The Landlord, at its expense, covenants and agrees to supply all material,
labour and machinery necessary to complete the Following work, as per attached
Proposed Office Layout, in a good and workmanlike manner prior to the Tenant's
occupancy.
1. Make changes to existing office layout as per attached Proposed Office
Layout.
2. Recarpet entire offace area with 28 oz. commercial carpet chosen from
Landlord's samples.
3. Floors in Lunch Room, Demonstration Room, Drop Off Area and Storage Room
receive vinyl composition tile, chosen from Landlord's samples.
4. Repaint entire office area; colour to be chosen from Landlord's samples.
5. Block off all warehouse windows to Tenant's specifications.
6. Raise existing warehouse light fixtures as close as possible to roof.
7. Supply and install fifteen (15) 15 amp 4-plex electrical outlets in
production area.
8. Create 4'0" x 4'0" opening in rear warehouse wall to accommodate Tenant's
compactor.
9. Create 8'0" x 8'0" receiving room at rear man door complete with:
o one (1) 3'0" x 7'0" hollow core wood door and one (1) 3'0" x 7'0"
hollow core "split" door
o one (1) 15 amp duplex electrical outlet.
38
SCHEDULE "C" continued
(attached hereto and forming part of this Agreement to Lease)
[THIS REPLACES A GRAPHIC DRAWING]
39
SCHEDULE "C" continued
(attached hereto and forming part of this Agreement to Lease)
[THIS REPLACES A GRAPHIC DRAWING]
40
SCHEDULE "D"
------------
(attached hereto and forming part of this Agreement to Lease)
Rules And Regulations
---------------------
1. The Tenant shall not permit any cooking in the Leased Premises without the
written consent of the Landlord.
2. The sidewalks, entrances, driveways and roadways shall not be obstructed or
used by the Tenant, its agents, servants, contractors, invitees or
employees for any purpose other than ingress to and egress from the Leased
Premises. The Landlord reserves the entire control of all parts of the
Building employed for the collective benefit of the tenants thereof.
3. The Tenant, its agents, servants, contractors, invitees or employees, shall
not bring in or take out, position, construct, install, or move any safe,
business machinery or other heavy machinery or equipment or anything liable
to injure or destroy any part of the Building without first obtaining the
consent in writing of the Landlord. In giving such consent, Landlord shall
have the right in its sole discretion, to prescribe the weight permitted
and the position thereof, and the use and design of planks, skids, or
platforms, to distribute the weight thereof. All damage done to the
Building by moving or using any such heavy equipment or machinery shall be
repaired at the expense of the Tenant. The moving of all heavy equipment or
other machinery shall occur by prior arrangement with the Landlord.
4. The Tenant shall not place or cause to be placed any additional locks upon
any doors of the Leased Promises without the approval of Landlord anti
subject to any conditions imposed by the Landlord.
5. The water closets and other water apparatus shall not be used for any
purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, ashes, or other substances shall be thrown therein. Any
damage resulting by misuse shall be borne by the Tenant. The Tenant shall
not deface or xxxx any part of the Building.
6. No one shall use the Leased Premises for sleeping apartments or residential
purposes, or for the storage of personal effects or articles other than
those required for business purposes.
7. The Tenant shall not receive or ship articles of any kind except through
facilities, and designated doors and at hours designated by Landlord.
8. No inflammable oils or other inflammable, dangerous or explosive materials
except those approved in writing by Landlord's insurers shall be kept or
permitted to be kept in the Leased Premises.
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9. If the Tenant desires telegraphic or telephone connections, the Landlord
will direct the electricians as to where and how the wires are to be
introduced, and without such direction no boring or cutting for wires will
be permitted which has not been ordered or authorized by the Landlord. No
outside radio or television aerials shall be allowed on the Leased Premises
without authorization in writing by Landlord.
10. The Tenant shall not permit undue accumulations of garbage, trash, rubbish
or other refuse within or without the Leased Premises or cause or permit
objectionable odors to emanate or be dispelled from the Leased Premises.
11. The Landlord shall have the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be needed
for the safety, care and cleanliness of the Building, and for the
preservation of good order therein.
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SCHEDULE "E"
(attached hereto and forming part of this Agreement to Lease)
Early Occupancy
---------------
The Tenant, at its own risk, shall be permitted to occupy the Leased Premises
net rent free for one (1) month from April 1, 1996 to April 30, 1996 for the
purpose of setting up its business. It is agreed and understood that the Tenant
will be responsible to pay for Additional Rent and all utilities during this
period of early occupancy.
Option to Renew
---------------
Provided that the Tenant has duly and regularly performed all the covenants on
its part to be performed in the Lease, the Tenant has the option to renew this
Lease. For further two (2) three (3) year periods (the "Renewal Periods") on the
same terms and conditions herein contained except Minimum Rent and Additional
Rent and there shall be no further right or option to renew. The options to
renew shall be exercised by a signed notice in writing delivered to the Landlord
at least six (6) months prior to the expiration of the initial lease term. the
new Minimum Rent for the Renewal Periods shall be agreed to by both parties,
within 30 days of receiving the written notice, but shall not be less than the
Minimum Rent payable for the last year of the initial lease term. The new
Minimum Rent for the Renewal Periods shall be based on the then prevailing
rental rates for similar premises in the general vicinity of the Leased
Premises. In the event that both parties cannot agree on the annual Minimum Rent
within the said 30 days of receipt of written notice, then either (i) the
Minimum Rent for the renewal term may be determined by arbitration as provided
for trader the Xxxxxxxxxxx Xxx, 0000, xx (xx) the parties may mutually decide to
allow the Lease to expire by its terms without renewal.
Option to Terminate Lease
-------------------------
Provided that the Tenant has duly and regularly performed all the covenants on
its part to be performed in the Lease, the Tenant has the option to terminate
the lease as of April 30, 1999. To exercise this option to terminate the Tenant
must deliver to the Landlord a signed notice in writing together with payment in
the amount of Fifteen Thousand Dollars ($15,000.00) plus applicable taxes (the
"Payment"), no later than October 31, 1998. If the Landlord has not received the
written notice and Payment by October 31, 1998 then this option shall be null
and void.
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[AFFIDAVIT OF RESIDENCE NOT INCLUDED HEREIN]
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